This language is especially applicable to the case at hand. Defendants argue that they should be allowed to set up living accomodations in the area of the White House to facilitate their protest. As indicated by the Court of Appeals, the First Amendment


does not bind the government to provide camping facilities for defendant in the area of the White House with no regard for the effect such a provision would have on park resources, other visitors or increased costs.

Defendants' reliance on United States v. Abney, 534 F.2d 984 (D.C. Cir. 1976), to support their argument that the regulations at issue somehow infringe upon their right of free speech is misplaced. At issue in Abney was a federal regulation prohibiting sleeping for more than four hours in park areas not designated for camping. The regulation further authorized park superintendents in the National Capital Region to issue permits for such sleeping. The court invalidated the regulation because it contained no "narrow, objective and definite standards to guide the licensing authority." Dicta in the case can perhaps be read to say that in the unusual circumstnaces in Abney, sleep alone must be taken to be sufficiently expressive in nature to implicate First Amendment scrutiny in the first instance. Id. at 985. However, the Court went on to indicate that had the relevant regulation been properly promulgated and evenhandedly enforced "[i]t may well be that such across-the-board ban on sleeping outside official campgrounds would be constitutionally acceptable." Abney, supra, at 986.

The regulation at issue here suffers from none of the infirmities present in Abney. The regulation contains explicit


across-the-board prohibitions. Further the regulation does not prohibit sleeping per se, but only sleeping that is a part of other camping activities.

Defendants also cite the recent CCNV opinion of the Court of Appeals to support their argument that their sleeping and other living activities are constitutionally protected. The per curiam decision in CCNV II is sharply limited to the facts of that particular case. There, the plaintiffs argued that the act of sleeping in tents conveyed a message concerning their homeless plight. To reiterate, here the defendants make no ciaim that their camping activities convey any message; rather, they bluntly state that their camping activities merely facilitate their demonstration. The facts in the two cases, then, are remarkably different.

Clearly, defendant may, under the regulations, demonstrate twenty-four hours a day if they choose. What they cannot do, and the regulations prohibit, is use the White House area as a living accomodation. When they choose to use the park areas for living accomodation purposes rather than to express a message, their activities fall under those proscribed by the regulation and outside the scope of the First Amendment. [5]

[5 Judge Smith of this Court has recently so held in an appeal from a trial before the Magistrate involving the same regulation, the same facts and the same arguments. Judge Smith's Memorandum Opinion is attached hereto as Appendix B.]


Even if the defendants' camping on the sidewalk amounted to protected conduct under the First Amendment, their challenge to the regulation as unconstitutionally abridging their freedom of speech fails. Looking to the tests set out in United States v. O'Brien, 391 U.S. 367 (1968) for judging the constitutionality of government regulations, the present regulation would be sufficiently justified:

[1] if it is within the constitutional power of the government; [2] if it furthers an important or substantial governmental interest; [3] is unrelated to the suppression of free expression; [4] if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

The instant regulation satisfies the O'Brien test. First, the Government has the constitutional authority to regulate the use of parks. See Hague v. CIO, 307 U.S. 515-16 (1939) (Roberts, J. concurring).

Second, the regulation meets an important governmental interst. Camping in the Memorial core "would deprive other park visitors including demonstrating park visitors, of use of this nationally significant space." Administrative Policy Statements, 47 F.R. 24301, 24302 and 47 F.R. 24304, 24305 (June 4, 1982). Park resources would be seriously damaged. Sanitation problems would be created, and law enforcement resources would be


taxed. Id. The purpose of this regulation is to protect the park land for the use of the many while satisfying, if possible, the needs of the few. Even if the court viewed as a form of expression the use of the park area as a living accomodation (which the government does not accept) "[t]he privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all." Hague, supra, at 516.

The regulation also satisfies the third position of the O'Brien test. The governmental interest in promulgating the regulation is unrelated to the suppression of free expression. The governmental interest is to protect the park grounds for the benefit of all the people. As the Policy Statement points out, camping in such grounds would interfere with others who.may wish to use the grounds. Policy Statements, supra, at 24302 and 24305. The regulations do not suppress free expression. Only the use of the land as an actual living accomodation is prohibited.

In addition, the regulation does not prohibit the use of tents and similar structures to provide support or logistical services to demonstrators. The regulation would also allow the use of tents or even the erection of symbolic cities as a means by which a group can convey its message.


Finally, the regulation satisfies the fourth requirement. The incidental restriction alleged here is the inability of demonstrators to use park areas for their living accomodation purposes. Even if it is argued that defendants are attempting to convey a message by their campingr the National Park Service allows symbolic displays that would allow expression of a message. These symbolic displays effectively communicate a message without taxing the park areas to the same extent that the actual use of the park land as a living accomodation does. Assuming arguendo the use of park land as a living accomodation expresses something, the same message can be communicated by symbolic displays, thus satisfying the needs of individuals to express their views while protecting the park areas for the common good.

WHEREFORE, we respectfully submit that defendants' motion to dismiss the indictment should be denied.

Respectfully submitted,

United State Attorney


Assistant United States Attorney


I HEREBY CERTIFY that I have served a copy of the foregoing Government's Response to Defendants' Motion to Dismiss the Information on this 5th day of April, 1984, upon defendants by mailing copies thereof to their attorneys below:

Richard S. Stern, Esquire
419 7th Street, N.W.
Washington, D.C.
Attorney for William Thomas

David A. Reiser, Esquire
605 G Street, N.W.
Third Floor
Washington, D.C. 20001
Attorney for Concepcion Picciotto

Assistant United States Attorney
U.S. District Courthouse
Room 3836
Washignton, D.C. 20001

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