THOMAS v. REAGAN

USDC Cr. No. 84-3552

30. Assuming, again, that in July, 1985 thirty-three signs (see supra. 26) belonged to two individuals who had been in the Park since June 1981, and there were also chairs, a grocery cart, desks, parking cones and a ladder, defendants fail to establish a nexus between the articles mentioned and the supposed necessity for a regulatory device to restrict "sign size." (Compare "FACTS" para. 25.)

31. Assuming again that over the past two years there have been two- and three-story structures, desks, chairs, bookcases, carts, doors, podiums, porcelain toilets, and a broken grocery cart filled with trash in the, Park, defendants fail utterly to

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illustrate that such a situation could not have been adequately dealt with under then currently existing regulations, e.g. 36 CFR 50.7. (Compare "FACTS" para. 24.)

32. Large signs attract attention (see 36 CFR 50.19(a)(l) "demonstration" definition, X Document p. 101), a necessary prerequisite to communicating a message, and one of the few methods available to plaintiffs for that purpose, The other available methods, speaker's platform and public address system, are likewise barred or arbitrarily burdened under this regulation. (Compare "FACTS" para. 21.)

33. 36 CFR 50.19(e)(9)(10), promulgated by these defendants and enforced against two of these plaintiffs, with respect to these signs, in 1983, was intended to insure a view of the White House, and these defendants suggested Lafayette Park as a situs for the same signs towards which this regulation is directed. (Compare "FACTS" para. 22, compare Judge Bryant's Memo, X Document, at 29.) (Supra. 23.) - Now Exhibit 69

34. There are more than one letter from Senator Mark Hatfield among the purportedly "two hundred letters" which defendants have claimed as support for their regulatory scheme. (Compare "FACTS" para. 28, 51; see Ad Rec at I.A.21 and

35. There are more than one letter from Senator Charles McC. Mathias among the purportedly "two hundred letters" which defendants have claimed as support for their regulatory scheme. (Compare "FACTS" para. 28; see Ad Rec at I.A.16, III.A.1.153, and

36. There are more than one letter from Henry Berliner

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among the purportedly "two hundred letters" which defendants have claimed as support for their regulatory scheme. (Supra. 12.) (Compare "FACTS" para. 12; see Ad Rec at I.A.11 and III.A.1.78.)

37. There are other, perhaps less notable, examples in the Administrative Record of this regulation of multiple petition signers (see, e.g. Ad.Rec. III.A.1.1 to III.A.1.G (Hart)) and multiple letter writers. (See, e.g., I.A.1, III.A.2.99 (Best); I.A.3, III.A.1.57 (Centner); I.A.9, III.A.2.36 (Dalecki); I.A.19-20, III.A1.118 (Fife); III.A.1.40, III.A.1.36 (Griffith); III.A.1.162,III.A.1.164 (Kohler); I.A.24-25, III.A.2.118, (Lynch); III.A.1.37, III.A.1.38 (Miller); I.A.34, III,A.2.66-68 (Pipal); III.A.1.112, III.A.1.106 (Staum--duplicate); III.A.2.95, III.B.10, III.B.14 (Vaden).) (Compare "FACTS" para. 26-29)

38. Defendants fail to illustrate that signs or speaker's platforms have made it less "safe to jog" in Lafayette Park than anywhere else in the city. (Compare "FACTS" para. 38.)

39. Upon receiving National Park Service "Additional Permit Restrictions and Conditions" re safety of signs on October 9, 1984, plaintiffs modified their signs to conform to the new requirements. (See Ad.Rec. I.E.6-8; compare "FACTS" para. 30, 35.)

40. Defendants fail to illustrate that the First Amendment should not extend to protecting plaintiffs from citizens who may be "embarrassed" (Ad.Rec. III.A.I.39) or who may take many of their "foreign friends, whom (they) have met from years of travel abroad, by the White House, only to have them look in disbelief at the many huge, grotesque (sic) painted signs" (ibid, at or who might feel that "(c)urrent regulations ....

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have led to deterioration in the physical/environmental integrity of the park, and in its aesthetic qualities" (ibid, at III.A.I.50). (Compare "FACTS" para. 26.)

41. Numerous letters contained in the Administrative Record prove only that the view of the White House from Lafayette Park might obstructed by large signs if people stand directly behind the signs. (Compare "FACTS" para. 27.)

42. Although certain individuals may feel that large signs "exclude" them from the Park (e.g. Ad. Rec. at III.A.I.42), defendants fail to illustrate the feeling of "exclusion* is indicative of anything other than paranoia, (Compare, "FACTS" para. 28-29.)

43. There is ample evidence in the Administrative Record that large signs have not excluded people from the Park. (Ad. Rec. PHOTOS.)

44. Defendants fail to provide any creditable theory to explain why this court should not proceed from the premise that "visual blight" is in the eye of the beholder, and should not constitute a "substantial government interest" unless objectively proven beyond reasonable doubt. The Administrative Record contains two petitions containing thousands of signatures expressing a contrary opinion to the accusation that signs are "visual blight." (Compare "FACTS" para. 28; compare Ad.Rec. III.A.3.187-350.) (Supra. 17; inter alia 69.)

45. The sign which struck a pedestrian in 1984 was well anchored until a police officer threatened plaintiffs with arrest unless they untied it. (Compare "FACTS" para. 31; compare (Second) Declaration of William Thomas, filed this date.)

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(Supra. 39.)

46. Signs and structures have not defaced or misaligned bricks of the sidewalks in Lafayette Park. (Compare "FACTS" para. 32; Compare (Second) Declaration of William Thomas, filed this data.)

47. Posts and stakes used to support signs have not caused any substantial turf damage. (Compare "FACTS" para. 32.) Compare Fish deposition exhibit, August 21, 1986:

"In administering this regulation, minor injury to the turf resulting from the construction of temporary structures will not result in permit denial or revocation." (36 CFR 50,19, November 13, 1981 Federal Register, p. 5960.)

48. Only one large patch of dried or dead grass has been created by the placement (and abandonment) of a large sign in the Park for a long period of time. (See., e.g., Ad,Rec. I.J.77.) That sign did not belong to any of the plaintiffs in this case, and defendants could have, but chose not to, remove it from the grass. (Two other sign/structures, also not belonging to plain- tiffs in this action, were removed from their placement on the grass on May 9 and 10, 1985 under then-existing regulation.) (See Ad.Rec. Photos p. I.J.68-69, 80.83, 114-115, 125-130, 136-137, 161-164, e.g.) (Compare "FACTS" para. 32.)

49. Construction of signs in the Park has not resulted in extensive paint damage. (Compare "FACTS" para. 33; compare (Second) Declaration of William Thomas, filed this date.)

50. Demonstration sites, including large signs, seldom have been unattended by the plaintiffs in this matter or their delegates. (Compare "FACTS" para. 25, 34; compare (Second) Declaration of William Thomas, filed this date.)

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"(W)e would note that the majority of the demonstrations now occurring in Lafayette Park are long-term vigils which continue 24 hours a day. When one of the participants of these demonstrations departs the area, another demon- strator takes his or her place in watching the group signs. Therefore, a regulation prohibiting unattended signs would be of limited use in Lafayette Park." (Ad.Rec. at I.A.22.)

51. In each case where the Park Service imposed "additional conditions and restrictions," plaintiffs complied.

"(W)e 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. So far we have gained compliance...." (Ad. Rec. at I.A.23, e.g.)
Additionally, the Park Service utilized those "additional conditions and restrictions" to enforce compliance on the part of other demonstrators during the spring and summer of 1985. (See Ad.Rec. photos May and July, 1985; compare "FACTS" para. 35.)

52. Plaintiffs in this case, all of whom have repeatedly been arrested by defendants or their agents for, purportedly, violating various provisions of 36 CFR, were not responsible for "the condition of the Park ... (i)n July of 1985." Plaintiffs stipulate that an objectionable situation did exist during that period. However, plaintiffs believe that situation was due almost exclusively to the activities of one specific individual identified by defendants as William Hale, (See Ad. Rec. at (permits); see also Plaintiffs' (Fourth) Motion To Strike, filed March 21, 1986 at para. 16, e.g.) Despite defendants' apparent zeal in arresting plaintiffs for CFR violations, Mr. Hale was not treated similarly with respect to his activities which, demonstrably, created the mutually disagreeable situation which existed in the Park during July of 1985. (Compare "FACTS" para. 35, 36.)

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53. Defendants' purported "inability to significantly improve the condition of Lafayette Park" resulted from defendants' failure to deal responsibly under existing regula- tions with the objectionable activities of Mr. Hale or to defen- dants' consistent refusal to meet with plaintiffs to mediate any problems which may have existed between them.

"Several commenters, including the ACLU, suggested a public meeting of private negotiations concerning this rulemaking effort. It would be inappropriate in this instance to have private negotiations with any one individual or group." (Fed.Reg. March 5, 1486, at 7563; compare '("FACTS" para. 37, 38: see also III.A.3.112, III.A.3.105.)

54. Since the regulation was put into effect April 4, 1986, the arbitrary restriction against chairs has been selectively enforced against demonstrators, while not enforced against non- demonstrators. (See (Second) Declaration of William Thomas, filed this date.) (Compare "FACTS" para. 38.) (Supra. 110.)

55. The Park Service has not attemptedˇ to "work with" plaintiffs in order to insure that items are safe and properly secured. (Compare "FACTS" para. 39.)

56. In the event that a Park Service employee might be forced to seek legal opinions as to whether some item is a permissible symbolic structure, defendant Government employs defendants Robbins and Bangert, ostensibly, for that purpose. (Compare "FACTS" para. 40.)

57. Assuming that "(i)t has often been difficult to enforce existing regulations concerning trash and abandoned property as the Park Service cannot always tell what property is trash and what is not, " defendants have failed to establish how restricting protest signs will enable the Park Service to better

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define "trash." (Compare "FACTS" para. 40.)

58. During the two years preceding this regulation the Park Service received either 16 (Fed Reg. August 20, 1986) or 25 (Fed.Reg. March 5, 1986) complaints (depending upon which of the defendants' representations one chooses to accept). In any event, the numbers hardly reflect what might reasonably be called a "national movement." (See Ad.Rec. I.A.1-34; compare "FACTS" para. 42.)

59. It should be noted that not all of the "complaints" used to justify these regulations addressed themselves to "signs" or, strangely enough, even "demonstrators." (Ad.Rec. I.A.1-34; compare "FACTS" para. 42.)

60. Significantly, many of the initial 16 complainants appear A) intolerant (e,g. Ad.Rec. I.A.13, Mrs. Whitney Kennedy letter), B) ill-informed, (e.g. Ad.Rec. I.A.24, Lynch letter; compare Ad. Rec. I.F.1-39, sign inventory), C) ignorant (e.g. Ad.Rec. I.B.16, Mathias letter), or D) politically motivated (e.g. Ad.Rec. I.A.21, Hatfield letter; I.A.11, Berliner letter). (Compare "FACTS" para. 42.)

61. More significantly, all of the initial complaints received by the Park Service during 1984 (that actually dealt with "the situation in Lafayette Park") complained simply of "signs," "posters," "placards," "protesters," or "demonstrators," and not with the "concerns" tacked on by the regulation writers and justified by William Hale's unchecked behavior. (Compare "FACTS" para. 42.)

62. The Park Service, defendants, and their agents, had numerous contacts with the press. These contacts had the effect

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of misrepresenting the situation that existed in the Park, thus fueling public indignation against what was incorrectly represented as plaintiffs' activities. (See specifically Ad.Rec. III.A.1.84, III.A.1.96, III.A.1.103, III.A.1.15: several copies of syndicated columnist Andrew Tulley's virulent (and, plaintiffs proffer, false) representation of the situation in Lafayette Park which sparked a number of the letters in the Administrative Record; compare "FACTS" para, 43-45; Amended Complaint para. 112, 147.)

63. Additionally, many of the letters received by the Park Service reveal that the writers suffer either a schizophrenic misperception of legal rights and reality, or a profound tendency to leap to unsubstantiated conclusions. (Compare "FACTS" para. 46.)

64. That certain commenters may have professed concern for or understanding of the importance of unburdened communication proves absolutely nothing. (Compare "FACTS" para. 47.)

65. There is nothing in the record to indicate that the letter-writing regulation-supporter at Ad.Rec. III.A.I.54 made any investigation whatsoever to determine whether this regulation was Ha good faith effort," or that the American Society of Landscape Architects has any knowledge about "balancing First Amendment freedoms against the rights of the park visitor. " (Compare "FACTS" para. 48.)

66. Letters received by the Park Service and complaining that these regulations were too lenient might have been considered "reasonable" by Machiavellian standards, but so what? (Compare "FACTS" para. 49-53; see Ad.Rec. III.A.2.13-138.)

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67. The National Park Service claims that it does not wish to preclude vigils unless other methods to purportedly deal with matters totally unrelated to ˇ"vigils" prove unsuccessful . (Compare "FACTS" para. 54.)

68. Although "(t)he Park Service decided against applying the same regulations to other parks in the downtown area ..." those "other parks" do not enjoy the same "unique situs" as Lafayette Park for being a public forum. (Compare "FACTS" para. 55, 57.) Additionally, this is the same tune the Park Service sang while moving signs from the White House sidewalk.

69. Plaintiffs submitted two petitions, containing several thousand signatures, opposing the proposed regulations. Both of those petitions were taken on the site of Lafayette Park, and in clear sight of the "situations" at issue in this litigation. Those petitions were collected on a part-time basis and, with the exception of two hundred signatures, by only two individuals. (Compare "FACTS" para. 56.) (Supra. 17, 44.)

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