USDC Cr. No. 84-3552
THOMAS v. REAGAN
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
WILLIAM THOMAS, et al
Plaintiff Pro Se
versus CA 84-3552
Judge Louis Oberdorfer
UNITED STATES, et al
MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS MOTION FOR
PRELIMINARY INJUNCTION AND DECLARATORY RELIEF
Initially, as the Court is well aware by now, and defendants
agree, plaintiff was sitting on a sidewalk to communicate with
On different occasions, frequently as a direct and proximate
result of sitting on that sidewalk, or being accused of sleeping on
that sidewalk, or other of defendants' excesses in arresting him
pursuant to local statutes and DOI regulations. plaintiff has
appeared before various Federal District Court judges.
On one occasion p|aintiff explained to Judge Oberdorfer:
There can be no question that the content of Thomas' message
was in diametrical opposition to the policy of the administrative
branch of the Government.
"I have a belief, and by the most sacred principles of
this country, I am entitled to hold my (belief), and, by the
fundamental laws of this country, I am entitled to express my
belief.... My burden seems to be that I hold an unpopular belief,
and I insist on expressing it. I am viewed as a blight on society
as a direct result of the manner of my expression. But, being
penniless in a society which traditionally demands money for
expression, there is no other manner available to me for expressing
my beliefs than through my body, my voice, and crude signs in a
"I am just doing my job. I am a critic, but criticism is
not a bad thing. Criticism identifies problems. Identifyivg a
problem is the first step toward solving it, when criticism is
"I pray this court will seriously consider whether I
(accurately) represent myself as a critic, as exemplified by my
life and works at l600 Pennsylvania Avenue. Whether or not my
criticism is valid has never been at issue before this, or any
other, court.... (S)hould this court sentence me to be imprisoned
without ever having addressed the issue of my criticism(, I fear we
shall have a sorry state of affairs)." (USA v. Thomas CR 83-l86,
transcript December 2l, l983, pp. 2l-23.)
"IF A GENOCIDAL WEAPON IS A PEACEMAKER THEN ALDOF HITLER WAS
A SAINT." (Long time Thomas sign, see Amended Complaint, para ).
"Althought nuclear weapons mean, if not the end of mankind, at
least the end of civilization as we know it, they are necessary to
protect against mindless bureaucracy, and totalitarian police-state
tactics which combine to stifle individual freedom, and personal
excellence." (Ronald Wilaon Reagan, June 6, 1982, Complaint page
Stare decisis said Thomas had a right to say it:
"You can stand in front of that White House, and your
message can be seen all over the globe within hours, and your right
to do that is guaranteed.... I am sensitive, perhaps more
sensitive than most, to the fact that if your country suppresses
the kind of protest that you are engaged in, it would be
jeopardizing the liberty of all of us." (Ibid., pp. 28-29.)
"Because your case poses some difficult constitutional
questions, the answers to which are not free from doubt, service
of your sentence will be stayed until the time for appeal has
expired.... It is a condition of a bond pending appeal that you
will seek ... to apply for a permit and, if necessary, seek,
judicial review...." (Ibid., December 22, 1983 Order, p. 4.)
Repeatedly Thomas has sought such permit, or writting only
to be rebuffed, or ignored. Finally, on November 21, 1984 he filed
a Complaint asking the Court to:
"(R)edress an ongoing pattern of wrongful conduct. This
pattern of conduct was allegedly conceived, directed, and executed
by defendants, and implemented by defendants' agents pursuant to
policy or orders issued by defendants. Defendants' motive for
pursuing this pattern of wrongful conduct was to terminate
plaintiff's activities -- namely remaining in a public park to work
peacefully for social change, and to freely express ideas, beliefs
or opinions in a public place -- and subject him to prosecution
and persecution for the exercise of rightful behavior essential to
the welfare of a demoncratic society" (Restatement of Claim, filed
July 21, 1986, see also Statement of Claim, filed April 22, 1096,
see also Amended Complaint, filed Octorer 16 1985 para 1, see also
Complaint, filed November 21, 1984 para. 18, etc.).
Plaintiff's Complaint set forth, as best he knew how, his
reasons for believing that various engagements with officials
of different police agencies constituted an impermissable
combination of "mindless bureaucracy and totalitarian police-state
power" and how he had suffered injury as a direct result of the
application of that combined power.
On February 20, 1985 the Federal Defendants (First) Motion to
Dismiss was filed.
On March 4, 1985 plaintiff filed an opposition to Federal
Defendnats (First) Motion to Dismiss. Essentially, plaintiff
submits, those Motions, and the controversy at issue, are summed up
in plaintiff's parenthetical insertions into defendants base
"Plaintiff (a philosopher) is correct that he has been
arrested on numerous occasions in the White House area for ( false
accusations that his actions threatened substantial Government
interests unrelated to the suppression of free speech, under color
of various regulations which were implemented, selectively
enforced, and were intended or had the effect of denying plaintiff,
plaintiff's associates, or those though by defendants to be
plaintiff's associates equal protection of the law, and to subject
them to the wrongful deprivation of rights, priviledges, and
immunities guarenteed by the Constitution). Indeed it is fair to
say that he has been arrested far more often than any other
individual. The reason is clear, he is always there (in a public
park where he has absolutely every right to be). He has frequently
been (falsely accused of) violations of the (regulations)
(selectively implemented by defendants to color his socially
beneficial and Constitutionally protected behavior as 'criminal
activity'), and he simply refused to conform his conduct to
(unjust, corrupt, or treasonous Government abuses of power because
to do so would be a betrayal of his most sacred ideals). Certainly
the fact that (ir)responsible (policy) enforcement officials...
repeatedly, and selectively deal with (the exercise of) plaintiff's
(Constitutional rights under color of specifically redefined or
newly written regulations) lays (a strong) foundation for a
conspiracy claim (and) for (a) claim that his constitutional rights
have been violated" (Opposition to Federal Defendants (First)
Motion to Dismiss, at 10, see also Federal Defendants (First)
Motion to Dismiss, at 7).
The crux of plaintiff's allegation spins about the theory that
defendants, or their superiors, viewed plaintiff's creative
communication of his views as "the wave of the future" (testimony
of defendant Parr in ERA v. Watt, see Plaintiff's Trial Brief (Tr.
B.) at para 25, see also Complaint, para, 37), and to quash that
wave defendants first tried simple harassment, imtimidation and
arrests. When their initial attempts to drive plaintiff out of
the park failed, some defendants realized that it would become
necessary to subvert the fundamental principles of the Constitution
-- at least those relative to plaintiff's rights to be in a public
park, effectively display signs, and exercise other forms of
non-violent communication (Tr. B. para ____, see also, Amended
Complaint, para 10).
On June 3, 1984 Judge Oberdorfer ruled that plaintiff stated
"a substantial federal claim."
On June 4, 1986 the Court issued a Pre-trial Memorandum and
Order, noting that "this action is presently before the Court on
plaintiff's Amended Complaint, filed October 16, 1985," Denying the
federal defendants' Motion for Judgment on the Administrative
Record, filed March 20, 1986. The Court also referenced
plaintiff's claim that:
"the adoption of the park (36 CFR 50.19(e)(11)(12)) regulations
was ... an act in furtherance of a conspiracy to violate
plaintiff's civil rights." (Ibid. at 3.)
Having conducted some limited discovery (see Paintiffls
Objections to Discovery, Filed theis date) plaintiff now files a
Motion for Consolidation of the Trial with a Hearing on the
Application for Preliminary Injunction.
On August 20, 1985 certain defendants published 36 CFR
50.19(e)(11)(12) in the Federal Register.
Of course even speech in the public forum may be restricted by
its time, place or manner, but such measures are
constitutionally valid only so long as they are reasonable. The
government interest served by the rules must be unrelated to the
suppression of free speech, and must be narrowly tailored to
that interest leaving open ample alternative channels for
communication. United States v. O'Brien; 391 U.S. 367 (1968). Any
regulation also must be even-handed. The government may not grant
the use of a forum to people whose views it finds acceptable, but
deny use to those wishing to express less favored or more
controversial views." Police Department of the City of Chicago v.
Mosley 408 U.S. 92, 95-96 (1972).
Indisputably, unless the Park Service plans to alter
Washington's inaugural traditions, the proposed regulations will
create impermissible favoritism for certain types of
demonstrations over others. For example individuals and groups of
less than 100 demonstrators would be allowed to erect only a
2'x2'x2' speaker's platform during rallies. No other structures
-temporary or permanent - would be allowed. By sharp contrast
grandstands, immense, tremendous, and large in comparasion with
plaintiffs' signs, are erected in Lafayette Park every four years
for the Inaugural Parade. It is hard to imagine how such
differential treatment, clearly favoring pro-government expression
over other messages, might justly be considered constitutionallly
valid. (Amended Complaint, para 104).
In arguing the validity of 36 CFR 50.19(e)(9)(10) defendants
reply heavily on Members of City Counsil v. Taxpayers for Vincent,
but there at least two substantial differences between that case
"There is no merit in appellees' suggestion thatthe
property covered by Section 2804 either is itself a 'public forum'
subject to special First Amendment protection, or at least should
be treated in the same respect as the 'public forum' in which the
property is located.... Public property which is not by tradition
or designation a forum for public communication may be reserved by
the government for its intended purposes, communicative or
otherwise, if the regulation on speech is reasonable and not an
effort to suppress expression merely because public officials
oppose the speaker's view." (Members of City Council v. Taxpayers
for Vincent 104 S.Ct. 2121 (1984) (Majority Opinion).) As a public forum Lafayette Park occupies a privileged
position in the hierarchy of first amendment jurisprudence." White
House Vigil for the ERA Committee v. Clark; 746 F2d 1518, 1526,
1527 (D.C. Cir. 1984).
Here, or course, where "(t)he National Park Service agrees
that Lafayette Park is an appropriate site for demonstrations..."
(Trial Brief [Tr. B.] at 175, Federal Register, March 5, 1986, at
7560), and defines "demonstration" as "conduct intended or having
the propensity to attract a crowd or onlookers" (36 CFR 50.19
(a)(1)), the bar is faced eith an entirely different question.
Even if the Park Service had complied a compelling factual
case to support the regulations the purposed rules fall short of
the constitutional requirements for restrictions on speech. The
proposed rule-making discussed extensively the Park's
architectural and horticultural history, but paid scant attention
to the long history of public discourse at this location. 
The Supreme Court has acknowleged Lafayette Park as one of
the "unique resources that the Federal Government holds in trust
for the American people." Clark v. Community for Creative
Non-Violence; ___US___ (1984), 52 U.S.L.W. 4966 (U.S. June 26,
1984). Public parks, especially those in the nation's capital,
immemorially been held in trust for purposes of assembly
communicating thoughts between citizens and discussing public
questions. Such use of the streets (and parks) has from ancient
times been a part of the privileges, immunities, rights, and
liberties of citizens. Hague v. CIO; 307 U.S. 496, 515 (1939).
In Taxpayers for Vincent, the Court made it clear that:
"We ... limit our analysis of the constitutionality of
the ordinance to the concrete case before us....
"The ordinance prohibits appellees from communicating with the
public in a certain manner, and presumably diminishes the total
quality of their communication in the city. The application of the
ordinance to appellees' expressive activities surely raises the
question whether the ordinance bridges their 'freedom of speech'
within the ______________________
[1 As Justice Marshall noted in his dissent in Clark v. Community
for Creative Non-Violence,___Us___(1984), 52 U.S.L.W. 4986 (U.S.
June 26, 1984). "It is interesting to learn, I suppose, that
Lafayette Park and the Mall were both part of Major Pierre
L'Enfant's original plan for the capital. Far more pertinent,
however, is that these areas constitute, in the Government's words,
"a fitting and powerful forum for political expression and
meaning of the First Amendment, and appellees certainly have
standing to challenge the application of the ordinance to their own
expressive activities." (Members of City Council v. Taxpayers
for Vincent 104 S.Ct. 2128 (1984)).In light of Lafayette Park history over the past five years
it is difficult to imagine that the proposed regulations have any
purpose other than to suppress speech. Plaintiff has alleged
"defendants knew the First Amendment prevented them from
interfering with the activities which prompted the January 13 memo
(of Secretary Watt and that) in and of themselves, plaintiff's
signs and his continuous presence presented no threat to any
legitimate governmental interest. Therefore, plaintiff
reasons, defendants developed euphemisms ("nuisance," "problem,"
" the situation," "the current situation") by which to refer to
plaintiff and his activities, thus masking their true intent,
(Amended Complaint para. 84.). The facts of this case lend support
to this allegation particualrly given the proliferation of such
rules in recent years, all of which, defendants admit, grew out of
the 'problem' of 'two individuals' or a 'handful of demonstrators'
(Tr. B. e.g. para 25, 95, 97, 108, 112)
In 1981 plaintiff Thomas was arrested four times under color
of various regulations because he fell asleep curing the course of
his continuous presence in front of the White House. There has
never been any showing of probable cause for those arrests (Tr. B.
para. 4, 15, 17, 18, see also Complaint para. 28-33).
"...In the unusual circumstances of an individual
demonstrator's round-the-clock vigil incidental sleep which occurs
during the course of the vigil must be considered sufficiently
expressive in nature to implicate First Amendment scrutiny in the
first instance." United States v. Abney, 534 F2d 1984?"
Also in that year a tent city was established in Lafayette
Park to protest the plight of the homeless. Purportedly in
response to that tent city the Park Service amended 36 CFR 50.27(a)
(Clark v. Community for Creative Non-Violence (CCNV), Syllabus,
Majority Opinion, June 26, 1984 at 3).
LAWRENCE (for the Government [Watt, later Clark]): "The position
of the Department of the Interior is that the demonstration is
proper, a symbolic campsite is proper, a continuing presence is
(CCNV v. WATT CA-81-2844 TRO HEARING FOR JUDGE RICHEY, JUDGE
BARRINGTON D. PARKER, NOVEMBER 24, 1981 TRANSCRIPT pg. 38).
THE COURT: "Are you familiar with the case of the United
States v. Abney, 534 F2d 984?" (Supra).
MR. LAWRENCE: "Yes, Your Honor. . . . (pg. 22) (CCNV)
does) not even rely on that case as any support for their
There is absolutely no evidence in the record that plaintiff
has ever used a tent. There are indications that the only
individuals who have ever been arrested under this regulation have
been within fifty yards of plaintiff's signs (Tr. B para 159).
Defendants purported that the rules were "intended not to
stifle First Amendment expression, but rather to protect
undesignated areas from activities for which they are unsuited, or
the impacts of which they cannot sustain. Short term casual sleep
which does not occur in the context of using an area for living
accommodation purposes will not be affected by these regulations."
(Federal Register, June 4, 1986, at 24301).
THE COURT (pg, 28): "What part of the land area did the
Quaker Action Group involve?"
MR. LAWRENCE; "Your Honor, that was an overall challenge to
the regulations at issue. I am not sure exactly where the Quakers
-- it is my understanding that for a while they conducted a vigil
on the White House sidewalk."
(CCNV v. WATT CA- 81-2844, TRO HEARING, JUDGE RICHEY, NOVEMBER 25,
1981, pg. 21, see also Tr. B. para. , see also Complaint para.
22, 23, 24 and 108).
Notwithstanding those representations, on June 4, 1982
defendant Fish suspended the 30 day delay of effectiveness of
regulations provided for in 5 USC 553(d) (Tr. B. para 28), and
although plaintiff had been using no temporary shelters, breaking
ground, making fires, preparing food or otherwise creating
"impacts the area cannot sustain," plaintiff was arrested on June
17, 1982, in a prearranged operation attended by defendants
Lindsey, Bangert, and Robbins (Tr. Ex. 71). Although plaintiff
tried to communicate to defendants the fact that his activity was
protected, defendants refused to listen. (Tr. B. para e.g. 31-37,
see also Complaint para 42-47).
"The disposition of this case reveals a mistaken assumption
regarding the motives and behavior of government officials who
create and administer content neutral regulations... There are
facts in this case that raise a substantial possibility that the
impetus behind this revision derived less from concerns about wear and tear on parks,
than on other, more 'political' concerns (CCNV v. Clark, June 26,
1984, dissent at 14-15).
". . .The political dynamics likely to lead officials to a
disproportionate sensitivity to regulatory as opposed to First
Amendment interests can be discerned in the background of this
case. . . (M)y intention is to illustrate concretely that
government agencies by their very nature are driven to
over-regulate public forums to the detriment of First Amendment
rights, that facial viewpoint-neutrality is no shield against
unnecessary restrictions on unpopular ideas or modes of expression,
and that in this case in particular there was evidence readily
available that should have impelled the Court to subject
Government's restrictive policy to something more than minimal
scrutiny" (ibid at 15-16).
Thomas alleged defendants realized there was no possibility of
using regulatory semantics to "color" his person out of the park,
so they decided instead to concentrate on removing his signs to
some location where they would attract less attention, and be
easier to ignore (Tr. B. para 68, 69, 75, 92 see also, Amended
Complaint para 16).
"(I)t must be noted that petitioner's presence was
unquestionably lawful. It was a public facility, open to the
public... But there is another and sharper answer which is called
for. We are here dealing with an aspect of a basic Constituitonal
right -- the right under the First and Fourteenth Amendments
guaranteeing freedom of speech and of assembly and freedom to
petition the Government for a redress of grievances... As this
Court has repeatedly stated, these rights are not confined to
verbal expression. They embrace appropriate types of action which
certainly include the right in a peaceable and orderly manner to
protest by silent and reproachful presence in a place where the
protestant has every right to be" (Brown v. Louisanna, 383 Us 131
Subsequently the Park Service acted to restrict picketing on
the sidewalk in front of the White House. see White House Vigil,
746 F2d 1518. Although the Appeals Court did not scrutinize the
factual matters at issue in that case, the Court did note that:
"On the circumstances existing during the relevent time here
a strong argument could have been made that a regulation
(promulgated under a conspiracy with the intent of) banning all
(effective methods of expression open to William Thomas,
individuals, or groups of 25 or less, in the Park) would have been
unconstitutional." ERA v. Clark, U.S. App. 84-5283, Opinion filed
October 26, 1984, at 16 [parenthesis added]).
The trial court approached the threshold of this question in a
decision which was reversed ). However that reversal came on
legal rather than factual grounds leaving that "particular issue"
unresolved (inter alia at 13.
As the majority of the Supreme Court footnoted:
"The fact that the ordinance is capable of valid
application does not necessarily mean that it is valid as applied
to these litigants. We may not simply assume that the ordinance
will always advance the asserted state interests sufficiently to
justify its abridgement of expressive activity. Landmark
Communications, Inc. v. Virginia, 345 US 829, 844 (1978). See
also Brown v. Social Workers, 74 Camp.Comm. 459 US 87 (1983);
Police Department of Chicago v. Mosley, 408 US 92 (1972); NAACP
v. Alabama, 347 US 449 (1958); et al." (Members of City Council
v. Taxpayers for Vincent 104 S.Ct. 2128 (1984).)
The fact that the suppression of expression in Lafayette Park
(and if there, where not?) may have been been approached one step
at a time hardly cleanses the rules of their illegitimate purpose.
The regulations currently at issue might reasonably be seen as the
culmination of an active campaign to drive demonstrators away from
the front of the White House. As a result the alternative channels
of communication which must exist if the regulations are to be
upheld are severly limited.
When the Supreme Court upheld the anti-camping regulations in
Clark it found unimpaired alternative means of communication
because the rules "otherwise left the demonstration intact with its
symbolic city, signs and the presence of those who were willing to
take their turns in a day-and-night vigil." 52 U.S.L.W. 4988.
Likewise the D.C. Circuit declined to strike down limitations
on the size and placement of signs on the White House sidewalk
because the protesters "may always carry their demonstration
immediately across Pennsylvania Avenue to Lafayette Park." White
House Vigil 746 F2d 1528. Both of these alternatives would be cut
off by the proposed regulations. This fact alone renders
constitutionally suspect the Park Service proposal. There is ample
reason for this Court to examine very carefully the motives
underlying the rulemaking, and, if shown to be impermissable, dam
the errosion of free expression at this juncture.
"As (previous Supreme Court decisions) demonstrate, there are
some purported interests -- such as a desire to suppress support
for a minority party or an unpopular cause, or to exclude the
expression of certain points of view from the market place of ideas
-- that are so plainly illegitimate that they would immediate
invalidate the rule. The general principle that has emerged from
this line of cases is that the First Amendment forbids the
government from regulating speech in ways that favor some
viewpoints and ideas at the expense of others. See Bolger v.
Youngs Products Corp., 103 S.Ct. 2875, 2879 (1983); Consolidated
Edison Company v. Public Service Comm'n, 447 US 530, 535-536
(1980); Carey v. Brown, 447 US 455, 462-463 (1980); Police
Department of Chicago v. Mosley, 408 US 92, 95-96 (1972)."
(Members of City Council v. Taxpayers for Vincent 104 S.Ct. 2128
"That general rule has no application to (Taxpayers for
Vincent). For there is not even a hint of bias or censorship in
the city's enactment or enforcement of this ordinance. There is no
claim that the ordinance was designed to suppress certain ideas the
city finds distasteful or that it has been applied to appellees
because of the views that they express." (Ibid.; emphasis added.)
Unfortunately, in the case presently before the Court, it
cannot seriously be said that there is "not even a hint of bias or
censorship" in the enactment of 36 CFR 50.19(e)(11)(12) ("the
Regultion"). In Taxpayers for Vincent, the Court found that the
signs prohibited by the ordinance do constitute visual clutter and
blight, and by banning those signs, the city did no more than
"eliminate the exact source of the evil it sought to remedy."
"In light of these facts, plaintiff's claim that a memo
from Secretary Watt, and subsequent contacts between Assistant
Solicitor Robbins, a principle drafter of the regulations, and the
Secretary and the White House take on added significance. On
January 13, 1983, a memo from Secretary of Interior James G. Watt
requested a 'briefing on the regulations that allow
demonstrations and protesters in Lafayette Park and in front of the
White House on Pennsylvania Avenue. My intention is to prohibit
such activities and require that they take place on the Ellipse.'
"When Assistant Solicitor Robbins spoke to Secretary Watt
about development of the regulations in March of 1983, the
Secretary told Mr. Robbins to 'keep up the good work.' There was
also contact with the White House to inform White House counsel of
the status of the regulations. Additionallly plaintiffs urge that
the key fact that both versions of the regulations just happened to
proscribe all of the plaintiffs then current activities on the
sidewalk cannot be regarded as mere co-incidence.
"In the circumstances it would appear that plaintiff's claim
in this regard can in no wise be charactorized as frivilous;
however in light of this court's disposition of this case, it need
not resolve this particular issue." (Memorandum opinion, J.
Bryant ERA v. Watt, USDC CA 83-1243, filed April 26, 1984, Tr. B.
Certain stipulations can be made with regard to 36 CFR
50.19(e)(11)(12), the regulation Constitutionally challenged here.
These stipulations do not support the premise that the rule will
rectify the "evil it sought to remedy."
Case Listing --- Proposition One ---- Peace Park