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People for Compassion and Understanding
Update 12/93

ANTI-ASSEMBLY REGULATORY SUMMARY DECEMBER, 1993

BACKGROUND

On May 6, 1993 the National Forest Service (USFS) proposed a regulation which would criminalize freedom of peaceable expression and assembly on public lands.

Two federal district courts have previously prevented the government from imposing similar restrictions. The first regulation was struck down Because it "single(d) out those who wish to exercise their First Amendment rghts," and was therefore unconstitutional. United States v. Israel, No. Cr.-86-027- TUC-RMB, Dist. Ariz. May 16, 1986. In the second case the court expressed a strong opinion that the regulation was unconstitutional and that it violated the Administrative Procedure Act. United States v. Rainbow Family, 695 F.Supp. 294, E.D. Texas 1988 "Rainbow").

How can the government do the same thing again after losing two cases? Word games!

Neither of the previous cases held that the government could NOT regulate gatherings on public land. Now the government uses wordy arguments to present this latest regulation as being "tailored to comply" with the previous court rulings. Federal Register, Vol. 58, No 86, pg. 26940.

One of the Rainbow court's main objections to the last regulation was that the government had not allowed public comment. This time the government avoided that mistake and allowed a 90 day public comment period which ended on August 4, 1993.

USFS claims to have received 602 letters; with 600 letters, as well as a petition with over 20,000 signatures opposed and 2 letters in support. Apparently USFS was not impressed by the public comment.

Between July 8 and August 4, 1993 200 or 300 people from all parts of the country came to Washington, D.C. to oppose the regulations. The primary focus of action was lobbying. Both Congress and groups with possible interest in free assembly were contacted.

On August 4th fourteen people were arrested at the Forest Service building in Washington, D.C. Ten of those arrested opted to accept a "diversion program." Only four people decided to take the "unlawful entry" charges to trial. On December 10th a mistrial was declared when a jury could not agree on a quilty verdict.

PROGRESS IN BABYLON

LATEST INFORMATION FROM THE FOREST SERVICE IS THAT THE PUBLIC COMMENT HAS BEEN PROCESSED. LYLE LAVERTY WITH USFS EXPECTS A FINAL RULE BY JANUARY. WHATEVER USFS PUBLISHES WILL BECOME ENFORCEABLE, AS "LAW," THIRTY DAYS LATER.

The result of congressional lobbying is mixed. On November 1st Congressman Don Edwards, Chairman of the Subcommittee on Civil and Constitutional Rights, sent a fairly well informed letter to Agriculture Secretary Michael Espy, stating concern that the rule does "not rationally further a significant government interest." He urged Espy to "carefully review this matter." On the other hand Bruce Vento, chairman of the Agriculture Subcommittee, wrote to a constituent explaining, "a permit is a legitimate tool to help the Forest Service provide protection from adverse environmental impacts."

A primary effort has been trying to arrange a meeting between the White House and/or Agriculture officials, USFS, and members of the public. It was hoped that the new Clinton administration could be shown -- and would be disturbed -- that USFS is attempting to pass a restriction that would stifle the First Amendment without any logical reason.

A comprehensive information package was hand delivered to Assistant Secretary Jim Lyons' office. Somehow Ellen Hornstein, from the DOA General Counsel's Office, had the material delivered to her. Ms. Hornstein also interfered with a second attempt to meet with Lyons. Ms. Hornstein has been an on-going impediment. In February 1993, Kathy Way, from President Clinton's domestic policy staff, agreed to conduct a meeting between members of the public and Forest Service agents. She set the meeting time for 2:00 PM on July 27th. On the 26th Kathy called back and said the meeting was off, because, Ms. Hornstein claimed, it would be an inappropriate "ex parte communication." Efforts are being made to discover Ms. Hornstein's legal authority to impede public access to administration officials.

STRATEGIES

MOST HELPFUL WOULD BE TO MAKE PEOPLE ** THE PUBLIC ** AWARE THAT THIS IS NOT A GOOD REGULATION. THUS, EFFORTS SHOULD BE FOCUSED ON GETTING THE STORY INTO THE MEDIA AND RAISING PUBLIC AWARENESS.

So far media interest has been limited. An Earth First newsletter published a mention and Americans for Democratic Action promised they would also print an article. Rolling Stone published an article mentioning the regulation in the December 23rd issue. Reporters from several major print media have expressed interest, but no other stories are known to have appeared in print.

ASIDE FROM RAISING PUBLIC AWARENESS it appears there are four possible options:

FIRST OPTION, continued lobbying of the White House and/or Congress might possibly enlighten minds in high places. The regulation COULD BE DROPPED. Try to enlighten:

Your federal senators and representatives,

Carol Rasco
Domestic Policy Staff
1600 Pennsylvania Avenue NW
Washington, D.C. 20500,

Jim Lyons
Assistant Secretary of Agriculture
14th and Independence Avenue Rm. 217-E
Washington, D.C. 20250.

Should enlightenment fail, the only possibility remaining within the established system is a legal challenge.

OPINIONS

It seems the major problem in discussing the legal options is that people opposed to the regulation are divided by two distinct theories explaining its genesis. One school believes this is the work of a few uncontrolled bureaucrats who can't stand to see free expression in the land of the free. Implicitly, this theory pivots on basic trust in the system, and a belief that the courts will always protect the peoples' rights against wild bureaucrats.

The second school of thought hopes the first is correct, but sees this regulation as the next "logical" step in an ongoing regulatory pattern, a pattern designed to "legalize" the use of authoritarian force, resulting in a concurrent diminishment of individual freedom. This theory reasons that the government is actually a regulatory agency that depends on the creation and enforcement of regulations ("law") for its very existence, and that the courts can be relied on to protect this status quo, BUT NOT NECESSARILY FREEDOM OR JUSTICE. E.g., Clark v. Community for Creative Non-Violence, 468 U.S. 288 ("CCNV"). Even the Rainbow court specifically held that "(t)he power of the Secretary to promulgate and enforce ... special use permits has been repeatedly upheld." Rainbow, 695 F.Supp. at 306-307.

Logically, this theory leads to the conclusion that the government will continue to enact restrictions until there is just no room for free thought, assembly or expression. After all, the government is regulating just about everything else, as the environment degenerates and the murder rate soars.

SECOND OPTION, a civil case could be brought seeking an injunction against enforcement of the regulations. Perhaps the only challenges here are that the regulation is [1] unconstitutional on its face (to get some idea of how this might play in court it is necessary to read CCNV, which the USFS claims as its legal authority for this regulation, Fed. Reg. pg. 26940), [2] unconstitutionally applied (to understand how difficult this might be read United States v. Thomas & Thomas, 864 F.2d 188), or [3] is "arbitrary or capricious" (read Thomas v. Lujan, 791 F. Supp. 321 to get some idea of the broad rationalizations a court may apply in defining "arbitrary and capricious").

But there is hope! THE RELIGIOUS FREEDOM RESTORATION ACT, NOVEMBER, 1993, MIGHT ARGUABLY OVERTURN THESE TERRIBLE CASES, WHICH WOULD ALLOW FOR A REPEAT OF THE 1988 TEXAS WIN. Hopefully, the courts will recognize that the Religious Freedom Restoration Act requires the Secretary to show a "compelling interest" before his regulations may "substantially burden" a religious exercise.

THIRD OPTION, once the regulation is enforced anyone arrested for violating it would have the opportunity to challenge the regulation in their criminal trials. The main drawback to this option is that discovery (the process of obtaining information) in a criminal trial is more limited than the discovery that is available in a civil trial against the regulations.

FOURTH OPTION, in the worst case scenario, where the government enforces a regulation to criminalize freedom, individuals arrested for violating the regulation could file civil rights action under 42 USC Sections 1983 and/or 1985(3) and/or 1986. To prevail on such a case one would have to prove the Forest Service conspired to deprive a group or individuals of rights, privileges or immunities guaranteed by the Constitution, under color of regulation. Proving this kind of conspiracy in court is no easy task. Thomas, et. al. v. United States, et. al., 694 F. Supp. 702.

The civil rights option could provide a criminal defendant both a stronger basis for acquiring discovery materials, and a greater range of defense strategies. For example, motions might be filed to stay a criminal proceeding pending the outcome of the civil case. See, Dombrowski v. Pfister, 380 U.S. 479.

There is a belief that freedom of thought, assembly and expression are about the only thing separating humanity from absolute hell on earth, and that the complacency or sloth of humanity has allowed the dictates of regulatory agencies to push us to the brink of an abyss. Coupled with a lack of confidence in contemporary judicial wisdom, this belief leads to the conclusion that the only way to keep the bureaucrats in line is to address the very nature of government itself.

There has never been a situation where a conspiracy, involving the same alleged scheme, was independently litigated in several different federal districts simultaneously. Numerous cases, filed independently in various federal court districts, would create a novel situation -- bound to attract public attention to the problem, raising public awareness - - would at least force the courts to do a double take on the allegations. Additionally, consider how the same case, being decided by different district courts, will surely result in different opinions, a situation very likely to lead to conflicting appeals court opinions, which, in turn, would fuel public debate, which is good for democracy.

Ideally, you'll find a law firm to use the legal theory and file a pro bono (free) case. Because federal courts are not anxious to hear cases alleging the administrative branch is conspiring to subvert the Constitution, it may be difficult to find a lawyer idealistic enough to take such a challenging case.

Alternatively individuals or small affinity groups could file a pro se (by one's self) law suit. HOWEVER, THIS METHOD SHOULD NOT BE WITHOUT SERIOUS CONSIDERATION.

First consideration: can you afford to sue? The court can require a filing fee which might be a couple of hundred dollars. To file a complaint in forma pauperis (which exempts one from prepayment of costs or fees, and pays for necessary transcripts), a judge must decide that the applicant is sufficiently poverty stricken.

Do you have the time and talents to sue? You will need to carefully read and respond to opposition motions; which requires research on legal (perhaps boring) precedent and legal (perhaps confusing) procedure. You will need to write and file motions within strict time limits. BUT, THIS BURDEN COULD BE LIGHTENED. Assuming a number of people are seriously interested in the idea -- and provided they can learn to work efficiently together -- with the aid of modern communications technology, they might assist one another with the necessary research and preparation of the necessary documents.

It is strongly suggested that anyone using the civil rights option do as much research as possible on both legal procedure and case law. The matter should be discussed as widely as possible with others; attorneys, trained to be skeptical, are particularly good to bounce ideas off, but remember, anything anyone tells you is only an opinion.

WE ARE PRAYING THE RELIGIOUS FREEDOM RESTORATION ACT INDICATES THAT SOCIETY IS HEADING IN A MORE PLEASANT DIRECTION. How the government handles this regulation will be a weather vane showing which way administrative civil rights winds are blowing.

Should all the worst happen, and the government continues to act like a beast, this scribe is also interested in discussing alternatives outside the system.

In service to peace through understanding,

P.O. Box 27217
Washington, D.C. 20038
(202) 462-0757

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