Watt v. CCNV

Having properly focused the inquiry, it is difficult to imagine how the application of the Park Service's regulations to groups similarly situated to CCNV will further any important interest.

Because such groups are already allowed to erect tents and maintain an all-night presence during which time they may sit, stand, or even lie down in the tents, there are no incremental savings of park resources, sanitation facilities, or law enforcement personnel to be gained by proscribing only sleep. Indeed, allowing an all-night presence by wakeful protestors would seem to tax sanitation facilities, law enforcement personnel, and the park resource itself to a greater extent than would allowing those same protestors simply to sleep.

Our review of the prefatory rationale to the revised regulations reveals at most only one attenuated governmental interest in precluding CCNV's demonstrators from sleeping: Experience with administering the court's decision allowing sleeping has revealed that sleeping activity by demonstrators expands to include other aspects of living accommodations such as the storage of personal belongings and the performance of necessary functions which have converted the sleeping area into actual campsites. 47 Fed.Reg. at 21,301. But this justification must be found wanting under O'Brien's "no greater [restriction] than is essential" test; any interest in preventing

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other "camping" activity can be furthered by less restrictive means.[28] Here, the Park Service's renewable permit procedure provides a mechanism whereby permits can be revoked if illegal activities occur. See 36 C.F.R. §50.19(f) (1982).[29]

The government's interest in preserving parkland for the use of others is also not furthered by its ban on sleep. If anything, the nighttime enjoyment of Lafayette Park and the Mall by nondemonstrators would probably be enhanced if the 150 CCNV demonstrators were asleep. Because CCNV has already been granted a renewable seven-day, twenty-four hour permit to demonstrate at its two discrete sites, a ban on sleeping simply does not preserve those parts of the parks for the use of others. To the extent that other demonstrators wish to use the space temporarily allocated to CCNV, the Park Service's permit procedures already provide for nonrenewal of CCNV's weekly permit. See id. §50.19(e)(8).

We are next urged to consider the government's interest in preventing "pressure" for similar living accommodations from nondemonstrating visitors to Washington, D.C. 47 Fed.Reg. at 24,302. As a practical matter, we seriously question whether there is a large market for living accommodations in sparse tents on the Mall, in the winter, without heating, cooking, medical, or sanitation facilities. Even assuming that such a market is theoretically possible, we note that such an "undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression." Tinker v. Des Moines School District, 393 U.S. 503, 508, 89 S.Ct 733, 737, 21 LEd.2d 731(1969).[30] As a constitutional matter, moreover, the Park Service is free to apply its anti-camping regulations to such nondemonstrators who, by definition, have no first amendment interests to "balance" against the regulation. We add that any governmental interest in not treating certain groups--even those exercising first amendment rights differently from others would appear to be marginally insignificant. Demonstrators are already accorded privileges not permitted nondemonstrators, such as the right to stay in the park all night despite the anti-loitering regulation, 36 C.F.R. § 50.25(k) (1982), and the right to erect temporary structures, id.§ 50.19(e)(8). The additional privilege of sleeping at the demonstration site as part

[28 It has been suggested by some that the Supreme Court in Heffron v. International Soc. for Krishna Consciousness, 452 U.S. 640, 101 S.Ct. 2559, 69 L.Ed.ad 298 (1981), signaled a departure from the less restrictive means test of O'Brien. See Note, 61 Neb.L.RN, 167, 182-86 (1982). Compare Tacynec v. City of Philadelphia, 687 F.2d 793. 797-98 (3d Cir.1982) with New York City Unemployed and Welfare Council v. Brezenof, 677 F.2d 232, 237 (2d Cir.1982). We find,however, that the majority in Heffron did apply the test to the regulation of ISKCON's activities. See 452 U.S. at 654, 101 S.Ct. at 2567. The Court examined the alternatives put forward by ISKCON--penalizing disorder, limiting the number of people authorized to conduct the activity, restricting the activity to certain locations within the forum- and concluded that "it is quite improbable that the alternative means ... would deal adequately with the problems posed ...." Id· Such is not the case here; the alternative put forward in Hefron itself, for instance, would better serve the Park Service's interests than a total ban on sleep and would be less restrictive of the first amendment activity proposed. See infra notes 29 & 32.]

[29 In addition, we note that the Park Service surely has the ability to police demonstrations against the expansion of activities such as cooking, making fires, etc. Indeed, many pages of the government's brief are taken up with illustrations of how it has enforced the sleeping ban against other groups since the new regulations came into effect. Appellees' Response, supra note 23, at 10-13. It would appear that the Park Service could simply shift its personnel from nighttime sleep patrols to policing against these other activities, thereby assuring the protection of parkland at little, if any, additional expense.]

[30 Such a fear would be truly undifferentiated because any increase in requests for living accommodations by nondemonstrators simply could be refused by the Park Service. Accordingly,this wholly insubstantial fear of "requests" is of far less significance than the real possibility in Heffron that a significant influx of people with a valid right of access to a state fair would flood the walkways of an already crowded fairgrounds with leafletters and solicitors. 452 U.S. at 652-53, 101 S.Ct. at 2566-2567.]

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of the demonstration would seem of minimal consequence to the distinctions on treatment already drawn.

Finally, the government suggests that requests for convenient camping by persons pursuing speech activities would increase. If by this the government means that additional camping requests will be made by those who merely wish to sleep in parks near the sites of daytime demonstrations, such requests may be denied. It would seem an entirely permissible distinction to permit sleeping that is expressive as part of a twenty-four hour vigil, but not to permit sleeping that is a mere convenience to daytime demonstrators. See Quaker Action Group v. Morton, 402 U.S. 926, 91 S.Ct 1398, 28 L.Ed.2d 665 (1971); VVAW, 506 F.2d 53 (D.C.Cir.1974).[31] If, on the other hand, the government anticipates an increase in applications for symbolic campsites, with requests for permission to sleep during all night demonstrations, it may not deny all such requests merely because it expects a large number of people to apply.

Our holding does not mean, however, that the Park Service must grant every request, at any time, for any number of temporary structures or sleepers. Merely because we have held that expressive sleep may not be prohibited on the basis of the message conveyed does not mean that all forms of regulation are foreclosed to the government.[32] Thus, the government may use valid, content-neutral, time, place, or manner regulations provided that such regulations are both reasonable and narrowly tailored to further the government's substantial interests. See Police Department of Chicago v. Mosley, 408 U.S. 92, 101 n. 8, 92 S.Ct 2286, 2293 n. 8, 33 L.Ed.2d 212 (1972); Grayned, 408 U.S. at 115, 92 S.Ct at 2302. The government may, for example, limit the number of tents, the size of tents or camp sites,[33] and the number of persons allowed to sleep.[34] It may continue its current practice

[31 We reiterate that the Park Service is not allowed to decide whether it sees a sufficient relationship between the message of the would be demonstrators and their asserted expressive interest in sleeping. See supra text at 593. Instead, it need only determine whether the demonstrators seek to sleep for expressive purposes, as opposed to sleep for mere convenience or recreation. We note that the Park Service already makes this same determination in evaluating requests for temporary structures "for the purpose of symbolizing a message." 36 C.F.R. § 50.19(e)(8) (1982). Accordingly. we do not expect the Park Service to become enmeshed in any in-depth probe of the requesters' ulterior motives. Rather, we expect that all plausible requests will be accepted at face value and processed by the Park Service with the same degree of respect and efficiency that the Park Service has processed demonstrators' requests for temporary symbolic structures. And, we add, that any permits for symbolic sleeping which are abused by demonstrators may, as always, be rescinded.]

[32 The dissent inexplicably assumes that the only less restrictive means for furthering the government's interests in park management is to discriminate among applicants for "camping" permits on the basis of subject matter or content--something that neither we, nor the dissent, countenance as a legitimate govern mental option. Whatever the dissent's purpose in knocking down this straw man, it nowhere else discusses the obvious alternative of revoking a demonstration's permit should its participants engage in non-sleep "camping" activities. See supra note 29. Indeed, unlike the situation in Heffron where the Court found that alternative means for crowd control could not deal adequately with the potentially large numbers of state fair solicitors, 452 U.S. at 654, 101 S.Ct at 2567, both the government and the dissent have underscored the potential effectiveness of permit revocation as a means of enforcing the Park Service's anti-camping regulations in Lafayette Park and on the Mall:

Furthermore, in the one case where the Park Service detected a violation of the regulations, it demanded compliance and the next day, after similar violations occurred, revoked the demonstration permit for non-compliance with the regulations and conditions of the permit. A standard of reasonable, evenhanded enforcement calls for no more. Dissenting Opinion at 611; see also Appellees' Response, supra note 23, at 10-13.]

[33 See Women Strike for Peace, 472 F.2d at 1290 ("It would be permissible. for example, ... to regulate the size or aesthetic character of displays built on park land.") (Wright. J., concurring).]

[34 We note that both CCNV and the government indicated some flexibility at oral argument as to the overall number of demonstrators. While we do not hold that CCNV, or any group, has a right to as many round-the-clock protestors as it likes, we also require that the Park Service, in setting any limitations, do so with an eye to the first amendment values which we have identified in this opinion.]

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of issuing permits on a renewable weekly basis, under which one group's permit will not be renewed if another group requests the space, and under which the permit may be revoked if the demonstrators engage in such prohibited activities as cooking or making fires. It may set aside certain times when no demonstrations are allowed in order to accommodate other particularly heavy uses of the parks. See 36 C.F.R. 50.19(d)(1), (e)(8)(1982). And possibly, it may be able to set aside some of the more serene areas of the Memorial Core area as "sanctuaries" at which round-the clock demonstrations are never compatible.[35]

In sum, the Park Service has failed to demonstrate that the government's interests will be furthered by keeping these putative protestors from the sleeping activity which is the sole point in dispute. We reverse, therefore, because the indiscriminate line the government seeks to draw against sleeping cannot pass first amendment muster. Accordingly, we grant CCNV the injunctive relief it seeks, enjoining the Park Service from prohibiting sleep at CCNV's demonstration.

CONCLUSION

The Mall and Lafayette Park are special places in the stockpile of American fora. They are at the very heart of the nation's capital where ideas are to be expressed and grievances are to be redressed. Thus, the focus of this case is the symbolic locus of the first amendment. This explains the series of understandable difficulties that the Park Service has had in trying to fashion rules that meet the multifarious demands put upon these unique public lands. It also rationalizes the number of times that this court has visited the problems of the Mall, Lafayette Park, and the first amendment.

But the uniqueness does not justify an abandonment of either first amendment principles or legitimate government interests in managing these public places. Considering these two imperatives, we reach several conclusions.

First, the Park Service regulations are facially valid and can be employed in the management of the Mall and Lafayette Park.

Second, the application of these regulations to specific fact situations implicating the first amendment must be measured against the government's interest in limiting certain activities and the means it employs to further those interests. It is in this respect that the Park Service cannot be upheld in its decision that tenting is all right, lying down is all right, maintaining a twenty-four hour presence is all right, but sleeping is impermissible.

Finally, the Park Service cannot mechanically apply its regulations to requests from groups seeking to exercise first amendment rights through sleeping. Although the government can and must retain a "content-neutral" obliviousness to the kind of message which a particular group seeks to express through sleeping, the Park Service cannot be oblivious to the implications of the first amendment--or the attendant complications. Each distinction and each line the Park Service draws in such applications must bear close scrutiny to ensure that symmetry of management does not crowd out first amendment claims. We doubt that this will be the last occasion that this court will have to undertake

[35 In Washington Free Community, Inc. v. Wilson, 334 F.Supp. 77 (D.D.C.1971), the court held that the governmental interest in protecting the serenity of such places as the Lincoln and Jefferson Memorials may be greater than its interest in promoting the serenity of such busy places as Dupont Circle, Farragut Square, or Lafayette Park. Id. at 82. Without expressing any views on the precise calculus of interests as to any one area, we note that the Memorial Core area in Washington, D.C. is comprised of discrete, and often quite different parts. Although we think that the public's interest in expressing its views are particularly strong on the Mall and in Lafayette Park, see supra text at 593, the Park Service need not treat the Memorial Core area as a monolithic whole.]

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the difficult reconciliation of first amendment activities with the necessity for order and management in the Mall and Lafayette Park. In a pluralistic society boasting of its free expression, we can expect no less.[36]

It is so ordered.

[36 In his separate dissenting statement, Judge Scalia attempts to extract a simple rule from a complex web of cases. His efforts are confounded for at least two reasons. First, to determine if conduct is sufficiently expressive to implicate first amendment scrutiny, the Supreme Court has instructed us to look to the context in which the conduct takes place and the intent with which it is carried out. Spence v. Washington, 418 U.S. at 410-11, 94 S.Ct at 2730-31. It is not possible to resolve the question merely by stating, as does Judge Scalia, that "[i]t is difficult to conceive of any activity inherently less expressive than the act (if it may be called that) of sleep." The same judgement could also be made about the act of sitting down in Brown v. Louisiana, 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966) (the library sit-in case), and only proves Professor Ely's warning that such intuitive conclusions "inevitably degenerate into question-begging judgments about whether the activity should be protected," see Ely, supra note 13, at 1495. Second, Judge Scalia collapses the four pronged O'Brien test into a one-pronged standard. But in O'Brien the Supreme Court was analyzing a law that it found not to have been directed against the communicative nature of draft card burning and still felt it necessary tc consider the extent to which substantial governmental interests were furthered and the possibility of using less restrictive means. The fact that the Spence Court invalidated the application of a statute which was directed against the communicative nature of flag displays, without reaching the O'Brien test, hardly suggests that O'Brien was, sub silentio, overturned. Judge Scalia's attempt to restrict O'Brien to "speech-plus" cases not only overlooks the wholly nonverbal conduct for which O'Brien was convicted but also the values underlying the first amendment. To suggest that individuals can be punished for expressive nonverbal conduct because they violate a "neutral" law--regardless of whether the application of that law to them is necessary to further an important governmental interest--puts a premium on spoken or written "speech" that has no bearing on the values of self-expression and contribution to the marketplace of ideas that give the first amendment meaning. Judge Scalia's preoccupation with these types of "speech" ignores the fact that the first amendment's values may be furthered by nonverbal, as well as verbal, expression. ]

Concurring Opinions

Case Listing --- Proposition One ---- Peace Park