The summary judgment granted appellee is reversed, and the cause is remanded for further proceedings. Judge LEVENTHAL has written an opinion supporting this result. Judge WRIGHT is of the view, as set forth in his separate opinion, that the court should enter a further order in protection of the interests asserted by appellant. However, he concurs in Judge LEVENTHAL's opinion as far as it goes, and he joins in the foregoing result for the purpose of obtaining an effective mandate of this court. Judge ROBB has filed a dissenting opinion.
LEVENTHAL, Circuit Judge:
Appellant is a peace organization seeking use of the national park area known as the Ellipse for the purpose of holding an antiwar demonstration in early August 1969, on the anniversary of the bombing of Hiroshima and Nagasaki. A controversy arises because the organization wishes to construct a visual display, 8' high, 20' long, and 6' deep, in order to present a graphic peace message that will focus attention upon appellant's vigil. The National Park Service is willing to consider the issuance of a permit for a public gathering on the Ellipse to express the desire of appellant's members for "peace in general and for peace in Vietnam in particular." But the Park Service has categorically refused to issue a permit which will authorize appellant to construct the display it desires.
Appellant brought this action in the District Court urging that the denial of a permit violates its constitutional rights. It contends that the use of a graphic display in order to dramatize its peace message is activity that comes within the protection of the First Amendment, and, further, that the display is crucial to its proposed demonstration. It also claims a denial of equal protection of the law
The Government argues that the case essentially involves only a request for a privilege, to erect a structure on Government park land,
The District Court granted the motion of the National Park Service for summary judgment. We reverse that summary disposition and remand for further proceedings.
We are not called upon here to determine to what extent the interest in communication of ideas is or may be subordinate to other interests of the Government in regard to parks. Assuming that legitimate park policy may permit or require overriding a claim to freedom of expression in some instances, when a group, like appellant, makes a colorable claim of an interest in freedom of expression, the claim requires consideration by the Park Service on a reflective basis.
Parks are a particular kind of community area that, under the Anglo-American tradition, are available, at least to some extent and on a reasonable basis, for groups of citizens concerned with expression of ideas.
We turn to the narrower question whether appellant may erect a "display" — what the Government refers to as a "structure."
Certainly pictorial displays have at least a prima facie relevance to freedom of expression. Non-speech activities may be protected by the First Amendment.
We do not understand the Park Service to assert that its regulations requiring a permit for "structures" would enable it to adopt an iron policy forbidding any and all structures in parks. Such a position would lead to the absurdity of permitting gatherings, but prohibiting speaker's stands.
The record does not clearly set forth the basis on which the Park Service denied the permission requested by appellant for its particular display. The letter of the Park Service denying appellant's request said that "we do not view the erection of a `symbolic anti-war display' structure approximately 20 feet long, 8 feet high and 6 feet deep as an appropriate use of Federal park lands."
There may obviously be considerations justifying limitations on a display's size, duration, or positioning (e.g., limiting placement to a corner of the park), in order to avoid or limit interference with other simultaneous uses of the park.
The record also contains an earlier Park Service letter which refers to appellant as seeking a permit for an "illuminated billboard."
Again, it is not clear whether the objection was solely to the display on the Ellipse or would have applied to other Park grounds. It may well be that a sound park policy could accommodate the use of some park areas for public expression, and reservation of certain park areas for other purposes. However, we have not been presented with a coherent statement of park policy along these lines.
Government counsel urged at argument that the case might be disposed of on the principle that some park areas may be reserved for calm and quiet. That principle may be accepted, but it hardly seems pertinent to the Ellipse,
The Government does not assert that park policy precludes erection on the Ellipse either of all displays, or of displays that carry a message. The Christmas Pageant of Peace which it annually authorizes includes an enormous Christmas tree, an array of smaller evergreens, various choral, band and speakers' platforms, and a lighted life-size Nativity scene. A prime purpose of the pageant is to proclaim the message of "peace on earth to men of goodwill."
The affidavit of the head of the Capital Division of the Park Service seeks to distinguish the Christmas Pageant for Peace on the ground that this is a "recreational event." It has that aspect but since it plainly does have, and is intended to have, a message, the effort to label it as merely "recreational," in the hope that it can be assimilated to the kind of use on the Ellipse illustrated by softball games, is entirely too shallow to support restriction on First Amendment activities.
The Park Service affidavit also stresses the participation of the President, the Secretary of the Interior, and other Cabinet officers in the Christmas Pageant program. The argument seems to be that this participation identifies the Christmas Pageant program as a "quasi-governmental activity." This aspect of the case is not immaterial but reflection reveals that it is not decisive and indeed may raise more questions than it answers. This reflection could begin with the problem of the political party, which in basic legal conception stands on much the same ground as any other organization or assembly of citizens, not excluding appellant — that is to say, it is a group of persons with rights of assembly, and a desire to express ideas and to influence governmental policy. The President and Cabinet members typically attend meetings of their political party, and indeed, they are expressly exempt from the Hatch Act. There is an undoubtedly close relation between political parties and the Government: they may share the same leaders; they are subject to similar constitutional restraints concerning the responsibility of recognizing rights of individual citizens who desire to affect their programs. But the Park Service could hardly justify granting access to a park by the party in power, because its meeting was attended by Cabinet officers, while denying it to other groups of citizens.
The District Judge referred to the fact that Christmas is a national holiday declared by Congress. And indeed Congress has declared it to be a legal public holiday, see 5 U.S.C. § 6103. Curiously this point was not even noted in the Park Service affidavit.
These are forceful considerations, yet stubborn questions remain. For it may well be an essential, not an accidental, part of the Christmas Pageant, with its religious aspects, that it is conducted by a private organization. Government counsel put it at argument that Christmas is no longer a purely religious holiday, that it has also become a secular holiday.
Yet questions might well arise whether the visual display of the Nativity scene that is a standard feature of the Christmas Pageant may properly be described as a governmental activity. In this regard it should be noted that the Ellipse is not part of the White House lawn.
The question is not whether the District Court or this court can think of ways on which the Christmas Pageant can be distinguished from appellant's proposal. Of course it can be distinguished. One sensible distinction might well be the time of year; the winter season is more traditional for visual display, and display at that time has less possibility of interfering with recreational use of the Park. But that would not be a sound basis for disposition of the underlying controversy, for the Park Service rejected appellant's 1968 request for use of the Ellipse during a period following New Year's Day 1969.
It is not for this or any other court to construct guides for park use. The duty of the court is to assure our citizens that the Park Service has rules, or criteria, or guidelines. These will naturally seek to further park objectives. Yet the Park Service must also take into proper account matters that have at least a non-frivolous constitutional aspect, and must take a hard look at them and give them reflective consideration.
In this opinion we have adverted to aspects of the controversy as to which the Park Service position is not clear. We do not think controversies like this one should be determined on the basis of conclusory correspondence or terse affidavits. What is needed for appropriate judicial disposition is a more complete and illuminating presentation of Park Service policy than is available on the papers before us.
Typically reversal of summary judgment is for the purpose of a trial or evidentiary hearing by the court, and that may prove necessary in this case. But it is not inevitable. It may be obviated if the Park Service undertakes to define and announce a set of coherent park policies, clarifying the matters that are as yet unclear, and perhaps modifying the policies on further reflection as to the interaction of the various interests properly taken into account.
Our remand disposition means of course that appellant cannot schedule its August 1969 program as desired. But this does not moot the case. There is an underlying controversy evidenced by similar requests of appellant for January 1969 and for Easter. When controversies present what are essentially recurring issues of public interest they are not mooted because the most recent particular occasion for consideration of the issue has come and gone.
J. SKELLY WRIGHT, Circuit Judge (concurring):
I agree with Judge Leventhal that the grant of summary judgment in favor of the Government must be reversed. On the basis of this record, however, I believe that the appellant is further entitled to an injunction directing the Park Service to issue a permit for the construction of appellant's display.
This is not a case where the Government seeks to preserve the property under its control for its own exclusive use.
There can be no doubt, as Judge Leventhal notes, that pictorial expression is within the protection of the First Amendment.
Under these standards, the Government may properly regulate demonstrations to "[prevent] serious interference with normal usage of streets and parks * * *." Kunz v. New York, 340 U.S. 290, 293-294, 71 S.Ct. 312, 315 (1951). (Emphasis added.) But the burden rests upon the Government to demonstrate the compelling interest requiring the restriction of free expression and to show that the regulation serves that interest with the least restriction possible on the citizen's ability to communicate his political dissent. In this case, the Park Service has not only failed to meet this burden, it has been unable to articulate any policy in support of its action beyond its general judgment that appellant's display is not "appropriate."
Timeliness is essential to effective dissent. Delay may stifle protest as effectively as outright censorship.
A Quantity of Books v. Kansas, 378 U.S. 205, 224, 84 S.Ct. 1723, 1732, 12 L.Ed. 2d 809 (1964) (dissenting opinion of Mr. Justice Harlan). Here the Park Service's refusal to grant a permit has already resulted in two long delays of appellant's demonstration. The Supreme Court cases, as well as those in the lower courts, clearly indicate that in the absence of a properly administered permit system, people are free to exercise their First Amendment freedoms.
Since neither of my colleagues agrees with this disposition of the case or with each other, in order to reach a result I reluctantly concur in the remand of this case to the District Court. A clarification of Park Service policy in this area of First Amendment freedoms may serve to encourage rather than restrict their exercise.
ROBB, Circuit Judge (dissenting):
The appellants argue that they are subject to invidious discrimination because they are denied the right to erect a structure on the Ellipse, whereas that right has been granted in the past to the Christmas Pageant of Peace. The argument fails for the reason that the appellants' project and the Christmas Pageant of Peace are not comparable; in other words, there is a reasonable distinction between the two. The Christmas Pageant is a quasi-governmental activity sponsored and participated in by the President and conducted in his own backyard. Other sponsors and participants are numerous government officials and agencies, both federal and state, and foreign nations and their representatives. None of these features is found in the project contemplated by the appellants. Although as the appellants state the Pageant is financed and sponsored by private individuals and groups, these facts do not in my opinion change its fundamental character. I therefore reject the argument that the appellants are the victims of invidious discrimination.
As their second argument the appellants assert that the First Amendment gives them the right to erect and maintain on the Ellipse for a week a structure described by them as "an illuminated three-dimensional display approximately 20 feet long, 8 feet high and 6 feet deep." The argument does not persuade me. I do not believe that freedom of speech includes the right to deface and clutter the Ellipse with what amounts to bill-board advertising, by whatever name it may be called.
The issue here is not whether the appellants may assemble or make speeches or distribute literature or display flags or placards. There is only one issue before us, namely, whether the park authorities may properly refuse to allow the appellants to erect and maintain their display on the Ellipse.
I would hold that the prohibition of the appellants' structure by the park authorities is reasonable and proper.
The Ellipse is an elliptical park area. It is close to the White House lawn, but is separated by the iron picket fence around the White House, the adjoining passenger walkway, and an automobile thoroughfare (South Executive Avenue and E Street) accommodating six lanes of auto traffic and central divider.
36 C.F.R. § 50.19, applicable expressly to the National Capital Region, is virtually identical to 36 C.F.R. § 2.21, which applies generally to the national parks, and provides that "public gathering" — including not only parades, ceremonies and entertainments but also "meetings, assemblies and demonstrations" for public expression of views — are permitted in the parks on obtaining a permit. (All C.F.R. citations in this opinion are to the January 1969 revision.) Section 50.19(c) (2) and (3) provides:
The only distinctions drawn in this section between types of gatherings relate not to permissibility of use, but to availability of Park Service facilities and equipment, such as platforms, chairs, and lighting. These may be made available without charge in the case of "civic and patriotic assemblages, and athletic and entertainment programs which are presented as a public service" without admission charge or solicitation of funds. Otherwise they must be provided by the sponsors of the meeting, subject to approval of the Superintendent.
No permit is required for six specific areas in the Capital. 36 C.F.R. § 50.19 (b) (1)-(6).
36 C.F.R. § 50.7(i) provides:
The right to use the parks for expression of ideas is subject to appropriate regulation of the parks, see Roberts, J., in Hague v. C.I.O., 307 U.S. 496, at 516, 59 S.Ct. 954, 83 L.Ed. 1423 (1939).
The park authorities have the function of considering and accommodating the various interests involved. The authority of the Park Service, to prescribe reasonable conditions as to time, place and manner of use of the parks of the nation and its capital city, encompasses a decision to permit a visual display, but to confine it, say, to a particular corner of a park, or to a particular orientation in that area, or perhaps to a removable float rather than a fixed structure, so as to minimize interference with recreational use by others.
Beyond its extraordinarily general terms, this statutory provision relates solely to conservation. The Park Service did not make reference to this policy in its negotiations with appellant, nor did it evince any interest in issues relevant to such a policy such as the amount of damage appellant's structure was likely to inflict upon the park grounds.