THOMAS v. REAGAN
USDC Cr. No. 84-3552
9l. There were communications between the Secret Service
(Jerry Parr) and the DOI (Richard Robbins) with respect to amending
the 'background' portion of the interim rule to incorporate events
which either (a) did not happen or (b) were provoked by the
defendants.
(Tr. Ex. 9l, Parr letter, undated initialed by Robbins
3-21-63.)
92. Q: (By Art Spitzer, counsel for plaintiffs) "When you say
the large sign such as then was occurring on the White House
sidewalk, are you referring to a large wooden object that might be
described as a sign or a structure that was used by a person named
William Thomas in his demonstration that had wheels on the bottom
and a sloped front and triangular wooden sides?"
A: (By Mr. Robbins) "Art, I think that came later. What was
occurring up there was a large four foot by eight foot sheets of
plywood with writings on them, and there were several demon-
strators, both individuals and collectively, using generally more
than a dozen of those plywood signs, and sometimes substantially
more than a dozen...."
(Tr. Ex. 92, Deposition of Richard Robbins, ERA v. Watt,
November 30, 1983 at 63.)
93. On March 28, l983, defendant Fish requested OMB review of
proposed regulations to restrict signs on the White House sidewalk.
"Brief description of affected public: Individuals or groups
planning to conduct demonstrations in the White House area, and
other individuals who may have occasion to place or store parcels
in the area."
(Tr. Ex. 93, Request for OMB Review, signed March 28, l983 by
defendant Fish; see inter alia para. lll.)
94. "We are concerned, however, that our recommendation that the
words 'hand or' be deleted from proposed section 50.19(e)(9) was
not accepted. As we pointed out, as proposed section 50.19(e)(9)
currently reads, an argument might be made that so long as a sign
could be lifted and an individual kept his hand on it the sign
would be permissible. Such an argument would, of course, be
clearly contrary to the thrust of the new regulations.
Nonetheless, we would have preferred to see the potential problem
clearly eliminated by the suggested language change."
(Tr. Ex. 94, Jerry Parr, April 20, 1983; compare inter alia para.
l09.)
95. Plaintiffs allege that because defendants wished to ban
signs under color of regulation, they tacked on certain purported
concerns for the purpose of making it appear that their intent in
promulgating the regulation was legitimate:
"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 twenty-five signs or placards leaning against the
White House fence.... It is the judgment of the National Park
Service that certain restrictions can be placed upon the stationing
of signs or placards ... which would enhance the park visitor's
experience in viewing the White House, and respond to security
concerns without impairing the demonstrator's ability to convey a
message.
"To accomplish the purpose of minimizing potential threats to
the White House and the President, and for the other purposes
outlined above the National Park Service is amending present
regulations to prohibit signs or placards on the White House
sidewalk, except those that are being hand-carried by an
individual."
"Further the proposed rule would apply 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."
(Tr. Ex. 95, Fed. Reg April 22, 1983; compare inter alia para.
l08.)
96. "On April 22, l983, the Park Service published new 'interim
regulations' regarding demonstrations and the placement of property
on the White House sidewalk. 48 Fed. Reg. 17352. Although
promulgated without prior public notice, or opportunity for public
comment these interim regulations were effective immediately. On
April 27, 1983 (Concepcion Picciotto, Robert Dorrough, and William
Thomas) were arrested for violating the interim regulations. Two
days later the instant suit was filed challenging the regulations
on both procedural and constitutional grounds.
"On May 3,1983 an evidentiary hearing was held on the
plaintiffs' first motion for a Temporary Restraining Order
enjoining enforcement of the regulations. At the conclusion of
this hearing the Court granted the motion on the ground that 'good
cause' had not been shown for waiving the notice and comment
requirement for informal rulemaking set forth in the Administrative
Procedure Act, 5 USC 553. Subsequently, on May 17, the interim
regulations were republished by the National Park Service as a
proposed rulemaking with an additional comment period extending to
May 31. 48 Fed. Reg 22248.... These final regulations were to
become effective eighteen days later on July 4. . .
"A hearing was held on June 30th and on July 1st the Court
issued a Memorandum and Order on the ground that 'good cause' had
not been shown for shortening the 30 delay in effectiveness
required by the Administrative Procedure Act 5 USC, 553."
(Tr. Ex. 96, ERA v. Clark, USDC CA 83-1243, Memorandum and
Order, J. Bryant, filed April 26, 1984.)
97. Q: (By Art Spitzer counsel for plaintiffs) "Would it be
fair to say that these regulations (36 CFR 50.19(e)(9)(10) were
prompted in part by the signs and parcels and packages and
demonstration activities of William Thomas and Concepcion
Picciotto, in particular the large, one might say, structure sign
that Mr. Thomas used on the White House sidewalk during 1982 and
1983?"
A: (By Ms. Bangert) "The presence of a number of large signs
certainly was cited as a problem."
(Tr. Ex 97, Deposition of Patricia Bangert, ERA v. Watt,
November 30, 1983 at 63.)
98. "On April 27, 1983 at approximately 1320 hours the
undersigned officer observed Ms. Picciotto and Mr. William Thomas
sitting on the fence line in the 1600 block of Pennsylvania Avenue
with three demonstration signs next to them. They were both asked
by Sgt. Weber if the signs belonged to them, and they stated yes.
They both were advised that they were in violation of 36 CFR
50.19(e)(9) for signs on the White House sidewalk, and were advised
to take the signs and carry them, or they would be arrested for the
violation. They both sat by and did not move the signs and both of
them at approximately 1327 hours were placed under arrest by the
undersigned, and transported to D-1 for processing."
(Tr. Ex. 98(a), Cilvanus Woods report, April 27, 1983.)
Photographs of William Thomas and Concepcion Picciotto taken before
and during the arrest on April 27, l983, illustrate they had no
"structures," "carts," "property," or anything but signs as a
pretext for arrest. (The photos also illustrate how effective
those signs were at attracting the attention of passersby.)
(Tr. Ex. 98(b), photographs, April 27, l983.)
99. (By Mary Ann Beall, White House Vigil for the ERA) "When I was
notified about the new regulations concerning White House
demonstrations, I phoned the Park Service Public Events office on
April 27. I was transferred to a ranger, who told me that our
demonstration would not be legal if the banners we used were held
by more than one person. The ranger told me that under the new
regulations, I was risking arrest by carrying the banners the way
our group had always carried them.
"This information made me and my fellow vigilers very fearful,
but we proceeded to go to the White House sidewalk on April 27 and
resume our traditional vigil.
"Although we were not arrested, we observed the arrests of
other White House demonstrators that afternoon.
"During our three years of vigils on the White House sidewalk,
we have never observed the demonstrators who were arrested (Edward
Saffron, Concepcion Picciotto, William Thomas, and Robert Dorrough)
impeding pedestrian traffic or blocking any tourist's view of the
White House."
(Tr. Ex. 99, Affidavit of Mary Ann Beall, White House Vigil
for the ERA CA 83-l243, executed April 28, l983.)
l00. "It is my professional opinion as a police officer that the
stationing of large signs on the White House sidewalk creates a
security problem for the house and its occupants. Large signs can
used, and on at least one occasion were used to scale the White
House fence and gain access to the compound."
(Tr. Ex. l00, J.C. Lindsey, Affidavit May 2, 1983.)
l0l. Q: (By Craig Lawrence, counsel for defendant Government)
"Are you aware of any recent events involving -- on the White House
sidewalk -- involving attempts to enter the White House compound?"
A: (By Mr. Parr) "Yes, in late May, I'm not familiar with
the individual's name, he used one of the signs --"
Q: (Interposing) -- "In May?"
A: "In late March, excuse me. He used one of the signs to
scale the White House fence, and was apprehended on the grounds."
(Tr. Ex. l0l, Jerry Parr testimony, ERA, May 3, l983, p. 36-37.)
l02. Q: (By Craig Lawrence, counsel for defendant Government)
"Prior to the adoption of the regulation, what's the size-- what
sort of signs were appearing on the White House sidewalk?"
A: (By Deputy Chief Lindsey) "It's been my experience, for
many years, we were dealing with signs of what would be considered
as the plaintiffs' attorney has spoken of, of small signs.
However, it is not uncommon now, up until the time of these
regulations (36 CFR 50.19(e)(9)(10)), to see full sheets of
plywood, 4x8. And not only for one individual to express his
message, but up to -- at one time, there were 25 of these types of
signs leaning against the fence."
THE COURT; "What do you mean, boxes?"
THE WITNESS: "No, Your Honor; 4 x 8 sheets of plywood with
their messages on it. As I said, this group--"
THE COURT: (Interposing) "How would they be displayed?"
THE WITNESS: "Oneor two persons would string up as many as 25
of these signs, all leaning against the White House fence....". .
.
Q: (By Mr. Lawrence) "Have there been any recent incidents,
prior to the adoption of these regulations, which raise security
concerns with respect to signs on the White House sidewalk?"
A: "Two particular incidents. One, based on the reports that
I read in reference to the gentleman that Mr. Parr referred to,
that had used the sign to assist in vaulting the fence. Secondly,
the setting afire of a large structure sign on the sidewalk right
adjacent to West Executive, in front of the old EOB."
(Tr. Ex. l02, ERA Testimony of J.C. Lindsey, May 3, 1983, at
56 and 57).
l03. "Recently the U.S. Secret Service and the U.S. Park Police
have alleged that protest signs leaning against the White House
fence pose a threat to the life of the President in that they might
be used to scale the fence.
"In order to clearly demonstrate that 1) any determined
individual with a desire to climb the fence could do so without the
aid of a protest sign, and 2) that the Secret Service's Executive
Protective Division is well prepared to deal with any individual
who does climb the fence, I climbed to the top of the fence, with
no intention whatsoever to set foot on the White House grounds,
before jumping back to the sidewalk."
(Tr. Ex. l03, Letter from Thomas from SS files, May 5, 1983.)
l04. "He claims to be involved in a running battle with
authorities as to his right to display signs, placards, etc. on the
sidewalk in front of the White House. (Thomas) apparently planned
this incident to refute claims by officials that signs enable
subjects to scale the fence. Thomas stated that he just wanted to
show that a person did not need a sign to do this."
(Tr. Ex. l04, S.S. report May 5, 1983.)
Charges against Thomas were dismissed without show of probable
cause upon motion for dismissal on the grounds of destruction of
evidence by Secret Service.)
l05. "Defendants' (Lindsey and Parr) testimony that a large sign
had been used by an individual to scale the White House fence fell
apart at the trial. There was no evidence that any sign belonging
to the plaintiffs or anybody else had ever been used to scale the
fence."
(Tr. Ex. 96, Judge Bryant's Memorandum Opinion, ERA v. Clark,
CA 83-l243, April 26, l984, at p. 22.)
l06. On May 10, 1983 a meeting was held, one of many, which
was attended by representatives of the Secret Service, the United
States Park Police, the U.S. Attorney's, and the DOI Solicitor's
Office.
(Tr. Ex. l06, List provided by federal defendants with
Administrative Record for 36 CFR 50.l9(e)(ll)(l2).)
l07. Q: (Direct examination by U.S. Attorney) "Whose decision
was it to arrest Mr. Thomas? Do you feel it was your decision, or
were you basically carrying out orders of your superiors?"
A: (By Officer James) "I was basically carrying out orders."
Q: "And that would have been Lt. Merillat?"
A: "Well, it was from him to the sergeant, and the sergeant
to me."
(Tr. Ex. l07, Officer James testimony, May 19, 1983, USA v. Thomas,
Cr 83-056, at p. l7, l8; see also supra. para. 82, 83, 84, 85 and
86.)
l08. Plaintiffs allege that again on May l7, l983, defendants
published another representation as to the situation on the White
House sidewalk which they knew, or should have known, was factually
inaccurate:
"For example, two individuals who in the past and are presently
maintaining a daily demonstration in front of the White House have
had as many as twenty-five signs or placards leaning against the
White House fence.... The National Park Service is proposing to
amend present regulations to prohibit signs or placards on the
Whtie House sidewalk, except those that are being hand-carried by
an individual.... The proposed rule would not dramatically change
the present regulatory scheme - temporary structures are presently
prohibited on the WWhite House sidewalk under 36 CFR
50.19(e)(8).... A large sign affixed to a large structure caught
fire several weeks ago...."
"Further the proposed rule would apply 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."
(Tr. Ex. l08, Fed. Reg Vol 48 No. 95 May 17, 1983, pg. 22284,
22285; compare supra. para. 95.)
l09. "We concur with the revision as written, however we
suggest that a length restriction be added to dimensions of sign
supports. Such would prevent a petitioner from circumventing the
purpose of the regulation by waving a sign attached to a fifty foot
pole. We feel that a six foot maximum length of any support would
serve the purpose of the regulation....
"We look forward to continued participation to the on-going
Code of Federal Regulations revision."
(Tr.Ex. l09, letter dated May 27, 1983 from U.S. Park
Police Chief Lynn Herring, emphasis added; compare, supra, para.
94.)
ll0. "Title of information collection or rulemaking:
demonstrations on the White House sidewalk area 36 CFR 50.19 and
50.7."
(Tr. Ex. ll0, OMB Request for review, 6-13-83, Manus Fish.)
lll. Plaintiffs allege defendant Fish falsely represented that
prohibitions affecting freedom of individual expression "should
have no effect" on certain specific activities which he knew, or
should have known, such a prohibition must certainly affect.
"The rule mainly prohibits certain individual, private
activity in specified areas around the White House, it should have
no effect on competition, employment, investment, productivity,
innovation or the ability of the United States-based enterprises to
compete in domestic or export markets."
(Tr. Ex. lll, Determination of effects of rules, signed Manus Fish,
6-13-83.)
ll2. Yet again, on June l7, l983, plaintiffs allege defendants
published a representation with respect to the situation on the
White House sidewalk which they knew, or should have known, was
factually inaccurate:
"During the process of review and drafting of new
regulations, additional incidents occurred that increased even more
the need for security precautions around the White House. In
March, a large structure used by frequent protesters on the White
House sidewalk was burned.... Also in March, another individual
used another structure stored by demonstraters on the White House
sidewalk to facilitate the scaling of the White House fence.
"Complaints received by the National Park Service from the
public indicate that the visitor's ability to view the White House
is substantially diminished when a few demonstrators are allowed to
carry their protest to the extent of having large signs that span
the White House vista.
"The Director of the National Park Service finds that good
cause exists for suspending part of the thirty day delay of
effectiveness provided for in 5 USC 553(d)...
"A handful of demonstrators has occupied the White House
sidewalk daily for a year and a half. A handful of demonstrators
has had signs spanning the length of the sidewalk....
"The ACLU expressed its opinion that demonstrations in front
of the White House add to, rather than detract from, the visitor's
White House experience. On the basis of complaints received by the
National Park Service from outraged citizens, as well as editorials
in local newspapers, it appears to the National Park Service that
the public is in disaggreement with the ACLU on this issue.
"New restrictions apply only on the sidewalks contiguous to
the White House. They are not applicable to any other park in the
Memorial Core."
(Tr. Ex. ll2, Fed Reg Vol 48 No 118, June 17, 1983.)
ll3. The Washington Times was the only local newspaper that
printed prejudicial and defamatory articles and editorials about
plaintiffs and their activities:
"Is this a civilized country where people behave civilly? We
like to think so, but the visual pollution day after day in front
of the White House makes us wonder. The defacing of a premier
national symbol with garish placards and incoherent slogans has
become routine."
(Tr. Ex. ll3(a), Washington Times Editorial, February 2,
1983).
"The garbage that passes for protest signs, left day and night
against the White House fence along Pennsylvania Avenue is a
continuous insult, mocking the true intent behind the precious
right of citizens to petition the government for redress of
grievances....
"Although people have the right to demonstrate near national
monuments they should not be accorded the privilege of doing so
anywhere they choose. Not in Lafayette Park, where doing so ruins
the showcase, the dignity, the decorum that the majority of
Americans and their foreign visitors come to see and have a right
to expect."
(Tr. Ex. ll3(b), Washington Times Editorial, February 7,
1983).
"The preposterous Federal Appeals Court decision
yesterday is, or should be, the last straw in the decades long
trivialization of constitutionally protected free speech in this
country. The Interior Department should immediately issue a new
set of rules banning all but hand-held signs in front of the White
House and prohibiting any permanent or semi-permament structures
across the street in Lafayette Park, whether erected by protesters
or anybody else....
"Serious political protesters as well as full time vagrants
and others whose hold on reality is perhaps less firm than yours
and ours have every to express their views, through carrying signs
and leafletting, in appropriate places, such as on the Ellipse, in
view of the White House, for a limited number of hours.
"Anything beyond this is tyrannizing the rest of us.
Demonstrators have no right to deprive thousands of park visitors
of a nationally significant sight. Defacing the White House and
Lafayette Park is not the expression of free speech. It is a
damned crime. And we pray that this administration and the Supreme
Court have the guts to call it that."
(Tr. Ex. ll3(c), Washington Times Editorial, March 10,
1983).
"We appreciate and share your concern over word that the bums
are back, littering the White House gate with their hand lettered
messages. The day before yesterday we reported that the clutter of
protest signs defacing Pennsylvania Avenue sidewalk had been
cleared away by the United States Park Police.
"But the feds can't keep the fence permanently clear of the
wallboard placards. About all they can do is hustle off to jail
the two day in day out regular sign owners - a woman named
Concepcion Picciotto, and a man named William Thomas - for
violating the rule against structures in front of the White
House....
"By Tuesday the signs were back. Unlike the mobile shanties,
they don't violate regulations, and won't until the Interior
Department issues the new regulations we've urged banning all but
hand-held signs. Even Chief Justice Burger's grant of a temproary
stay yesterday of an Appeals Court decision that sleeping in
Lafayette Park is a form of free speech doesn't alter the
situation....
"A permanent stay is crucial to a civilized society tired of
having its pride in America mugged by pitiable lunatics, and an
Appeals Court too cross-eyed to tell the difference between genuine
free speech and permissive indulgence and childish willfulness and
the delusions of the insane."
(Tr. Ex. ll3(d), Washington Times Editorial, March 18,
1983).
"History buffs take note. By the end of this week those
large, garish, crudely lettered pronouncements leaning against the
White House fence will be gone. Good riddance! ...
"Last month we urged the Park Service to ban any protesters'
signs not carried by a protester, and last Wednesday the Supreme
Court ruled that while the city's sidewalks are 'public forums'
available for picketing and demonstrations, the government may
impose reasonable limitations on the protesters.
"The new regulations are just what we had in mind. But they
don't go far enough."
(Tr. Ex.ll3(e), Washington Times Editorial, April 25,
1983).
"A series of editorials in the Washington Times in February
and March urged the Department of Interior to amend the regulations
to prevent the 'defacing of a premier national symbol with garish
placards and incoherent slogans.' The series helped to facilitate
a final decision to ban all but hand-held signs, Park Service
spokesman George Berklacy said....
"Officials said that two protesters said that two protesters,
William Thomas and Concepcion Picciotto, have been stationed day
and night in front of the White House for the past year with as
many as twenty-five wall board signs and placards leaning against
the fence. Even though numerous complaints have been received
concerning the unsightliness of Thomas' and Picciotto's campaign,
authorities said there was little they could do under the old
regulations....
"But the unrestricted use of the First Amendment right of free
speech began to give way to security concerns when Thomas was
picked up by Park Police for questioning at the time of (Norman)
Mayer's siege. He also was arrested on March 11 for setting fire
to several (sic) of his signs near the White House.
"Thomas, Picciotto, and others are free to say whatever they
want, sources said, as long as their protestation symbols are not
left leaning against the White House fence. There is no limitation
on the size of signs they wish to carry."
(Tr. Ex. ll3(f), Washington Times news article, written by
Glenn Emery, April 25, 1983.) (See also, supra., para. 89, March
l6, l983 TIMES article.)
ll4. Q: (By Mr. Vanderstar, counsel for ERA plaintiffs)
"Now, with respect to the comment in prefatory comments in the
Federal Register of June l7, l983, I believe there is a reference
to editorials in the local newspapers which are critical of some of
the activities that have taken place on the White House sidewalk in
recent months.
"I was wondering how those articles came to your attention."
A: (By Mr. Robbins) "I have read them in the newspaper."
Q: "Which newspaper?"
A: "Washington TIMES is the one that comes most readily to
mind."
(Tr. Ex. ll4(a), Robbins deposition ERA v. Clark, CA 83-l243,
November 30, l983, p. 53.)
Defendant Robbins was put on notice that editorials in the
Washington TIMES did not express the only opinion with respect to
"activities that have taken place on the White House sidewalk in
recent months":
Q: (By Mr. Vanderstar) "Were you aware of an article
appearing in Progressive Magazine in April, l983 with respect to
William Thomas and others who were maintaining the vigil in the
area of the White House sidewalk?"
A: "Do you have a copy of that that I might refresh my
recollection?"
Q: "I certainly do, and I would be happy to show your counsel
first."
"This is just being offered to refresh your recollection."
(The document was handed to the witness and to the counsel.)
(Tr. Ex. ll4(b), Robbins deposition ERA v. Clark, CA 83-l243,
November 30, l983, p. 54; Tr. Ex. ll4(c), Progressive Magazine
article, April l983.)
ll5. In the Administrative Record of 36 CFR 50.19(e)(9)(10)
there are examples of the type of public comments which the Park
Service relied on in its rule-making considerations.
"It has been good reading about your three recent exposures of
the disgusting and disgraceful abuse of the White House sidewalk
area. To the adjectives disgusting and disgraceful should be added
at least two more. Displays are frequently vile and repulsive.
Not only is the sight of the graphics thoroughly
objectionable;equally revolting are the standing, slouching,
sitting and lying figures of the publicity hungry zealots. They
force viewers and tourist photographers to see the White House only
as a background for their ugly perversions along the full length of
the block. These people recognize no limits to their supposed
rights."
(Tr. Ex. ll5(a), letter, March 12, 1982, to the Washington
Times, signed Frank J. Miller, copy to defendants' agent Elmer
Atkins.)
"I am in concert with most of your plans for our country. You
had a mess to clean up. But I would chase the pickets and signs
from in front of the White House -- at least across the street to
Lafayette Park. Since you have a lot of 'class,' see if you can't
make Washington, D.C. a classy city."
(Tr. Ex. ll5(b), letter to the President, signed "A Concerned
American, G. T. Finch," dated November 30, l982.)
Case Listing --- Proposition One ---- Peace Park