UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 87-3041
September Term, 1987

United States of America,                    CR 87-00060
    Appellant                                CR 87-00061
         v.                                  CR 87-00062
Scott Michael Galindez                       CR 87-00063
And consolidated cases                       CR 87-00064

MEMORANDUM

In this appeal the United States seeks reversal of an order of the district court dismissing five criminal informations. These informations charged appellees with violating a regulation of the Department of the Interior prohibiting camping in Memorial-core area parks, including Lafayette Park, where appellees were arrested on the night of December 21, 1986. The district court dismissed the informations on the grounds that (appellees') actions were protected by the Free Exercise Clause of the First Amendment." United States of America v. Galindez, Cr. No. 87-60, slip op. at 3 (D.D.C. April 23, 1987). In so ruling, the district court failed to heed dispositive precedent: Clark v. Community For Creative Non-Violence, 468 U.S. 288 (1984), 703 F.2d 586 (D.C. Cir. 1989) (en banc).

We assume, as did the district court, that appellees' anti- nuclear vigil in Lafayette park was the product of sincerely held religious beliefs. See Wisconsin v. Yoder, 406 U.S. 205, 215-16 (1971); Founding Church of Scientology v. United States, 409 F.2d 1146, 1160-62 (D.C. Cir.), cert. denied, 396 U.S. 963 (1969). This is not a case like Yoder or Thomas v. Review Board, 450 U.S. 707 (1981), however, where compliance with the law necessitated conduct in direct cantravention of the complainant's religious beliefs. See also McDaniel v. Paty, 43~ U.S. 618, 626-28, 631- 35 (1978) (plurality and concurring opinions); Sherbert v Verner, 374 U.S. 398, 404 (1963); cf. Cox v. New Hampshire, 312 U.S. 569, 578~(1941) (Jehovah's Witnesses challenge conviction for marching without a permit to disseminate information regarding beliefs; court rejects as frivolous claim that march was a means of religious worship infringed by permit statute). Instead, this case involves regulations that restrict the place and manner in which appellees communicate their beliefs to others. [1]

It is well-established, moreover, that the government may impose restrictions on the time, place, and manner of communicative conduct, including activity motivated by sincere religious beliefs, as long as conditions, prescribed in precedent, are met. See, e.g., Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 647-48, 652, 659 n.3 (1981) (majority opinion and concurring in part, dissenting in part opinion); Cox, 312 U.S. at 575-76; Cantwell v Connecticut, 310 U.S. 296, 304 (1940); Brandon v. Board of Education, 635 F.2d 971, 980 (2d Cir. 1980), cert. denied, 454 U.S. 1123 (1981). Those conditions are that (1) the time, place,

[1 Depending on which characterization of the facts is accepted, the restrictions at issue here pertain either to the manner in which appellants communicate (through their signs while sleeping) or to conduct which facilitates that communication in the place chosen by appellants for that purpose (sleep enables continuous vigil). Which characterization is accepted is unimportant to this court's analysis, however, as both communication itself and facilitative activity that makes possible such expression are protected by the first amendment. See e.g., White House Vigil v. Clark, 746 F.2d 1518 1540 (D.C. Cir. 1984), cf. Community for Creative Non-Violence v. Watt, 703 F.2d 586, 601 (D.C. Cir. 1983) (Edwards, J. concurring) (action which is part communication and part facilitation enjoys some level of first amendment protection), rev'd 468 U.S. 288 (1984).]

1

and manner restrictions not be based on the content or subject matter of speech, (2) the restrictions be narrowly tailored to serve a significant governmental interest, and (3) the restrictions leave available alternatives for the communicative activity. See, e.g., City Council v. Taxpayers for Vincent, 466 U.S. 789, 808 (1984); Heffron, 452 U.S. at 648-50, 654; Consolidated Edison Co. v. Public Service Commission, 447 U.S. 530, 535-36 (1980).

Regulations prohibiting camping in Lafayette park have been upheld by the Supreme Court as meeting these requirements. In Clark, 468 U.S. at 294-97, the High Court stated that the regulations are content neutral, narrowly focus on the "Government's substantial interest in maintaining the parks in the heart of our Capital in an attractive and intact condition, readily available to the millions of people who wish to see and enjoy them by their presence," and leave many other means and places available for expressive activity. Clark also disposes of an additional argument appellees here attempt to make: although the immediate threat to the Government's substantial interest from one or even a small group of campers in Lafayette Park may not be large, the validity of the regulation is not to be judged solely by reference ta the case at hand. Once camping is permitted for one or a few, it may not be denied to others who seek equal access. Clark, 468 U.S. at 296-97; see also Heffron, 452 U.S. at 654.

Because of the posture in which the case is presented to this court, our decision is necessarily limited. We hold only that the criminal informations involved in this case should not have been dismissed for the reasons given by the district court. Accordingly, the order of the district court dismissing the informations is reversed and the case is remanded to the district court for further proceedings consistent with this memorandum. See Ambach v. Bell, 685 F.2d 974, 979 (D.C. Cir. 1982).

Contents

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