Watt v. CCNV
615
improperly expanding or contracting the scope of that interest.
Two cautions are necessary. We should look to the regulations as
applied to this case to determine the relevant class of
activities that the government is interested in banning. [43]
But we should not, in judging the substantiality of the interest
underlying that ban, limit our consideration to the harms that
might be caused by a particular sub-class of persons, such as
appellants, desiring to perform those activities. In other words,
we look to the overall benefit to be had from the general
application of the regulations, but our understanding of the
"regulations" is refined by reference to the activities in which
appellants actually propose to engage. Some of our colleagues
seem to feel that in judging the substantiality of the
government's interest the proper focus in this case is on the
incidental harm that would be caused by allowing these appellants
to sleep in the park as part of their proposed demonstration.
They are mesmerized by the following scenario: the Park Service
has already issued a demonstration permit that will allow
appellants to construct a "symbolic city" and to maintain a
round-the-clock presence at the site. Appellants may put up
tents. They can place within those tents sleeping bags, cots, and
other bedding materials. They can sit in the tents twenty-four
hours a day. They can even lie down, close their eyes and feign
sleep. The only thing they cannot do is actually fall asleep.
What additional harm to the parks could possibly be caused by
allowing appellants actually to sleep rather than merely feigning
sleep?
This approach to the question at issue here misconceives the
relevant First Amendment inquiry. The apparent absence of harm
that would be caused by granting these appellants an exemption
from the noncamping regulations may indicate that we should look
for a possible, less restrictive alternative to the present
regulations. It does not, however, in any way undermine the
substantiality of the interest supporting the regulations as now
written and applied generally by the Park Service. The Supreme
Court has stated explicitly that in judging the substantiality of
the government's interest we must look to the interest supporting
the law generally, not the interest to be served by applying it
in any particular case. The alternative is to nickel and dime
every regulation to death.
The point was made most clearly and emphatically in the recent
case of Heffron v. Intl Soc. for Krishna Consc. [44] In that
case a rule of the Minnesota Agricultural Society, a public
corporation that operates the annual state fair, required all
persons, groups or firms desiring to sell, exhibit, or distribute
materials during the fair to do so only from fixed locations. The
International Society for Krishna Consciousness, Inc (ISKCON)
claimed the rule violated their First Amendment rights because it
suppressed the practice of Sankirtan, a religious ritual that
enjoins its members to go into public places to distribute or
sell religious literature and to solicit donations for the
support of the Krishna religion. The Minnesota Supreme Court
agreed.
The Minnesota Supreme Court recognized that the state's interest
in the orderly movement of a large crowd and in avoiding
congestion was substantial and that rule 6.05 furthered that
interest significantly. Nevertheless, the Minnesota Supreme Court
declared that the case did not turn on the "importance of the
state's undeniable interest in preventing the widespread disorder
that would surely exist if no regulation such as rule 6.05 were
in effect" but upon the significance of the state's interest in
avoiding whatever disorder would likely result from granting
members of ISKCON an exemption
[43 The absurdities to which an alternative approach could lead
are readily apparent. The Government could make any regulation
invincible by tacking on a prohibition that is undoubtedly
supported by a substantial interest but has nothing to do with
the usual application of the regulation, such as "Camping and the
detonation of hand grenades is forbidden in the parks of the
Memorial core area."]
[44 452 U.S. 640, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981).]
616
from the rule. Approaching the case in this way, the court
concluded that although some disruption would occur from such an
exemption, it was not of sufficient concern to warrantconfining
the Krishnas to a booth. [45]
The United States Supreme Court, applying free speech (not
freedom of religion) principles, [46] rejected this approach and
upheld the Rule. "The justification for the Rule should not be
measured by the disorder that would result from granting an
exemption solely to ISKCON. [47]
A similar mistake would be to focus our attention at this
time solely on the harm that would be caused by allowing "First
Amendment" camping (ie., camping by any group, not just
appellants, for whom the camping was an integral part of the
message to be conveyed). Again, such an inquiry might indicate
that we should look for a possible, less restrictive alternative
to the present regulations. But it bears no relevance to the
initial question of whether the regulations as now written and
applied are supported by a substantial interest. Thus, in United
States v. O'Brien,[48] the court focused on the government's
interest generally in preventing the destruction or mutilization
of registration certificates, whether or not that destruction or
mutilization is for a First Amendment purpose. Again, any other
approach would nickel and dime every regulation to death.
Thus, in the instant case, we must not measure the
substantiality of the governmental interest by looking solely to
the harm that might be caused by allowing these particular
appellants to sleep in the park. Nor may we measure that interest
by looking only to the harm that would be caused by allowing
"First Amendment" camping. Rather, we must look to the interest
in preventing camping by all classes of persons, whatever their
motive.
Having fixed the relevant class of persons by reference to whom
the interest in banning camping should be judged, we must still
be very careful in stating what we mean by "camping." In this
sense, the claims of these particular appellants are relevant.
They do not propose to build fires, dig latrines, cook, etc. They
propose only to erect tents, lay out bedding materials, and sleep
through the nights for an extended period. Thus, we must judge
the substantiality of the government's interest in preventing
this class of activities. We do not add cooking, building fires,
and digging latrines as make-weights because, even though they
are forbidden by the regulations, appellants disclaim any
intention of such activity.
The point made above is merely that we should not limit our
consideration to a subclass of persons desiring to perform these
activities, such as appellants alone or, even, all those with a
First Amendment purpose. But we must and do limit our attention
to the class of activities actually called into question by this
case. Thus, "camping" as used in the remainder of this opinion is
limited to such activities as erecting tents or other structures,
laying out blankets, sleeping bags, and other bedding materials,
and sleeping.
The governmental interest called into question by this case is
the prevention of harm that would be caused by camping, in the
above sense, in the Memorial core area parks. However, a
round-the-clock presence and the erection of symbolic structures,
including tents, is allowed by the regulations in conjunction
with a demonstration. Thus, the governmental interest is limited
to the incremental harm which would be caused by permitting
camping generally (i.e.., not just for First Amendment purposes)
in addition to the erection of tents and a 24-hour presence for
demonstration purposes. [49]
[45 Id. at 651-52, 101 S.Ct. at 2566-2567.
]
[46 Id. at 652-53, 101 S.Ct. at 2566-2568. ]
[47 Id. at 652, 101 S.Ct. at2566. ]
[48 391 U.S. at 378-82. 88 S.Ct. at 1679-1681.]
[49 Judge Edwards suggests that "the only matter in dispute is
sleeping." since "the Park Service has not sought to ban the
appellants From erecting tents, laying out blankets or bedding, or even maintaining a 24-hour presence." Edwards Op. at
n.l. See also id. at 603. We think this is an unduly narrow
characterization of what is at stake in this case. The
regulations permit a round-the-clock presence and the erection of
symbolic structures, including tents, for demonstration purposes.
They do not permit a 24-hour presence or the erection of any
structures for purposes of living accommodation. As we explain
below, see Section III(B)(3), the only way the Park Service can
maintain this distinction is by refusing to allow demonstrators
to sleep in addition to their other activities. It is sleep that
would provide the incentive for nondemonstrators and, perhaps.
many demonstrators to erect structures and remain through the
night. Unused tents and a nighttime vigil will only be employed
for purposes of expression. If the convenience of sleep were
added, the Park Service would be unable to distinguish between
the symbolic and non-symbolic use of structures and nighttime
vigils. Thus, the broader regulatory scheme, which forbids
nondemonstrators to erect structures and remain round-the-clock
as well as forbids all persons to sleep, is at stake in this
case. We will, therefore, continue to speak of "camping," and not
merely "sleeping."]
617
Even as so stated, however, the substantiality of the
governmental interest cannot be doubted. The proverbial "straw
that broke the camel's back" is a valid and useful concept. The
Park Service may in all good faith strive to be lenient, but
nevertheless it is entitled to draw the line somewhere. If
camping, whatever the purpose, were allowed in the parks of the
Memorial core area, those parks would be overrun by camping
during the summer months--the grass would be ruined, litter and
human waste would abound, and the pleasure noncampers take in
those parks would be ruined.
No such consequences can be anticipated from allowing symbolic
structures and a 24-hour presence in the parks. Citizens are only
likely to avail themselves of the latter privileges in order to
express themselves on pressing issues, whereas camping would be
useful to any tourist or visitor interested in minimizing
expenses. Furthermore, the potential harm to the parks from
persons who actually live there for their own convenience,
persons who don't go home to eat, to wash, to sleep, to answer
nature's call, etc., exceeds that to be expected from persons
erecting symbolic structures or maintaining a wakeful vigil for
First Amendment purposes.
It is important once again to recall that we are not yet
concerned with the possibility of a less restrictive alternative
that would permit First Amendment camping, while denying
permission to all other campers. The regulations as written ban
all camping, and it is the interest underlying that ban that we
must now weigh. As the Park Service has noted, the parks in the
Memorial core area, including the Mall and Lafayette Park, are
simply unsuited for camping. [50] To permit camping would
deprive other groups of the right to use nationally significant
space. It would cause significant damage to park resources and a
substantial increase in costs for park restoration, sanitary
facilities, and extra park personnel. [51] Accordingly, the
governmental interest supporting the ban on camping and the
erection of structures for living accommodation is substantial.
2. Incidental Infringement on Speech
In most of the symbolic speech cases, the activity that the
government attempted to suppress was inherently expressive.
Ninety-nine out of a hundred people who purposely burn their
draft cards, [52] wear arm bands, [53] or superimpose a peace
symbol on the flag, [54] will do so in order to express
something thereby. Thus, a prohibition of that activity can have
a substantial, even if incidental, impact on speech.
Camping as symbolic speech presents a very different case.
Camping in the park has a great deal of independent signifi-
[50 47 Fed.Reg. at 24,301.]
[51 Findings of Fact and Conclusions of Law at 6]
[52 See. e.g., United States v. O'Brien. 391 U.S. 367. 88 S.Ct.
1673, 20 L.Ed.2d 672 (1968).]
[53 See, e.g., Tinker v. Des Moines School District, 393 U.S.
503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969).]
[54 Spence v. Washington, 418 U.S. 405, 94 S.Ct 2727, 41 L.Ed.2d
842 (1974) (per curiam).]
618
cance. It is not a traditional form of speech. It has expressive
First Amendment value only in a very limited set of
circumstances. Thus, if camping in the Memorial core area parks
were permitted, the vast majority of those availing themselves of
the privilege would not be intending to express anything thereby.
Conversely, the incidental infringement on speech caused by an
absolute ban on camping in these areas is simply not that great
relative to the government's interest in preventing camping
generally. [55]
Appellants may well have hit upon the most expressive means of
conveying their message. But they have also stated explicitly
that their desire to camp in the parks is based not just on the
expressive nature of those activities under the peculiar facts of
this case, but also on the fact that camping would facilitate the
expression both by attracting demonstrators and by capturing
media attention. On the former point, appellants' original
application is clear. "Without the incentive of sleeping space or
a hot meal, the homeless would not come to the site. [56] This
statement is constantly echoed in the papers filed with this
court. [57] The latter point follows from the former. Without
homeless people coming to demonstrate the poignancy of their
plight, the media value of the message is sadly diminished,
despite the unabated poignancy of that plight. [58]
The Supreme Court has noted time and again that although the
First Amendment guarantees individuals and groups the right to
deliver their message, it does not guarantee any right to deliver
that message in the most effective manner possible. [59] It
does not guarantee media attention. Nor does it guarantee
circumstances that will attract the largest number Of
demonstrators. [60] Appellants' concerns in this case are not
limited to a fear that their message, purely in terms of its
content, will be diluted. They fear at least as much that the
effect of their message, however well expressed, will be
diminished.
Of course, we must not make the "category mistake" noted above
in conjunction with the substantial interest test. Just as the
substantiality of the government's interest must be judged by the
effect of the law on all persons, so, too, the extent to which it
infringes upon speech must be judged by the effect of the law on
all persons, and not just by its effect on the appellant.
However, the conjunction of the facilitative and expressive
aspects of camping in this case is likely to be paralleled in all
other First Amendment camping cases. The 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.
Judge Edwards correctly notes that "a message is not less
deserving of First Amendment protection merely because the manner
used to express it serves other
[55 However, as we shall see, pp. 620-622, it would be
impossible to fashion "narrow, objective, and definite" standards
that would limit permission to camp to those few cases where
camping is expressive.]
[56 Letter from CCNV to Park Service (undated), reprinted in RD
5.]
[57 Appellants' Emergency Motion for Injunction Pending Appeal at
21-22; Appellants' Reply Brief at 6-7.]
[58 See Appellants' Emergency Motion for In junction Pending
Appeal at 21-22; Appellants' Reply Brief at 7.]
[59 See, e.g., Heffron v. Int'l Soc. for Krishna Consc., 452
U.S. 640, 647, 101 S.Ct. 2559, 2564, 69 L.Ed.2d 298 (1981);
Adderly v. Rorida, 385 U.S. 39, 4748, 87 S.Ct. 242, 247-248, 17
L.Ed.2d 149 (1966); Lloyd Corp. v. Tanner, 407 U.S. 551, 567, 92
S.Ct 2219, 2228, 33 L.Ed.2d 131(1972).]
[60 What the litigant's press agent seeks and what the public
interest requires differ widely. Although every man is entitled
to make his remonstrance, no man is entitled to make such a
remonstrance that it will be carried on all three television
networks. Vietnam Veterans Against the War v. Morton. 506 F.2d
53, 58 (D.C.Cir.1974).]
619
needs of the demonstrators." [61] But where there are plenty of
alternative ways to express the same message--ways which, though
less convenient to the demonstrators, are not fraught with the
same harms to legitimate governmental interests--the First
Amendment does not extend special protection to the means chosen
by the demonstrators, especially where those means are chosen as
much for convenience as for expressive value. To repeat, the
First Amendment does not guarantee any right to deliver a message
in the most effective manner possible. Nor does it guarantee any
right to deliver a message in the most convenient way possible.
In sum, the substantiality of the government's interest in
preventing camping generally in the Memorial core area parks
appears to counterbalance the occasional, incidental infringement
on speech caused by the regulations.
3. Less Restrictive Alternative
It is important to recognize that appellants wish to conduct
their demonstration in a park, a forum traditionally open to the
public "for purposes of assembly, communicating thoughts between
citizens, and discussing public questions. Such use of the
streets and public places has, from ancient times, been a part of
the privileges, immunities, rights, and liberties of citizens."
[62] Modes of Fint Amendment activity, such as leafletting and
demonstrating, which can be banned from certain locations, such
as courthouses [63] jails, [64] and private shopping
centers,[65] cannot be abridged or denied in traditional public
forums such as the streets [66] and parks. [67] The right to
speak in a public forum may be regulated in the interest of all,
"but it must not, in the guise of regulation, be abridged or
denied." [68]
Appellants argue, relying on this notion that the park is a
public forum, that the government must permit exceptions to its
ban on camping where the camping is an integral part of First
Amendment expression. In other words, appellants argue that the
mere fact that the ban is neutral and supported by a substantial
governmental interest is insufficient. Some affirmative
accommodation of First Amendment interests is necessary in a
public forum.
The total ban on "camping" sweeps within its purview First
Amendment activities that pose no danger to the alleged
governmental interest. Prohibition of peaceful sleeping inside
lawfully erected tents as part of a demonstration serves no
purpose other than to impermissibly suppress free expression.
[69]
Anatole France once said: "The law in its majestic equality
forbids the rich as well as the poor to sleep under bridges, to
beg in the streets, and to steal bread." [70] The sarcasm is
salutory. Appellants are among the most helpless members of our
society. They are likely to be uneducated and inarticulate. If it
were possible to accommodate their most effective mode of
expression without exposing the parks to the harms anticipated by
the regulation, then the First Amendment might well reguire that
accommodation. The crucial and dispositive aspect of this case is
that there is no possibility of a constitutional]y acceptable
less restrictive alternative. The Park
[61 Edwards op. at 602-603.]
[62 Hague v. CIO, 307 U.S. 496, 515, 59 S.Ct. 954, 963. 83 L.Ed.
1423 (1939) (Roberts, J., concurring).]
[63 See, e.g., Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13
L.Ed.2d 487 (1965).]
[64 See, e.g., Adderly v. Rorida, 385 U.S. 39, 87 S.Ct. 242, 17
L.Ed.2d 149 (1966).]
[65 See, e.g., Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct.
2219, 33 L.Ed.2d 131 (1972).]
[66 See, e.g., Schneider v. New Jersey, 308 U.S. 147, 60 S.Ct.
146, 84 L.Ed. 155 (1939).]
[67 See, e.g., Niemotko v. Maryland. 340 U.S. 268, 71 S.Ct. 325,
95 L.Ed 267(1951); Saia v. New York, 334 U.S. 558, 68 S.Ct.
1148. 92 L.Ed. 1574 (1948).]
[68 Hague v. CI0,307 U.S. at 516, 59 S.Ct at 964.]
[69 Appellants' Reply Brief at 63.]
[70 A. FRANCE, LE LYS ROUCE (1894) Ch. 7.]
620
Service must either allow all camping or abide by a flat-out ban.
Any intermediate position designed to accommodate "First
Amendment camping" would run afoul of the proscriptions against
discretionary screening contained in a long line of Supreme Court
cases. [71] The Supreme Court has, in effect, endorsed Anatole
France's "majestic equality" as applied to free speech because
only totally objective standards will suffice in this area,
whatever differentiations there may be in welfare policies.
The teaching of this line of cases is that licensing
regulations, to pass constitutional scrutiny, must contain
"narrow, objective, and definite standards to guide the licensing
authority," [72] and thereby protect against arbitrary action or
de facto censorship of certain points of view. It is just such
standards that would be impossible to formulate if the court
tried to carve a First Amendment exception out of the ban on
camping. First Amendment standards cannot themselves be used to
state an exception to a neutral regulation of conduct.
The force of this point can be seen by considering the following
three examples, asking in each instance whether the Park Service
would have to grant a permit to camp under a judicially mandated
First Amendment exception to the ban on camping.
(1) A group of tourists comes to D.C. during the summer. Rather
than pay to stay in a hotel, they apply for a permit to camp on
the Mall "to dramatize and protest against the high cost of
hotels." At oral argument appellants stated that this would be a
"frivolous case." We agree. But according to what standard is the
Park Service to deny the permit? The Park Service cannot be
permitted to discriminate between applicants based on the
supposed substantiality of their message. That would be content
screening in its most blatant form. "[A]bove all else, the First
Amendment means that the government has no power to restrict
expression because of its message, its ideas, its subject matter,
or its content. [73] Nor could the Park Service screen
applicants on the basis of their sincerity, their commitment to
the message they are trying to convey. It is not for the Park
Service to decide who really believes that high hotel prices are
harmful to the republic and should be regulated by government and
who just wants a free place to sleep.
The problem stems from the fact, noted above, that many people,
without any First Amendment purpose, would like to camp. The
benefits of camping in a convenient location on the Mall will
provide them with an incentive to offer a First Amendment pretext
for the camping. On the other hand, few would go to the trouble
of erecting a temporary structure on the Mall or maintaining a
wakeful 24-hour vigil unless they wanted to express something
thereby, however inane or frivolous. There could be little other
reason for erecting such structures or maintaining such a vigil.
Thus, the question of sincerity doesn't arise, and, consequently,
the Park Service need not distinguish between substantial and
frivolous messages. Applicants for a permit are left to determine
for themselves whether their message is "significant" enough to
be worth the trouble.
Where camping is concerned the problem of pretextual or
frivolous speech is much more important. Presumably, there are a
great many people who would like to camp on the Mall or in
Lafayette Park, at least during the summer, and would do so if
permitted. If we force the Park Service to
[71 Shuttlesworth v. City of Birmingham, 394 U.S. 147,
150-153, 89 S.Ct 935, 93~940. 22 L.Ed.2d 162(1969); Niemotko v.
Maryland, 340 U.S. 268, 271-72, 71 S.Ct. 325, 327-328, 95 L.Ed.
267(1951); Kunz v. New York, 340 U.S. 290, 294, 71 S.Ct. 312,
315, 95 L.Ed. 280 (1951); Lovell v. Griffin. 303 U.S. 444.
450-51, 58 S.Ct 666, 668-669, 82 L.Ed. 949 (1938).]
[72 Shuttlesworth v. City of Birmingham, 394 U.S. at 151, 89
S.Ct. at 938.]
[73 Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95, 92 S.Ct.
2286, 2289, 33 L.Ed.2d 212 (1972). See also Carey v. Brown, 447
U.S. 455, 466-67. 100 S.Ct. 2286, 2293-2294, 65 L.Ed.2d 263
(1980).]
621
open the gate for this group because of their sincerity and the
substantiality of their message, we will force the Park Service
either to screen applicants on that basis or to permit anyone to
camp who is willing to offer a First Amendment rationalization,
however ludicrous or improbable.
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Case Listing --- Proposition One ---- Peace Park