The "Camping" Regulation
This law of semantics began with the "camping" regulation.
Written by an Interior Department lawyer named Richard Robbins,
it was published by the government on June 4, 1982. To convince
the courts that the "camping" regulation was "constitutional,"
the government explicitly claimed this regulation "was not
intended to stifle First Amendment expression." [1] The
government stated a clear enforcement policy to distinguish
"permissible sleep" during the course of a vigil from
"impermissible camping." [2] On June 17, 1982, the government's
first application of the camping regulation was targeted at the
("permissible") sleep of the vigilers. Contrary to the
government's representations of "constitutional" concern, in fact
the "camping" regulation has been enforced to criminalize a
"vigil."
In 1984 Justices Marshall and Brennan pinpointed the major ploy
utilized by the Reagan/Bush bureaucracy to whittle away at the
bedrock of constitutional protection: "The political dynamics
likely to lead officials to a disproportionate sensitivity to
regulatory as opposed to First Amendment interest can be
discerned in the background of this case.... (T)here are facts
in the record of this case that raise a substantial possibility
that the impetus behind the revision may have derived less from
concerns about wear and tear on the park facilities, than from
other, more 'political' concerns.... there was evidence readily
available that should have impelled the court to subject the
government's restrictive policy to something more than minimal
scrutiny." [3]
In 1988 Judge Louis Oberdorfer noted that "(t)he Park regulations
furnish ... a convenient tool for harsh and discriminatory
enforcement by local prosecuting officials, against particular
groups deemed to merit their displeasure ... and confers on
police a virtually unrestrained power to arrest and charge
persons with a violation." [4]
In l989 Judge Oberdorfer pointed out, "(o)ver the course of their
vigil, plaintiffs and federal law enforcement officials have
engaged in an ongoing confrontation arising from plaintiffs'
exercise of First Amendment rights." [5]
Judge Oberdorfer found that the people "who are maintaining
vigils in Lafayette Park .... have stood up day and night for
their beliefs in spite of repeated arrests, (a few) convictions,
and the dangers encountered when sleeping unprotected from the
weather and other perils that lurk in the middle of the city at
night. Their protests have been peaceful. They are not venal
criminals, and application of criminal sanctions to them puts
strain on the criminal justice system. That system is designed
to protect the public from crime, condemn and punish
criminals.... The justification for condemning and punishing a
peaceful protester like defendant is not immediately apparent.
The effectiveness of the criminal sanction as a protection of the
public or as a deterrent to repetition when applied to persons
like defendant is also questionable." [6]
Sadly, Judge Oberdorfer's clear discernment was not sufficient to
keep him from sentencing the peaceful protestant to prison.
"We strongly believe in certain principles. We harmlessly
dedicate our lives to communicating our beliefs," says William
Thomas, who has been vigiling in the Park since 1981. "Now, I
believe, that dedication has revealed a judicial 'problem'."
A few federal judges, like William B. Bryant in 1983, comprehend
the problem: "Let me ask you this ... hasn't it been one of
those things where he gets arrested today for doing 'x' conduct,
and then he goes back and does 'x' minus 'y' conduct, right? And
he gets arrested. And then he goes back out and he does 'x'
minus 'y' minus 'z.' In other words, wherever you folks draw
the line, he wants to stay on that line.... (H)e is trying to
comply with these regulations, and as you make them and as he
gets arrested for them ... wherever you say do he'll do."
"He plays games," the government parried.
"Well, I don't know who is playing a game really." [7]
Judge Bryant tried to explain why the government's application of
the camping regulation was troubling his conscience: "If I
follow the government and find (Thomas) guilty what am I supposed
to do with him? He doesn't have any money. If I put him on
probation, he's going to be right out there doing the same thing.
The criminal penalty isn't enough to deter him. Point 1. Point
2. I have a hard time sleeping putting him in jail, actually,
for what he did.... I kind of tend to agree with him. He is
such a minimal harm to anybody in the world."
Judge Bryant's reasoning did not deter the US Attorney from
urging the maximum period of imprisonment, or the telling
alternative of sending the vigilers "to Sacramento to demonstrate
in front of the state capitol out there." [8]
Judge Bryant wasn't the only federal judge to be troubled by
unanswered questions about governmental application of regulatory
force. For example, in 1984 Judge Joyce Hens Green scolded the
government prosecutors, ruling "(t)o continue with this trial
would transform the trial from a prosecution into a persecution,
and, accordingly, the respective motions for judgment of
acquittal are, as to each of the defendants, granted. It has ...
become unnecessary," she added, "in light of this ruling, to
reach the several most significant constitutional questions that
some day, some way ... will be addressed." [9]
Unfortunately, those questions have yet to be addressed, and some
other judges display no compunction in ignoring significant
constitutional questions and condoning the government's use of
force.
The vigilers' first encounter with Judge Charles Richey came in
1987 after years of repeated prosecution -- but very few
convictions -- under the "camping" regulation. Initially, Judge
Richey dismissed the criminal case on the grounds that the vigil
was a sincere exercise of religious belief. [10] But the Court
of Appeals, citing Clark v. Community for Creative Non-Violence,
sent the case back down to trial. On January 15, 1988 Judge
Richey -- together with Judge Thomas Flannery -- conducted two
piggybacked trials, convicted and immediately sentenced William
and Ellen Thomas to a total of three months in federal prison.
Two other vigilers, Philip Joseph and Sunrise Harmony, were
sentenced to two months under the "camping" regulation. Before
passing sentence, Judge Richey explained the prison sentences as
an attempt "to deter others from adopting your lifestyle."
The most recent example of how "camping" can be used to stifle
"expression" was displayed by the Bureau of Land Management when it published a "camping" regulation to restrict demonstrations at
the nuclear weapons test site in Mercury, Nevada in 57 Federal
Register 9427 on March 18, 1992.
[1] 47 Federal Register 24304, June 4, 1982.]
[2] Op cite, 730 F.2d at 588, 589.]
[3] E.g. Clark v. Community for Creative Non-Violence , 468 U.S.
299 at 315, dissenting opinion of Brennan and Marshall.]
[4] Thomas, et al v. United States, et al, 696 F.Supp. 702 at 709.]
[5] United States v. Sunrise, 702 F.Supp. 295, 297 (l988), citing
Thomas v. United States, 696 F. Supp 702 at 704.]
[6] Id, (parentheses added).]
[7] USA v. Thomas, USDC, Crim. 82-0358, July 7, 1983. Appendix
pgs. 7-10.]
[8] USA v. Thomas, USDC, Crim. 82-0358, July 5, 1983. Appendix
pgs. 4-6.]
[9] United States v. Thomas, Thomas, Thomas, et. al., USDC Cr.
84-0255, September 25, 1984. Appendix, pgs. 11-13.]
[10] United States v. Galindez, et. al., USDC, Cr. 87-0061-0065,
April 23, 1987, Appendix, pgs. 14-16.]
WHITE HOUSE SIDEWALK REGULATIONS