Keep away orders

Orders of Protection at Hancock go beyond the time place manner restrictions on first amendment rights. Are they lawful?

http://upstatedroneaction.org/wp/category/protesters-in-court/

from Hodge v Talkin

"The Circuit further explained that:
The sight of a sole picketer may indeed mar an otherwise pristine morning or perfectly centered snapshot. However, it is just that annoyance-if such be the case-that may cause bystanders or passerby to stop and take notice, to become aware of an issue, to formulate a response to a companion. This awareness and interchange is, in part, precisely what the First Amendment is designed to protect.
pdf

Trial Preparation

Mark and Ann did trial prep at St Stevens dining room (basement). Present were Paki, Eve, Beth, Gail, and me. Matt, Carmen, Palina are on the way from NYC. Debra Sweet will be in tomorrow to testify, and Kathy Kelly is in ?Falls Church for an engagement Tuesday. Martha Hennesey is in transit. Those are the only names I caught. Art and Colleen are in residence. NYC just arrived. Mark's advice: look at the judge when you answer, your voice is you tool don't drone, have notes but don't stare at the paper, and keep track of where you are, look alert and know the program, don't interrupt the judge or others because the recorder can't get it and your great thought won't get in the record, know your roles. Ann added, while playing DA, It's a general intent violation. So possible aid and abet may be in the cards. The jumpsuit itself may be a "device", not sure if that means a jumpsuit is a sign.

MORNING== dont want to sleep
Gail is doing cross examination of prosecution witnesses. I think that she has a good opportunity to get new informataion from the police. Things we don't know about procedure and practice, their training (this is a specialized crime), how they see the elements of the crime, how they decided whom to arrest. [If you saw a group of teenagers on a corner, and one was drinking from an open container, how would you decide whether to arrest the one vs all of them? As it applies in this case, how would you decide whether to arrest the offender vs establish a perimeter?]]

Midnight between Monday and Tuesday

We lost today. We got a new judge because the prior judge could not do a two day trial. It turned out we only needed one day anyway. My eyes are starting to water, it's late, no glasses, people are sleeping need to be quite, so more later. Not that much now. Except that people are learning and of course we won't stop, so we can only win. We all got a good idea as to the facts and what at least a good theory would be. Not quite able to extract enough admissions from the prosecution witnesses, and did not frame the issues clearly enough for the judge to "get", but we will. There is an appeal being considered, as another chance to practice, and get a transcript to see what we failed to do. So there will be a lot of detail within six weeks.

Here is the first draft of the basis for appeal http://bit.ly/19gn836
Here is the second. http://bit.ly/1kJGpwu

Demonstrations at the Supreme Court

Judge Beryl A. Howell commenting in the recent Hodge decision regarding demonstrating at the Supreme Court, recounting the history of the statute, and the related one at the Capitol:
The panel concluded that “it is difficult to imagine a statute which could more plainly violate the principle that ‘First Amendment freedoms need breathing space to survive[and] government may regulate in the area only with narrow specificity.’”

And later she said...
The Circuit pointed out that the three judge panel in Jeannette Rankin Brigade II, 342 F. Supp. at 585, had “unequivocally stated, ‘[the] desire of Congress, if such there be, to function in the ‘serenity’ of a ‘park like setting’ is fundamentally at odds with the principles of the First Amendment.’”

and ...
an interest in ‘the glorification of a form of government through visual enhancement of its public buildings’ can no more justify an absolute prohibition of free expression on the Supreme Court grounds than on the grounds of the United States Capitol.” Id. (no citation provided). The Circuit further explained that: The sight of a sole picketer may indeed mar an otherwise pristine morning or perfectly centered snapshot. However, it is just that annoyance - if such be the case- that may cause bystanders or passerby to stop and take notice, to become aware of an issue, to formulate a response to a companion. This awareness and interchange is, in part, precisely what the First Amendment is designed to protect.

and ...
Indeed, finding that “[a] total ban on that conduct is no more necessary for the maintenance of peace and tranquility on the public sidewalks surrounding the building than on any other sidewalks in the city[,]”

and ...
The plaza is “open to the public 24 hours a day, except under special circumstances when it is closed by the Marshal,” and“[t]he public is free to enter and leave the Supreme Court plaza at all hours.”

and ...
Summary judgment shall be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

and ...
Nonetheless, “[n]othing in the Constitution requires the Government freely to grant access to all who wish to exercise their right to free speech on every type of Government property without regard to the nature of the property or to the disruption that might be caused by the speaker’s activities.” Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 799 - 800 (1985). Acknowledging that the government, “‘no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated,’” id. at 800 (quoting Greer v. Spock , 424 U.S. 828, 836 (1976)), the Supreme Court “has adopted a forum analysis as a means of determining when the Government’ s interest in limiting the use of its property to its intended purpose outweighs the interest of those wishing to use the property for other purposes[,]” id. Consequently, the defendants urge the Court to conduct a forum analysis of the Supreme Court plaza as the threshold issue in evaluating the constitutionality of the statute, and to find “that the Supreme Court plaza is a nonpublic forum under First Amendment analysis.” ... Any restriction based on the content of speech in a public forum “Must satisfy strict scrutiny, that is, the restriction must be narrowly tailored to serve a compelling government interest.”

Balancing and handguns (Heller v DC 2008)

The second amendment is protected more vigorously than the first amendment.

Justice Breyer writes, in his book Making Our democracy Work, pg 167:
... put in terms of constitutionality, the proportionality question is the following: Does the handgun restriction disproportionately interfere with the values that underlie the Second Amendmment? This question encompasses several subsidiary questions: To what extent does the restriction interfere with the protected interest? To what extent does it further a compelling interest? Are there superior, less restrictive ways to accomplish the statue's important competing interest? The answers to the subsidiary questions help answer the ultimate question: Does the statue disproportionately restrict the value or interest that the Constitution protects? The Court has frequently asked these kinds of questions, sometimes using different language, where similar constitutional conflicts - say between free speech and privacy - are present.

White House Vigil for the ERA

84-5271 746 F.2d 1518 United States Court of Appeals, District of Columbia Circuit.

Here is the sentence that justifies the "Center Portion" regulation 36 CFR 7.96 (g)(5)(vii):

"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."

Stare Decisis can be invoked to uphold a decision one would have decided differently.
It should not be invoked when one believes that the original decision is unsound.
1. Stare Decisis does not amend the Constitution.
2. A constitutional issue is at stake.
3. The public has not relied on the decision. The public has ignored it.
4. The White House Vigil (WHV) changed the previous state. Overturning WHV restores it.
While it is true that the demonstrations will continue into the foreseeable future, so that the court may overrule WHV at its leisure, in the meantime the spectacle of peaceful demonstrations being cleared from in front of the White House will continue to damage the reputation of the US.

The 7.96 (g)(5)(vii) regulation is a time place manner exercise of police power.
Police power is used to protect health, safety, morals, and good order.

Here are some reasons that the (g)(5)(vii) "Center Portion" regulation was invalid, ab initio:
01. (g)(5)(vii) is not related to the interest; it does not preserve the "unobstructed view"
For what spot does (g)(5)(vii) serve to preserve the view substantially unobstructed?
Not for most of Lafayette Park. Demonstrators can stand there with signs of any size, anywhere.
Most photos from Lafayette Park show a White House already obscured by trees and monuments.
Vans are larger than signs. Traffic was not stopped in order to preserve "an unobstructed view".
Now that traffic has been stopped on Pennsylvania Avenue, demonstrations have moved into the street. This frustrates any possible beneficial impact of (g)(5)(vii) upon Lafayette Park.
Do signs obstruct substantially more of the White House than the demonstrators themselves do?
If there are 90 demonstrators, is anything accomplished by having the middle 30 walk in circles?
Was the idea to protect the view of the White House for tourists who are on the sidewalk?
02. The "government interest" is not the "public interest".
The comments published in the Federal Register are about the blight in Lafayette Park.
See Federal Register / Vol. 50. No. 161 / Tuesday, August 20, 1985 /33571 at paragraph 3 here.
Some of the fifteen comments mentioned the unattended signs in the Park.
Here is a representative sample from the Federal Register
Further, conversations with United States Park Police officers assigned to Lafayette Park during tourist seasons reveal that they generally receive ... as many as four or five oral comments each day about the visual blight in Lafayette Park. Complaints noted by the officers include the fact that large signs interfere with the view of the White House, prevent picture taking and, together with the ever-present structures, generally ruin the aesthetic quality of Lafayette Park.
The White House sidewalk is not mentioned in the Federal Register.
03. Some demonstrators are tourists. Should one try to draw a line?
The definition of a demonstration is an assembly that attracts passersby. (g)(1)(i)
What if the passersby want to join the demonstration? If a tourist in the "Center Portion" has a sign "Hi mom", and wants to join a demonstration, what does he do with his sign?
He cannot hold the sign; he cannot put the sign down; he cannot leave it unattended.
If the tourist looks at the White House as he holds the sign, is he ok?
Are out-of-towners exempt, since (g)(5)(vii) is intended to protect their rights to the view.
The regulation is a prior restraint: a crime is recognized before anyone's view has been impaired.
04. The infringement is not insubstantial.
Many carefully planned events have been broken up to satisfy the speculated desires of non-existent passersby; events where hundreds of people have participated, and thousands of dollars have been paid-out, and many people have come a long way, staying in hotels.
The regulation has needlessly created a high-crime area.
It is hard to have people milling about, and also have a speakers program.
The "no signs" rule means that most pictures of the event will not contain signs.
Nor is "insubstantial" the standard where the regulation does not serve the interest.
There are less restrictive alternatives.
05. 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, and this regulation places most of its burden on that group. Only the occasional event, like the killing of Osama Ben Laden, brings on an approving demonstration.
And that demonstration was allowed to proceed unchallenged.
You don't see Bechtel and Blackwater demonstrating in front of the White House.
Give the public better access, and you will have an unobstructed view of the White House.
06. The Grayned Time Place and Manner rule is incorrectly applied
The Grayned compatibile use test says the "crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time."
Demonstrations are normal activity and so they cannot be incompatible with normal activity.
On what basis does (g)(5)(vii) grant exclusive use of the airspace to tourists?
If casual use by passersby is incompatible with large demonstrations, the permit system provides a reasonable method of sharing.
No evidence has been submitted that small demonstrations conflict with tourism.
07. A substantive violation of the clear text of the First Amendment
Remember that these amendments were added to the Constitution as assurances to people who had revolted against an unresponsive government. Assurances were given that the new government could be trusted with limited powers; given to revolutionaries who had told the world in the Declaration: "Our repeated Petitions have been answered only by repeated injury."
A very modest interpretation of the First Amendment would hold that the people may sometimes assemble to petition the government for the redress of grievances at the home of the Executive Branch in a peaceful manner as they choose, without being arrested.
The (g) regulations take words directly from the first amendment, and clearly and audaciously aim at limiting protected activity, rather than aiming at achieving a claimed interest.
Why is "obstruction of the tourist's view" not the alleged offense, based on the commerce clause?
Is the interest of a passerby a passing interest, rather than a compelling interest?
Standing still also has a meaning, which is frustrated by the requirement to move along.
Demonstrations are more important to the country than a reviewing stand, or some trees, or monuments to dead fighters, or traffic on Pennsylvania avenue, yet those were thought to be more important than an "unobstructed view" of the White House.
The Constitution protects having demonstrations in front of the White House.
The Constitution does not protect having a White House, or a having view of a White House.
A "legitimate aesthetic goal" is not the standard. Nor is deference to regulators.
08. All men are equal
If the National Parks Service wished to move the Wrought Iron Fence out to the curb in the "Center Portion" to "protect the view", it would be hard to find grounds to object, besides spite.
But once the fence is in place, all should have equal access to the remaining public space, first-come first-served, unless some other even-handed allocation method works better.
Jamison v. Texas: "one who is rightfully on a street, which the state has left open to the public, carries with him there as elsewhere the constitutional right to express his views in an orderly fashion."
09. Bad optics. Not the only goal, or an important goal, of even the Executive Branch
It may be a legitimate esthetic goal of the gardeners, but is it a compelling goal of the 'government'? Has even the Executive Branch weighed the various interests of appearance of democracy vs. appearance of a photo spot, much less has the court? The Supreme Court is eager to preserve on its plaza certain appearances which are, at least, related to its governmental function. How can the Executive Branch dare to even make the claim that its predominant interest is in the superficial? And if they do make that claim, should the Judiciary uphold it as true?
That aesthetics may be a basis for regulations does not make legal all such regulations.
Why is it that this view is the only one the government has asserted a right to protect?.
Isn't there a compelling interest that the White House have an unobstructed view of the signs?
10. Most demonstrations do not substantially obstruct the view of the White House.
The "Center Portion" regulation prohibits a single demonstrator from standing while holding a single sign, of any size. This does not meet the requirement of Grayned, cited in Perry, to be "narrowly tailored to achieve a significant interest" in that (Nomad) "it burdens more speech than is necessary".

In Summary
The original decision erred in the following ways.
01. The asserted interest hides a political interest, which it accomplishes.
02. The regulation does not accomplish the asserted interest
03. The asserted interest could be accomplished without restricting assembly
04. The interest asserted is not the public's interest.
05. The purpose of the First Amendment is to protect activity from the public's interest
06. Demonstrators have as much right to the space as tourists
07. The infringement is not insubstantial
08. The court did not apply the proper level of scrutiny
09. The activity is normal to the area, so Grayned does not apply
10. The gardener's interest is not compelling

Stare Decisis

Stare Decisis does not have the same effect as a Constitutional Amendment. While we can not ignore history, neither can we ignore the clear text of the Constitution. The text creates principled high points on which the rest of the law is hung. These high points are connected by strands of logic that create a kind of fabric ceiling. And very soon after our founders framed the Constitution, they built three walls against government disfavor: protecting religious belief, protecting free expression, and protecting the right to object.

Prior restraint of assembly

Judge Brandeis, in his dissenting concurrence in WHITNEY V. CALIFORNIA, says "The mere act of assisting in forming a society for teaching syndicalism, of becoming a member of it, or of assembling with others for that purpose, is given the dynamic quality of crime."

The word "mere" indicates a "prior restraint" analysis: the recognition of a crime before it happens. Prior restraint is the "ounce of prevention" argument advanced by counsel in Tinker v Des Moines, but not persuasively.

Organization for a Better Austin is a case where restraint on the distribution of handbills was struck down. Prior restraint is a recognition of a harm "too soon", before "it" has occurred, and where the occurrence of the harm is uncertain or can be minimized by other means, and where remedies are possible if harm should occur.

Alternative channels and what is normal

From Mary Grace, Judge Marshall, 461 U.S. 171 (103 S.Ct. 1702, 75 L.Ed.2d 736) concur in part.
When a citizen is "in a place where [he] has every right to be," Brown v. Louisiana, 383 U.S. 131, 142, 86 S.Ct. 719, 724, 15 L.Ed.2d 637 (1966) (opinion of Fortas, J., joined by Warren, C.J., and Douglas, J.), he cannot be denied the opportunity to express his views simply because the government has not chosen to designate the area as a forum for public discussion. While the right to conduct expressive activities in such areas as streets, parks, and sidewalks is reinforced by their traditional use for purposes of assembly, Hague v. CIO, 307 U.S. 496, 515, 59 S.Ct. 954, 964, 83 L.Ed. 1423 (1939) (opinion of Roberts, J., joined by Black, J.), that right ultimately rests on the principle that "one who is rightfully on a street which the state has left open to the public carries with him there as elsewhere the constitutional right to express his views in an orderly fashion." Jamison v. Texas, 318 U.S. 413, 416, 63 S.Ct. 669, 671, 87 L.Ed. 869 (1943) (emphasis added). Every citizen lawfully present in a public place has a right to engage in peaceable and orderly expression that is not incompatible with the primary activity of the place in question, whether that place is a school,1 a library,2 a private lunch counter,3 the grounds of a statehouse,4 the grounds of the United States Capitol,5 a bus terminal,6 an airport,7 or a welfare center.8 As we stated in Grayned v. City of Rockford, 408 U.S. 104, 116, 92 S.Ct. 2294, 2303, 33 L.Ed.2d 222 (1972), "[t]he crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time." "[O]ne is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place." Schneider v. State, 308 U.S. 147, 163, 60 S.Ct. 146, 151, 84 L.Ed. 155 (1939).

One question this raises is "is it normal to protest outside the White House?"
White House Vigil implies that this is not normal.

Analysis of the June 26th arrest

take 2.1, with footnotes
== General References
Google Maps view of the White House Sidewalk and and of the Center Zone
== Annotations, with @timestamp
@00:30 36CFR7.96 as of 2010, formatted. Subsection (g.5.vii) is the Center Zone text
@01:45 09/11 didn't change everything: 36CFR7.96. Was it too quaint?
@03:00 See the June 26th video @01:00 for the announcement that the sidewalk was closed.
@04:30 People act surprised on the June 26 video. Something happening at the curb?
@05:30 Why should a judge not require somewhat reliable evidence?
@07:15 Or cordon off to collect evidence, or aid a victim...
@08:00 Photo after closure of sidewalk
@08:10 The Mary Grace exception
@11:00 Here is the deal with the First Amendment. Why all that in one amendment anyway?
@13:00 What is a traditional public forum?
@13:45 The White House sidewalk is a traditional public forum.
@18:40 Example of discriminatory enforcement, against protected speech.
@19:50 Build a viewing platform, rather than trample on the First Amendment.
@21:30 regulations aimed at self supporting signs.
@22:00 Regulating t-shirts: Fed Register, Volume 75. page 64149 and ff
@25:00 History of pointless enforcement
@25:45 Strict scrutiny

take 1

@08:50 Strict scrutiny of restrictions to the content of speech (press), and as to time place and manner for speech and assembly.
@13:00 Demonstrations provide valuable feedback.
@14:15 A deference to be given to police, like referees.
@14:45 But certain places are assumed to be ok, are, traditionally, public forums.
@20:00 First come, first served. If the demonstrator is facing the fountain, he's ok.
@21:00 Find a solution that satisfies both demonstrator and tourist, or try to.

White House, June 26th 2013

Lafayette Park

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.

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.

Narrow tailored, from WH Vigil and Perry

"Where a regulation restricts time, place or manner of speech, feasibility of regulation is not enough; regulation must also satisfy First Amendment requirement that it be narrowly tailored."
White House Vigil 746 F.2d 1518
1. CONSTITUTIONAL LAW §90(3)

PERRY EDUCATION ASSN., Appellant v. PERRY LOCAL EDUCATORS' ASSN., et al.
No. 81-896.
Citation: "The state may also enforce regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication." Grayned v. City of Rockford, supra, 408 U.S., at 115, 92 S.Ct., at 2302;

Traditional Public Forum

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.

Feedback

vs the government hears only its own voice
----
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.
----
Q: Is engagement by the people important in a democracy?

And here is the worst part

Stifling dissent cannot be fixed by Constitutional amendment.

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."

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.

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.
----
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.
----
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?
----
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.

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.

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.

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.

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.

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.
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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.

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.

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?

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)

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)(ix)(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.

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.

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.

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"