USDC Cr. No. 84-3552

     Plaintiff Pro Se    
versus                          CA 84-3552
                                Judge Louis Oberdorfer
UNITED STATES, et al     



Initially, as the Court is well aware by now, and defendants agree, plaintiff was sitting on a sidewalk to communicate with the public.

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:

"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 prominent place.

"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 viewed optimistically.

"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.)

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.


"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 111)..

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.)

and ordered,

"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 argumnet:

"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 and this.


"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. [1]

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, "have 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 political protest."]


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).

MR. CRAIG 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 proper.


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 position here."

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 (1966)).

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 (1984).).

"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. para 132).

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