Tuesday, December 21, 2010

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.
Also note that this is commercial speech for the most part. A restriction on "manner".
Note the word may.

Monday, December 20, 2010

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 Bill of Rights recognizes, rather than grants, rights. The First Amendment places assemblies to petition for redress of grievances beyond sanction. The Amendment acknowledges that governments resent dissent, and it forbids our government from acting on that impulse. Freedom to petition is a fundamental right. The most narrow reading would include the White House. Its limitation requires a compelling state interest, like health or safety.

1.) Content based
The "Center Portion" regulation is discriminatory. The definition of demonstration, in (g)(1)(i), boldly refers to the text of the First Amendment. These regulations intend to impair protected activity, and only protected activity. 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 and flags, are not considered to mar this aesthetic, and the regulations do not apply to them.

2.) Strict scrutiny requires the least restrictive means which achieves the end.
Content based infringement of the right to assemble to petition is subject to strict scrutiny.
The National Parks Service asserts as a compelling interest 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 unobstructed view of the White House, should he or she care to have it, at all times.
If one stationary sign is present in the Center Portion, held by a member of a permitted demonstration, the regulations contemplate the cancellation of the permit, followed by the demonstration's forced breakup, in order to provide this substantially unobstructed view.
Is this the least restrictive means and does this means achieve the end?
As to "achieves the end", would the demonstration be cleared before the target person left? National Parks Department data shows that the average person is in the park for half an hour.
As to "least restrictive", would the passer-by be willing to, say, stand on a police car?

3.) Equal Protection
Both demonstrators and passers-by have aesthetic interests.
No basis has been established for the deprecation of the aesthetic preferences of the demonstrators in favor of the preferences of the passers-by, even where a demonstrator may also have been a passer-by.

4.) Prior Restraint
Freedom of speech and of the printing press is the same right; indeed, writing is symbolic speech. The regulations are a prior restraint on freedom of expression, and of assembly; that is, they restrain those activities before any harm has occurred to the claimed interest. The restriction of demonstrators is real, while the interest the National Parks Service is protecting is doubly imaginary: the imagined interest of imagined passers-by. What has been made illegal is the possibility of the impairment of an aesthetic experience.

5.) Esthetics change
Although public opinion can be used to formulate an aesthetic, and esthetics can be used as a basis for regulation, the full range of aesthetics needs to be considered when creating an administrative law on behalf of the Executive Branch, and, even then, it is not reasonable to permanently impair protected rights to secure a benefit that is based on something that is subject to change. 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.
Also note that what protected rights are protected from is "public opinion".

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 and the Constitution, 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.

"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"