Opinion for the Court filed by Circuit Judge WILKEY.
Opinion concurring in the judgment in part and dissenting in part filed by Circuit Judge WALD.
WILKEY, Circuit Judge:
This appeal concerns the constitutional validity of regulations promulgated by the
The restrictions embodied in the regulations are of three types. The first set governs the size, construction, and placement of signs on the White House sidewalk. The primary purpose of the sign restrictions is to prevent signs from being used as weapons, as concealment for explosives, or as a means of breaching the White House fence. In light of recent Supreme Court cases which clarify the role of judicial review in the first amendment context, we conclude that the sign restrictions are reasonable as originally drafted. A second type of regulation restricts, but does not prohibit, demonstrations within the "center zone" of the sidewalk. We conclude that this restriction, too, is constitutional as a reasonable means of regulating the place of demonstrations. 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. Moreover, while unrestricted access to the center zone might provide demonstrators with optimal media exposure, appellees have no first amendment right to such exposure. The third type of regulation prohibits the placing of parcels, except momentarily, on the sidewalk. Such activity has no expressive content; at most, it may be said to facilitate expression. It is unclear whether the facilitative activity proscribed here implicates the first amendment. Even if it does, however, the parcels restriction is constitutional as a reasonable restriction on the manner in which speech may be exercised: it is narrowly tailored to prevent the concealment of explosive devices within parcels left unattended on the sidewalk.
In late 1982 representatives of the National Park Service, the Park Police, the Secret Service and the Department of Justice met to consider ways of protecting the White House and its occupants from terrorist attack.
On 27 April officers of the United States Park Police arrested three long-time protestors on the White House sidewalk
The Park Service complied immediately. It republished the regulations as a proposed rulemaking on 17 May 1983, with a public comment period extending to 31 May.
The regulations impose three types of restrictions on activities conducted on the White House sidewalk. The first set of provisions governs the construction, size and placement of signs carried by demonstrators and other individuals. Signs must be constructed of cardboard, posterboard or cloth, while sign supports must be made of wood.
A second type of restriction concerns the "center zone," an area defined as the central twenty yards of the sidewalk.
The third type of restriction prohibits the deposit of parcels and other property on the ground. An exception is made for items which are "momentarily placed or set down in the immediate presence of the owner."
The Park Service prefaced its final regulations with a concise explanation of the governmental interests they were designed to serve. Those interests were threefold: "to minimize potential threats to the [White House] and its occupants and visitors ... to provide opportunities to the visitor to view the White House, and to maintain the free flow of pedestrian and emergency traffic."
Following an evidentiary hearing the district court entered a preliminary injunction against enforcement of many of the restrictions on 19 July 1983.
The government appealed the district court's order, and its appeal was heard on an expedited basis. In a brief per curiam opinion this court modified the preliminary injunction to take greater account of the government's interest in presidential security.
This court's modifications only applied to the preliminary injunction; they did not preclude de novo consideration of the merits.
At trial the court heard testimony from more than twenty witnesses. Among those who testified for the government were several Secret Service and Park Police officials with special expertise in the field of White House security.
On 26 April 1984, the district court issued the decision and order appealed from
Having concluded that the regulations as originally written were in violation of the first amendment,
The court permanently enjoined the enforcement of every provision as written except for the one-quarter inch limitation on the thickness of signs.
The government appealed to this court. While the case was pending and before oral argument the Supreme Court decided two cases of major import for the reasonable restriction of free speech within public fora.
II. THE LEGAL STANDARD
Certain types of places are so vital to a healthy and robust public discourse that they are accorded special status under the first amendment. The government cannot constitutionally prohibit all expressive activities in these public fora;
The public sidewalk here is one such forum.
The government is not precluded, however, from regulating expressive activities conducted on the White House sidewalk.
The regulations challenged here are clearly not based "upon either the content or subject matter of speech."
Nor do we believe that the purpose underlying the regulations was to ban speech entirely. Appellees direct our attention to a memorandum, dated 13 January 1983, from then-Secretary of the Interior James Watt to an aide, Moody Tidwell. Watt requested "a briefing on the regulations that allow demonstrations and protestors in Lafayette Park and in front of the White House on Pennsylvania Avenue. My intention is to prohibit such activities and require that they take place on the Ellipse."
On the circumstances existing during the relevant time here, a strong argument could have been made that a regulation banning all demonstrations on the White House sidewalk and in Lafayette Park would have been unconstitutional.
The regulations also clearly serve a "substantial governmental interest." No one can deny the substantiality or the significance of America's interest in presidential security.
As in most "time, place and manner" cases, the decisive inquiry here is as to the requisite narrowness of the means employed by the government to advance its substantial interests.
We reject both contentions. The issue for decision on this appeal is not factual, it
Our analysis is informed by recent Supreme Court interpretations of the "narrowly tailored" requirement. In Clark v. Community for Creative Non-Violence
The Supreme Court reversed.
In Regan v. Time, Inc.
Justice Stevens expressed a similar view in his concurrence:
Clark v. CCNV and Regan v. Time clarify the respective institutional roles of administrators and judges. The expertise of administrators lies in selecting policy goals and in devising techniques with which to pursue them. In the course of performing their twin roles administrators consider evidence which is predominantly factual in nature. Such inquiries, however, seldom lead to a single, determinate result. More often they suggest a number of feasible alternatives, each of which is capable of accomplishing the agency's goals within acceptable parameters of accuracy and effectiveness. Where a regulation restricts the time, place or manner of speech, however, feasibility is not enough: the regulation must also satisfy the first amendment requirement that it be "narrowly tailored." The Supreme Court's test defines a subset of regulatory options which are both feasible and constitutional; it is within this zone of constitutionality that agencies are permitted to exercise discretion in selecting regulatory initiatives.
The expertise of courts lies in determining whether an agency's decision is within the zone of constitutionality, not in choosing between options within that zone.
We turn, then, to an examination of the individual regulatory measures adopted by the Park Service, bearing in mind that the expertise of several federal agencies, including that of the Secret Service, contributed to their content.
III. THE REGULATIONS
A. Sign Restrictions
The first set of regulatory provisions governs the construction, size and use of signs carried on the White House sidewalk. They prohibit persons from
The district court permanently enjoined the enforcement of all but two of the sign provisions. It upheld the one-quarter inch limitation on the thickness of signs;
While the Park Service advanced other governmental interests as a justification for the sign provisions,
Just as the White House area is a "unique situs" for first amendment activity,
For a structure of such obvious significance to presidential and national security, the White House is singularly exposed to potential terrorist attack. It is located in the middle of a densely populated metropolitan area. A major thoroughfare, Pennsylvania Avenue, runs alongside the White House sidewalk, while busy E Street bounds the Mansion's lawn to the south. Although airplanes are legally prohibited from flying over the White House, the presence of the National Airport flyway a mile to the west presents a latent security danger. So, too, does the construction of tall office buildings within a few blocks of the Mansion.
In short, the need for effective security in the vicinity of the White House is great, but the geographical position of the Mansion renders it inherently insecure. Several federal agencies have brought considerable experience and expertise to bear on the problem of White House security; the regulations challenged here are but one fruit of their endeavors.
Considered as part of a larger effort to safeguard the Mansion and its occupants, the sign provisions clearly represent an appropriate means of promoting the substantial governmental interest at stake. They are narrowly tailored to avert specific forms of terrorism.
The measures adopted by the Park Service are clearly not the only means by which that agency could have sought to deter illegal activity on the sidewalk. There may even be options the Service rejected which would have promoted its interests in a more effective fashion. We are not at liberty, however, to replace the agency's judgment with our own. It is sufficient that the means selected be "narrowly tailored": that they lie within the range of feasible options the agency was constitutionally permitted to consider. The sign provisions clearly satisfy this element of the time, place and manner test.
B. Center Zone Restriction
The challenged regulations provide in part that
The asserted governmental interest in imposing additional restrictions for demonstrations within the "center zone" is that of preserving unimpaired the public's view of the Presidential Mansion from Pennsylvania Avenue and Lafayette Park.
It is well established that the government's power to regulate private affairs encompasses the power to promote aesthetic goals.
Recent decisions of the Supreme Court establish that aesthetic considerations may justify otherwise reasonable time, place and manner restrictions on speech.
We are convinced that the restriction challenged here does not mask constitutionally improper motives. Three factors are relevant to our analysis.
First, the government has regulated for the benefit of the public rather than for the promotion of its own aesthetic preferences. It is the view of the White House, not from it, which is being preserved. Whatever would be our ruling in the latter case, the purpose of the regulation here is clearly proper.
In order to establish the constitutionality of an aesthetic regulation of speech, the government must show that the regulation was enacted for purposes other than the effectuation of its drafters' personal tastes. Some resort must be had to societal preferences. To be sure, the preference ultimately embraced need not be that held by a majority of the populace. The government is entitled to rely on the expert judgment of artists, architects, urban planners, design consultants, historians, and other professionals; it is not limited to the prevailing style, but may embrace the innovative and the avantgarde. The aesthetic judgment it makes need not sit well with all citizens, for the debate sparked by an unconventional choice often leads to a richer and more complex appreciation of what is aesthetically pleasing.
Arbitrariness or capriciousness in the selection of aesthetic goals may indicate the presence of an impermissible motive either to enact the preferences of individual government officials or to burden unreasonably the exercise of free speech.
The second factor we must consider in assessing the center zone restriction is the extent to which it burdens speech. The more restrictive an aesthetic regulation, the closer a court must look to determine if it is based on constitutionally improper motives.
The center zone restriction burdens speech only in an indirect and insubstantial way. Protestors are free to engage in a wide variety of expressive activities within the center zone; they are only precluded while there from engaging in stationary protest. The center zone occupies no more than seven percent of the total length of the sidewalk; protestors may remain stationary along any portion of the remainder.
Appellees contend, however, that the regulation makes it more difficult for them to attract media attention to their cause. They assert that the center zone of the sidewalk is a particularly evocative site for symbolic protest, and that stationary demonstrations there are given preferential coverage by the news media. To deny
We find appellees' contentions unpersuasive for two reasons. First, the government introduced into evidence several photographs which show that the Mansion can clearly be seen from non-central locations on the sidewalk. Second, and more importantly, our caselaw does not recognize a constitutional right to attract media attention to one's cause. As this court stated in Vietnam Veterans Against the War v. Morton,
The final consideration relevant to our analysis is that the center zone restriction is not an isolated attempt to regulate the aesthetics of the White House view. If it were we might engage in a more searching inquiry to ensure that the agency has regulated for genuinely aesthetic reasons and not for the purpose of curtailing protected expression. The regulation here, however, is but one element of a continuing effort by the Park Service to preserve and enhance the view of the White House for tourists and passersby. The White House and its grounds are maintained year-round in a scrupulously manicured condition; indeed, only this summer the north facade of the Mansion underwent extensive restoration. The White House lawn is designed and maintained such that tourists on the sidewalk are afforded an excellent view of the Mansion. The fence which separates the sidewalk from the White House grounds is designed to facilitate rather than obstruct that view. It is obvious that the Park Service has promoted, in a number of ways, the ability of Americans to enjoy the beauty of the White House and its grounds. The center zone restriction is only one example of the Service's commitment to aesthetic values and their effective implementation.
We find no evidence that the center zone restriction was enacted for any purpose other than the preservation and enhancement of the White House view for tourists and passersby. Because the Park Service based its aesthetic judgment on societal preferences rather than the preferences of individual officials, because the regulation it adopted is not unduly restrictive of free expression, and because the regulation constitutes part of a comprehensive effort to preserve the aesthetics of the White House view, we conclude that the provision is constitutional.
C. The Parcels Restriction
The regulations provide that
The district court found this prohibition "clearly overbroad and unreasonable."
We are not entirely convinced that the first amendment protects the conduct proscribed by the parcels restriction.
By contrast, the activity at issue here — placing parcels on the sidewalk — appears to satisfy neither. Appellees have made no credible claim that such activity is "inten[ded] to convey a particularized message";
At most, the activity proscribed by the parcels restriction facilitates expression.
It is unnecessary for us to resolve this potentially thorny issue, however, because the parcels restriction clearly survives scrutiny under the reasonable time, place and manner test. The provision is narrowly tailored to address a security problem of the greatest magnitude, that of parcels left unattended on the White House sidewalk. Because any such parcel could contain an explosive device, all unattended parcels must be regarded as potentially suspect.
The fact that the regulation limits the "nature, extent [or] duration" of demonstrations conducted on the White House sidewalk does not necessarily render it unconstitutional;
The regulations challenged here reflect the same variety of reasoned decisionmaking approved of by the Supreme Court in Clark v. Community for Creative Non-Violence and Regan v. Time. It is not the prerogative of this or any other court to question regulatory provisions affecting the time, place and manner of speech which lie within the zone of constitutionality prescribed by the first amendment. While the temptation to engage in judicial rulemaking may be powerful, our Constitution is best preserved by adherence to the proper judicial role.
WALD, Circuit Judge, concurring in the judgment in part and dissenting in part:
These cases are never easy. The nation has a paramount interest in the safety of its President, and judges must respect the experience and knowledge of the law enforcement agencies charged with protecting the President, his family, and others who live and work in the White House. In reviewing decisions about their security we must proceed with care.
Prior cases of the Supreme Court and this court concerning time, place, and manner restrictions do not permit such uncritical deference to agency decisionmaking. Because we are deciding the content of constitutional principles with significant effect on future cases, I believe our differences merit the discussion that follows.
I. THE LEGAL STANDARDS
I have problems with the majority's legal analysis in three respects. First, I believe it discounts the district court's primary obligation to do the constitutional balancing for itself, and as a result overrates the appropriate scope of our appellate review. Second, it does not heed closely enough the requirement that time, place, and manner restrictions be "narrowly tailored." Recent Supreme Court cases on which the majority relies expressly reaffirm this test. Yet I read in the majority opinion hints that the government — as a result of those cases — now has greater latitude than previously to burden protected expression. As I parse those cases, however, they refine but do not revamp settled principles in first amendment law that govern our decision here. Finally, I disagree with the majority's analysis of the limited responses available to federal judges when they decide regulations are unconstitutional in part.
The majority explains its refusal to review the district court's findings under the usual Fed.R.Civ.P. 52 "clearly erroneous" standard by asserting that
Maj. Op., text at n. 83 (emphasis in original). The majority appears to reason that (1) the district court should have reviewed agency factfinding under a more deferential standard; (2) the district court's own "findings" are really conclusions of law, since it had no independent factfinding responsibility; and (3) therefore those "findings" are reviewable on appeal under the liberal standard for assessing legal error. I do not agree that this is an accurate statement of what a trial or appellate judge's responsibility is in such cases.
Judge Leventhal offered a balanced appraisal of judicial responsibility in first amendment cases.
A Quaker Action Group v. Morton, 516 F.2d 717, 723-24 (D.C.Cir.1975) (footnote omitted) (quoting A Quaker Action Group v. Morton, 460 F.2d 854, 860 (D.C.Cir.1971)); see also Women Strike for Peace v. Morton, 472 F.2d 1273, 1289 (D.C.Cir.1972) (opinion of Wright, J.).
In this case, the district court conducted a trial de novo, during which it exhaustively reviewed evidence relevant to the constitutionality of the regulations, including evidence offered by the governmental agencies. It was required to give the government's witnesses the attention their expertise warranted. But that evidence still had to undergo the judge's independent appraisal and judgment, and his factual findings deserve our approval unless clearly erroneous.
As the majority rightly notes, time, place, and manner restrictions must be justified without regard to the content of the message expressed; must be narrowly tailored to serve a significant government interest; and must leave open ample alternative channels of communication. See, e.g., Clark v. Community for Creative Non-Violence, ___ U.S. ___, 104 S.Ct. 3065, 3069, 82 L.Ed.2d 221 (1984). The crux of this case involves the second element of the test.
United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), required that the incidental restrictions a regulation imposes on protected expression be no broader than is essential to the furtherance of the governmental interest at stake. Id. at 382, 88 S.Ct. at 1681.
The second aspect of O'Brien's "narrow tailoring" requirement looks to see if an alternative regulation would serve the government's interest nearly as efficiently but would be demonstrably less intrusive on protected expression. Of course, any regulation could be made a little less intrusive on speech, at the cost of a little more protection for first amendment concerns. In this case, for example, adding six inches to the maximum permissible sign dimensions would surrender some marginal protection for security interests for a marginal benefit to free expression, but this sort of whittling is not what the "narrowly tailored" requirement is about. Instead, the court must look to see if the burden on speech is approaching an unreasonable level, or a serious loss to speech is being imposed for a disproportionately small governmental gain.
The government here offers two purposes for its regulations: a compelling interest involving security of the White House occupants and the law enforcement officers and individuals on its sidewalks, and a more limited aesthetic interest in an unobstructed view of the White House for visitors.
Before considering the regulations in detail, however, I want to register my disagreement with an insistent theme in the majority opinion that the Supreme Court's recent decisions have changed the character or the mood of appropriate judicial scrutiny for time, place, and manner restrictions. See, e.g., Maj. Op., text at n. 95. I believe those decisions are consistent with the O'Brien framework outlined above.
The recent Supreme Court pronouncements in Clark v. Community for Creative Non-Violence, ___ U.S. ___, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984) and Regan v. Time, Inc., ___ U.S. ___, 104 S.Ct. 3262, 82 L.Ed.2d 487 (1984), emphasize that a time, place, and manner regulation is not unconstitutional simply because some alternative regulation would, on the facts of the case before the court, satisfy the government's aims equally well and yet not restrict the expressive rights of that particular challenger. Regan yields a corollary to that principle: A time, place, and manner regulation is not unconstitutional as applied to situations that do not threaten the governmental interest at stake if that application is an unavoidable consequence of regulating other conduct that does threaten the interest at stake. In other words, if a regulation cannot reasonably be drafted so as to prohibit all the conduct the state really needs to suppress, without marginally prohibiting some expressive activity that is harmless, it will pass muster. It seems to me the majority's approach to interpreting Clark and Regan blurs these well-defined principles into a far more diffuse deference to the government.
In Clark, demonstrators for the homeless challenged the constitutionality of a Park Service regulation forbidding overnight camping in the park. The Court rejected the argument that the Park Service should be required to adopt some other regulatory scheme to protect the parklands from overuse without forbidding sleeping by those demonstrators, such as restricting the size, duration, or frequency of demonstrations.
In Regan, Time magazine challenged an anti-counterfeiting statute prohibiting, among other things, reproducing United States currency in color. See id. 104 S.Ct. at 3264-65 (quoting 18 U.S.C. § 474 ¶ 6, § 504). The Court rejected Time's arguments that the color ban was too broad because it included photographs so distorted that they were entirely incapable of aiding counterfeiting. Id. at 3274 & nn. 14-15.
Writing for a plurality of four, Justice White commented:
Id. at 3271-72 (footnote omitted). In a footnote to this paragraph, Justice White stated that "[i]f Time is exempted from the color requirement, so must all others who wish to use such reproductions. While Time may consistently use negatives and plates that are of little use to counterfeiters, there is no way of ensuring that others will adhere to that practice." Id. at 3272 n. 12.
It is crucial, I believe, to consider the exact context in which Justice White wrote his rejection of least speech-restrictive analysis in time, place, and manner restrictions. In Regan, because no alternative was available that could have prohibited only the speech that the government had a legitimate interest in suppressing, the Court ruled the statute could be enforced
The majority informs us that "it is not the province of the court to `finetune' the regulations so as to institute the single regulatory option the court personally considers most desirable," and that the role of courts "is to uphold regulations which are constitutional and to strike down those which are not." Maj. Op., text at n. 83. Based on these unexceptionable generalizations, the majority expresses disapproval that "not only did [the district court] uphold some restrictions and reject others, it modified the content of individual provisions." Maj.Op., text at n. 32; see also id. n. 97. I do not share in that disapproval, for it seems to me the district court did exactly what it had to, assuming that its judgment of partial unconstitutionality was a correct one. The trial judge here simply indicated at what point he believed a regulation strayed over the bounds of constitutionality. In so doing he did not "rewrite" the regulation, but only elucidated what the results of his constitutional balancing permitted. The agency is always free to withdraw the regulations altogether rather than amend or apply them to conform to his views. Indeed, it can prepare new and different ones. The trial court's judgment is a clearcut one — that the regulation as written is or is not constitutional or that it may be applied to some but not other situations. For example, in United States v. Grace, 461 U.S. 171, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1984), the Supreme Court considered the constitutionality of a statute barring certain demonstrations in the Supreme Court building or on its grounds, which included the surrounding sidewalks. The statute did not distinguish between the Supreme Court sidewalk and the rest of the building grounds, but the Court had no difficulty in finding the statute unconstitutional only as it applied to the sidewalk. See id. 103 S.Ct. at 1706, 1710.
II. THE REGULATIONS
The first group of contested regulations concern the material, size, and placement of signs on the White House sidewalk. The regulations provide that:
36 C.F.R. § 50.19(e)(9) (1983).
According to the demonstators, the main problem with the "materials" provision, requiring all signs to be made of cardboard, posterboard, or cloth, is that it bans plywood signs which are more sturdy and durable and pose no security hazards. The government said that plywood signs could be used to scale the White House fence or as shields or weapons in fights, and that splinters from such signs would be dangerous in the event of an explosion.
After considering the evidence, the district court found that, given its decision to uphold the regulation limiting the thickness of all signs to one-fourth inch,
White House Vigil for the ERA Committee v. Clark, No. 83-1243, slip op. at 23-24 (D.D.C. Apr. 26, 1984) (emphasis added). The district court also found no evidence that any sign had ever been used to scale the White House fence, and that in any event it can be — and has been — readily scaled without the assistance of a flimsy plywood sheet. See id. at 22-23. After a careful review of the evidence, I cannot see any grounds for overriding the district court's conclusion that based on weight and credibility of the testimony, as well as undisputed historical facts, the government made out no case that plywood signs, one-fourth inch thick, posed a danger to the security of White House occupants.
On the other hand, I agree with the majority that the restriction on size and placement of signs and on the type of sign supports deserved to be upheld. The district court invalidated the restriction on large signs on the ground that the Secret Service can adequately survey crowds on
Sign supports are restricted to those no larger than three-quarters of an inch by three-quarters of an inch and made of wood. Government security experts testified that the commonly used aluminum hollow tubular sign supports could be used to fire projectiles or conceal explosives. See Parr Tr., R. 163 at 35-37. This testimony was somewhat undercut by other testimony that the smallest rocket launcher now developed is substantially larger than the largest support authorized by the regulation. Nonetheless, the regulation was not designed to protect against projectile danger alone. Considering the stakes at issue, the district court failed to adequately credit the government's interest in preventing serious harm. The danger that hollow supports might conceal potential weapons like blast marbles and flares, possibly even explosives, was, according to the testimony, a more realistic concern.
In addition, concerns that large supports could be used as weapons have prompted the District of Columbia to regulate the size of sign supports on the public streets, and that danger must be taken into account here as well. See Hensdill Dep., R. 145D at 63-64. The testimony did show that the regulation would inconvenience some demonstrators. Large banners can more easily be displayed with stronger supports.
The regulations also ban stationary signs within three feet of the White House fence and attaching signs to, or leaning signs against, the fence or other structures on
The challengers alleged substantial burdens stemming from the placement restrictions. They prevented demonstrators with signs but not others from sitting on the ledge, whether or not the signs are located in a way that enables anyone to conceal objects behind them.
A regulation is valid even if it unavoidably prohibits harmless conduct in order to cover similar but dangerous conduct. Despite qualms, I believe that on essentially undisputed facts, the government showed that the three-foot regulation was directed to a substantial danger, and that a narrower regulation might well be less effective because of difficulties with its enforcement. For me, however, the question is a very close one.
I have less trouble with the leaning ban. Appellees urge that police officers could look around signs, moving leaning signs to inspect beneath them, or use mechanical devices and dogs to "sniff" for explosives. But that answer does not seem adequate under the O'Brien-Clark test where a substantial harm is shown.
Finally, the government supports its regulation requiring that signs be attended at all times by arguing that unattended signs create an opportunity for others to place explosives in or under them. The district court's factual findings on this issue are unclear,
The center zone restriction provides:
36 C.F.R. § 50.19(e)(9) (1983).
I have no quarrel with the majority's view that aesthetic concerns may justify some time, place, and manner restrictions on expression. However, it is equally clear that courts must be especially careful in scrutinizing restrictions on first amendment expression that the government seeks to justify on eye-pleasing grounds. Aesthetic concerns will in close cases involving first amendments rights weigh in at a lower poundage than, say, public safety or national security considerations. Because of their subjective nature, aesthetic concerns are easily manipulated, and not generally susceptible of objective proof. The danger is not just, as the majority suggests, that government might adopt an aesthetic rationale as a pretext for an impermissible motive, but rather that so many forms of robust expression are by their very nature boisterous, untidy, unsightly, and downright unpleasant for unsympathetic viewers. Distaste for the vigor with which a message is asserted can too easily be cast as an aesthetic interest in compelling others to be more moderate and decorous — and, in consequence, less effective — in conveying their message.
If, as I agree, aesthetics are nonetheless to be recognized as legitimate governmental objectives, we must face squarely the implications of applying them to first amendment cases. The government has justified its 20-yard picture window regulation by citing the aesthetic interests of the visiting public in being able to see and photograph the White House against a tranquil foreground. The majority upholds this regulation in part because the government has regulated in accordance with the public's aesthetic views, not just its own. I am not entirely sure of the utility of this distinction in first amendment analysis, in light of that amendment's traditional function of protecting unpopular minorities against majoritarian excesses. But in this case, the government has an obvious interest of its own: its natural ambivalence toward the existence of vociferous demonstrators at the very gates of the White House, attracting news coverage and often raising unwelcome complaints about administration policies. We must therefore examine the government's asserted purpose and the efficacy of this regulation in satisfying that purpose with particular care.
The evidence showed that the main complaints from members of the public involved the proliferation of large, billboard-like signs left for extensive periods propped up against the White House fence. Under separate portions of the regulations upheld today, that complaint is assuaged; the maximum vertical dimension of signs is now three feet, and signs cannot be left unattended or leaned against the fence.
On the other hand, the record revealed that the regulation does impose a real burden on demonstrators. The majority brushes away their concerns with the declaration that there is no first amendment right to media attention, but I do not think that is the pertinent inquiry. When government bans stationary demonstrators from one section of a uniquely important public forum, it has obviously burdened their speech rights. If, as the district court found on ample evidence, the media are most likely to cover a demonstration in the center zone, then that fact is relevant in determining the extent of the burden and the need for its justification. It is not that protesters have an absolute right to the prime spot, but that the government must have an acceptable reason for excluding them from it or regulating the way they protest in it, and the means it chooses to implement its goal must be geared to achieve that end. The restriction on stationary as opposed to moving demonstrators, on the basis of aesthetics alone, does not, in my view, meet these requirements of the "narrowly tailored" test.
The parcels regulation provides that:
36 C.F.R. § 50.19(e)(10) (1983). While not deciding the issue, the majority expresses doubt that "the first amendment protects the conduct proscribed by the parcels regulation." Maj. Op., text at n. 127. I believe it does.
As a general matter, carrying parcels is not, of course, "speech" within the meaning of the first amendment. However, the conduct this regulation prohibits not only arises in the immediate course of a demonstration, but according to the district court is necessary if some demonstrators are to convey their messages at all. See White House Vigil for the ERA Committee v. Clark, No. 83-1243, slip op. at 26 (D.D.C. Apr. 26, 1984). A regulation on facilitative conduct that cuts off or sharply restricts expression itself certainly burdens that expression.
I do not think we are required to ignore the fundamental proposition that it is people, with the basic needs of people, who exercise first amendment rights. Practically, old people, handicapped persons, mothers with children and children's paraphernalia, and even young and unencumbered demonstrators can demonstrate or distribute literature only for limited periods if they are not permitted to put down their possessions more than "momentarily." A demonstration is not some kind of ritualistic marathon dance, the prize dependent on how long a participant can stay on her feet and moving. In the trial below, an organizer for the White House Vigil for the ERA Committee testified that as a result of the parcel regulation, the Vigil had been forced
The first amendment looks to realities, not mere formalities. Justice Marshall, dissenting in Clark, said:
Clark v. Community for Creative Non-Violence, ___ U.S. ___, 104 S.Ct. 3065, 3077 n. 7, 82 L.Ed.2d 221 (1984) (Marshall, J., dissenting) (quoting Community for Creative Non-Violence v. Watt, 703 F.2d 586, 607 (1983) (Ginsburg, J., concurring in the judgment)).
In other contexts, the Supreme Court has recognized that the first amendment requires attentive concern with protecting the conditions that are necessary for effective communication. Thus, the amendment offers protection against undue financial burdens on expression, see Minneapolis Star and Tribune Co. v. Minnesota Commissioner of Revenue, 460 U.S. 575, 103 S.Ct. 1365, 75 L.Ed.2d 295 (1983) (newspaper taxation); Citizens Against Rent Control v. Berkeley, 454 U.S. 290, 102 S.Ct. 434, 70 L.Ed.2d 492 (1981) (contributions to political committees concerned with referendum votes); Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (campaign expenditures), as well as restrictions on access to certain highly newsworthy events, see Globe Newspaper Co. v. Superior Court for Norfolk, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982) (criminal trials); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980) (same), and impermissible discrimination among ideas disseminated through public education, see Board of
So viewed, I do not believe the parcels regulation can be sustained. This regulation is clearly not a broad rule that, in only a small portion of its applications, has incidental effects on expression. Its application is limited to a public forum of unique national significance. Although its terms literally affect all visitors to the White House sidewalk, it will plainly have its major impact on political demonstrators who stay on the sidewalk for extended periods in order to demonstrate. Moreover, it was promulgated as part of a regulating plan targeted at expressive activities, and the burden it imposes on demonstrators must be considered not only individually but cumulatively in light of the other burdens that will be imposed by dint of these regulations on expression in the same forum.
As discussed above, the impact of this regulation will be substantial. The majority rationalizes that demonstrators can now keep their parcels across the street in Lafayette Park, see Maj.Op., text at n. 147, but even if this is feasible in group demonstrations, a bar against putting down personal or demonstration-related possessions for more than an instant at a time still represents a substantial burden, in some cases an impossible one, for individual demonstrators.
The government's security experts testified that explosives can be concealed in abandoned parcels. See, e.g., Parr Tr., R. 162 at 117-19; Jones Dep., R. 193 at 62-64. The district court acknowledged the possibility but held this danger could be adequately dealt with by a less restrictive mandate that individuals remain within five feet of any parcels placed on the sidewalk. The government countered that in a large crowd law enforcement officers might not be able to identify the owners of parcels or even tell whether the owners were present within the five-foot zone.
Viewing the evidence offered by government security experts deferentially, it is still not apparent why a parcel on the ground is more dangerous than one held in the hand, provided that its owner is in immediate physical contact with it. Continuous physical contact is, after all, considered sufficiently safe for the care of signs under these regulations; it is unclear why it would not also suffice with parcels. The majority opinion may consider this "rewriting" the regulation, but I view it as in accord with a "narrowly tailored" O'Brien analysis that will not allow a regulation if it prohibits an identifiable, readily segregated class of conduct with no demonstrated relationship to the governmental purpose asserted. In my judgment, the parcels requirement, as written, violates that fundamental principle. It substantially implicates
I am concerned that the majority rationale defers too much to agency determinations and does not credit enough the district court's time-honored function of reviewing the government's evidence and making the primary balancing between its interests and first amendment protections. I agree, however, that many of these regulations meet the O'Brien "narrowly tailored" test and should be upheld. I respectfully dissent from the decision to uphold the materials regulation as applied to plywood signs, and the center zone and parcels regulations, as written.
The recent terrorist incidents have sparked increased concern for the protection of federal buildings in Washington. Extensive security measures have been instituted at the Capitol in response to the November 1983 bombing. See N.Y. Times, 21 Jan. 1984, at 19, col. 1 (bullet-proof steel plates installed in Members' chairs on House floor); Wash. Post, 6 Jan. 1984, at A4, col. 1 (concrete barriers and new metal detectors); N.Y. Times, 9 Nov. 1983, at A1, col. 4 (new security regulations). Officials have taken similar steps to secure the State Department building, id., 18 Dec. 1983, § IV, at 1, col. 1 (concrete barriers), and the Pentagon, id., 21 July 1984, at 19, col. 2 (metal detectors); id., 17 Dec. 1983, at 9, col. 1 (closing of traffic tunnels under Pentagon).
The regulations challenged here are but one of a number of security measures recently taken to protect the White House and its occupants. Visitors who wish to tour the Mansion must now pass through a "garden pavillion," where they are checked for guns and other weapons. Id., 18 Mar. 1983, at A15, col. 2; see also id., 17 Mar. 1984, at 12, col. 5 (new security measures for visitors and press). Workers have erected concrete barriers along the White House sidewalk to prevent "truck bombings" of the type that destroyed American installations in Lebanon. Id., 4 Jan. 1984, at B6, col. 2; id., 22 Dec. 1983, at A12, col. 1; id., 4 Dec. 1983, § I, at 31, col. 1.
717 F.2d at 569-70.
White House Vigil for the ERA Comm. v. Watt, No. 83-1243, slip op. at 20-21 (D.D.C. 19 July 1983).
307 U.S. at 515-16, 59 S.Ct. at 964.
While the government may not prohibit all communicative activity in a public forum, it may enforce a content-based exclusion if the regulation is necessary to serve a compelling state interest and is narrowly drawn to achieve that end. Perry Educ. Ass'n, 460 U.S. at 45, 103 S.Ct. at 954. The government has not attempted to impose such an exclusion in the present case.
The concurrence-dissent relies on the brief passage in which the Court notes that proposed alternatives "would still curtail the total allowable expression in which demonstrators could engage." Id. at 3072, quoted in Op. at 1545. From this the concurrence-dissent concludes that Clark stands for the following proposition: "a challenger to a time, place, and manner restriction cannot win by merely conjuring up an alternative regulation that does not prohibit its conduct, regardless of the alternative regulation's effects on the expression of others." Op. at 1546 (emphasis in original). This interpretation is unnecessarily restrictive. There is nothing in Justice White's majority opinion to suggest that he intended the quoted passage to limit or qualify his analysis.
The concurrence-dissent's interpretation of Justice White's opinion is unjustifiably narrow. Judge Wald contends that Justice White qualified his explicit rejection of less-restrictive-alternative analysis in a footnote, in which he wrote that "[i]f Time is exempted from the color requirement, so must all others who wish to use such reproductions. While Time may consistently use negatives and plates that are of little use to counterfeiters, there is no way of ensuring that others will adhere to that practice." Id. at 3272 n. 12. From this passage Judge Wald derives the principle that "[a] time, place, and manner regulation is not unconstitutional as applied to situations that do not threaten the governmental interest at stake if that application is an unavoidable consequence of regulating other conduct that does threaten the interest at stake." Op. at 1544 (emphasis in original). According to the opinion, Regan stands for this and nothing more. What the opinion fails to mention, however, is that Justice White was merely applying in his footnote the familiar principle that "the effectiveness of [a] regulation should not be measured solely by the adverse consequences of exempting a particular plaintiff from the regulation." 104 S.Ct. at 3272 n. 12 (citing Clark, 104 S.Ct. 3065, 3070-71; Heffron v. International Soc'y for Krishna Consciousness, Inc., 452 U.S. 640, 652-53, 101 S.Ct. 2559, 2566, 69 L.Ed.2d 298 (1981)). In short, Justice White's footnote does not limit or qualify his textual discussion because the two passages deal with completely different constitutional principles.
It is axiomatic that government regulations which restrict the exercise of free speech are subject to closer scrutiny than other types of administrative decisions, and that courts, not agencies, are the ultimate arbiters of constitutionality. It by no means follows, however, that courts are required or permitted to duplicate the extensive factual inquiries undertaken by agencies when they draft regulations. Not only is such duplication highly inefficient, it reflects a lack of judicial respect for the unique expertise of administrative agencies. The agency may as well not have engaged in exhaustive and detailed fact-finding if a court before which the agency's regulation is challenged takes it upon itself to do the same thing de novo.
Judge Wald also contends that United States v. Grace, 461 U.S. 171, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1984), sanctions the result reached by the district court in the present case. Op. at 1546. The challenged statute in Grace prohibited the "display [of] ... any flag, banner, or device designed or adapted to bring into public notice any party, organization, or movement," in the "Supreme Court Building or grounds." 40 U.S.C. § 13k (1982). The Supreme Court grounds encompassed, inter alia, the public sidewalks surrounding the Court building, see 40 U.S.C. § 13p (1982); those sidewalks are a public forum, Grace, 103 S.Ct. at 1708. Because the statutory restriction did not substantially serve the government's interests, the Court held that the statute was unconstitutional as applied to the sidewalks, id. at 1708-10, even though the statute did not specifically distinguish between the sidewalks and other parts of the Supreme Court grounds. Judge Wald's opinion equates the Court's decision in Grace to focus exclusively on public sidewalks with the district court's creation of a "five foot rule" for parcel and sign placement in the present case, concluding that "[i]f one was `rewriting,' so was the other." Op. at 1547. This fails to appreciate, however, the crucial distinction between what the Supreme Court did in Grace and what the district court did here. The reason the Grace Court considered § 13k exclusively in the context of public sidewalks was that it could thereby avoid a needless constitutional inquiry into the status of the other parts of the Supreme Court grounds and building. There was no need to determine whether those areas were also public forums, because "the controversy presented by appellees concerned their right to use the public sidewalks." 103 S.Ct. at 1706 (emphasis added). Early in its opinion, therefore, the Court stated that it would "address only whether the proscriptions of § 13k are constitutional as applied to the public sidewalks." Id.
It is beyond dispute that courts are permitted to assess the constitutionality of a statute or regulation by drawing distinctions that are not explicitly embraced within the text of the provision. What courts may not do is substitute their factual judgment for that of the politically responsible body when that institution's judgment lies within the parameters of first amendment constitutionality. The district court here did precisely that when it arbitrarily rewrote the Park Service's regulations. The difference between Grace and the district court's opinion is therefore not only great, it is of constitutional dimensions.
The governmental regulation of aesthetics has generated a considerable body of legal scholarship. Representative pieces include Anderson, Architectural Controls, 12 SYRACUSE L.REV. 26 (1960); Aronovsky, Metromedia, Inc. v. City of San Diego: Aesthetics, the First Amendment, and the Realities of Billboard Control, 9 ECOLOGY L.Q. 295 (1981); Bufford, Beyond the Eye of the Beholder: A New Majority of Jurisdictions Authorize Aesthetic Regulations, 48 UMKC L.REV. 125 (1980); Costonis, Law and Aesthetics: A Critique and a Reformulation of the Dilemmas, 80 MICH.L.REV. 355 (1982); Crumplar, Architectural Controls: Aesthetic Regulation of the Urban Environment, 6 URB.LAW. 622 (1974); Dukeminier, Zoning for Aesthetic Objectives: A Reappraisal, 20 LAW & CONTEMP.PROBS. 218 (1955); Michelman, Toward a Practical Standard for Aesthetic Regulation, 15 PRAC.LAW. 36 (1969); Rowlett, Aesthetic Regulation Under the Police Power: The New General Welfare and the Presumption of Constitutionality, 7 WAKE FOREST L.REV. 230 (1971); Williams, Subjectivity, Expression, and Privacy: Problems of Aesthetic Regulation, 62 MINN.L.REV. 1 (1977); Comment, Zoning, Aesthetics, and the First Amendment, 64 COLUM.L.REV. 81 (1964); Comment, The Reasonableness of Aesthetic Zoning in Florida: A Look Beyond the Police Power, 10 FLA.ST.U.L.REV. 441 (1982); Note, Aesthetics and the Constitution: Houston's Sign Ordinance, 18 HOUS.L.REV. 629 (1981); Note, Beyond the Eye of the Beholder: Aesthetics and Objectivity, 71 MICH.L.REV. 1438 (1973); Note, Aesthetic Nuisance: An Emerging Cause of Action, 45 N.Y.U.L.REV. 1075 (1970); Note, Architecture, Aesthetic Zoning, and the First Amendment, 28 STAN.L.REV. 179 (1975); Note, Aesthetic Regulation and the First Amendment, 3 VA.J.NAT.RESOURCES L. 237 (1984).
The Court reaffirmed the proposition in Members of the City Council of Los Angeles v. Taxpayers for Vincent, ___ U.S. ___, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984). There it upheld a municipal ordinance prohibiting the posting of signs on public property. Justice Stevens wrote for the majority that
104 S.Ct. at 2130 (quoting Young v. American Mini Theatres, Inc., 427 U.S. 50, 71, 96 S.Ct. 2440, 2452, 49 L.Ed.2d 310 (1976)).
Appellees attempt to distinguish Taxpayers for Vincent on the ground that it concerned the long-term display of unattended signs, rather than face-to-face communicative activity of the type involved here. It is true that Justice Stevens, in his majority opinion, used words to that effect in the course of distinguishing Schneider v. State, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939); see Taxpayers for Vincent, 104 S.Ct. at 2131. The Court in Schneider struck down an ordinance that prohibited handbilling on the streets; it held that the municipality's aesthetic interest in avoiding litter could have been protected through an ordinance which penalized persons who actually litter. We believe, however, that the basis of Justice Stevens's discussion of Schneider is not the distinction urged by appellees, but rather the distinction explicitly adopted by the Justice in another passage of his opinion:
104 S.Ct. at 2132. The visual blight in the present case is "created by the medium of expression itself" — stationary protests within the center zone, which obstruct the view of the White House and its grounds. The conduct addressed by the Park Service regulations is therefore more like that proscribed by the municipal ordinance in Taxpayers for Vincent than that proscribed by the ordinance in Schneider.
It is not at all clear why appellees and intervenors regard stationary protest within the center zone as essential to the White House experience. Surely the additional cultural significance of stationary protest over mobile protest is, at most, insignificant. The government's decision to allow only mobile protest within the zone enhances the White House experience for many (and perhaps most) tourists, while it diminishes that experience for other tourists in only an insubstantial and indirect fashion.
Nor is it any mystery why the Park Service decided to allow non-stationary protests within the center zone, even though such protests will admittedly obscure some of the White House view. Assuming arguendo that a ban on non-stationary protests would have been constitutional, the effect of instituting such a ban would be to demarcate a "no man's land" in the middle of the sidewalk. Protestors on either side of the zone would have considerable difficulty communicating with one another, for they would be prohibited from carrying their signs across the demarcated area. The regulation the Park Service adopted represents a reasonable effort to accommodate the needs of such protestors.
Our decision should not be read as holding that activity of the type engaged in here is inherently non-expressive. In other circumstances the placing of items on the ground may be considered expression; we hold only that the demonstrators here have failed to establish the expressive content of their activity. See Clark v. Community for Creative Non-Violence, 104 S.Ct. at 3069 n. 5.
By contrast, the district court's modification would be difficult to enforce in an effective and even-handed manner. It would require police officers to ascertain both whether a parcel is located within five feet of a demonstrator and whether that demonstrator is its "owner." One envisions a contingent of Park Police with tape measures in hand, dutifully attempting to comply with the district court's order.
In the footnote, Justice White was responding to Justice Brennan's suggestion that "the particular negatives and plates used by Time would be of little assistance to counterfeiters," Regan, 104 S.Ct. at 3272 n. 12 (opinion of White, J.) — an argument that was basically a variation of the less-restrictive-alternative analysis urged by Time. Justice White argued that exempting Time would require the government to exempt all those who wanted to engage in similar expression, including expression that might assist counterfeiters. But if exempting Time and all those similarly situated would not have impaired the governmental interest at stake, Justice White's rationale would logically have required invalidation of the statute, as applied to that class of expression. For the statute would not then have "substantially serve[d] the Government's legitimate ends," id. at 3272, no matter how much unrelated, harmful conduct it prohibited.
The Assistant Director did testify that he might utilize a plywood sheet in attempting to scale the fence
Parr Tr., R. 162 at 70-72. It was evidently this testimony that the judge disbelieved.
The plaintiffs introduced a plywood sheet in evidence, Plaintiffs' Exhibit 133, which the judge was able to inspect. See R. 162 at 74 (recording receipt). The Assistant Director also told the district judge that the Secret Service would know immediately if someone jumped the fence even if no officer was watching, Parr Tr., R. 162 at 83, that the Secret Service is perfectly able to respond if someone does get over the fence, id. at 84, and that a concealed "counter-sniper" is always stationed so that he could shoot a fence-jumper if necessary, id. A government witness testified that plexiglass signs had caused problems in demonstrations on the sidewalk, see Lindsey Tr., R. 162 at 163-64, but no episodes involving plywood were described.
Appellee Picciotto testified that cardboard or cloth signs cannot stand up under the long hours of use her vigil on the sidewalk requires; particularly in bad weather, such signs are difficult to control and likely to be destroyed. See Picciotto Tr., R. 157A at 48-49; Picciotto Tr., R. 170 at 134-35, 161-62.
In essence, neither side disputes the evidence offered by the other; instead, dispute centers on whether the clear burden on speech is offset by the marginal increase in security on the sidewalk. In my view, it is not. This regulation differs from, for example, the sign support regulation in that (1) law enforcement officers testified to the actual use of thick wooden dowels as weapons, see Lindsey Tr., R. 162 at 165-66, but did not do so as to plywood signs; (2) a demonstrator wielding a two-by-four is a good deal more dangerous than one with a thin plywood sheet; and (3) banners of the maximum size allowed can be adequately supported with the permitted wooden supports, see infra note 11, but demonstrators for whom long-term presence on the sidewalk is a part of their message must use plywood signs or face the constant destruction of signs made from less permanent materials.
The Clark Court commented that the main value of sleeping in the park "would be facilitative." 104 S.Ct. at 3070. It did so, however, in the course of explaining that the kind of demonstration sleep would facilitate — prolonged demonstrations that might damage the park — was exactly the kind of demonstration the Park Service had a legitimate interest in regulating. Despite the discussion in the dissent and in the opinions in the court of appeals, the Supreme Court conspicuously declined to make any broad statement about the application of the first amendment to regulations of facilitative conduct.