Void Because Unreasonable

"The adjudged cases in which statutes have been held to be void because unreasonable are those in which the means employed by the legislature were not at all germane to the end to which the legislature was competent."
From Plessy v Ferguson, MR. JUSTICE HARLAN, dissenting.

Another principle from Plessy, this time from Judge Brown, affirming
"The reply to all this is that every exercise of the police power must be reasonable, and extend only to such laws as are enacted in good faith for the promotion for the public good, and not for the annoyance or oppression of a particular class."
I believe that Time Place and Manner rests on the police power.

Lafayette Park

The reviewing stand.
If it is so critical that tourists have an unobstructed view of the gardeners work, why didn't you leave the reviewing stand up? That way everybody could be accommodated.

Petition the government for redress

WIRED: The court says that it is not the place to petition the government for redress of general grievances: "U.S. District Judge Vaughn Walker had ruled that the lawsuit amounted to a general grievance from the public, and not an actionable claim."
The lawsuit in question was brought by the EFF regarding wiretapping of domestic emails.

Don't bother the courts.

From the Declaration of Independence

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

This is why the First Amendment protects the right to complain.

Strict Scrutiny

Government restriction of speech in a traditional public forum is subject to strict scrutiny.
Traditional public forums include public parks and public sidewalks.
Under strict scrutiny, restrictions are allowed only if they serve a compelling state interest
and are narrowly tailored to meet the needs of that interest.

Subsequent Restraints

In Schenck v. United States, Justice Holmes suggested that the First Amendment prohibits subsequent restraints as well as prior restraints. “It well may be that the prohibition of laws abridging the freedom of speech is not confined to previous restraints although to prevent them may have been the main purpose . . . . The question in every case is whether the words used are used in such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” See

Development over the years since has been uneven, but by 1964 the Court could say with unanimity: “we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide–open, and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials.”

Traditional Public Forum

== at the Lincoln Memorial

(g)(3)(ii) Other park areas. No permits may be issued authorizing demonstrations or special events in the following other park areas:
(g)(3)(ii)(B) The Lincoln Memorial, which means that portion of the park area which is on the same level or above the base of the large marble columns surrounding the structure, and the single series of marble stairs immediately adjacent to and below that level, except for the official annual commemorative Lincoln birthday ceremony.

Here's the deal with the 1st Amendment

The 1st Amendment has alot of stuff jammed in. Why? 1a) The Constitution said about religion only that it would not be a test for office. But what if a lot of Methodists got in power and wanted to enforce their beliefs as laws? Ok we need to say that can't do that. But could we still burn heretics? Nope. No??? Where you gonna draw the line? See 1b.
1b) But with the revolution just over, they held that people should be able to say what they think. No burning anybody for what they say. And not just say, but write, using symbols like the alphabet. Or other symbols, like an armband. Or burning the flag, a modern blasphemy. And then what? See 1c.
1c) So once you have people talking, and if they decide on something, then they have a right to complain to the government, and the government has some minimal obligation to listen, or at least not shoot them, or lock them up.
Out of a feeling of propriety, and in recognition of the inability to formalize revolution,
they decided to put the next clause in the 2nd amendment.

Trespassing

Thurgood Marshall, for the majority in Logan Valley Plaza 391 U.S. 308: "Ownership does not always mean absolute dominion. The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it."

And here is the worst part

Stifling dissent cannot be fixed by Constitutional amendment.

36 CFR 7.96 (g)(5)(iv) deleted

deleted text was:
(g)(5)(iv) No permit will be issued authorizing demonstrations or special events in excess of the time periods set out below: Provided, however, that the stated periods will be extended for demonstrations only, unless another application requests use of the particular area and said application precludes double occupancy:
(g)(5)(iv)(A) White House area, except the Ellipse: Seven days.
(g)(5)(iv)(B) The Ellipse and all other park areas: Three weeks.
---
noticed missing in 7-1-10 edition
(g)(5) roman numerals reassigned.
The (g)(5)(viii) "center portion" is now (g)(5)(vii).

Signs and placards

The 36 CFR 7.96 discussion in Federal Register / Vol. 50. No. 161 / Tuesday, August 20, 1985 /33571 shows that the rules regarding signs are for "signs and placards" that have the capacity to be unattended, not the signs that demonstrators normally hand-carry. This is a substantial change in my understanding of the regulation, but makes sense in the historical context, linked to above, and in the wording of the regulation itself: 1) signs and placards, and 2) the sizes contemplated, which are large.
-----
"The National Park Service is not proposing to prohibit demonstrations in Lafayette Park. Nor is it proposing to place any limitation on signs that are hand-carried. The Park Service is merely proposing to place reasonable, content-neutral limitations on signs placed down in Lafayette Park so that visitors might be able to enjoy the history and beauty of the Park while demonstrators continue to have ample avenues of communication. In addition, the proposed rule would apply only to Lafayette Park and not to the many other park areas in close proximity, for example, the Ellipse on the south side of the White House."

William O Douglas in Brandenberg, concurrence, 1969

The dissents in Abrams, Schaefer, and Pierce show how easily "clear and present danger" is manipulated to crush what Brandeis called "[t]he fundamental right of free men to strive for better conditions through new legislation and new institutions" by argument and discourse (Pierce v. United States, supra, at 273) even in time of war. Though I doubt if the "clear and present danger" test is congenial to the First Amendment in time of a declared war, I am certain it is not reconcilable with the First Amendment in days of peace.

Mr. Justice Holmes, though never formally abandoning the "clear and present danger" test, moved closer to the First Amendment ideal when he said in dissent in Gitlow v. New York, 268 U.S. 652:
Every idea is an incitement. It offers itself for belief, and, if believed, it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker's enthusiasm for the result. Eloquence may set fire to reason. But whatever may be thought of the redundant discourse before us, it had no chance of starting a present conflagration. If, in the long run, the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.

We have never been faithful to the philosophy of that dissent. [p453]

Holmes in 1919

In Abrams v. United States, 250 U.S. 616, Mr. Justice Holmes, with whom Mr. Justice Brandeis concurred, dissented. While adhering to Schenck, he did not think that, on the facts, a case for overriding the First Amendment had been made out:
It is only the present danger of immediate evil, or an intent to bring it about, that warrants Congress in setting a limit to the expression of opinion, where private rights are not concerned. Congress certainly cannot forbid all effort to change the mind of the country.

Charles Evans Huges in Carolene Products 1938

Footnote 4:
There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments.

This may be asserted with more force against regulations emanating from the Executive Branch.

This would at least not be complete bullshit

The Supreme Court has held that an ordinance prohibiting picketing in front of a person's home does not violate the First Amendment because the government has a significant interest in protecting the integrity of the home and a person's feelings of "wellbeing, tranquility, and privacy." Frisby v. Schultz, 487 'LT.S. 474, 477 (1988)

US v. Nomad

Whether the regulation meets the "narrowly tailored" requirement is of course a question of law, to be reviewed by an appeIlate court de novo. See, e.g., White House VigiL v. CLark, 746 F.2d at 1529. This court has characterized "the test of'narrow tailoring' ... as a balancing test, inquiring whether the restriction 'burdens more speech than is necessary to further the government's legitimate interests.' " Henderson v. Lujan, No. 91-5258, slip opinion ("slip op.") at 9 (D.C. Cir. May 22, 1992) (quoting Ward, 491 U.S. at 799).

Overbroad: closed to demonstrations

The Park Service declares that this is not a public forum.
----
Under the First Amendment, the government may not close traditional public forums,
but may place reasonable restrictions on their use. [USC No. 81-896 460 U.S. 37 Perry]
You can demonstrate without signs, or you can demonstrate with signs if you keep moving.
And the reason is....?
----
Third, a restriction must burden speech no more than is necessary to serve an important government interest. Restrictions that are carefully aimed at controlling the harmful consequences of speech, such as litter, unrest, and disorder, will normally satisfy these guidelines.

Exclusive use or compatible use

Is this usage by tourists an exclusive use or a compatible use?

Early jurisprudence addressing this problem focused on time, place and manner restrictions and ultimately culminated in a "compatible use" test. This test instructed that the "crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time." If the expression was deemed incompatible, it could be constitutionally regulated.

Is this use by tourists incompatible with protected speech and petition activities? If use by tourists is incompatible with outher uses, it can be regulated; viz, tourists should request permits, devices for allocating between legal but incompatible usages.

That a picture is expression in settled: A picture is worth a thousand words.

Free Lafayette

The public forum doctrine was refined over the years, culminating in Perry Education Association v. Perry Local Educators' Association, 460 U.S. 37 (1983), where the Court established a three-tier categorization of public forums. The first category articulated in Perry was the traditional public forum. Traditional public forums include the streets, sidewalks, and parks discussed in Hague as being held in trust for the public. In a traditional public forum, the state may not restrict speech based on content unless it can show that its regulation is necessary to serve a compelling state interest and is narrowly tailored to achieve that interest.

Streets and parks have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights and liberties of citizens." Hague v. CIO, 307 U.S. at 515.

The Presidential Seal Exception

Motion for Summary Judgment

from No. 85-5174: 1984 USA v. Mary Grace

Appellant Mary Grace argued “that the ‘center zone’ regulation is invalid as applied in this case. Grace notes, in particular, that soon after her conviction a reviewing stand for the Presidential Inauguration was erected on the sidewalk, which obstructed the view of the White House. She further observes that attached to the reviewing stand was a replica of the Presidential Seal, a sign in the same sense as the sign she carried when she was arrested.”

The justices held

08. ... a reviewing stand (which concededly obstructs the view of the White House) is permitted .
09. The attachment of the Seal to the reviewing stand presents a more difficult problem. … At oral argument, counsel for the government conceded that the Seal may be considered a "sign" within the meaning of the regulations. ...
10. ... The purpose of the prohibition on stationary signs in the "center zone" of the White House sidewalk is to prevent obstruction of the public view of the White House. In this case, however, to forbid the Inaugural Committee to place the Seal on the reviewing stand would not achieve that purpose. The reviewing stand was already present on the White House sidewalk.

The principle seems to be that if a sign obstructs an object other than the White House, and that object is permitted to be on the sidewalk, then the sign obstructs the other object and not the White House. In this case, the Presidential Seal does not constitute a violation of the regulations.

The demonstrators are allowed to be on the sidewalk. The signs, such as they were, obstructed a view of the demonstrators, not a view of the White House. According to the Presidential Seal exception, this does not constitute a violation of the regulations.

Who is violating the law?

Who is defeating the government’s legitimate aesthetic goal in preserving a
relatively unobstructed view of the White House for tourists and passersby?
From No. 84-5271:The White House Vigil for the ERA (paragraph 2, sentence 5)

Possibly each one is violating the law:
1) 36CFR7.96 (g)(5)(vii) center zone text, read in isolation.

Defenses raised:
1) But [Hi Mom] is the intended beneficiary of the regulations. It makes no sense to arrest this person. One purpose of the regulations is to allow the tourist to stand there and be photographed in front of the fountain.
2) But [PEPSI] is corporate speech. It is not contemplated in the (g)(1)(i) definition.
In the alternative, this may be man who is delivering a commercial sign, and passing through the area. The sign may be wrapped.
3) We argue that if you hold that only [close GITMO] is criminalized by the regulations, that the distinction is based on the fact or content of the message,

This is unconstitutional discrimination. It fails strict scrutiny. It flies in the face of the attempt of the founders to protect this class of speech, not to mention their clear intent to protect people from arrest who petition the government and from harrassment by functionaires.

In the alternative, we claim that the government bans only demonstrations on the center portion that might appeal to the public. Toothless protest is allowed. Note that when these, now quaint, regulations were written, Pennsylvania Avenue carried traffic and the White House sidewalk was the national stage.

Indeed, the very concept of a site being designated as a "public forum" for First Amendment purposes presupposes that the site has "been used for purposes of assembly, communicating thoughts between citizens and discussing public questions." Hague, 307 U.S. at 515-16.

Occupy Syracuse

Not at this time.
Freedom is the first thing to go.

Center zone violation (g)(5)(vii)

1. Isn't the point of the First Amendment, in the main, to prevent the criminalization of dissent?
2. Of two actions of roughly similar characteristics, isn't the one that is protected by the First Amendment to be more tolerated than one that is not?
Yet the 36CFR7.96 (g)(1)(i) definition explicitly, and boldly, rejects that.

Immanent lawless action

DC Park regulations provide a permit may be denied if
"(g)(4)(iii)(B) It reasonably appears that the proposed demonstration or special event will present a clear and present danger to the public safety, good order, or health"
Certainly the "clear and present danger to good order" test should be struck.
"Clear and present danger", a test formulated in Schenck V U.S. in 1919, and reasserted in Abrams V U.S. later that year, was found to be too low in 1969 in Brandenberg v Ohio, and the bar raised.
The new test to make allowable the suppression of speech is "immanent lawless action".

The free discussion of governmental affairs

Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting “the free discussion of governmental affairs.” Mills v. Alabama, 384 U.S. 214, 218 (1966). Moreover, as the Court has noted, “[f]reedom of expression has particular significance with respect to government because ‘[i]t is here that the state has a special incentive to repress opposition and often wields a more effective power of suppression.’”
Glick on videotaping.

OWS: Did we think the problem with Tahrir Square was

that Mubarak wanted it cleared out during the daylight hours,
whereas we clear 'em out at night?

OWS: 1984 Clark v Community for Creative Non-Violence

which ruled that sleeping in tents was not protected symbolic speech in DC's Lafayette Park.
The Marshall and Brennan dissent is here.

In the case of OWS, sleeping in tents is not symbolic speech, like a black armband, meant to convey a message apart from the the occupation. Rather it is a fact of biology that people cannot remain awake 24 hours a day, and that the people desire to occupy centers of power until an acceptable response is made.
Can the government order them to go away?
-----
The first amendment is:
Congress shall make no law
1. respecting an establishment of religion, or prohibiting the free exercise thereof
; (semi-colon) or
2. abridging the freedom of speech, or of the press (or actions intended as communication)
; (semi-colon) or
3.(abridging) the right of the people peaceably to assemble, and to petition the Government for a redress of grievances
. (period)
-----
The people are exercising their right under the 3rd clause to petition for redress, and sleeping in a tent is necessary and proper.
That the people are being told to "move along" for their safety and the safety of others is to raise the question: which others?
-----
The question is, do the people have any rights that the Federal Government is bound to respect, or do we, citing Judge Tawney in Dred Scott, say "Slaves have no rights".
-----
The Man says: if you owned the property, you could stay, but the park is for everyone, not you.

DC Official Code §22 – 1307 (2011) v. Indians

Police urge protestors to "get on the sidewalk", but now protestors can be arrested if they will not stand single-file, lest they incommode the ghosts of the Cherokee who wander about the district, in search of the Great White Father.
---
If this provision is held to be "applicable" to the sidewalk in front of the White House, it effectively negates the (g)(5) permit rules, since a large assembly of people on this sidewalk can break, or be thought to break, this law. Breaking this law, if applicable, allows the on-scene commander to cancel the permit, per (g)(6), without the need to claim the standard "central portion" violation of (g)(5)(vii).
Plus it encumbers every demonstration in the city.

Is it lawful to assemble with signsin front of the White House?

The First Amendment protects the right of the people to peaceable assemble to petition the government for the redress of grievances, and the tenth amendment reserves to the people the right to use all means that are necessary and proper to exercise this right.
---
John Marshall, on the meaning of "necessary and proper", in McCulloch v. Maryland (US Bank):
"Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional."
---
It is not only the power to tax that involves the power to destroy.

Critical Legal Studies (CLS or crit.)

Critical Legal Studies is a movement in legal thought that suggests that the law tends to insulate the powerful from demands by the weak.
Now move along.

Irvine 11

Convicted in Southern California.
Finkelstein, on Chemerinsky

Incommode

to inconvenience. to disturb. tr.
someone
Currently, for arrests in front of the White House, you do not need to present the person inconvenienced, or claim that there is such a person.
-----
But even if there exists a person who is inconvenienced, can it be that the first amendment protects actions only as long as no one is bothered by them?
-----
There is the additional question, who is being inconvenienced more? Those who have to squeeze in among demonstrators to see the fountain, or those who have to travel to Washington to demonstrate against corruption at the highest levels?
Is there any reason that the interests of those who have a permit should not be satisfied first?
Or, failing that, first-come, first-served?

We shall overcome

01. 2011/08/30, XL Pipeline, Darryl Hanna and 1300 others arrested
   HuffPost USAToday Hansen Lakota NaomiKlein
02. 2011/07/26, deportation, Rep Gutierrez and 10 others arrested
   HuffPost FoxNews*Video
03. 2011/07/11, Columbia Free Trade Agreement, 4 arrests
   PeaceFellowship TeamsterNation TheCommunity
04. 2011/03/19, War, VFP MFSO, 113 arrests
   NuclearResister


06. 2010/12/16, Peace, Ellsburg, Hedges, McGovern, Flowers and 127 others
   WisconsinNetwork
07. 2010/11/15, DontAsk, Lt Choi and 15 others
   MetroWeekly WashingtonBlade
08. 2010/09/27, Mountain Top Removal, James Hansen and 100 others
   IndyMedia
09.2010/06/02, human rights abuses in Peru, Pocahontas
   [blog]

11. 2010/03/20, War, Sheehan, Sweet, and 4 others
   blog
12. 2010/03/18, DontAsk, Lt Choi, and 2 others
   CNN*Video WashingtonBlade


16. 2009/10/05, War, 61 including David Swanson, VFP, WAT(Martha), and others
   RNN*Video

21. 2008/02/28, War, CW/Iowa & Minnesota, U/Iowa, Voices for Creative Nonviolence and 1 other
   Mike Ferner

Breaking up is hard to do

But where there is a will, there is a way.

The executive branch is not "the government"

Although they like to be called that.

If the executive branch cannot protect the First Amendment
on the sidewalk outside its front door, maybe the judicial branch can.

Otherwise, what are we exporting?

Is 36 CFR 7.96 quaint?

1. The 36CFR 7.96 regulations were written in 1986 with occasional minor amendments. to achieve two goals:
  a. the safety and protection of the President
  b. preserve the aesthetic value of the national landmark

The safety regulations should all be stricken. Although 9/11 changed almost everything, it did not change 36CFR7.96. Pennsylvania Avenue closure is not acknowledged. The availability of modern technology that provides real levels of security to Federal buildings is not acknowledged or contemplated.
The aesthetic regulations should be stricken to the extent that they are aimed at demonstrations; that is, at constitutionally protected activity.
An esthetic interest may provide a rational basis for the regulations, and while a rational basis may be enough to regulate commerce, it is not enough to stifle dissent.
2. The regulations have not been lessened to reflect the significant impact they have had on demonstrations. Among those stopped from demonstrating are US Representative Louis Gutierrez, Lt. Erin Watada, Cindy Sheehan, James Hansen, Pocohontos, VFP, WAT.

3. The regulations have grammatical errors:
(g)(1)(iv)      15th is now called East Executive or Madison
(g)(2)(i)       "or will not" should probably be "and will not"
(g)(4)(i)(F)    "inaugual" should be "inaugural"
(g)(5)(x)(A)(3) "less" should be "fewer"

4. The regulations are not enforced as written.
  a. The "central portion" has been expanded to the lampposts, to 100 feet from 60.
  b. Wood, allowed by the regulations, is forbidden in practice
  c. Vinyl, forbidden in the regulations, is allowed in practice
  d. Tripods are deemed "structures"

When is a demonstration not a demonstration

When it does not have a propensity to attract onlookers,
and does not offend the aesthetic sensibilities of the tourist or passer-by.

When is a permit not a permit?

When it may be revoked at will:
36 CFR 7.96(g)(6):a permit may be revoked by the ranking U.S.Park Police supervisory official in charge ... for any violation of applicable law or regulation.

Or perceived violation.

A perceived violation

Charged with violating the "ten yards" regulation, which is
36 CFR 7.96 (g)(5)(vii) sentence 6: No signs ... shall be held ... or set down on the center portion of the White House sidewalk, comprising ten yards on either side of the center point on the sidewalk ...

The police announce to the protestors that they are, in their opinion, violating this portion of the regulations. The video shows that this claim does not conform to the facts. This bust is improper.

Yes, I do note that one protestor appears to be resting the tip of his sign on the sidewalk, and another is holding a sign at waist level. Is this what is envisioned in the regulation to protect the view of the fountain for the tourists, and are these two in the central zone? Why were 100 others arrested?

The question: Did these two spoil it for everyone?

Aesthetics. Footnote 112, in White House Vigil

[112] In Metromedia, Inc. v. City of San Diego (1981), the Court struck down a municipal ordinance which prohibited outdoor billboards. All of the Justices agreed, however, that purely aesthetic considerations may justify restrictions on speech.
---
A restriction on "manner".
Note the word may.

The enduring delusion

As we have said before, “It is here that the constitutional rights of speech and peaceful assembly find their fullest expression.” (Friends of Vietnam Memorial v. Kennedy quoting ISKCON of Potomac v.Kennedy)

Or were they referring to the Mall proper, only?

Keep Moving vs Not Moving

Not Moving Until my Daughter's Killer is Found
In other news, Marisela Escobedo Ortiz, was shot to death Thursday outside the offices of Chihuahua Gov. Cesar Duarte. The activist had said she wouldn't move until investigators showed progress in bringing her 17-year-old daughter's killer to justice.

No Stopping in front of the White House

A. [Link to No. 85-5174: 1984 USA v. Mary Grace] stare decisis
Appellant suggests first that the "center zone" regulation, which bans holding a sign while standing stationary in the "center zone," based as it is solely on aesthetic concerns, violates the First Amendment. Appellant recognizes, however, that our decision in White House Vigil for the ERA Committee v. Clark, 746 F.2d 1518, 1538 (D.C.Cir.1984), determined that the regulation is constitutional in this regard. See Br. for Appellant at 22. The rule of stare decisis forbids our reconsidering this question

B. [Link to No. 84-5271:The White House Vigil for the ERA] insubstantial infringement
The government's interest in preserving a relatively unobstructed view of the White House for tourists and passersby constitutes a legitimate aesthetic goal which is not outweighed by the insubstantial infringement on the demonstrators' ability to engage in expressive activities.

=====
0.) The first amendment does not grant a right of freedom of assembly.
The first amendment does not grant to the people the freedom to assemble to petition the government for the redress of grievances. The first amendment places such assemblies beyond the reach of this, limited, government. The first amendment acknowledges that governments may want to see that assembly as treason, and forbids acting on that impulse in ours. One assumes that this is a pragmatic lesson drawn from the experience of the colonies: that a government derives its just power from the consent of the governed.

1.) Strict scrutiny requires the least restrictive means which achieves the end.
Infringement of the right to assemble to petition for redress is subject to strict scrutiny.
The conflicting national interest being asserted, authorized under 16 USC 1.1.1 which created the Parks Service, is the ability of some person, who may or may not feel a propensity to be attracted, and may or may not approach the sidewalk, to have a substantially unimpeded view of the White House, should he or she care to have it, during a permitted demonstration.
(g)(5) specifies the conditions governing demonstrations having permits
(g)(5)(i) contemplates 750 people demonstrating on the sidewalk
(g)(5)(viii) makes illegal each stationary sign in the "center portion"
(g)(6) allows revocation of a permit upon any illegality.
If one stationary sign is present in the central portion, held by a member of a permitted demonstration, the regulations contemplate the cancellation of the permit, followed by the demonstration's voluntary or forced breakup, in order to provide a substantially unimpeded view.
Is this the least restrictive means and does this achieve the end?
As to "achieves the end", would the demonstration be cleared before the passer-by left?
As to "least restrictive", would the passer-by be willing to stand on a police car?

2.) Content based
The "center portion" is a "place" restriction, and is based on an aesthetic consideration, but applied in a discriminatory manner. The definition of demonstration, in (g)(1)(i), boldly and baldly refers to the text of the First Amendment. It is not the case that these regulations have as a side effect the impairment of the First Amendment; it is their target. Horses, [photo],on the sidewalk create a larger obstruction but are not regulated. Other assemblies, crowds gathered to exult in the killing of Osama Ben Laden, with signs, are not considered to mar this aesthetic, and the regulations do not apply to them.

3.) Equal Protection
Both demonstrators and passers-by have aesthetic interests.
No determinative basis has been established for the deprecation of the aesthetic preferences of the demonstrators in favor of the preferences of the passers-by.

4.) Prior Restraint
The restriction of demonstrators is real, while the government interest being protected is doubly speculative: the speculative interest of speculative passers-by.
What has been made illegal is the possibility of the impairment of an aesthetic experience.
Q: What could be defended as the government interest that is being protected by these claimed "time place manner" restrictions? A: The government interest in minimizing the effort needed to keep order. By showing the demonstrators that government will not endure an ineffective demonstration, they pre-empt the notion of mounting an effective one.
5.) Esthetics change
Although public opinion can be taken into account as a measure of esthetics, and esthetics for regulation, it is not reasonable to put protected rights beyond review for all time on the basis of past public sentiment. Even though it is true that some people may have at one time objected to demonstrations which promoted nuclear disarmament, it is not appropriate to allow regulations that reflected this objection to constrain future demonstrations in a way that is widely tailored and beyond review, and which is in conflict with the site's cultural history.

6.) Substantial infringement
a) Can the regulation be overcome if it can be shown that the infringement is in fact substantial, as a quick review of the history of its enforcement can show it to be.
b) Was the court saying that this regulation is not intended to, and should not be enforced in such a way as to, present substantial infringement?

7.) A permit is a tool to allocate a scarce resource
For a permitted demonstration, the permit approval process, in 7.96 (g)(4)(iii)(A), recognizes that not all interested parties may be able to be accommodated simultaneously. To require that a casual passerby have a "relatively unobstructed" view of the White House at all times is to ignore the premise of permits: that it is sometimes not possible to satisfy all demands.

8.) Standing still is expressive.
Standing still, not moving, has symbolic meaning. Requiring someone to not stand still also has a symbolic meaning; namely,  move because we say so. Requiring a demonstrator to "move along", requires that he acknowledge and submit to the power of the system that he may be protesting against. It is a sign of deference required by the authorities, a performance of a meaningless activity, a reminder, a demonstration of another sort: that we run things here.

9.) This is what democracy looks like
To drafters of the Park Service regulations, who are charged to preserve protect and defend the shrubbery, a lawn may on balance be more pleasing than a protest, or more "culturally appropriate". To the drafters of our Bill of Rights, a protest is the first mark of freedom, for which they gave their lives and fortunes. This is an appropriate reminder, a re-enactment if you will, in the nation's capitol, of our nation's heritage.

No. 95-5393: Friends of the Vietnam Veterans Memorial v. Kennedy

In Friends, the court relied on 16 U.S.C 1.1.1 to uphold regulation of sales of t-shirts, and also the regulation of demonstrations, in the National Capital Region:
But Congress has charged the National Park Service with regulating the use of the Mall so as to “conform” such use “to the fundamental purpose” of “conserv [ing] the scenery and the natural and historic objects ․ and ․ provid[ing] for the enjoyment of the same in such manner ․ as will leave them unimpaired for the enjoyment of future generations.”  16 U.S.C. § 1 (1994).   To this end, the Park Service has promulgated regulations providing that “[d]emonstrations and special events may be held only pursuant to a permit issued” by the Park Service. 
[link to Friends]
These Park Service Regulations for the Capital Region are CFR Title 36 Chapter 1, Part 7.96.  [Link to 36CFR 7.96]
7.96 (g)(1)(i) unmistakably refers to the First Amendment:
The term demonstrations includes … all ... forms of conduct which involve the communication … of grievances... 
This constrains the First Amendment to fit within the mission of the National Park Service.

The Rule Analysis of the October 2010 change to the definition of demonstration in 36 CFR 2.51, noted on page 64149 of the Federal Register Vol 75 No 201, makes clear the intent was to allow minor dissent: it allows the wearing of t-shirts, caps, and tattoos by individuals.

16 U.S.C. 1.1.1 - Creates the Park Service

With a fundamental purpose to preserve, protect, and defend the shrubbery, for ourselves and our posterity.

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"There is created in the Department of the Interior a service to be called the National Park Service … [which] shall ... regulate the use of the … national parks … by such … measures as conform to the fundamental purpose of the said parks …  [;namely,]  to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations. [link to 16 U.S.C. 1.1.1]

And provide "photo opportunities"