THOMAS v. REAGAN

USDC Cr. No. 84-3552

28. Many individuals commenting on the proposed regulations indicated that they felt themselves to be excluded from Lafayette Park because of the number' and size of signs and structures there. For example, one individual wrote "The right of free speech does not include the right to use property to the exclusion of the free use and enjoyment thereof by the rest of the public." Admin. Rec. at III.A.1.42. Another indicated his view that "'Visual blight' is a far milder term then I would apply to the mess existing along Pennsylvania Avenue." Admin. Rec. at III.A.1.69. A senator from Oregon indicated that:

The visual blight that has settled upon Lafayette Park in recent years has become a disgrace to our nation's capital city and the source of strenuous objection from visitors to this city. Oregonians who visit Washington frequently mention their unhappiness over the lack of respect shown for the public interest in maintaining a

scenic public park in front of the White House.

Admin. Rec. at III.A.2.15. Another wrote:

No longer do I walk friends or out of town visitors through the Park. I now consciously do not drive past the Park, when giving a relative a city tour, as they are disgusted at the filth and squalor. It is not safe to jog there now. Admin. Rec. at III.A.1.153, See generally , Admin . Rec . at I.A.1-43; III.A.l.l-164; III.A.2.1-138; and III.D.1-32.

29. Other commentaries indicated that they could no longer get an unobstructed view of the White House from Lafayette Park. For example, one individual wrote as follows:

It has been well over two Years since I've been able to enjoy Lafayette Park. I can no-longer have lunch on the grass or take a stroll along the walks, especially the southern and eastern sectors, without being visually assaulted or physically displaced by billboards , lean-tos, derelict furniture, bedding and personal items, and their "attendants." I can't even photograph the White House from the Andrew Jackson statue with including what seems to be a permanent dispLay of personal epistles and whimsical epithets. When one considers that this is the second most important visual and symbolic axis in Washington, the current conditions become all the more intolerable. Admin. Rec. at III.A.2.88.

30. Park Service employees and members of the public have expressed concern about the safety of large signs and some structures. See Admin. Record at III.A.1.51 and 123; I.D.4, 6, 7, 30-43 and 44. A safety inspection of Lafayette Park revealed that none of the signs in the Park in September of 1984 complied with the provisions of the D.C. Building Code. Admin. Rec. at T.D.30-43. The inspectors found that many of the smaller signs

had the potential for becoming dangerous if propelled by high winds or of becoming tripping hazards because of poor construction and lack of anchorage. Id, Further, the inspectors found that most of the large signs were constructed in the same manner, using inadequate materials, poor anchorage and weak or debilitated materials, as well as poor construction details and fabrication. Id. .The inspectors also found many of the structures to present safety hazards because of loose glass, improper anchorage, and poor construction. Id.

31. Police reports indicate that large signs have been blown down by the wind. Admin. Record at I.D.86 and 99. In one case, a gust of wind toppled a sign that was affixed to another sign. Admin. Rec. at I,D,99. When the sign fell, a 2 inch by 4 inch by 8 foot piece of wood, with protruding nails, struck a pedestrian. Id. The pedestrian was taken to the hospital for treatment of a head injury.' Id. In another case, an 8 foot by 8 foot sign fell, narrowly missing another pedestrian. Admin. Rec. at I.D.86. The police report on this. incident also indicates that on two other occasions, signs were blown into the street at 1600 Pennsylvania Avenue during heavy traffic, causing cars to swerve and almost collide. Id.

32. Signs and structures have also caused injury to park resources. Bricks in the Park sidewalk have been defaced or misaligned by large signs and structures. Admin. Rec. at I.D.2 and 44. Turf damage has been done by posts and stakes used to support the signs and structures. Admin. Rec. at I.D.3 and 14. Large patches of dried and dead grass have been created by the

placement of large signs and structures in the Park for long periods of time. Admin. Rec. at I.D.89 and I.J.83, 107-108, 127-130, 159, 165, 172, 191, 228, 232-233 and 249-252.

33. Construction of signs in the Park have resulted in extensive paint damage and the presence of hazard construction materials. Admin. Rec. at I.D.2-3, 5-7, 44; I.J.4, 6, 8, 10, 12, 14, 16, 18, 20, 28, 34, 43, 45, 55, 57, 59, 60, and 88.

34. Demonstration sites, including large signs and structures are often unattended, making it difficult for the Park Service to have owners move these items for routine maintenance, such as watering , trimming and grass cutting . Admin . Rec . at I.D.12, 14, 16, 29 and 82.

5. Park Service Efforts To Alleviate Problems

35. Starting in September of 1984, the National Park Service began regular inspections of Lafayette Park to alleviate safety hazards, protect the resource and improve aesthetic quality. Admin. Rec. at I.D.30-43 and I.E.30. On September 10, 1984, the Park Service gave notice to demonstrators that various activities in which they were engaged were in violation of federal regulations and were harming park resources . Admin . Rec . at I.E.30. These activities included storage of personal property in the Park , construction of signs and structures, erecting structures without a permit and failing to properly secure signs. Id. The notice asked them to cease the violations immediately. Id. However, this notice was insufficient to alleviate problems existing in Lafayette Park and in November of 1984, the Park Service was forced to utilize its authority under

36 C.F.R. § 50.19(e)(12) to impose additional conditions. Admin. Rec. at I.E.3-4. These dealt primarily with safety, public access, and resource protection. Id. Again in April of 1985, the Park Service was forced to impose even more conditions- upon demonstrations in Lafayette Park. Admin. Rec. at I.E.1-2. In addition, the Park Service undertook almost weekly inspections of the Park. Admin. Rec. at I.D.1-29. During these inspections, the Park Service removed stored personal belongings, construction materials, trash and unpermitted structures. See Admin. Rec. at I.J.1-254.

36. Despite these efforts, the Park Service was unable to significantly improve the condition of Lafayette Park. Admin. Rec. at I.F.1-39. In July of 1985, there were seventy-seven signs in Lafayette Park, many crudely constructed and supported, and numerous structures, including desks, chairs, grocery carts and parking cones. Id.

37. The inability to significantly improve the condition of Lafayette Park resulted from the lack of any regulations effectively governing the use of signs and structures in Lafayette Park. See, 36 CFR Part 50. Under present regulations, individuals and groups numbering twenty-five participants or less need not apply for a permit for, or even notify the National Park Service of, a demonstration in the Park. 36 CFR ~ 50.19(b)(l). While groups numbering over twenty-five participants must apply for a permit to demonstrate, there are no provisions in existing regulations that would allow the Park Service to deny a permit for any kind or size sign. 36 CFR Part 50. Under present

regulations, a demonstrator may have as many signs, in whatever size, as Lafayette Park can accommodate. 36 CFR 6 50.19(d).

38. Likewise, there are limited regulations governing structures. See, 36 CFR Part 50. While a permit is necessary to erect a structure in any park area, the Park Service has mo regulation that effectively deals with structures brought into the Park. See, 36 CFR 50.19(e)(8). While the Regional Director does have the authority to place reasonable restrictions on structures , the authority does not adequately address aesthetic concerns and does not cover certain structures, such as desks, chairs or a display consisting solely of a porcelain toilet. Id.

39. The Park Service has attempted to work with individuals having large signs and structures in order to.ensure that these items are safe and properly secured. Admin. Rec. at P.D.8-43. However, it has been the experience of the Park Service that it is almost impossible to keep up with the varied signs and structures that sometimes appear overnight in the Park. Admin. Rec. at I.D.80 and 88. Further, some demonstrators are uncooperative in making changes in their property. Admin. Rec. I.D.22, 24, 26, 28, 63, and I.J.14 3 -.14 6 . For example, demonstrators may remove unlawful property from the Park one day only to bring it back the next day. Admin. Rec. at I.D.22.

40. It has often been difficult to enforce existing regulations concerning trash and abandoned property as the Park Service cannot always tell what property is trash and what is not. ·Admin. Rec. at I.D.17 and 56. Park Service employees have been

forced to seek legal opinions as to some items such as a toilet and signs made out of blankets. Id. One individual had a come covered with a pair of men's underwear in Lafayette Park. Admin. Rec. at I.J.72. The individual claimed that the object was a symbolic structure. Id.

41. The Park Service has had a difficult time enforcing abandoned property regulations as it not always possible to tell what is abandoned and what is not. For example, one individual will often claim most of the signs and structures in the Park only to disappear the next day when some other individual claims all the objects . Admin. Rec. at I.D.24. Demonstrators are frequently in and out of the Park, making it impossible to prove clearly that they have abandoned their property. Admin. Rec. at I.D.12, 14, 16, 25-29, and 67. Further, there are so many signs, structures and other property in Lafayette Park at any one time that it is difficult for Park employees who work in the Park on a daily basis to tell what property belongs to which demonstrator. Admin. Rec. at I.D.57 and 79 and I.5.1-254 generally.

6. Rulemaking Process

42. During the past two years, the National Park Service has received numerous complaints about the condition of Lafayette Park. Admin. Rec. at I.A.1-43 and III.D.1-32. From July, 1984, to Jul;, 1985, the Park Service received an average of two letters or calls a month complaining about the Park. Admin. Rec. at I.A.1-43. For example, the Chairman-Elect of the American Bar Association's Section of Urban, State and Local Government Law wrote: "I ask that you move quickly to remove the mess in

Lafayette Park. A jumble of signs, furniture, and other personal property makes a shambles of the public's multi-million dollar investment in the park." Admin. Rec. at I.A.12. Another individual wrote as follows:

Working as I do overseas , changes in the American scene are particularly apparent to me during infrequent visits home. Still, one would not have to be a visitor to Washington to be struck by these placards. No matter how many times one passes the park, each time they are a fresh visual assault.

I was brought to letter writing (boiling) point on this issue by a walk through the park at lunch time. There were the huge placards, disfiguring the park which so many workers picnic and rest in. Of demonstrators there was only one, fast asleep.

I believe in the right-to-picket the President's House. But shouldn't picketers should believe [sic] in what they are doing to the extent of carrying their written protests? Trucking in and dumping huge placards is littering, not the exercise [sic] of free speech. Admin. Rec. at I.A.34. These complaints continue to the present. Admin. Rec. at III.D.1-32.

43. In responses to worsening condition in Lafayette Park and citizen complaints, the National Park Service published a proposed rulemaking on August 20, 1985. 50 F.R. 33571; Admin. Rec. at II.B.1. The rulemaking proposed to limit the number and size of signs allowed in Lafayette Park and to prohibit all structures except speaker's platforms. Id.

44. The Park Service received almost two hundred and fifty comments on the proposed rulemaking. Admin. Rec. at II.A.3-8.

45. The National Park Service received one hundred and twelve letters and post cards and one petition containing one

hundred signatures from individuals and groups supporting the proposed regulations. Admin. Rec. at III.A.1-164. Most of these commenters expressly stated that large signs and structures in Lafayette Park substantially disrupted their enjoyment and view of the Park. Id. Many found the Park to be "embarrassing" and ''disgusting'' due to the on-going demonstrations. See, for example, Admin. Rec. at III.A.1.39, 48, 55, 64, and 187. Illustrative of many of these comments is the following:

Congratulations and thank you for the newly announced regulations designed to clean up Lafayette Park while protecting demonstrators' First Amendment rights.

The protection of these free-speech rights is highly important to me because I myself have marched and carried signs in support of a number of important causes. The proposed limit on size of signs and the "attendance" requirement is very reasonable and logical. Otherwise, the "demonstration" becomes "dumping" in a public place.

The current, state of the park is deplorable. In my walks to and from work, what I see is trash strewn through-out the park. The protesters are "few and far between." Numerous tourists are seen being frustrated in their attempts to view and photograph the White House and other fine architecture surrounding the park. The general appearance of the demonstrators and their shantytown is such that dialogue or any type of contact is avoided. Tourists returning to small towns recite with disgust how "the Government" has allowed protesters to litter, loiter, and camp permanently in this place which should belong to all the people. Admin. Rec. at III.A.1.132.

46. Commenters also spoke of the physical damage done to the Park and the potential safety hazards posed by the large, unattended signs and structures, as well as aesthetic concerns.

See, for example, Admin. Rec. at III.A.1.61, 63, and 136. An example of this is the following excerpt from one letter:

I write to support the proposed amendments to NCP regulations concerning structures and signs in Lafayette Park, published on August 20th in the Federal Register. The amendments are a balanced approach to a serious problem, and protect the rights of those who wish to enjoy the park for its intended and primary purpose, while permitting exercise of Ist Amendment rights in this public space. Current regulations, or lack thereof, have led to a deterioration in both the physical/environmental integrity of the park, and in its aesthetic qualities. I live and work near the Park and have personally observed the destruction that some of these structures and signs have had on the grassy areas. The number of signs--many with the same or similar messages- detracts from both the actual physical space that is available for enjoyment of this area for its intended use--as a park, and from the beauty of the area. The proposed amendments are a reasonable time, place and manner restriction which protects the park itself, as well as the rights of those who use the park as a park, yet permits those who use it only as a public forum to do so. I urge adoption of the proposals without substantive change . (Emphasis in the original). Admin. Rec. at III.A.1.SO.

47. Many of the commenters expressed their commitment to the exercise of First Amendment rights but then stated their view that that exercise should not preclude others from enjoying the Park. See, for example, Admin, Rec. at III.A.1.37-39, 44-47, 53, 129, ar;d 160. The common thread running through the letters supporting the proposed regulations was a plea for balance, as evidenced in the following excerpt from one letter:

I strongly support freedom of expression and am eternally vigilant to trends that impinge on that freedom. However, there must be balance. In recent years, there has been no

such balance. Signs in Lafayette Park are unsightly, too large, and precariously erected. The safety of visitors to the park as well as the desire of visitors to the city to appreciate its sights must be weighed against the freedom of expression to achieve the required balance.

Admin. Rec. at III.A.1.43.

48. Most of the commenters expressed their belief that the proposed regulations represented the proper balance between the exercise of First Amendment rights and the rights of Park visitors. See, for example, Admin. Rec. at III.A.1.37, 39, 42- 45, 50, 57, 60, 62, 69, 80, and 150. A judge on the United States Claims Court wrote as follows: "The proposed amendment represents a good-faith effort to balance the exercise of first amendment rights with the very real spoilation of Lafayette Park." Admin. Rec. at The American Society of Landscape Architects commented as follows:

The ASLA is aware of the sensitivity of this issue in regard to First Amendment freedoms, and feels that the proposed regulations are fair and appropriate in balancing those freedoms against: the rights of the park visitor. The American Society of Landscape Architects recommends the adoption of these regulations. Admin. Rec. at III.A.1.22.

49. The National Park Service received seventy-six letters and post cards from individuals and groups who felt that the pro- posed regulations were too lenient. Admin. Rec. at III.A.2.1-138. One letter contained eight signatures. Admin. Rec. at III.A.2.127. In addition, the Park Service received one petition with nine signatures requesting that the regulations be changed to allow

only hand-carried signs in Lafayette Park. Admin. Rec. at III.A.2.54.

50. The majority of these commenters suggested that the National Park Service place a total ban on stationary signs in Lafayette Park. For example, J. Carter Brown, writing for the Commission of Fine Arts, indicated that the Commission "can testify only too well the degree to which this most historic of Washington's parks has been increasingly spoiled over the last few years by a proliferation of signs and other structures erected in the name of some cause." Admin. Rec. at III.A.2.50. Finding that the major cause of the problems in Lafayette Park is the permanent nature of signs and structures, the Commission recommended a requirement that signs and demonstrators keep moving throughout a demonstration. Id.

51. Senator Mark O. Hatfield pointed out the substantive damage done to the Park by.large signs over the years. Admin. Rec. at III.A.2.15-16. The Senator stated that he would not object to even more restrictive size requirements and the elimination of all stationary signs. Id. Representative John F. Siberling questioned why any sign should be set up as a permanent fixture in the Park and suggested that the Park Service allow only one sign per person. Admin. Rec. at III.A.2.61. The Architect of the Capitol and the Washington Legal Foundation, as well as many individuals, also suggested that the Park Service allow only hand-carried signs in Lafayette Park. Admin. Rec. at III.A.2.5, 19, 23, 36, 42, 43, 46, 54, 57, 59, 66, 86, 92, 99, 119, 124, 128, and 138.

52. Other commenters suggested additional time and place restrictions on demonstrations in Lafayette Park. For example, the Washington Legal Foundation (hereinafter "WLF") found the proposed regulations to be a "half-hearted" and "timid" attempt to deal with the problems in the Park and suggested several alternatives. Admin. Rec. at III.A.2.1-12. Primarily, the WOLF suggested a requirement that: (1) all signs be hand-carried and those signs be no larger than four feet by four feet; (2) all signs be confined to either the Northeast or Northwest quadrant of Lafayette Park; and (3) no demonstrations be allowed between 11:30 a.m. and 1:30 p.m. each day. Id.

53. Other commenters offered alternative regulatory schemes, including: banning signs altogether (Admin. Rec. at III.A.2.32, 47-48, 60, 64, 72, 79, 82, 85, 108, 118, 129, and 131); closing the Park to demonstrations periodically (Admin. Rec. at III.A.2.20, 86, 104, 106, 109, and 115); more restrictive sign size limitations (Admin. Rec. at III.A.2.31, 33, 46, and 124); and that the proposed regulations be extended to all parks in downtown Washington. (Admin. Rec. at III.A.2.36 and 102).

54. The National Park Service agreed that many of the suggestions as to more restrictive provisions would better serve aesthetic, public safety and resource concerns in Lafayette Park. Final Rule, 51 FR 7559; Admin. Rec. at II.A.4. However, the Service concluded that it would attempt to alleviate problems utilizing the less onerous regulatory scheme proposed, and only if that failed, would it be necessary to impose additional restrictions. Id.

55. The Park Service decided against applying the same regulations to other parks in the downtown area as those parks are maintained at a different level of aesthetic quality than that maintained for Lafayette Park. Final Rule, 51 FR 7559 and 7561; Admin. Rec. at II.A.4 and 6. For example, the Monument Grounds are not maintained at the same level of aesthetic quality a.s Lafayette Park . Id. Softball, other games, and special events are allowed on the Monument Grounds but are not allowed in Lafayette Park. See 36 CFR § 50.19(c)(l). In fact, the Park Service is taking steps to minimize resource damage to the Monument Grounds, for example, changing the annual July 4th Celebration program. Final Rule, 51 FR 7561; Admin. Rec. at

56. The National Park Service received thirty-nine letters from individuals and groups opposing the proposed regulations. Admin. Rec. at III.A.3.1-156. It also received a petition, with several thousand signatures, in opposition. Admin. Rec. at III.A,3.187-350. However it appears that many of the signatures on the petition were gathered in April and May of 1985, prior to the drafting of the proposed regulations, and in response to a preamble that speaks generally to the closing of Pennsylvania Avenue and "further restrictions on demonstrating around the White House." Id. These pages do contain the sentence "I believe that the ethnic identity of the United States is more aptly expressed by freedom to assemble and protest in Lafayette Park than by pristine pictures of the White House". Id. Even

though most of the petition did not address the specific regulations proposed, the entire petition was given careful consideration. Final Rule, 51 FR at 7560; Admin. Rec. at II.A.S.

57. Many of the commenters opposing the proposed regulations made the point that Lafayette Park is a unique site for First Amendment activities because of the Park's close proximity to the White House and its occupants. Admin, Rec. at III.A.3.4, 8, and 102. Further, groups such as the American Civil Liberties Union (hereinafter "ACLU"), the Sierra Club and the White House Vigil for the ERA, as well as individuals, indicated that Lafayette Park has long been utilized by demonstrators such as the early suffragettes to bring their message to the public. Admin. Rec. at III.A.3.17, 64-65, and 77. The commenters stated their belief that, because of the unique opportunities Lafayette Park offers to bring a message directly to the public and the Executive Branch, demonstrations must be allowed to continue in that Park. Id.

58. The ACLU recognized "that some reasonable regulation of the time, place and MANNER of demonstration ACTIVITY may be necessary in order to protect the public safety, to protect the Park from physical damage, to allocate space among competing users, and to maintain an appropriate balance between the use of the Park by demonstrators and by others." Admin. Rec. at III.A.3.15. However, the ACLU questioned the motives of the Park Service in promulgating the regulations at issue and concluded that the proposed restrictions went beyond what was necessary to achieve government purposes. Admin. Rec. at III.A.3.1-57.

59. Many of the commenters opposing the proposed regulations, such as the ACLU, took the position that either there is no problem in Lafayette Park or that the problem can be handled under existing regulations. Admin. Rec. at III.A.3.23-31. The ACLU, for example, stated that the Park Service has misrepresented the current situation and that visitors to the Park find the ongoing demonstrations to be "a thrilling example of their democracy in action."' Admin. Rec. at III.A.3.27-28.

60. None of the commenters opposing the regulations seemed to dispute the safety problems and resource damage done by large, unattended signs and structures. See, for example, Admin. Rec. at III.A.3.15 and 75. However, some commenters felt that vigorous enforcement of existing regulations would eliminate these problems as well as aesthetic concerns. Admin. Rec. at III.A.3.15. The ACLU suggested that the National Park Service simply spend money to repair damaged areas and commented that other events do equal damage to the parks. Admin. Rec. at III.A.3.21.

Memorandum Continued

Contents

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