USDC Cr. No. 83-1243


WILLIAM P. CLARK, Secretary,
Department of the Interior,
      et al.,


This case involves a challenge to regulations concerning the size, location, composition and construction of signs used in demonstrations and the placement of parcels and other personal property on the White House sidewalk which were promulgated on June 17, 1983, Plaintiffs--two organizations and several individuals who regularly demonstrate on the sidewalk----claim that the regulations violate their first amendment rights, and seek a judgment which declares the regulations unconstitutional, and, enjoins their enforcement by the defendants, the Secretary of the Interior and his subordinates.


On April 22, 1983, the Park Service published new interim regulations regarding demonstrations and the placement of property on the White House sidewalk. 48 Fed. Reg. 17352. Although promulgated without prior public notice or opportunity for comment, these interim regulations were effective immediately. On April 27, 1983, two of the plaintiffs in this case were arrested for violating the interim regulations. Two days later the instant suit was filed challenging the regulations on both procedural and constitutional grounds.

On May 3, 1993, an evidentiary hearing was held on the the plaintiffs first motion for a temporary restraining order enjoining enforcement of the regulations. At the conclusion of this hearing, the court granted the motion on the ground that good cause had not been shown for waiving the notice and comment requirements for informal rulemaking set forth in the Administrative Procedure Act, 5 U.S.C. § 533. Subsequently, on May 17, the interim regulations were republished by the National Park Service as a proposed rulemaking with an additional comment period extending to Hay 31. 48 Fed. Reg. 22234. A number of comments were received, including some from the plaintiffs and their counsel. After considering the public comments and redrafting the regulations, the Park Service published the "final rule" now before the court. la Fed. Reg. 25058 (June 17, 1883) These final regulations were to become effective 18 days


later on July 5.

On June 24, 1983, the plaintiffs filed an amended complaint· They again alleged that the regulations were both procedurally and constitutionally defective and again moved the court for a temporary restraining order enjoining enforcement of the regulations. A hearing was held on June 30, and on July 1 the court issued a Memorandum and Order granting the motion on the ground that "good cause" had not been shown for shortening the 30-day delay in effectiveness required by the Administrative Procedure Act, 5 U.S.C. § 553(8). Following another hearing, this temporary restraining order was extended until July 17, 1983 -- the date on which the 3O-day delay period would expire, On July 12, an evidentiary hearing was held on the merits of the plaintiffs' first amendment challenge the regulations. On the afternoon Before this hearing, the National Organization for Women ("NOW") moved to intervene as a plaintiff in this action, and was later allowed to do so.

In a July 19, 1983 order this court enjoined the enforcement of a substantial part of the regulations because in its view they were much more restrictive than necessary to adequately serve the articulated governmental interests.

Defendants appealed the July 19, 1983 order, and on August 18, 1983 our U.S. Court of Appeals directed certain modifications of that order; and also an expedited trial on the merits. This court modified its July 19, 1984 order accordingly, and set trial for September 20, 1983.

Shortly thereafter plaintiffs indicated that the September


20, 1983 date allowed them too short a period of time within which to prepare adequately for trial, and moved for a continuance, at the expense of dissolving the injunction in the interim. This motion was granted and trial was set for December 6, 1963. During trial the court was exposed to the testimony of over twenty witnesses, and hundreds of exhibits; and has had the benefit of extensive oral and written submissions from counsel

The challenged regulations amend 30 C.F.R. § 50.19(e)(5) as follows:

a. No signs or placards shall be permitted on the White House sidewalk except those made of cardboard, posterboard or cloth [the "sign materials regulation" having dimensions no greater than three feet in width, twenty feet in length, and one-quarter inches in thickness [the "sign dimensions regulation"]. No supports shall be permitted for signs or placards except those made of wood having cross-sectional dimensions no greater than three-quarter of an inch by three- quarter of an inch [the "sign support regulation"l, Stationary signs or placards shall be no closer than three feet from the White House sidewalk fence [the "three-foot regulation"]. All signs and placards shall be attended at all times that they remain on the White House sidewalk. Signs or placards shall be considered to be attended only when they are in physical contact with a person [the "attended sign regulation"]. No signs or placards shall be tied, fastened, or otherwise attached to or leaned against the White House fence, lamp posts or other structures on the White Rouse sidewalk [the "leaned sign regulation"]. No signs or placards shall be held, placed or set down on the center portion of the White House sidewalk, comprising ten yards on either side of the center point on the sidewalk; Provided, however, that individuals may demonstrate while carrying signs on that portion of the sidewalk if they continue to move along the sidewalk [the "center zone regulations"].

The regulations amend § 50.19(e) by adding subsection (10)


the parcels regulation.]: [1]

No parcel, container, package, bundle or other property shall be placed or stored on the White House sidewalk or on the west sidewalk of East Executive Avenue, N.W., between Pennsylvania Avenue, N.W., and E Street, N.W., or on the north sidewalk of E Street, N.W., between East and West Executive Avenues, N.W.; Provided, however, that such property except structures may be momentarily placed or set dawn in the immediate presence of the owner on those sidewalks.

The preamble to the regulation that appears in the Federal Register states that the "changes are necessary in order to minimize potential threats to the structure and its occupants and visitors, as well as to provide opportunities to the visitor to view the White House, and to maintain the free flow of pedestrian and emergency traffic." 48 Fed. Reg. 28056. In a lengthy statement of "supplementary information" published along with the regulations, the defendants drew attention to several disturbing incident which had occurred within the previous half year. In this statement they noted that in December 1982 an individual who had been a frequent protester at the White House sidewalk threatened to blow up the Washington Monument,thereby temporarily paralyzing the entire city. 48 Fed. Reg. 28038, The statement also noted that in April 1983 a terrorist bomb attack killed scores of people at the American Embassy in Beirut, Lebanon, and that another bomb exploded in front of the War College] at Fort McNair in Washington. The statement further noted that in March

[1 The regulations also add 36 C.F.R. S 50.7(h):2), the text of which is identical to that of 36 C.F.R. S 50.19(e(10). ]


1983 a large structure used by a frequent demonstrator on the White House sidewalk (who is not a party to this action) caught fire, causing damage to the fence.

According to the statement these occurrences raised the level of concern for the security of the President and the White House, and the National Park Service and U.S. Secret Service decided that

two areas of major concern should be addressed immediately by regulatory chances--signs or placards stationed on the White House sidewalk and parcels, containers, packages, bundles and other property placed or stored on the White House sidewalk and other sidewalks surrounding the White House.

It was stated that signs may block the view of tourists looking at the White House, and at the same time obscure the view of security personnel from inside the fence. Also noted was the fact that signs have been used as weapons, and may be used to conceal explosives or to scale the fence. In addition to the potential to conceal explosives and to scale the fence, it was thought that parcels, on the sidewalk could prevent the free flow of traffic.

The preamble further outlines the careful consideration given to the various comments, and the painstaking efforts of the defendants to strike a proper balance between their great concern for Presidential and White House security and the visitor's experience in viewing the White House on the one hand, 2nd "the demonstrator's ability to convey a message" on the other hand.

The term "White House sidewalk" is defined at 36 C.F.R. § 50.19(a)(5) (1982) as "the south sidewalk of Pennsylvania Avenue, between East and West Executive Avenues NW." The White House


sidewalk ("the sidewalk") is directly across Pennsylvania Avenue, which is 80 feet wider from Lafayette Park. It is about 770 feet long and 33 feet wide--that is to say, much wider than a standard city sidewalk--and is bordered by a 10 foot high fence which consists Of iron bars set into a low concrete ledge. The distance from the center point of the sidewalk fence he North Portico of the White House is 230 feet, and one looking through the center portion of the fence has an unimpeded view of the structure. The sidewalk is generally open to the public, is often crowded with tourists and with workers from nearby office buildings, and historically has been the site where countless demonstrations have occurred,

Prior to the effective date of the regulations at issue, the White House Vigil for the ERA Committee, which was founded in 1980 conducted demonstrations in support of the Equal Rights Amendment (ERA) almost every Wednesday afternoon from 11:30 a.m. until 1:30 p.m. for over two years., Plaintiff Mary Ann Beall, one of the founders of this organization, is a frequent participant in these activities. These demonstrations, which have been conducted under a permit issued by the Park Police, varied in size from 3 to 30 people and involved the displaying of large cloth banners and the distributing of literature. The Vigil Committee's customary demonstration would violate the current regulations in that (a) the banners are more than three feet wide and are supported by hollow metal poles, about 1 1/4 inches in diameter - the allowable wooden supports will not hold their banners, (5) the participants store pamphlets and extra banners in a duffle bag which they set


down on the sidewalk, and (c) the participants who hold the long banners stand less than three feet from the sidewalk fence.

Plaintiff Edward Saffron, who is 66 years old, has been demonstrating on the White House sidewalk for 14 years in support of various causes. His latest activities have been in support of worldwide nuclear disarmament. He usually demonstrates at least three days a week from one to one-and-a-half hours each day. His manner of demonstrating was to carry two signs sandwich-board style, but because of his age and physical condition, he rested from tine to time by sitting on the ledge of the fence. This conduct would violate the amended regulations because when plaintiff Saffron sits down, he leans his signs against the ledge next to him. If he set his signs on the sidewalk they would have to be three feet from the fence and he could not reach them. He also placed a packet of literature down beside him on the sidewalk.

Plaintiff Concepcion Picciotto has been conducting an around- the-clock vigil on the White House sidewalk since August 1981. Plaintiff Robert Dorrough has seen demonstrating for an average of 14 hours a day since February 1983. Both of those plaintiffs' activities have been in support of world-wide disarmament. Their demonstrations would violate the regulations in that: (a) their signs are made of plywood in order to withstand the weather and they also exceed the size restrictions, (b) like plaintiff Saffron, they sometimes sit on the ledge with their signs, (c) they place bags containing pamphlets, food, water, or extra clothes next to them on the sidewalk, and they sometimes fail


to remain in physical contact with their signs.

The National Organization for women (NOW)--the plaintiff- intervenor--has about 250,000 members nationwide and is dedicated to improving the status of women in ell aspects of American life. Since 1972, NOW has conducted periodic demonstrations on the White House sidewalk in support of the ERA, and plan to continue these activities. NOW's demonstrations are larger than those of the Vigil Committee and attract demonstrators from as far away as New Jersey, Pennsylvania, and West Virginia. These demonstrators typically come to the White House sidewalk for the entire day and often include elderly persons and mothers with small children. NOW's demonstrations are conducted under a Park Police permit and are patrolled by "facilitators' trained by NOW. The demonstrations take place at the center point of the sidewalk. Two large cloth banners are displayed by demonstrators standing next to the fence facing Pennsylvania Avenue. In front of them, other demonstrators carry individual banners, hand out leaflets, or ask interested passers-by to sign petitions. NOW's demonstrations would violate the challenged regulations in that: (a) Both the long banners and the individual banners violate the restrictions on sign dimensions, (b) the banners contain metal and are supported by small hollow metal poles, (c) NOW's demonstrators place strollers, diaper jugs, water containers, food sacks, coats, leaflets, and other property on the sidewalk, (d)elderly and infirm demonstrators and demonstrators with small children often rest on the ledge, and (e) the banners are held stationary within three feet of the fence and within the central


portion of the sidewalk.

Plaintiffs urge that these new restrictions on the size, composition, location and construction of signs, and the placement of packages and personal items on the sidewalk are unrelated to any bona fide security concerns, and are thus unnecessary and unjustifiable encroachments on their otherwise lawful first amendment activities. In addition, plaintiffs suggest that the regulations in their current form were more than likely inspired by an effort to accommodate the wishes of then Interior Secretary Watt, who had no thoughts about security. The defendants contend that the regulations really do not constitute any encroachment on first amendment rights inasmuch as they are content-neutral, and merely prescribe the place and manner or form which the activity must take; and in fact are reasonable in light of the stated objectives of the agency. They flatly deny any input from Secretary Watt, or any influence from the White House.

Final Order Continued

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