opinions alone certainly suggests that, at a minimum, this is a case that finds no easy or consensus solution in the courts. And it is not entirely clear to me what has been achieved by this rather exhausting expenditure of judicial resources. Nevertheless, as a judge, my responsibility is to decide cases that are properly before the court, however questionable I may view the pursuit of litigation. I therefore turn to that task.
The Constitution protects freedom of "speech," which commonly connotes words orally communicated. But it would be surprising if those who poured tea into the sea and who refused to buy stamps did not recognize that ideas are communicated, disagreements expressed, protests made other than by word of mouth or pen.
needs of the demonstrators. The important questions are, simply, whether the demonstrators intend to communicate a message and, viewed in context, whether it is reasonably likely that passersby will understand the message.
Concededly, the Park Service has legitimate interests in preventing some of the effects associated with widespread, full scale camping in certain parks. In recognizing this, however, I stress that the government's interest is not in preventing Sleeping per se, but in preventing the adverse effects associated with camping. For example, the government may legitimately seek to ensure that noncampers are not deprived of use of the parks, to prevent damage to park resources, and to minimize sanitation and law enforcement problems. But neither the District Court nor the Park Service explored ways in which these interests could be served through regulatory measures short of a total ban on sleeping in the parks.
[2 Judge Mikva effectively describes CCNV's position: homeless people who sleep as part of their round-the-clock protest against official neglect convey a message at least as intelligibly as many marchers under banners or speakers from soap boxes convey points of view; the CCNV demonstrators show by their presence, awake and sleeping, that they have nowhere to live. However, Judge Mikva rejects the terminal point of CCNV's argument: the homeless speak when they sleep, CCNV maintains, the nonhomeless generally do not; because the homeless are different from demonstrators for whom sleep facilitates, but does not also or as clearly embody expression, decision of CCNV's appeal is appropriately tied to their special case. Judge Mikva declines to rest his decision on this ground "because it would require the government to draw distinctions ... depending on the subject matter or content of [a group's] message, and its alleged relationship to Sleep, something the drst amendment is designed to prevent." Id. at 594. Most members of the court concur in that view. See Dissenting Opinion of Judge Wilkey at 612 [hereinafter referred to as Wilkey Opinion]. Judge Mikva therefore proceeds, as Judge Wilkey observes, id., from a determination that sleeping is indeed expressive in CCNVs case to the conclusion that sleeping must be allowed to "all those who wish to engage in [it] as part of their demonstration and have been granted renewable permits to demonstrate on a twenty four hour basis on sites at which they have also been allowed to erect temporary symbolic structures." Mikva Opinion at 596. Thepassage from the initial determination that CCNV's sleep is expression to the conclusion that all round-the-clock demonstrators with tents may sleep in them is not a smooth one. ]
reasons indicated below, I share Judge Edwards' concern that this case "has a high potential to produce 'bad law.'"
[4. But see Nimmer, Symbolic Speech, 21 UCL A.L.Rev.29, 33-34 (1973):
[5 See particularly Kalven, The Concept ofthe Public Forum: Cox v. Louisiana. 1965 SUP.CT REV. 1; Henkin, The Supteme Court. 1967 Term --Foreword: On Drawing Lines, 82 Harv.L.Rev. 63, 76-82 (1968).]