Vol 51, No. 43
Wednesday, March 5, 1986
3. Comments in Opposition--Too
The National Park Service received thirty-nine letters from
individuals and groups opposing the proposed regulations. It also
received a petition with several thousand signatures, in
opposition. However, after carefully reviewing the petition, it
appears that many of the signatures were gathered in April and
May of 1985, prior to the drafting of these proposed regulations,
and in response to a preamble that speaks generally to the
closing of Pennsylvania Avenue and "further restrictions on
demonstrating around the White House." These pages do 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".
Even though most of the petition did not address the specific
regulations proposed here, the entire petition was given careful
consideration. We especially noted several pages that did refer
specifically to provisions in the proposed regulations.
Many of the commenters opposing the proposed regulations made
the point that Lafayette Park is a unique site for First
Amendment activities because of the Park's close proximity to the
White House and its occupants. Further groups such as the
American Civil Liberties Union ("ACLU"), the Sierra Club and
the White House Vigil for the ERA, as well as individuals,
indicated that Lafayette Park has long been utilized by
demonstrators such as the early suffragettes to bring their
message to the public. The commenters stated their belief that,
because of the unique opportunities Lafayette Park offers to
bring a message directly to the public and the Executive Branch,
demonstrations must be allowed to continue in that Park.
The National Park Service agrees that Lafayette Park is an
appropriate site for demonstrations and emphasizes the fact
that the final regulations do not prohibit demonstrations in the
Park. The Park Service ia merely placing reasonable limitations
on the demonstrations that do occur in the Park. Further, while
Lafayette Park has historically been the site of many
demonstrations for many different causes, the Perk has become a
site for permanent billboard-type signs and structures only in
the last few years. The Park Service is not attempting to
change the traditional use of Lafayette Park for demonstrations.
Rather, it is merely attempting to solve a problem that has
recently arisen in the Park.
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 National Park Service does not intend to
prohibit any individual 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. Each demonstrator may have two
four-foot by four-foot signs as long as they are attended.
Further, demonstrating groups may have a speaker's platform and
The 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 allegedly
prove that the Park Service is allowing private citizens to
destroy demonstrators' signs.
The final regulations are intended to address real and
substantial problems now existing in Lafayette Park. If the
regula:ions, 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 and structures.
Further, we have examined Ms. Picciotto's complaints that the
Park Police failed to stop private individuals from damaging her
signs. Police reports indicate that Park Police arrived only
after the alleged damage was done in each of these incidents.
Having no authority to make arrests for misdemeanors not
committed in their presence, the police appropriately referred
Ms. Picciotto to the Citizens Complaint Bureau. See 16 U.S.C.
In another incident not mentioned by the ACLU, the Park Police
went to Lafayette Park in response to a complaint by Ms.
Picciotto that she had been assaulted and one of her signs had
been damaged. The alleged assailant, a member of the military,
admitted to destruction Of the sign. He was then taken into
custody and, pursuant to Park Police General Orders, turned over
to military authorities. The Park Police officer handling the
complaint advised Ms. Picciotto to go to the Citizens Complaint
Bureau to file e complaint and gave her a brochure on the Bureau.
The officer later went to the United States Attorney's Office to
seek a warrant against the assailant. That office declined to
approve the application for a warrant.
Some commenters also suggested that restrictions on
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. These restrictions were
intended to meet security as well as aesthetic interests on
the sidewalk and were promulgated largely because of a
proliferation of large, unattended signs and structures.
The imposition of those regulations appears, in large part, to be
the reason for the movement of large signs and structures to
Lafayette Park. Once in Lafayette Park, the signs and structures
grew in size and number until the Park Service was forced to
consider additional regulatory limitations there also.
The Park Service believes, however, that the final regulations,
coupled with the White House sidewalk regulations, leave open
ample avenues for communication. Neither regulation prohibits
leafletting, making a speech, having marches, exhibiting signs or
engaging in any other traditional method of exercising First
Amendment rights. In fact, an individual may have a sign as
long as twenty feet and as wide as three feet on the White House
sidewalk not three hundred feet from the White House.
One commenter argued that "by precedent" the proposed regulation
would limit demonstrations in other parks. The final regulations
are specifically applicable to Lafayette Park alone and would not
place any limitations upon demonstrations in any other park, such
as the Ellipse or the Mall.
Many of the commenters opposing the proposed regulations, such
as the ACLU, take the position either that there is no problem in
Lafayette Perk or that the problem can be handled under existing
regulations. The ACLU, for 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."
The ACLU further stated that visitors are not precluded from
using Lafayette Park as they are free to walk through the
demonstration sites. Other commenters questioned whether the view
of the White House from Lafayette Park is really blocked by
In response, the National Park Service points out ~t~at almost
two hundred persons or groups wrote to the Park Service to
support the proposed limitations on demonstrations in
Lafayette Park or to request more stringent restrictions. Some of
those letters have been quoted in part above. Commenters also
pointed out the difficulty in getting a clear view of the White
House from Lafayette Park.
It is obvious that some people find the aesthetic quality of
Lafayette Park to be damaged by large signs and structures. It is
equally obvious that there are divergent views on the question of
aesthetic quality in Lafayette Park. For this reason, the Park
Service has attempted to take e "middle" position in the final
regulations that accommodates the exercise of free speech in the
Park while still maintaining the aesthetic quality of the Park
and meeting resource protection and safety concerns. We have
carefully reviewed the regulations and found them to represent
such "middle ground"
The ACLU and others did bring to our attention an additional
aesthetic problem in the area of Lafayette Park. In its comments,
the group indicated that tour buses and trucks parked along
Pennsylvania Avenue obstruct the view of the White House from
Lafayette Park more than signs along Pennsylvania Avenue.
Although the primary focus of the proposed regulations is the
maintenance of the aesthetics in Lafayette Park itself, the Park
Service is concerned with maintaining as unobstructed a view as
possible of the White House. For this reason, and in response to
the ACLU's comments, we have initiated discussions with the
District of Columbia, which has primary law enforcement
jurisdiction on Pennsylvania Avenue. in an effort to eliminate
parking, especially by buses and trucks, on the Avenue.
None of the commenters opposing the regulations seem to dispute
the safety problems and resource damage done by large, unattended
signs and structures. However, some commenters felt that
vigorous enforcement of existing regulations would eliminate
those problems as well as aesthetic concerns. The ACLU suggested
that the National Park Service simply spend money to repair
damaged areas and commented that other events do-equal damage to
The National Park Service has attempted to alleviate current
problems in the Lafayette Park by utilizing existing regulations,
as noted above. Starting in September of 1984, and after
consultation with the ACLU, the Park Service began a program of
weekly park inspections for the purpose of spotting items in
violation of the regulations and removing them. However, this
effort did not succeed in eliminating large, unattended signs and
structures in Lafayette Park. This failure was due primarily to
the fact that there are no regulations at present that prohibit
structures or place limitations on signs in the Park. As
discussed earlier, regulations prohibiting abandoned property are
practically impossible to enforce because of present conditions
in the Park. Therefore, additional regulations are necessary.
As to the ACLU's suggestion that the Park Service should allow
the damage caused by large signs and structures and simply spend
the money to repair it, the National Park Service does not
believe that the Government, and ultimately the taxpayers, have a
constitutionally-imposed duty to pay for unlimited destruction of
park resources by a few individuals. The Supreme Court affirmed
this when it found in Regan v. Taxation With Representation of
Washington, 481 U.S. 540, 549, that a legislature's decision not
to subsidize the exercise of a fundamental right does not
infringe that right.
The Park Service realizes that signs properly supported will
cause damage to the Park. These final regulations limit that
damage by requiring signs to be smaller, and by prohibiting most
structures. The Park Service believes that the regulations
achieve a reasonable balance between the right to demonstrate and
the right of other citizens to have the parks maintained in
an intact condition.
As to the ACLU's comments that the Park Service has allowed
activities on the Washington Monument Grounds on July 4th of each
year that result in substantial damage to that area, the Park
Service must point out that the Monument Grounds are not
maintained at the same level of aesthetic quality as Lafayette
Park. For example, softball, other games, and special events are
allowed on the Monument Grounds but are not allowed in Lafayette
Park. Further, the Park Service is taking well-publicized steps
to change the July 4th program to minimize resource damage.
The ACLU also indicated that Lafayette Park suffers some damage
every four years as e result of Inaugural activities. As pointed
out by the ACLU, the Park Service has no veto power over these
activities, the activities being congressionally and
constitutionally mandated. Moreover, the groups causing
that damage have been required to pay for all necessary repairs.
Even when aesthetic and resource damage and threats to public
safety were acknowledged, some commenters took the position that
the Park Service is legally barred from addressing those
concerns. The ACLU in particular argued that the exercise of
First Amendment rights must predominate over other government
interests. Many of those opposed to the proposed regulations took
the position that destruction of aesthetic quality must be
tolerated to accommodate First Amendment rights. Among these were
numerous activist groups who signed a statement issued by a group
called "Friends of First Amendment Rights in Lafayette and other
The National Park Service believes that the exercise of First
Amendment rights is of great importance. However, it also
believes, in accord with a multitude of court decisions, that
reasonable limitations may be placed upon that exercise when
necessary to meet legitimate government interests. It is beyond
question that resource protection and public safety constitute
substantial government interests. We also believe that the
Supreme Court has indicated quite clearly that aesthetics also
rises to the level of a legitimate government interest. Recently,
the Court stated, in City Council v. Taxpayers for Vincent, 104
S. Ct. 2118, 2129 (19&4), that "the state may legitimately
exercise its police powers to advance aesthetic values." More
specifically, both the Supreme Court and this Circuit have
recognized the substantial government interest in "maintaining
the parks in the heart of the capital in an attractive and
intact condition." White House Vigil for the ERA Committee v.
Clark, 746 F.2d 1518, 1529 (1984), quoting Clark v. Community for
creative Non-Violence, 104 S.Ct. 3065, 3070 (1984). The Court of
Appeals went further in saying "Finally, the government has a
substantial interest in the preservation and enhancement of the
human environment, aesthetics are a proper focus of governmental
regulation." 746 F.2d at 1528.
The National Park Service believes that these decisions sanction
reasonable limitations upon activity that diminishes the
aesthetic quality of, and that does damage to, Lafayette Park.
However, many of the commenters who opposed the proposed
regulations stated that they believed that these regulations
did not represent such reasonable limitations.
Several commenters opposed the size restrictions placed upon
signs in the proposed regulations. Those commenters argued that
large signs are necessary in order to have their messages read
from a long distance, especially from the White House, and
are necessary for complex messages.
The National Park Service has documented that a four-foot by
four-foot sign can be read from a considerable distance. It may
be true that, depending on the size of the printing, a sign that
size could not be read from the White House sidewalk. However,
signs as large as three feet high and twenty feet long are
allowed on the White House sidewalk itself. Further, the Park
Service does not believe that it has a constitutional obligation
to ensure that a demonstration sign can be read from any
arbitrary distance chosen by a demonstrator or that the sign be
large enough to accommodate any lengthy and complex message an
individual can imagine.
Further, the ACLU and the Sierra Club stated that they saw no
reason for a limitation on the thickness of allowable signs. The
National Park Service believes that a limitation on the thickness
of signs is necessary to prevent individuals from erecting signs
that are, in reality, structures, for example, a "sign" four feet
long, four feet wide and four feet deep. In fact, demonstrators
have argued in court that structures that are four-sided and that
have been used as living accommodations are "signs". Further,
the quarter-inch requirement assures a relatively light sign that
can be moved by demonstrators when they leave or when park
maintenance is necessary. However, the Park Service is revising
the proposed regulations to exclude from the thickness provision
braces reasonably required to support lawful signs so long as the
braces are not used to form an enclosure of two or more sides.
This allows demonstrators to properly brace their sign without
fear of running afoul of these regulations.
The ACLU also suggested that the Park Service allow signs to be
up to six feet in height if it is going to allow them to be
elevated to a height of six feet. We must reject this suggestion.
The Park Service is proposing a regulation that would allow signs
to be elevated to six feet to accommodate supports that might
raise a sign above the four-foot level. The purpose of this is
to accommodate demonstrators and public safety concerns, not to
create a loophole through which billboard-type signs again can
creep into the Park.
While agreeing that signs should be attended, most commenters
opposing the proposed regulations disagreed with the requirement
that a person stay within three feet of his or her sign. The
ACLU suggested that there be exceptions for demonstrators who,
for example, wish to cross the street to chat with passersby,
retrieve a hat blown off by the wind or go to the restroom.
Another commenter suggested that sign owners merely be required
to stay within the Park or on the surrounding sidewalks.
The Park Service has carefully considered these comments but can
think of no regulatory alternative that would assure that signs
are, in fact, attended. It would be impossible to enforce a
regulation that contained the kinds of exceptions suggested by
the ACLU or the suggestion that sign owners be somewhere in the
Park or on surrounding sidewalks. Further, a regulation requiring
persons to be in physical contact with their signs at all times
on the White House sidewalk, a regulation upheld by this Circuit,
has been in effect for several years and has not discouraged the
thousands of demonstrators who use that site each year. The most
effective enforcement scheme is to require physical contact with
signs. There is no doubt in that situation as to the ownership of
signs. However, the National Park Service did not wish to
prevent individuals from moving a short distance away from their
signs to conduct other demonstration activities.
Several commenters argued that the Park Service has regulations
capable of dealing with any attendance problems now occurring in
Lafayette Park. While there is a regulation prohibiting the
abandonment of property in the parks, the regulation has been
ineffective in preventing persons from leaving signs and
structures unattended for long periods in Lafayette Park, as
Another commenter suggested an exception to the attendance
requirement that would allow demonstrators to stack and store
signs for later use. However, the Park Service believes that any
attendance requirement must be applied across the board to
standing or stored signs.
Several commenters opposed the limitation on the number of signs
any one demonstrator may have in the Park at any one time. The
ACLU complains about the limitation on "the quantum of a person's
speech". The National Park Service does not believe that an
individual has a constitutional right to an unlimited "quantity"
of free speech regardless of the impact of that speech on other
interests. Without a limitation on the number of signs, a few
demonstrators would be free to occupy the whole of Lafayette Park
to the exclusion of everyone else and to the detriment of park
Several commenters also opposed the proposed prohibition on
structures in Lafayette Park. The ACLU indicated that such a
prohibition is not necessary and that it is overbroad. While
admitting that large, heavy structures such as desks, bookcases,
and porcelain toilets "may" be inappropriate in Lafayette Park,
the ACLU argued that present regulations are sufficient to keep
these items out of the Park. The National Park Service disagrees.
There are no regulations that prohibit
structures in Lafayette Park. The Park Service has been able to
deny permits for such massive construction projects as public
libraries and spaceship landing facilities under regulations
which allow the Park Service to deny permits for activities that
cannot be reasonably accommodated in the Park. However, it is
unclear whether this regulation could be applied to a desk or
porcelain toilet. At any rate, the Park Service believes that a
more specific regulation gives more specific notice to the public
concerning items that are prohibited.
Another commenter suggested that the term "structure" be
defined. While we believe that the term has a generally
understood meaning, we have revised the regulations to give the
public notice of the usage of the term by providing examples of
prohibited structures, and by listing those items that are not
considered to be "structures".
The ACLU and the Sierra Club also argued that the proposed
prohibition is overbroad as it would also prohibit
well-recognized items such as tables for literature and folding
chairs. The Park Service does not believe that use of tables and
chairs is protected under the First Amendment, and even if it
were, there is ample government interest in aesthetics, park
protection and public safety to support a neutral, across-the-
board ban on such use. However, in an effort to respond to the
concern about a prohibition of traditional symbolic materials, we
have revised the regulations so as to allow any structure in
Lafayette Park that is being hand-carried. This exception, then,
would allow symbolic structures, such as coffins and cages, to be
carried in the Park.
In its comments, the ACLU also argued that the Park Service, not
the demonstrators, is responsible for the dump-like: appearance
of the Park. We
do not believe this argument to have merit. For example, the ACLU
faults the Parks Service for not seizing chairs, the exact items
that the ACLU later characterizes as "well-recognized"
demonstration materials. The group also criticized the Park
Service for not removing other items, many of which the record
shows have been seized by the Park Service and then repeatedly
returned to the Park by their owners. Finally, the ACLU
criticized the Park Service for not allowing demonstrators
to construct and repair their signs in Lafayette Park. We do not
believe that the National Park Service must allow Lafayette Park
to become a construction area.
Ten persons wrote to the National Park Service opposing the
proposed regulations because the Department of the Interior
allegedly did not enforce building height laws to prohibit the
construction of Metropolitan Square on 15th and F Streets. None
of the comments contained substantive criticisms of the specific
provisions contained in the proposed regulations. Since the
building of Metropolitan Square is unrelated to anything in the
proposed rulemaking, we simply note these commenters' opposition
in this rulemaking.
Several commenters, including the ACLU, 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. The National Park Service does not believe that a
public meeting would contribute any comments or insights not
already expressed and addressed here.
Federal Register Vol. 51, No. 43 - Continued
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