US v. Rainbow Family

695 F.Supp. 294
[5] First, several individual defendants have claimed that, since the National Forest lands are public lands, the government cannot, under the Constitution, impose any restriction or permit requirement upon their freedom to gather, speak, or camp in the National Forests. This position must be rejected out of hand. The National Forest System was established by congressional action, and the Secretary of Agriculture has been delegated powers to prescribe rules and regulations governing the uses of

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Forest Service lands. E.g., 16 U.S.C. 472, 551; 43 U.S.C. 1740. The power of the Secretary to promulgate and enforce regulations preserving the National Forest environment, including by special use permits, has been repeatedly upheld. U.S. v. Grimaud, 220 U.S. 506, 31 S.Ct. 480, 55 L.Ed.2d 563 (1911); Light v. U.S., 220 U.S. 523, 31 S.Ct. 485, 55 L.Ed. 570 (1911); Sabin v. Butz, 515 F.2d 1061 (10th Cir.1975); Osborne v. U.S., 145 F.2d 892 (9th Cir.1944); Bilderback v. U.S., 558 F.Supp. 903 (D.Or.1982).

Hence, the defendants must show some specific manner in which the government's regulation of the National Forests infringes upon their constitutional rights, other than the mere act of regulation. The defendants' further arguments as to the unconstitutionality of the special use permit regulations are two-fold. First, they argue that the regulations (both the existing version and the interim rule) are facially invalid, because they explicitly distinguish between expressive and other types of activity, and, moreover, impose different requirements for obtaining permits based on whether the activity is expressive or not. Second, defendants contend that both versions of the regulations are unconstitutionally vague and standardless, vesting too much discretion in Forest Service officials to deny or approve a permit where expressive activity is concerned, thereby allowing content or viewpoint-based denials of permits to occur. The court is in agreement with defendants in both respects. [4]

There can be no question that the regulations at 36 C.F.R. Part 251 explicitly distinguish between expressive conduct, which is protected by the First Amendment, and other types of group activity. The definition of a "special event," vis-a-vis a "recreation event," and the different statutory procedures for approving or denying a special use permit based upon this dichotomy, demonstrate that the Forest Service has intended to treat expressive activity differently than other types of group activity in the National Forests. Such an explicit regulatory distinction between speech, worship, or associational activity, on the one side, and between other forms of action, on the other side, in and of itself casts the regulatory framework in a highly suspect light. Indeed, as noted by the magistrate's report, this distinction alone appears to underlie the holding of the district court in United States v. Israel. [5]

In the view of the magistrate, however, the fact that the regulations distinguish between expressive and other forms of activity is not, alone, sufficient to invalidate them. He concludes that the regulations are "content- neutral," and narrowly drawn to promote significant governmental interests in protecting and regulating use of public lands. The magistrate additionally found that the regulations contain sufficiently precise standards for denial or approval of permits to pass constitutional


[4 It should be noted that the defendants may challenge the constitutionality of the special use permit regulations here, even though they have not, to the court's knowledge, formally applied for or been denied a permit. "Applying for and being denied a license or an exemption is not a condition precedent to bringing a facial challenge to an unconstitutional law." A.C.O.R.N. v. Munic. of Golden, Colo., 744 F.2d 739, 744 (10th Cir.1984). One faced with an unconstitutional law requiring that a permit or license be obtained before engaging in expressive activity "may ignore it and engage with impunity in the exercise of the right of free expression for which the law purports to require a license." Shuttlesworth v. City of Birmingham, 394 U.S. 147, 151, 89 S.Ct. 935, 939, 22 L.Ed.2d 162 (1969). Of course, that the government here seeks an injunction requiring the defendants to apply for and obtain a permit before gathering or meeting on Forest Service lands further heightens the imminent threat to their First Amendment interests. Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975).]

[5 The Israel order, which is unpublished, is not binding upon courts within this jurisdiction. Furthermore, since the order is unaccompanied by an opinion or any other discussion, its precedential value is limited. As the following discussion makes clear, however, this court is fully in agreement with the conclusions reached in Israel, that the special use permit regulations are facially invalid, as they apply to expressive activity protected under the First Amendment, but that the Forest Service may otherwise regulate the use of National Forest lands, as regards mass gatherings.]

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muster, with the exception of 251.54(h)(2) (which allows denial of permits for events involving expressive activity where the event "would present a clear and present danger to public health or safety"). See Report, at 13-19.

Except for his conclusion that the "clear and present danger" criterion for denial of a special use permit for expressive activity is standardless, and thus unconstitutional, the magistrate's further finding, that the regulations are otherwise constitutionally sound, does not appear to be correct, under established First Amendment principles. Hence, for the reasons set forth below, the magistrate's recommendations as to the constitutionality of the special use permit regulations shall be, and they are hereby, adopted in part, with respect to the "clear and present danger" criterion, and rejected in part in all other respects.

[6] Although the government apparently disagrees that First Amendment concerns are raised by the special use permit regulations, it cannot reasonably be disputed that the activities in which the defendants seek to engage are "expressive" in nature and accordingly within the ambit of the First Amendment. The record fully reflects that the defendants' anticipated councils, gatherings or meetings in the National Forests will involve significant expressive activity. For example, individual defendants have testified that Rainbow Family gatherings and councils involve exchange of views on many subjects, including political topics, as well as educational seminars and various forms of worship. Moreover, many of those associated with the Rainbow Family view their very participation or association in such events as political statements (for example, some argue for peace and the ecology, while others are in opposition to hierarchical, coercive systems of government).

Even the act of camping in the National Forests may have political connotations and qualify as protected symbolic activity. See, e.g., U.S. v. Abney, 534 F.2d 984, 985 (D.C.Cir.1976) (per curiam) (sleeping in Lafayette Park in protest vigil is expressive activity); Clark v. Community for Creative Non- Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 3069, 82 L.Ed.2d 221 (1984) (assuming, but not deciding, that overnight sleeping in connection with demonstration is expressive conduct "protected to some extent by the First Amendment"). Thus, it is unquestionable that rights of speech, worship, and association, closely guarded under the First Amendment, are operative here. Buckley v. Valeo, 424 U.S. 1, 25, 96 S.Ct. 612, 637-38, 46 L.Ed.2d 659 (1976) (per curiam) (right of association); Spence v. Washington, 418 U.S. 405, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974) and Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) (symbolic conduct); New York Times Co. v. Sullivan, 376 U.S. 254, 266, 269-72, 84 S.Ct. 710, 718, 720-21, 11 L.Ed.2d 686 (1964) (expression of views upon public questions and "unfettered exchange of ideas" are highly protected under the First Amendment).

[7] It also cannot reasonably be disputed that the public Forest Service lands are the type of forum in which expressive activity has historically occurred, and in which public expression of views must be tolerated to a maximal extent. E.g., Hague v. C.I.O., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939) (use of public streets and parks for exchange of ideas has "from ancient times been a part of the privileges" of citizenship). In contrast to military bases or other government facilities that have been designated for a particular use or function and may be closed to expressive activity, see United States v. Albertini, 472 U.S. 675, 105 S.Ct. 2897, 86 L.Ed.2d 536 (1985), and Greer v. Spock, 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976) (military base is nonpublic forum); Monterey County Democratic Central Committee v. U.S. Postal Service, 812 F.2d 1194 (9th Cir.1987) (post office is nonpublic forum); Hale v. Dept. of Energy, 806 F.2d 910 (9th Cir.1986) (road leading to atomic energy testing area is nonpublic forum, even though civilians are occasionally allowed to use it), the National Forests are traditionally open to any user seeking to engage in appropriate recreational or other activities, including those involving speech, worship or association.

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See, e.g., Lyng v. Northwest Indian Cemetery Protective Ass'n, --- U.S. ----, ----, 108 S.Ct. 1319, 1321-23, 99 L.Ed.2d 534 (1988) (historic use of National Forest sites for Indian religious purposes); United States v. Beam, 686 F.2d 252, 256-57 (5th Cir.1982) (describing various groups' use of National Forest System lands in Texas). Regulation of expressive activity in such a forum must therefore be narrowly tailored as to time, place and manner, and serve substantial governmental interests, as well as leave open ample alternative channels of communication. Clark, supra, 468 U.S. at 293, 104 S.Ct. at 3069; Perry Education Association v. Perry Local Educators' Ass'n, 460 U.S. 37, 45-46, 103 S.Ct. 948, 955, 74 L.Ed.2d 794 (1983). Any prior restraint on expressive activity in such a context is particularly suspect. Perry, 460 U.S. at 45- 46, 103 S.Ct. at 955; Lovell v. Griffin, 303 U.S. 444, 451, 58 S.Ct. 666, 668-69, 82 L.Ed. 949 (1938).

[8] Although duly enacted laws are ordinarily presumed to be constitutional, when a law infringes on the exercise of First Amendment rights, its proponent bears the burden of establishing its constitutionality. E.g., A.C.O.R.N. v. Municipality of Golden Colo., 744 F.2d 739, 746 (10th Cir.1984); Rosen v. Port of Portland, 641 F.2d 1243, 1246 (9th Cir.1981); Espinosa v. Rusk, 634 F.2d 477, 482 (10th Cir.1980), summarily aff'd, 456 U.S. 951, 102 S.Ct. 2025, 72 L.Ed.2d 477 (1982). "Broad prophylactic rules in the area of free expression are suspect. Precision of regulation is the touchstone...." Schaumberg v. Citizens for Better Environment, 444 U.S. 620, 637, 100 S.Ct. 826, 836, 63 L.Ed.2d 73 (1980) (quoting NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 340-41, 9 L.Ed.2d 405 (1963)).

[9] In this light, the explicit regulatory distinction, between expressive activity and all other forms of activity, appears to be in and of itself, an invidious classification by the government, singling out for special treatment the contemplated exercise of free speech, worship, or association. Perhaps most importantly, the facial distinction between expression and other activity "may have the effect of curtailing the freedom to associate [which] is subject to the closest scrutiny," NAACP v. Alabama, 357 U.S. 449, 460-61, 78 S.Ct. 1163, 1171, 2 L.Ed.2d 1488 (1958), by burdening associations planned for expression of views with special requirements not imposed elsewhere. Further, the government is free, under the regulations, to find that a proposed event will be "for the purposes of expression or exchange of views or judgments," 36 C.F.R. 251.50(1), without any apparent limitation on its discretion. As noted by defendants in their objections, it is the very existence of such power to discriminate, on the basis of a person's expression of views or association with others, which may render a regulation unconstitutional. Kramer v. Price, 712 F.2d 174, 177 (1983), vacated as moot, 723 F.2d 1164 (5th Cir.1984).

Although it carries a heavy burden to do so, the government has made no effort to explain or to justify why First Amendment activities are viewed differently under the regulations from other forms of activity, or to prove that the exercise of such rights will not be treated differently from other forms of activity. It follows that the classification system established by the regulations, which on its face singles out expressive conduct and requires that such conduct be treated differently from other activity, is, in itself, invalid under the First Amendment.

Beyond the fact that the structure of the regulatory scheme targets expressive activity, the regulations do not establish sufficiently precise standards concerning the denial or approval of permit applications where expression is concerned. In circumstances, such as these, where the government requires that a permit or license be obtained before a group of persons may gather to engage in expressive activity, the United States Supreme Court has stated that "a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objective, and definite standards to guide the licensing authority, is unconstitutional." Shuttlesworth

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v. City of Birmingham, 394 U.S. 147, 150-51, 89 S.Ct. 935, 938, 22 L.Ed.2d 162 (1969). The constitutional problem with standardless discretion, to approve or deny a permit affecting expressive activity, lies in the fact that such a law "creates a threat of censorship that by its very existence chills free speech."

A.C.O.R.N., supra, 744 F.2d at 746. Indeed, although not a ground for the court's holding, see, supra, n. 2, the record herein and other cases reveal cause for concern about the Forest Service's motive in seeking to enforce the permit regulation against this particular group of defendants. See United States v. Beam, 686 F.2d 252, 256-57 & n. 6, n. 7 (5th Cir.1982) (relating officials' testimony that special use permits frequently have not been required of other kinds of group events in Texas in recent years, and that few prosecutions have been undertaken against groups for failing to obtain a permit).

As is well known, the amount of discretion vested in authorities to grant or deny permits for expressive activity, on the basis of vague or even non- existent criteria, has frequently resulted in invalidation of a statute or regulation under the prior restraint doctrine. See, e.g., Schaumberg, 444 U.S. at 640, 100 S.Ct. at 838 (Rehnquist, J., dissenting) (reviewing cases); Hynes v. Mayor of Oradell, 425 U.S. 610, 96 S.Ct. 1755, 48 L.Ed.2d 243 (1976); Shuttlesworth, 394 U.S. at 151 & n. 2, 89 S.Ct. at 938 & n. 2 (citing cases); Fernandes v. Limmer, 663 F.2d 619, 628 (5th Cir.1981), cert. dismissed, 458 U.S. 1124, 103 S.Ct. 5, 73 L.Ed.2d 1395 (1982). In Shuttlesworth, for example, a city ordinance required officials to grant a permit for a parade, procession, or demonstration in city streets, unless in their "judgment the public welfare, peace, safety, health, decency, good order, morals or convenience require that it be denied." 394 U.S. at 149-50. The Supreme Court held that the ordinance, "as it was written, conferred upon the City Commission virtually unbridled and absolute power to prohibit any 'parade,' 'procession,' or 'demonstration' on the city's streets or public ways. For in deciding whether or not to withhold a permit, the members of the Commission were to be guided only by their own ideas of 'public welfare, peace, safety, health, decency, good order, morals or convenience.' " Id., 394 U.S. at 150, 89 S.Ct. at 938.

In a similar vein, the United States Court of Appeals for the Fifth Circuit has found that a regulatory scheme concerning canvassing and solicitation at the Dallas-Fort Worth Airport was unconstitutional where it vested the airport director with discretion to deny a permit "when there is good reason to believe that the granting of the permit will result in a direct and immediate danger or hazard to the public security, health, safety or welfare." Fernandes, supra, 663 F.2d at 631. In the Fifth Circuit's view, this standard of "good reason" for denial of a permit "is indefinite and does not comport with the constitutional requirement that discretion in public officials be specifically and narrowly circumscribed. A before-the-fact determination as to the harmful consequences of an applicant's speech is by this ordinance made a subjective judgment call in the total discretion of the Director. This type of unbridled discretion has been condemned time and time again by the Supreme Court." Id.

Fed. Supp. Continued


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