THOMAS v. REAGAN

USDC Cr. No. 84-3552

"CURRENT SITUATION IN LAFAYETTE PARK:

"In July of 1985 there were (quite a few) signs in Lafayette Park.... One of these signs indicated that ... two individuals ... had been in the park since June 1981." (Federal Register, March 5, 1986, at 7557.)

"The National Park Service currently has no effective regulations governing the use of signs... in Lafayette Park (see Tr. B. at ___). 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 (ibid 7558).

"Likewise, there are limited regulations governing structures. While a permit is necessary to erect a structure in any park area, the Park Service has no regulations prohibiting individual structures unless they cannot be accommodated in the Park (ibid 7559).

"The National Park Service did consider closing the Park to demonstrators at night. However this limitation would preclude continuous vigils in Lafayette Park. Although the National Park Service does not believe it has a constitutional obligation to allow continuous vigils, it does not wish to preclude them unless other measures are insufficient...." (Ibid at 7559.)

"In addition to the problem of a few individuals ...(some Park) visitors complain ... that the ...large signs... amount to a visual blight in the Park and generally create an unsightly appearance in the Park.... Prior to the publication of the proposed rule the National Park Service (purportedly) received at least twenty-five complaints, most requesting some action, concerning Lafayette Park."

"The National Park Service ...also received a petition with several thousand signatures in opposition (to the proposed regulation).... These pages 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." (Ibid at 7560.)

"The American Civil Liberties Union (ACLU) specifically questioned the motives of the National Park Service in promulgating

these regulations, suggesting that the sole purpose for the amendments is to harass certain individuals now demonstrating in Lafayette Park. To support this proposition the ACLU attached to its comments several affidavits by Concepcion Picciotto, a long time demonstrator, that allege ... the Park Service is allowing private citizens to destroy demonstrators' signs...." (Ibid at 7560.)

"If the regulations, when effective, have a greater impact on one group of demonstrators, it is only because those demonstrators are the ones causing the substantial problems in the Park with large signs...." (Ibid.) "Some commenters also suggested that restrictions on demonstrations on the White House sidewalk make Lafayette Park an even more important site for demonstrations directedtoward the White House. It is true that restrictions were placed on the size, placement and construction of signs used on the White House sidewalk in July of 1983 ... The imposition of those regulations appears ...to be the reason for the movement of large signs ... to Lafayette Park." (Ibid at 7560.)

"Many of the commenters opposing the proposed regulations ... take the position either that there is no problem in Lafayette Park or that the problem can be handled under existing regulations. The ACLU, for (just one) 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.'

"Several commenters ... suggested a public meeting or private negotiations concerning the rulemaking effort. It would be inappropriate in this instance to have private negotiations with any one individual or group. This rulemaking has been thoroughly and intelligently discussed in the media, through editorials, articles, and letters to the editor ... (Ibid at 7562.)

Earlier defendants had claimed

"Over the past year, the National Park Service received at least 16 written requests for some action against the visual blight in Lafayette Park." (Federal Register, August 20, 1985 at 33573).

In fact, review of those letters indicates two clear points. First, not all of those 16 purported complaints make mention of signs, or even demonstrations, in Lafayette Park (see e.g. Ad.Rec. I.A.24, I.A.30, I.A.37). Secondly, it cannot be said by any stretch of the imagination that these complaints were reasonable or unbiased. Typical of these complaints are the following:

"Complaint: The display of large, esthetically distasteful signs and scurrilous writing thereon, on Pennsylvania Avenue at the center of Lafayette Park and facing the White House are now, and have been existing for a considerable period of time. I am sure that you and every reasonably responsible citizen would agree that such a display is not only distasteful but is harmful to the image to the capital of the country.

"Remedy: Now you have a complete remedy which comes in the form of a decision of the Supreme Court of the United States in the case entitled:

"MEMBERS OF THE CITY COUNSEL OF THE CITY OF LOS ANGELES, ET AL, VS. TAXPAYERS FOR VINCENT, ET AL." (Ad.Rec. I.A.24. emphasis in the original).

"The purpose of this letter is to register a serious complaint concerning the permanent occupation of Lafayette Park by antinuclear weapons groups." (Ad.Rec. I.A.19.)

"I believe the time has come to exert some discipline and clean out the mess which is permitted in the park ... signs of all ilk....

"I am aware these people are exercising their 'rights' ... I am very, very angry." (Ad.Rec. I.A.13.)

A typical of responses sent to all of the complainants was written by defendant Bangert:

"Although presently under tight legal constraints in this area, we do attempt as much as possible under the regulations to accommodate both visitors and demonstrators. For example, we are closely monitoring the sound levels of demonstrators utilizing amplified sound so as not to allow the sound unreasonably to disturb non-participating persons. In addition, we have put the individuals now demonstrating in Lafayette Park on notice that they must comply with regulations and permit conditions, prohibiting such activities as storage of property, injury to trees and grass, and construction of signs, or face arrest. To date we have received compliance and the park is noticeably more attractive." (Ad.Rec. I.A.26; see also I.A.31 and I.A.32, e.g.)

In Taxpayers for Vincent the Court noted that in Metromedia v. San Diego, 453 US 490, 561 (1981), the Court held that:

"It is not speculative to recognize that billboards by their very nature, wherever located and however constructed, can be perceived as an 'aesthetic harm.' Op.Cit. at 510."

Plaintiff would submit that beauty is in the eye of the beholder, and so it is certainly conceivable that the large protest signs in Lafayette Park may have been viewed by some as "aesthetic harm". Nonetheless it is also not inconceivable that others merely complained of "esthetic harm" to mask their opposition to the message expressed by the signs, and simply wanted the message removed to a site where it would be easier to ignore. An example of this motive might be found in a letter from an individual named Henry Berliner:

"It has distressed me for many years that the 1600 block of Pennsylvania Avenue facing the White House has been the site for crude, vulgar, and nonsensical signs and petitions. On a permanent basis, the monument grounds offers more than ample space for free speech and on a temporary basis, a demonstration permit can be obtained for almost anywhere. In summary, I object to the desecration of a national historical site: the White House and Pennsylvania Avenue." (Ad.Rec. I.A.11.)

One thing which has distressed plaintiff for many years is how members of powerful groups sharing common vested self-interests band together to stomp on people whom they dislike with total disregard as to who is actually "crude, vulgar, and nonsensical."

It is interesting to note that Mr Berliner's (Ad Rec I.A.II) letter was addressed not to the champions of aesthetics at NPS, but rather to defendant diGenova.

Bearing all this in mind we can see signifigence in the fact that Mr. Berliner's letter (supra, I.A.11), was written on May 10, 1985, just four days after defendant diGenova was quoted in the Washington Post as saying: "Some of these people think they're making a statement. Actually they're just making a mess." Mr. Berliner's May 6th letter also contains an offer that diGenova should let him know if he can be of any assistence. Further on we discover a second letter from Mr. Berliner (Ad Rec III.A.I.78), written under color of his position as Chairman of the Pennsylvania Avenue Development Corporation. Not suprisingly, we find Mr. Berliner's second letter quoted in Defendants Motion for Judgment on the Administrative Record.

In this case there is more than ample evidence that not all citizens view the large signs as an eyesore.

"I personally believe that the signs, displayed as they are across the street from the seat of governmental power, are a symbol of what this country is ... all about: the rights of free citizens to bring their petitions for changes of government policy and program to the authority who has the power to make those changes. How much better that a concerned citizen, otherwise frustrated by a seemingly monolithic, unbending government, is able to vent its grievance in this way -- through permanent and highly visible symbols displayed in a public place as an expression of their First Amendment rights -- rather than having to swallow its grievance and seek a covert and less peaceful way of venting it....

"I believe that your proposed rules would interfere greatly with this expression of free and First Amendment rights. Lafayette Park is large enough to contain the signs and the persons who mounted them and all the other citizens who come to the park on less urgent business." (Ad.Rec. III.A.3.62; see also Ad.Rec. III.A.3.186 through III.A.3.349.)

In fact, the Administrative Record contains a total of less than 300 signatures in favor of regulations limiting the use of signs by demonstrators in Lafayette Park, and more than than 3,000 signatures in opposition to those regulations. Moreover it's as clear as the quack of a duck that many of those letters were signed by prolific individuals who submitted the same opinion more than once (see Opposition to Federal Defendants Motion for Judgment on the Administrative Record, filed this date, at para. 34-37).

On August 20, 1985, defendants published in the Federal Register at pages 33571-33575 the proposed regulatory changes at 36 50.19(e)(11)(12) (the Regulation). At page 33572 there is bold-face reference made to "the current situation in Lafayette

Park." One commenter on the Regulation, an individual unknown to the plaintiffs in this case, observed that "in this proposal the Park Service exaggerates to an astonishing degree the extent to which the exercise of speech interferes with other activities." (Ad.Rec. III.A.32.)

"(T)he proposed rule would apply only to Lafayette Park and not to the many other park areas in close proximity, for example, the Ellipse on the south side of the White House" (Federal Register, March 5, 1986).

This language is strongly reminiscent of similar wording which appeared in the Federal Register on April 22, 1983, May 17, 1983, and June 17, 1983.

"For example, two individuals who have in the past and are presently maintaining a daily demonstration in front of the White House have had as many as 25 signs or placards leaning against the White House fence....

"Further, the interim rule applies only to sidewalks contiguous to the White House. A substantial number of alternative forums exist close to the White House sidewalks where these restrictions do not apply." (Fed.Reg. April 22, 1983, pp. 17352-17353.). (see Tr. B. May 17, and June 17, 1983).

In ERA v. Watt, the significance of this line of reasoning did not escape the District Court, which noted in its April 26, 1983 Memorandum quoting Southeastern Promotions, Ltd. v. Conrad, 420 US 546, 556 (1976):

"One is not to have the exercise of one's liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place."

Additionally the court should take note that "(i)n fact, the Park Service is taking steps to minimize resource damage to the Momument Grounds," (Federal Register, March 5, 1986 at ) remembering that "the Monument Grounds" is the site defendnats are presently recommending for plaintiffs signs. Should the Court allow defendants to systematically erase First Amendment rights from Lafayette Park, the question of how long it will be before the "lovers of free speech" begin howling for the blood of individuals with large signs on the Monument Grounds wukk be purely academic.

The Park Service allowed a period for public comment until October 21, 1985, after which time the regulatory proposal appeared to go into a state of suspended animation from which it did not emerge until March 5, 1986, when the National Park Service published a ten-page final rulemaking in the Federal Register.

"It was pointed out repeatedly by those opposing and those favoring the proposed regulations that it has only been a handful of individuals who have had the large signs and structures in the park. Many of those opposing the regulations seemed to believe that the proposed regulations would somehow prevent, or were intended to prevent, those individuals from demonstrating in Lafayette Park.... The individuals now demonstrating in the park

may remain there under the final regulations. They simply cannot continue to have large, unattended signs and structures." (Fed.Reg. March 5, 1986, p. 7561.

Other inclusions in the Administrative Record cast serious doubt on the "unattended signs" representation:

"However, we would note that the majority of the demonstrations now occurring in Lafayette Park are long-term vigils which constitute 24 hours a day. When one of the participants of these demonstrations departs the area, another demonstrator takes his or her place in watching the signs. Therefore, a regulation prohibiting unattended signs would be of limited use in Lafayette Park." (Ad.Rec. I.A.22., a letter from the Acting Director of the Department of Interior dated March 5, 1985.)

"The final regulations are intended to address real and substantial problems now existing in Lafayette Park. If the regulations, when effective, have a greater impact on one group of demonstrations, it is only because those demonstrators are the ones causing the substantial problems in the park with large signs and structures." (Fed.Reg. March 5, 1986, p. 7560.)

In his Motion to Strike the Administrative Record, filed March 21, 1986, Thomas suggested that the Administrative Record would be more appropriately entitled "Defendants' Complaint Against William Hale in Response to Plaintiff's Complaint Against Defendants."

Here we come upon a factual situation which focuses the dual personality of the "current situation in Lafayette Park." In the Administrative Record, I.C.1 - end, we have what the Park Service represents as a sampling of permits. These "sample permits" comprise several issued to plaintiff William Thomas and many issued to an individual named William Hale. The first permit issued to Mr. Hale apparently was issued on March 29, 1985 (Ad.Rec. I.C.130).

Some who were acquainted with Mr. Hale expressed the opinion that he may have been an agent provocateur in the employ of the Park Service. Be that as it may, the fact can be shown that, immediately after the new regulation went into effect, Mr. Hale disappeared, and, it would appear, has gone to Alaska. Making it quite apparent which "demonstrators have been impacted most" by the regulations.

The closest to a "real and substantial problem" which the Park Service may have arguably sought to address with these new regulations is graphically illustrated by most of the photographs in the Administrative Record, (e.g., I.J.56, I.J.88, I.J.89, I.J.132, I.J.133, I.J.134) For the most part, as testimony can establish beyond doubt, these photographs illustrate the activities of Mr. William Hale, and were and had been dealt with by the Park Service under the existing regulations.

It is true that the aesthetic interest in preventing the kind of litter that occurred when the Park Service allowed Mr. Hale to drag large quantities into the park and strew it about and leave it

lying on the lawn for long periods of time would constitute a "real problem." However, that "problem" only existed because the Park Service, for whatever reason, chose not to implement regulations which could have rectified the situation (i.e. 36 CFR 50.7). That situation cannot reasonably support a prophylactic prohibition against a citizen's exercise of expressing his views which must certainly be viewed as traditional.

"In Schneider v. State, 308 US 147 (1939), the Court held that ordinances that absolutely prohibited handbilling on the streets were invalid. The Court explained that cities could adequately protect the aesthetic interest in avoiding litter without abridging protected expression merely by penalizing those who actually litter." (Taxpayers for Vincent, p. 2131.)

Here we have a case where individual citizens were actively exercising their right to communicate directly with potential recipients of their message. As the Park Service noted in its early responses to complaints about the signs in the park, the signs were protected by, if not the First Amendment, certainly previous Court decisions. Additionally, in its early response (supra.) the Park Service lamented that a regulation banning unattended signs would "be of limited use in Lafayette Park." (Ad.Rec. I.A.22.)

Returning for the moment to the inception of this action, we are reminded that:

"Traditional forum ... occupies a special position in terms of First Amendment protection." (Taxpayers p. 2119-2121.)

"The Courts have understood and established that ... area right in front of the White House is a ... point of high visibility for the media, for the public that passes on the street, for tourists who come to Washington, for people like yourself with important messages ... (who) can say it so that it can be heard in a way that messages have never before been hearable and seeable in the history of the world.

"You can stand in front of the White House and your message can be seen all over the globe within hours, and your right to do that is guaranteed." (USA v. Thomas, USDC CR 83-186, December 21, 1981, Sentencing Transcript, p. 27, Judge Oberdorfer; see also Quaker Action Group v. Morton, 460 F.2d 858 (1971); Women Strike for Peace v. Morton, 472 F.2d 1275; USA v. Abney (cites omitted); Jeanette Rankin v. Chief of Capital Police, 242 F.Supp. 575; et al.)

This lawsuit was filed only after plaintiffs had repeatedly attempted to meet with certain defendants to work out some sort of a solution to the problems which they purported. Specifically, plaintiffs have been requesting definitions of casual sleep and storage of property. (See Complaint attachment 30, e.g.)

"Several commenters ... suggested a public meeting or private negotiations concerning this rulemaking effort. It would be inappropriate in this instance to have private

negotiations with any one individual or group. This rulemaking has been thoroughly and intelligently discussed in the media, through editorials, articles and letters to the editor, and thoughtful comments have been received from all sides of the question." (Fed.Reg. March 5, 1986, p. ____; see also Ad.Rec. III.A.3.105.)

And things have not gotten better:

"This responds to your letters of June 3, 1986, and May 21, 1986. In those letters you ask a number of questions that concern matters that are the subject of the litigation in Thomas v. United States CA 84-3552. As you know, we are proceeding with discovery in that case under the supervision of Magistrate Burnett, as ordered by District Court Judge Oberdorfer. Therefore, I do not feel that it is appropriate for me to respond to your questions outside of the discovery process. Please refer any questions that relate to matters within the scope of the litigation to Michael Martinez, Assistant United States Attorney...." (Letter signed Richard Robbins, dated July 3, 1986, to William Thomas; see XX Document (this action), filed July 30, 1986, p. 25.)

Primarily the questions referred to in Mr. Robbins' letter of July 3, 1986 were the same questions asked in Complaint attachment 30, the Thomas letter of July 21, 1984, namely, "casual sleep" and "storage of property."

The first object of inquiry is whether the plaintiff has asserted a valid right.

Plaintiff contends that whether he is a "problem," (Federal Register, March 5, 1986, at 7560) a "philosopher," Complaint, para 17) or a "protester," (Lindsey's Law at 2) is a matter of fact to be determined, if need be, at trial.

Regardless of how plaintiff might be described, it is unquestionable that his expressive conduct (continuous presence and large signs) had been protected under the First Amendment, or, at least, previous court decisions (Tr. Ex. 163). As far as "being in the park on a continuous basis," that right accrued to plaintiff under, at least, the Ninth Amendment. The factual accuracy of these allegations is borne out by historical occurrences of the arrests of plaintiff, Stacey Abney, and the Quaker Vigilers (to name but a few), and the fact that those arrests did not result in sustained convictions prior to the enactment of the scheme attributed to defendants in this action.

"If an expressor has a constitutional right (to make certain expressions), it cannot be denied that he may make subsequent expressions for the same purpose. If his right exists plaintiff does not lose his right by exercising it." (Near v. Minnesota 283 US 720).

This brings us to the second inquiry; if one has a right and that right has been violated, do the laws of the country afford him a remedy?

"The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection. (The) Government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right....

"Is the act of delivering or withholding a (right) to be considered a mere political act, belonging to the executive department alone, for the performance of which entire confidence is placed by our constitution in the supreme executive, and for any misconduct respecting which, the injured individual has no remedy?

"That there may be such cases is not to be questioned, but that every act of duty to be performed in any of the great departments of government constitutes such a case is not to be admitted...

"(W)hen the legislature proceeds to impose on (an) officer other duties; when he is directed peremptorily to perform (or to refrain from performing) certain acts when the rights of individuals are dependent on the performance of those acts; he is so far the officer of the law; is amenable to the laws for his conduct; and cannot of his discretion sport away the vested rights of others...

"(W)here a specific duty is assigned by law, and individual rights depend upon the performance of that duty; it seems ... clear, that the individual who considers himself injured, has a right to resort to the laws of (the) country for a remedy...." (Gunther Constitutional Law, University Casebook Series, Tenth Edition, pages 4 and 5, citing Marbury v. Madison 1 Cranch 137, 2 L. Ed. 60 (1803)).

Memorandum Continued

Contents

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