USDC Cr. No. 84-3552

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



On March 17, 1986, the Federal Defendants filed a document entitled Federal Defendants' Motion for Judgment on the Administrative Record. On March 21, 1986 plaintiffs filed a Motion to Strike Federal Defendants' Motion For Judgment on the Administrative Record.

The grounds for plaintiffs' motion were that the Administrative Record was incomplete, and would have been more aptly titled "Federal Defendants' Complaint Against William Hale In Response To Plaintiffs' Complaint Against Federal Defendants." In its Pre-Trial Order and Memorandum, filed June 4, 1986, the Court denied Federal Defendants' Motion, without prejudice should the constitutionality of the regulations again come into question.

During the course of discovery Magistrate Burnett made various observations which indicated to plaintiffs that they had been laboring under certain misapprehensions. Repeatedly he stated that this case is "not an APA judicial review" of the validity of 36 CFR 50.19(e) (11) (12), stating that so far as he could tell there had been no challenge to the regulation on its face either in this or any other proceeding.


The Magistrate also footnoted the "interesting legal question" of whether a regulation, promulgated for valid purposes, might be applied with an improper motive. (Magistrate's Order, August 18, 1986.) As has been previously well-settled, this action is not a challenge to 36 CFR 50.27(a) or 50.19(e)(9)(10) as to constitutionality, but only as to selective enforcement. However, with regard to 36 CFR (e)(11)(12), the invalidity of purpose behind the promulgation of this most recent or artful NPS "aesthetics" -promotion regulations has not been at question at bar, and certainly is not inconceivable. E.g.:

"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 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 substantiaE problems in the Park with large signs.,.." (Ibid.)

"Some commenters also suggested that restrictions an demonstrations on the White House sidewalk make Lafayette Park an even more important site for demonstrations directed toward 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 st 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 Ceca 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 ta the editor and thoughtful comments have been received from all sides of the question." (Ibid at 7562.)

Therefore plaintiffs file this Opposition. to the Federal Defendants' Motion for Judgment on the Administrative Record in support of their Motion for Consolidation of the Hearing for Preliminary Injunction with a Trial on the Merits of Their Civil Rights Claim.


1. Plaintiffs proffer: history records no reference by President Thomas Jefferson to the concepts of "aesthetic purposes," "picture taking," or "recreational purposes." (Compare Federal Defendants' Motion for Judgment on the Administrative Record, filed March 20, 1986, hereinafter "FACTS," para. 2.)

2. Plaintiffs proffer: history records ample reference by President Jefferson to "freedom of speech" and "public discourse"


(Compare "FACTS" para. 2.)

3. From .all historic evidence one would be forced to conclude that, faced with the choice of utilizing Lafayette Park as a "formal garden park of meticulous landscaping" or "the primary national public forum" of "unique situs;" President Jefferson would have chosen the latter. (Compare "FACTS" para. 6.) (Inter alia 13, 68.)

4. While the aesthetic interest of statues is certainly appreciable, that interest must be seen as of somewhat less importance to public welfare and the well-being of a democratic society than is the ability of individuals to effectively express in a non-violent manner their opinions on issues of broad public concern. Moreover, defendants have defined "statues" as "structures" (inter alia, para 78(i)(d)), and Prussian disciplinarians a many, aesthetic blights. (Compare "FACTS" para. 5).

5. There exist no criteria by which to· "balance" First Amendment Rights against bronze urns, flower beds, and shrubbery. (Compare "FACTS" para. 7.)

6. Large signs have caused absolutely no damage to trees, shrubbery, flower beds or bronze urns in Lafayette Park. (Compare "FACTS" para. 7.)

7. Large signs have never damaged decorative fountains, lighting systems, or water sprinklers in Lafayette Park. (Compare "FACTS" para. 8; Compare (Second) Declaration of William Thomas, filed this date.)

8. Many of visitors to Lafayette Park from around the world, and many local visitors, consider large signs decrying the insanity of nuclear weapons to be a key experience in their visit


to the Park. A letter writer from Newton, Kansas said:

"I had Seen a Washington, D.C. resident from May to October, and an proud to have a Peace Park like Lafayette. I would Bring by visitors from foreign countries. Driving past on Pennsylvania Avenue, they were much more interested in and impressed by our symbols of peace in Lafayette Park than our symbols of power in the White House." .(Ad Rec III. A.3.94; compare Ad.Rec. III.A.3.187-350, petitions; compare "FACTS" para. 9.)

9. The function of the National Capitol Planning Commission is not identified in the Administrative Record. However a phone call to that organization elicited the information: "We do planning for the (defendant) Government." ("FACTS" para . 10, 11; see Ad. Rec. III.A.3.140;)

10. It is becoming unmistakable that the cumulative effect of repeated representations that there are "alternative sites available" for First Amendment protected activities will have the inevitable effect of depriving protected activities of all protection. A private attorney wrote:

"I must say that I oppose the rules in general because I see them as another step in the apparent effort to rid the front of the White House, in which I include Lafayette Park, of effective demonstrators opposed to the views and policies of the administration. The reference in the proposed rules to the availability of the Ellipse for demonstrations came as no surprise to me, and is a surfacing of the long range hope and plan: to remove all or most attention gathering and effective demonstrating away from the White House...

"Another problem that I have with these and other regulations that have been recently passed to curtail demonstrations is that once passed, they will be with us forever, even after they: are no longer needed for the purpose intended. The handful of demonstrators who have occupied so much of the Park Service"s attention in the past few years will not last forever. Really folks, this too shall pass. But the regulations will probably live on to harass unsuspecting persons until the end of·time. Indeed had the Park Ceca ignored these few long term demonstrators from the beginning, they might be gone by now without the need for any of the regulations passed or contemplated." (Ad. Rec. III.A.3.112; compare "FACTS" para.



11. Plaintiffs' signs have not been "crude, vulgar, or nonsensical," as suggested by Henry Berliner, Chairman of the Pennsylvania Avenue Development Commission (Ad.Rec. have any Petitions which plaintiffs have circulated been nonsen- sical (see Ad.Rec. sign inventory at I.F.1-39; petitions at III.A.3.167-350; compare "FACTS" para. 12.)

12. There is some reason to believe that Henry Berliner may have been writing letters with respect to Lafayette Park to further his professional or political ambitions. (See Ad.Rec. I.A,11; compare "FACTS" para. 12.)

13. Lafayette Park was visited by well over a million people in 1984, making it a truly unique situs for public communication. (See ERA v. Watt, CA 83-1243, Joint Appendix, Affidavit Manus J. Fish, p. 2; compare "FACTS" para. 13.)

14. Large signs in Lafayette Park have never interfered with reading, eating picnic lunches, playing checkers or chess, or, for any individual intelligent enough not to stand immediately behind one, viewing the White House. Another private attorney wrote:

"I oppose the proposal because it is based on a series of inaccurate factual assumptions and because it places undue burdens on freedom of expression in a setting uniqueLy suited for that purpose....

"In this proposal the Park Service exaggerates to an astonishing degree the extent to which the exercise of speech interferes with other activities. It asserts, for example, that 'structures and signs...have often occupied a quarter to a half of the interior space of the park, thus preventing the thousands of visitors who come to Lafayette Park from utilizing that portion of the Park.'...

"The proposed order appears to have been written by a staff attorney who does not get the chance to spend much time out of doors.... I work in the block next to the park and walk its grounds every day. Perhaps my experience there can help clear up some of the serious factual errors that


form the basis of the proposed rules.

"First, the signs have never occupied a quarter to a half of the interior space of the park, at most they occupy less than one percent of the park's land, and are grouped along one sidewalk.... There is ample space to stroll, or have lunch, none of the park's flower gardens is affected by the exercise of speech, nor are any of the chess tables impaired in any way. Those wishing to gaze at the statues of Revolutionary War heros, or enjoy the many other beauties of the park may freely do so without coming in contact with those who prefer to act on the American ideal of free expression.

"Second, anyone who has been to the park can attest that no 'Building boom' ever took place....

"Finally the existence of signs does not disrupt photo opportunities, in fact there is more of a chance that those strolling, eating lunch, or playing chess will block photo vistas throughout most of the park. The only view in which the signs may appear is one facing the White House from immediately behind the signs....

"Even if the Park Service had compiled a compelling factual case to support the regulations, the proposed rules fall short of the constitutional requirements for restrictions on speech." (Ad. Rec. III. A. 3.4.; compare "FACTS" para. 14; compare photographs Ad. Rec. I.J.55, e.g,)

15. Lafayette Park, the White House, beautiful buildings, and other inanimate objects cannot possibly be more of a credit to freedom or the honor of a nation than the ability of individuals to freely and effectively focus attention on matters of pressing import directly in front of the president's house. (Ad.Rec. III.A.I.30; compare "FACTS" para. 15.)

"I am writing to support the presence of the anti- nuclear demonstrators in Lafayette Park. I was pleased to read their placards, for as an architect and university administrator I feel that nuclear war is the ultimate obscenity imaginable...

"Their presence at the park demonstrates our freedom to protest against policy decisions." (Ad. Rec. III.A.3.182.)

16. "Pleasurable personal interludes and enjoyment" are not "substantial government interests" under any precedent of which plaintiffs are aware, and are of far less value to humanity than the untrammeled exercise of individual expression. (Compare "FACTS" para. 15.)


17. It is a common view 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." (See petition, Ad. Rec. III.A.3.187-350; compare "FACTS" para.. 16 and 56.) (Inter alia 44, 69.)

18. Plaintiffs proffer that they are far more responsible in sharing "a common resource without destroying it" than both the industrial society around them and, probably, the writer of the letter at "FACTS" para. 16. Yet another private attorney wrote

"As you will see from my stationery, my office is in close proximity, and, in fact, looks down directly on the portion of the park where the demonstrators are.

"I believe that the demonstrations in Lafayette Park are a laudable exercise of First Amendment rights, and that the proposed regulations would unreasonably and illegally interfere with those rights. While the rights of the public to use the park are important, and should not be over-ridden by demonstrators, the present regulations, as opposed to the proposed regulations, seem to establish a proper balance between these two important rights.... I strongly believe that the rights of individuals to protest in the vicinity, particularly in front of, the White House provides us with a form of beauty in the nature of a testament to American individual rights and civil liberties that far outweighs the minor inconveniences or the occasional unsightliness that these protesters cause in a small portion of Lafayette Park." (Ad. Rec. III.A.3.93-94.)

19. Travel to our beautiful monuments does not constitute "a business even larger than government." (Compare "FACTS" para. 17.)

20. Even if travel to our beautiful monuments can be shown to be a bigger business than government, that circumstance would not support an argument against signs in Lafayette Park.

21. As of September, 1984 the National Park Service was closely monitoring the sound levels of demonstrators utilizing amplified sound. (Ad. Rec.. I-A-22, March 5, 1985; compare


Now Exhibit 101-B Declaration Ellen Thomas filed this date, Trial Exhibit 146(f).)

22. As of October, 1984 the National Park Service put demonstrators in Lafayette Park on notice that they must comply with regulations and permit conditions. (See Ad.Rec. I.E.6-8.) (Inter alia para. 39.)

23. According to National Park Service documents plaintiffs were complying with regulations and permit conditions. (Ad, Rec. I.A.22.)

23. Some of the identical signs of which defendants complain in 36 CFR 50,19(e) (11) (12) were literally carried into the park by agents of defendants when defendants suggested that Lafayette Park would be an appropriate site for those signs. (Compare "FACTS" para. 20; compare, X Document at 29, ERA v. Watt Memorandum Opinion p. 27.) (Inter alia 33.)-- Now, Exhibit 69

24. The large number of signs which "proliferated" in Lafayette Park during 1984 occurred as a result of the fact that demonstrators were chased from the sidewalk of Pennsylvania Avenue and back into the Park where their visibility and contact with the public were greatly reduced by snow fences blocking view of the signs from Pennsylvania Avenue and the White House sidewalk. (Compare "FACTS" para. 20-22.)

25. Large signs have not "increasingly dominated" Lafayette Park. In August of 1984 there were, according to National Park Ceca figures, 140 signs in the Park, as compared to 67 in 1985. (Compare "FACTS" para. 20-22.)

26. National Park Service figures on the number of signs are exaggerated. Many of the "67" and "140" signs included small signs, posters, or bumper stickers which were affixed to larger


signs. (Compare "FACTS" para. 21-22.)

27. National Park Service figures on the size of signs are exaggerated. For example there has never been any actual sign Lafayette Park, at least not between 1981 and 1986, which measured twenty-five feet by twelve feet." (Compare " FACTS" para. 21.)

28. Assuming that there were sixty-seven signs, many pile of boxes and assorted materials, numerous plastic garbage bags, a keg, and a metal cart in Lafayette Park in July of 1985, defendants show no correlation between the presence of those items, and the "sixty-seven signs." (Compare "FACTS"; para. 22.)

29. "Nine unoccupied tents ... with two demonstrators" would appear to be precisely the manner in which National Park service officials have previously suggested that symbolic demon- strations of that nature should be conducted. (Compare "FACTS" para. 22; compare Fish letter November 2, 1981, X Document p. 57.) Now Exhibit 8

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