Watt v. CCNV

SPOTTSWOOD W. ROBINSON, III, Chief Judge, and J. SKELLY WRIGHT, Circuit Judge, concurring:

We join in reversal, and in Judge Mikva's opinion with a caveat to one branch of its First Amendment analysis. As the opinion explains convincingly, sleeping in tents at the demonstration sites is a vivid and forceful component of the public message the demonstrators seek to convey; it summons First Amendment scrutiny because, qua sleeping, it is expressive. We intimate no view as to whether sleeping would implicate the First Amendment were it not to add its own communicative value to the demonstration.

HARRY T. EDWARDS, Circuit Judge, concurring:

For the reasons set forth below, I would reverse the judgment of the District Court. In some significant respects, I concur in Judge Mikva's opinion. I write separately, however, because I view the case from a somewhat narrower perspective than does he.

I.

I find this case to be both difficult and confounding in several respects. First, it is not entirely clear to me why the appellants have pursued this litigation. while I am not prepared to say that this suit was ill-advised, I remain troubled by certain theoretical inconsistencies in the appellants' presentations to this court, the trial court, and in their application to the National Park Service. It would seem to me that when one pursues a claim involving important constitutional rights in areas affected by amorphous legal doctrine, the litigation should be founded on some clear, consistent, and tenable thesis. To insist upon a judicial resolution of this case, given the facts and record at hand, arguably suggests a lack of common sense.

This brings me to my second concern, namely, that this may be one of those "hard cases" that has a high potential to produce "bad law." The diverse range of judicial

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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.

II.

The opinions of Judges Wilkey and Mikva set forth fully the facts and history of this litigation, so I will not dwell on these details. In my view, the appellants' most potent challenge to the National Park Service's prohibition against camping is that the revised regulations, as applied to bar one aspect of their demonstration, infringe upon their First Amendment rights. To address this challenge, it is necessary to determine whether sleeping under the circumstances of this case constitutes "speech" protected by the First Amendment. I believe that it does, and that the Park Service's total ban against sleeping cannot withstand scrutiny under the test set forth by the Supreme Court in United States v. O'Brien, 391 U.S. 367, 376-77, 88 S.Ct 1673, 1678-1679, 20 L.Ed.2d 672 (1968).[1]

The determination whether the challenged regulations infringe upon the appellants' First Amendment rights depends largely on one's characterization of their proposed activity. In some cases, sleeping in the park may be wholly facilitative. Here, it is undeniably true that the appellants' sleeping is in part facilitative; the appellants have stated, numerous times, that sleeping is necessary to attract demonstrators and capture media attention. But there is more to it than that, for "in this case sleeping itself may express the message that these persons are homeless and so have nowhere else to go." Community for Creative Non-Violence v. Watt, 670 F.2d 1213, 1216-17 (D.C.Cir.1982). A nocturnal presence at Lafayette Park or on the Mall, while the rest of us are comfortably couched at home, is part of the message to be conveyed. These destitute men and women can express with their bodies the poignancy of their plight. They can physically demonstrate the neglect from which they suffer with an articulateness even Dickens could not match.

The Supreme Court has not bound the First Amendment to any simplistic speech/conduct distinction. It has extended heightened scrutiny to governmental regulation of a wide variety of expressive activities, including leaf-letting, marching, wearing armbands, burning draftcards, and dancing. The sleeping proposed by the ap pellants is, in the circumstances of this case, every bit as expressive as those activities. In Spence v. Washington, 418 U.S. 405, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974) (per curiam), the Supreme Court afforded First Amendment protection to apeace symbol attached to an American flag in the context of demonstrations against the bombings in Cambodia and the Kent State killings. "An intent to convey a particularized message was present, and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it." Id. at 410-11, 94 S.Ct at 2730-2731. Similarly, in this case there is both a "particularized message" appellants wish to convey by sleeping in the park and a reasonable expectation that the message will be understood by those who view it.

Thus, sleeping in this case is symbolic speech within the pale of the First Amendment. Accordingiy, the regulations at issue here, which have been applied as a total Ban against the appellants' sleeping in the park, must satisfy the O'Brien test in order to pass constitutional muster.

[1 Judge Wilkey correctly acknowledges that the alleged "camping" in this case "is limited to such activities as erecting tents or other structures, laying out blankets, sleeping bags, and other bedding materials, and sleeping." "[C]ooking, building fires, and digging latrines" are not called into question in this case because the appellants do not seek to engage in such activities. Indeed, the only matter in dispute is sleeping; the Park Service has not sought to bar the appellants from erecting tents, laying out blankets or bedding, or even from maintaining a 24-hour presence.]

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III.

In Part III.A. of his opinion, Judge Wilkey assumes (correctly, I believe), that the sleeping proposed by the appellants is properly considered "speech" that is protectec by the First Amendment. To the extent that he equivocates on this point, I disagree with the suggested analysis.

As I have already suggested, Spence v Washington establishes the applicable framework for determining whether activity is "speech" protected by the First Amendment. Spence, which was decided six years after O'Brien, also clearly answers the question intimated in O'Brien regarding the "variety of conduct [that] can be labeled 'speech.'" United States v. O'Brien, 391 U.S. at 376, 88 S.Ct at 1678. The Spence test ensures that the "variety of [such] conduct" is not "limitless."Id. Thus, if Judge Wilkey means to rely on a passing statement by the O'Brien Court to suggest that we should draw artificial lines between "speech" and "conduct" to discern protected activity, I would reject this as a flawed analysis. As has been aptly noted:

A constitutional distinction between speech and nonspeech has no content. A constitutional distinction between speech and conduct is specious.... There is nothing intrinsically sacred about wagging the tongue or wielding a pen; there is nothing intrinsically more sacred about words than other symbols. Other kinds of communication are also effective--... saluting a flag, kneeling in worship, holding a beloved hand. Even singular, idiosyncratic forms of expression can prove no less articulate, as when ... the King of Denmark wore a six-pointed star.

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.

Henkin, The Supreme Court, 1967 Term-Foreword: On Drawing Lines, 82 HARV.L. REV. 63, 79 (1968) (footnote omitted).

I also find specious the argument that in order to judge expressive activity of the sort here in question the government might be forced to draw distinctions among groups depending on the content of their message. Any such "content evaluation" by the government clearly is prohibited under the First Amendment. But, as the Spence Court obviously recognized in adopting a contextual approach, it is one thing for government officials to determine whether a message is intended (and may reasonably be understood as such) and quite another for them to judge the substantiality or value of a given message. The former determination, condoned by Spence, does not involve any prohibited content evaluation.

IV.

Beyond his Part III.A., however, I agree with the analytical framework and mode of analysis adopted by Judge Wilkey to determine whether the activity proposed by the appellants is constitutionally protected. Excluding Part III.A., my principal disagreement with Judge Wilkey concerns the application of the "less restrictive alternative" test, a matter to which I will turn shortly. There are two other points of analysis at which we may part company; both deserve brief mention.

At one point in his opinion, Judge Wilkey suggests that "[t]he convenience of the demonstrators and the media value of their message will rival in importance the First Amendment aspects of the camping and thereby further diminish the claim that their First Amendment interest is substantial relative to the government's interest in preventing camping generally" (emphasis added). I reject this conclusion primarily because I can find no suggestion in the case law that a court must weigh the facilitative versus the expressive aspects of a speaker's conduct to determine the applicability of First Amendment rights. In other words, a message is not less deserving of First Amendment protection merely because the manner used to express it serves other

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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.

Judge Wilkey also observes that "[c]amping in the park ... is not a traditional form of speech." To some this might imply a sort of hierarchy of protection resting on the form of expression. Although I do not read Judge Wilkey's opinion to embrace this suggestion, I would categorically reject any such implication.

Apart from these two notes, one of disagreement and one of clarification, and excluding his Part III.A., I accept Judge Wilkey's analytical framework for an assessment of the constitutional interests in this case. When we consider the question whether there exist any less restrictive alternatives to a total ban on sleeping, however, I part company with the conclusions reached by my colleague.

If I read his opinion correctly, the essence of Judge Wilkey's argument is that the only feasible alternatives available to the government are to permit all camping or to ban all camping.[2] Thus, he concludes:

If it were possible to accommodate [the appellants] most effective mode of expression without exposing the parks to the harms anticipated by the regulation, then the First Amendment might well require that accommodation. The crucial and dispositive aspect of this case is that there is no possibility of a constitutionally acceptable less restrictive alternative. The Park Service must either allow all camping or abide by a flat-out ban.(emphasis in original).
[3]

Initially, I would note--consistent with the observation of Judge Mikva--that the Park Service does not presently impose a "flat-out ban" against all aspects of camping. As Judge Wilkey acknowledges, the erection and use of tents, coupled with a 24-hour presence, are integral aspects of camping. Nevertheless, they are not forbidden by the regulations, at least where a symbolic purpose is asserted.

More importantly, Spence's very sensible contextual standard for the identification of symbolic speech provides a ready basis for differentiating protected from unprotected sleeping. I have no doubt that the government may forbid sleeping in the parks that is in no sense expressive. It is of course possible, as Judge Wilkey points out, that some persons may fabricate an expressive purpose for sleeping in the parks. I, for one, however, doubt that hordes of tourists or others without an expressive purpose will descend on the parks; more comfortable accommodations are available elsewhere, and the permit application process will surely screen out many individuals who are unwilling to represent their true purpose in an official proceeding.

Nevertheless, I am willing to concede, for argument's sake, that a substantial number of persons may wish to sleep in the parks for assertedly expressive purposes. I do not believe, however, that this negates the obligation of the government to consider less restrictive alternatives to a total ban against sleeping. Our Constitution will not tolerate a total prohibition on the exercise of a constitutional right merely because a large number of persons wish to assert that right. Although reasonable time, place, and manner restrictions may be appropriate, an absolute ban on protected activity cannot be justified by the possibilities that the activity will be extremely popular or that some mischievous citizens occasionally will attempt to deceive the Park Service into believing that their conduct is expressive.

[2 In this case because the appellants do not seek to engage in certain "camping" activity and because the Park Service does not seek to Prohibit all forms of "camping" activity (see note 1 supra)-sleeping and not full-scale camping is the only issue in dispute. Thus, the reference to a total ban here pertains solely to sleeping.]

[3 I find no reason to decide whether "sleeping" is as Judge Wilkey says, the appellants' "most effective mode of expression." This is at best an arguable assertion and surely wholly irrelevant to our inquiry in this case.]

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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.

I believe that there are several reasonable time, place, and manner restrictions that, if employed, would result in regulatory alternatives less restrictive of demonstrators' rights than a total ban against sleeping and, yet, still would accommodate the significant governmental interests at stake. For instance, in order to enforce legitimate rules against fire building, cooking or storage of personal belongings at a demonstration site, the Park Service may easily use its permit revocation procedure, See 36 C.F.R. § 50.19(f) (1982), to revoke the permits of demonstrators whose sleeping expands to these other impermissible areas of nonexpressive activities. I believe, moreover, that the Park Service may legitimately limit the number of persons allowed to sleep in the parks at one time (to avoid problems of health and congestion), and allocate the available space among competing groups on a first-come, first served basis. Government officials also may limit or prevent the storage of personal belongings, and perhaps prevent any individual from Sleeping in the parks beyond a specified, successive number of hours or days. This list, of course, is not intended to exhaust the possibilities, but I emphasize that any restrictions imposed by the Park Service should be the least restrictive means by which the government's legitimate purpose can be attained.

In short, I believe that the appellant' proposed sleeping is expressive in nature and that the Park Service has not justified a total ban on that activity. Although a ban on camping does serve legitimate governmental interests, those interests can be protected by means less restrictive of the First Amendment rights of the appellant and other demonstrators. I would, therefore, reverse the decision of the District Court.

GINSBURG, Circuit Judge, concurring in the judgment:

Judge Mikva's opinion holds that the Park Service has not adequately justified the prohibition of sleeping by demonstrators granted permits to pitch sixty tents at symbolic campsites and to maintain a round-the-clock presence at those sites.[1] While I concur in the court's judgment, I find the case close and difficult.[2] For the

[1 Mikva Opinion at 587, 596.]

[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. ]

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reasons indicated below, I share Judge Edwards' concern that this case "has a high potential to produce 'bad law.'"[3]

That potential is revealed most conspicuously, I believe, in the separate dissenting opinion of Judge Scalia. His opinion would deny full free speech protection to any expression of ideas or feelings through symbols other than words. According to Judge Scalia, only "spoken and written thought" fall within the Constitution's core guarantee against government regulation "abridging the freedom of speech, or of the press."[4] Others have elegantly stated why Judge Scalia's narrow reading of the safeguard placed first in the Bill of Rights, his separation of language from other expressive symbols, will not do. I note such commentary[5] in this statement and, to avoid lengthening the packet of opinions, quote here only these relevant lines: "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 words of mouth or pen." Henkin, supra note 5, at 79. Under the First Amendment the relevant inquiry should be "whether meaningful symbols ... are being employed by one who wishes to communicate to others"; the extent of protection should not depend upon whether words, pictures, emblems, or other comprehensible means of conveying a message are employed. Nimmer, supra note 4, at 61.

Numerous cases can be conceived to illustrate the arbitrary, less-than-fully baked flavor of Judge Scalia's theory. For economy, I indicate one category of examples in which his attempt at tight, tidy analysis does not yield sensible results. Assume a municipality enacts an antilittering ordinance that prohibits distribution of unsolicited materials to passersby in streets or other public places. This ordinance is passed for health, safety, and aesthetic reasons. A person hands out leaflets on a street corner; the leaflets contain words conveying a political message. Under Judge Scalia's approach, one must balance the government's interests in clean streets against the leafleter's First Amendment interest because the antilittering law, though aimed at the noncommunicative aspect of the activity, impinges on the distribution of printed words, core "speech" for Judge Scalia.

A second person, on the same street corner, distributes small paper American flags (on Memorial Day), red poppies (on Veterans' Day), yellow ribbons (while American hostages are being held in Iran), green ribbons (while young blacks are being murdered in Atlanta), or peanuts or jelly beans (during a heated presidential campaign). The law as applied to this distributor, according to Judge Scalia, would attract only minimal scrutiny because it is aimed at the noncommunicative collateral consequences of nonverbal, albeit expressive, symbols, which are not "speech" under Judge Scalia's theory. Judge Scalia would, therefore, sumably uphold application of the ordinance against this distributor because it would meet the minimal rationality equal protection standard.

[3 Edwards Opinion at 600.]

[4. But see Nimmer, Symbolic Speech, 21 UCL A.L.Rev.29, 33-34 (1973):

It might be argued that "speech" within the meaning of the first amendment should encompass only those particular expressions in which the symbols employed consist of conventional words...Most would agree that it is the freedom to express ideas and feelings, not merely the freedom to engage in verbal locutions, which constitutes the cbre meaning of the first amendment. Holmes' "free trade in ideas" may not be reduced to mere trade in words. It is the ideas expressed, and not just a particular form of expression, that must be protected if the underlying first amendment values are to be realized.
(Emphasis in original; footnotes omitted.).]

[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).]

Continued

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