UNITED STATES OF AMERICA, V. Joan H. Kalb, 99-74 MF Garrick M. Beck and, 99-75ME Stephen M. Sedlacko 99-76 ME
1/ For ease in reference the applicable sections of the Code of Federal Regulations ("C.F.R.") have been reproduced in Appendix A, attached to this opinion.
". . .an unincorporated, loosely-structured group that regularly gathers in undeveloped sites in National Forest to pray for peace, discuss environmental and other contemporary political and social issues, and [to] exchange, develop, express, and demonstrate their ideas and views.
Annual gatherings have occurred in different National Forests on and around July 4 since 1972. These gatherings draw more than 20,000 participants and last for a month or more.
Smaller regional gatherings take place throughout the year in National Forests across the country.
Black v. Arthur, 18 F. Supp. 2d 1127, 1130 (D. Or. 1998),
aff'd 201 F.3d 1120 (9th Cir. 2000).
36 C.F.R. § 251 .50 (a) The application is a simple one
page document, which each of the three defendants refused to sign
Gov. Ex. 6. 36 C.F.R. §251.54.
announcement of the 1999 gathering on the Rainbow web site on the Internet. (T. 10). Mr. Fox was quite familiar with these events, having first attended a Rainbow Family gathering in 1992 in Colorado. (T. 10). He knew that there were occasional regional Rainbow gatherings as well as national ones (T. I 2), and in conversations with Beck he learned something of the internal organization of the Rainbow Family; it was then that Beck suggested that Fox work with a group he called the" peace keepers", or "Shanti-Sena" of the Rainbow Family, in anticipation of the Allegheny Forest Gathering. An exhibit entitled "Rainbow Guide" (Gov. Ex. 3) describes the so-called councils thus:
COUNCILS
We gather in council circles to voice and creatively resolve the issues and concerns of our ever evolving Gathering. Participation in a council requires a focused mind, a listening ear and an open heart as we make critical decisions on how to best serve the Gathering.
The power to listen is sacred to the process.
Councils occur regularly on all workings of the gathering. They include: Main Council, Coop Council, Vision, Clean-up, Legal team, Shanti Sena, CALM. Info, Rainbow Guide, All Ways Free, Focalizers, Kitchens, firewatch, Bus village and any other special event, issue or aspect.
Councils are excellent opportunities to help create the Gathering.
MAIN COUNCIL
Main Council is held at rainbow noon in Main Meadow to deal with the business of the gathering and provide an open forum for anyone and announced by 3 repeated blowings of the conch shell. It is the only time decisions affecting the Gathering can be made.
With the evolution diverse councils caring for the many needs of the village the question is asked " Where is Main Council now?"
There was a time when it lasted for days without end. We shared openly what we were learning during the eco-psychedelic revolution.
We expressed fears or anger and went away clearer. We addressed all issues, focused our heart songs, and healed our relations. We gave room
for all people to share our experience and we were healed. With enthusiasm we unlocked the mysteries of why we were together as a Rainbow People. Maybe the time to sit together in this way has come again?
At Main Council in New Mexico it was consensed (sic) that the Annual Gathering and the council should begin on June 21 and end on July 10 allow more time to synthesize our community and The Rainbow Family Tribal Council. Seven days goes by quickly. A longer Main Council would lead to a clearer vision of the tribal village. A strong tribal coalition can transform unconsciousness and archaic forms of decision-making into creative enlightened potentials.
This controversial decision begs us to look at the purpose and form of Main Council
Now with twenty days of council, what can we do? Its up to you. Participate and help redefine Main Council.
Shanti-Sena
Shanti-Sena means "Peace Center"! There are no "Rainbow Police." We are secure because we watch out for each other. We are All Shanti-Sena. Experienced Shanti-Sena hold regular peace keeping workshops which everyone is encouraged to attend at least once. Do you know what to do in an emergency?
Gathering on Public Lands
Our Permit to Gather reads as follows; "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof or abridging the freedom of speech or of the press or the right of the people peacable (sic) to assemble and to petition the government For redress of grievances."
The Rainbow Guide
P.O. Box 1016
Hackensack. N.J. 076O2-l0l6
Sedlacko for the first time. (Vol. II. T. 23). Officer Poague
was looking for Beck to find out the decision about the permit,
Sedlacko agreed to arrange a meeting with Beck. Later in the afternoon
(July 2,1999) he meet with Sedlacko and Beck (Vol. II, T. 26).
(Vol. II, T. 79). Ms. Kalb "pinched off" the conversation
and invited the officers to Speak to the group. Schultz discussed
the need for a permit with Ms. Kalb and the group for about an
hour and a half. (Vol. II, T. 81) He attempted to present the
Permit Package, but no one would accept it. (Vol. II, T. 83).
since they have not been designated by the Rainbow Family to act on the group's behalf. According to the defendants' brief, page 13, the group "refused" to designate anyone to act, therefore these defendants are immune from prosecution. This argument was discussed and rejected by a court of appeals as recently as February 9, 2000, Black v. Arthur, 201 F.3d 1120 (9th Cir 2000). See also, United States v. Masel, 54 F.Supp.2d. 903 (W.D. Wis 1999); United States v. Rainbow Family, 695 F.Supp 294, 298 (E.D. Tex. 1988).
the government's legitimate interests." 159 F.3d at 895 (quoting from appellants' brief). The law is clear that when "expressive conduct" occurs on public grounds, the government can impose reasonable "time, place and manner" restrictions. Ward v. Rock Against Racism, 491 U.S. 781, 789 (1989). Furthermore, such restrictions are constitutionally valid "as long as they are (1) content neutral, (2) 'narrowly tailored to serve a significant governmental interest,' and (3) 'leave open ample alternative channels for communication of the information.'" United States v. Johnson, 159 F.3d at 895, quoting Ward, 491 U.S. at 791; see also Forsyth County v. Nationalist Movement, 505 U.S. 123, 129-30 (1992). The court then went on to hold that the regulations clearly serve these purposes: to protect resources and improvements on National Forest System lands, allocate space among potential or existing uses and activities, and redress concerns of public health and safety. Id. at 895; 60 Fed. Rag. 45,258, 45, 262 (1995).
U.S at 791; Masel, 54 F. Supp.2d at 907.We thus reject the argument that the requirement of a permit is violative of the First Amendment.
***
(2) Such terms and conditions as the authorized officer deems necessary to ...
(vii) otherwise protect the public interest."
on public property. The ordinance allowed the mayor to attach to the permit any "terms and conditions deemed necessary and reasonable." Id. at 754. The Supreme Court suggested that this resulted in the mayor having "impermissible discretion to deny expressive activity." See id. at 769.
The imposition of terms and conditions in noncommercial group use permits is limited to those designed to further the three public interests identified by the Forest Service in promulgating the noncommercial group use rule, i.e., the need to address concerns of public health and safety, to minimize damage to National Forest System resources, and to allocate space among actual or potential uses and activities.
2/ As previously noted, infra, the government regulate the time, place, and manner of expressive activity in a public forum so long as the regulatory scheme is (1) content-neutral; (2) narrowly tailored to serve a significant government interest, and (3) leave open "ample alternatives for communication." Forsyth County v. Nationalist Movement, 505 U.S. 123, 129-30 (1992); Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).
3/ Although we agree with the holding in Lakewood, it was a close 4-3 decision with two justices not participating.
(signed)
Maurice B. Cohill, Jr.
Senior U.S. District Judge