Sunday, October 28, 2012
Monday, October 8, 2012
Here's the deal with the 1st Amendment
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.
Tuesday, April 24, 2012
Feedback
vs the government hears only its own voice
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C. Wright Mills, The Marxists, Ch 1, p26 Thus (Marx) condemns a censored press in terms that parallel the condemnation by John Stuart Mill: it leads to hypocracy, the greatest of vices ... the government hears only its own voice ... surrenders to the illusion that it hears the voice of the people .. the people on its side falls either into political superstition or else into indifference, and so turns completely away from the life of the state.
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Q: Is engagement by the people important in a democracy?
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C. Wright Mills, The Marxists, Ch 1, p26 Thus (Marx) condemns a censored press in terms that parallel the condemnation by John Stuart Mill: it leads to hypocracy, the greatest of vices ... the government hears only its own voice ... surrenders to the illusion that it hears the voice of the people .. the people on its side falls either into political superstition or else into indifference, and so turns completely away from the life of the state.
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Q: Is engagement by the people important in a democracy?
Monday, January 30, 2012
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.
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"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."
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"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."
Saturday, January 28, 2012
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.
Thursday, January 26, 2012
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 all signs of protest
The Park Service creates time place and manner restrictions to this traditional public forum, marked in red.
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Under the First Amendment, the government may not close traditional public forums,
The Supreme Court has developed a four-part analysis to evaluate the constitutionality of time place and manner restrictions. Restrictions must be
a. content-neutral and
b. be narrowly drawn and
c. serve a significant government interest and
d. leave open alternative channels of communication.
A restriction must serve an important government interest, and burden speech no more than is necessary to serve that interest. Restrictions that are carefully aimed at controlling the harmful consequences of speech and assembly, such as litter, unrest, and disorder, will normally satisfy these guidelines.
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Is the compelling state interest served by making people mill through the center zone?
Can a passer-by take better pictures if the signs are in motion?
The regulation is not "rationally" related to the state's compelling interest - it does not achieve the objective.
Where is this interest located, in the spectrum of compelling state interests that the Parks Department has?
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Isn't it over broad to criminalize the presence of one protestor with one sign in the center portion?
Would one sign would shatter the bucolic illusion so carefully tended.
Exclusive use or compatible use
What should be done if two groups want access to a sidewalk, and the two uses are incompatible?
GRAYNED v. CITY OF ROCKFORD No. 70-5106 focused on time place and manner restrictions, and created a "compatible use" test. This test states 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 manner of the protected expression is incompatible with the normal activity at the time and place, the manner of that activity may be regulated.
In the case of demonstrations on the White House sidewalk, if one is claiming to protect normal activity, one would need to hold that a permitted demonstration is not normal activity, and in addition is incompatible with the normal activity for that time and place in a basic way.
The National Parks Service has created a permit system to manage access to Lafayette Park and the White House sidewalk, and to allocate the use of those places for a time. When demonstrators have a permit, their rights are still curtailed in the Center Zone, even though demonstrators have traditionally shown an interest in having full rights in that area, even to risking arrest.
The effect is that tourists, who have a lesser claim to sidewalk airspace (that is, they do not have a Constitutional claim to it, or a statutory one), and may not be present to enjoy it, are nonetheless given exclusive rights to it. Why is it that one demonstrator, who may be a tourist, or passerby, needs to yield to the passing whim of some other tourist or passerby, who does not demonstrate?
We claim that this bias against demonstrators is content-based, and triggers strict scrutiny.
The fact that the Parks Service prohibits all signs does not thereby make the regulation "content neutral". Virtually all the demonstrations that take place in front of the White House are critical of some government policy. Only the occasional event, like the killing of Osama Ben Laden, brings on an approving demonstration. That demonstration was allowed to proceed unchallenged.
Equal protection of the laws means much more than equal enforcement; but the lack of equal enforcement shows a bias. When the line drawn by government, regardless of what substantive benefit or opportunity is being distributed or what burden is being imposed, functions to subordinate some groups to others and deny to some the full dignity and equal respect that all are due from government, this is a failure to "treat all equally".
1983 Perry, regarding sidewalks
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.
Quote: An absolute prohibition on a particular type of expression will be upheld only if narrowly drawn to accomplish a compelling governmental interest. [1]
Quote: In U.S. Postal Service v. Greenburgh Civic Assns., 453 U.S. 114, 133, 101 S.Ct. 2676, 2687, 69 L.Ed.2d 517 (1981), we stated that "Congress . . . may not by its own ipse dixit destroy the "public forum" status of streets and parks which have historically been public forums. . . ." [ibid]
We say: Nor may regulators.
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.
We note that the fourteenth amendment does not protect privileges and immunities from theft by Congress, or by regulators in the Executive branch, and we note that the clear meaning of the fourteenth amendment has long been ignored by the Supreme Court, yet we claim that neither Congress nor the Executive may infringe on this privilege to protest in the Center Zone, absent substantive due process.
Quote: An absolute prohibition on a particular type of expression will be upheld only if narrowly drawn to accomplish a compelling governmental interest. [1]
Quote: In U.S. Postal Service v. Greenburgh Civic Assns., 453 U.S. 114, 133, 101 S.Ct. 2676, 2687, 69 L.Ed.2d 517 (1981), we stated that "Congress . . . may not by its own ipse dixit destroy the "public forum" status of streets and parks which have historically been public forums. . . ." [ibid]
We say: Nor may regulators.
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.
We note that the fourteenth amendment does not protect privileges and immunities from theft by Congress, or by regulators in the Executive branch, and we note that the clear meaning of the fourteenth amendment has long been ignored by the Supreme Court, yet we claim that neither Congress nor the Executive may infringe on this privilege to protest in the Center Zone, absent substantive due process.
Sunday, January 22, 2012
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.
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.
Saturday, December 24, 2011
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".
If that is the condition for denial of a demonstration, should that not also be the condition for the break up of a demonstration in progress?
In contrast to that test, demonstrations are routinely broken up when there is no such danger.
"(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".
If that is the condition for denial of a demonstration, should that not also be the condition for the break up of a demonstration in progress?
In contrast to that test, demonstrations are routinely broken up when there is no such danger.
Monday, December 12, 2011
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.
Glick on videotaping.
Monday, November 21, 2011
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.
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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.
Friday, November 18, 2011
Is it lawful to assemble with signs
in 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.
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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."
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It is not only the power to tax that involves the power to destroy.
Monday, November 14, 2011
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.
Now move along.
Friday, September 16, 2011
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.
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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?
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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?
Thursday, September 15, 2011
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 YouTube
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
marches (wikipedia)
Tuesday, July 12, 2011
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?
Monday, July 11, 2011
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"4. The regulations are not enforced as written.(g)(4)(i)(F) "inaugual" should be "inaugural"(g)(5)(ix)(A)(3) "less" should be "fewer"
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"
Sunday, July 10, 2011
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.
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.
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.
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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.
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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.
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
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"
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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"
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