Opinion for the Court filed by Circuit Judge WALD.
WALD, Circuit Judge:
While beating a drum as part of a political protest in Lafayette Park across the street from the White House, Diane Nomad violated a federal regulation which prohibits playing a musical instrument at a higher than prescribed decibel level in a national park. In this appeal Nomad challenges the constitutionality of that regulation on the ground that it impermissibly restricts her First Amendment rights to engage in expressive conduct in a public forum. The district court ruled that the regulation survives First Amendment scrutiny as a "reasonable time, place, and manner" restriction on speech. We do not agree. The government has failed to carry its burden of showing that the regulation is "narrowly tailored" to further the government's interest in preventing excessive noise in a national park that is also an acknowledged public forum. The record before us is barren as to support for the government's position that the decibel limit imposed on musical instruments is a reasonable one; what evidence there is suggests the contrary, that given the amount of ambient noise generally present in Lafayette Park, the decibel level may be unreasonably low.
As a protest against the United States' bombing of Iraq during the Gulf War, Diane Nomad, along with other protestors, chanted and beat drums in Lafayette Park for several days and evenings in January 1991. After a week of such protests, the United States Park Police warned the protestors that they were violating a federal regulation relating to national parks, which prohibits "operating ... an audio device, such as a ... musical instrument, in a manner that exceeds a noise level of 60 decibels measured on the A-weighted scale at 50 feet." 36 C.F.R. § 2.12(a)(1)(i) (1991). A police officer utilizing a sound meter with an A-weighted scale found the noise level in the park to exceed 70 decibels measured from two different locations, one 54 feet away and one 74 feet away from the chanting and drumming protestors. After three unheeded warnings, the police officers arrested Nomad and the other demonstrators for violation of the 60-decibel regulation.
Nomad moved in district court to dismiss the charge on the ground that the regulation itself violated the First Amendment. She argued that the regulation is overbroad because it prohibits a substantial amount of expressive conduct beyond the government's legitimate interest in preventing excessive or disturbing noise. The district court denied her motion, finding that the challenged regulation was a reasonable time, place and manner restriction, justified by the governmental interest of maintaining "a peaceful setting" in Lafayette Park. As "part of the group" of demonstrators beating the drums in violation of the § 2.12(a)(1)(i) decibel level, Nomad was subsequently convicted in a bench trial for "aid[ing] and abett[ing] this concerted action."
There can be no question that beating a drum in the context of a clearly identified anti-war demonstration is expressive conduct protected by the First Amendment. See, e.g., Ward v. Rock Against Racism, 491 U.S. 781, 790, 109 S.Ct. 2746, 2753, 105 L.Ed.2d 661 (1989); Texas v. Johnson, 491 U.S. 397, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989). We are additionally spared the need for any extended "forum analysis" in this case, as no one disputes that Lafayette Park is a "quintessential public forum," see White House Vigil for ERA Committee v. Clark, 746 F.2d 1518,
Furthermore, the Supreme Court has provided us with a three-pronged test which a government restriction must meet to restrict First Amendment protected speech in a public forum; the first of which is not in dispute in this case and the third of which we need not reach. "Even in a public forum the government may impose reasonable restrictions on the time, place or manner of protected speech, provided the restrictions `are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open alternative channels for communication of the information.'" Ward, 491 U.S. at 791, 109 S.Ct. at 2754 (quoting Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 3068, 82 L.Ed.2d 221 (1984) (emphasis supplied)). Section 2.12 of the national park regulation on its face is content neutral. It prohibits the playing of all musical instruments above the prescribed level for whatever purpose or cause, and no one claims here that the regulation has been applied inconsistently or that Nomad has been singled out for prosecution because of her message. See Clark, 468 U.S. at 288, 104 S.Ct. at 3068.
The dispute here pivots on the second prong of the "time, place, and manner restrictions" test. Nomad and amicus, the American Civil Liberties Union of the National Capital Area, assert that the decibel-limit for musical sounds specified in the regulation is not narrowly tailored to serve an important governmental interest in preserving Lafayette Park for appropriate uses. Rather, they argue, it is a blunderbuss weapon which results in severely impairing speech rights in a situs where the government not only tolerates but explicitly permits demonstrations and protests because of its unique location across the street from the White House. Nomad asserts the absence of any "tailoring," let alone "narrow tailoring" of the sound volume limit to the unique nature of Lafayette Park.
The government counters on two fronts. First, it asserts that it has a substantial interest in maintaining "the peaceful setting" in the nation's public parks. Appellee's Brief at 11. According to the government, "people turn [to public parks] for refreshment from the commotion and turmoil of everyday life. Maintaining Lafayette Park as a place of quiet enjoyment, therefore is a legitimate goal [of government]." Id. Second, it contends that it is not within this court's province "to fine-tune" the regulation or substitute its judgment for that of the Park Service as to whether § 2.12 should be applied to Lafayette Park. Id. at 13 (quoting White House Vigil v. Clark, 746 F.2d at 1529). As long as the Park Service's judgment on its application is reasonable, it is irrelevant that the Park Service — or the court — might have drawn the line differently, to allow more expressive conduct.
Whether the regulation meets the "narrowly tailored" requirement is of course a question of law, to be reviewed by an appellate 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, 964 F.2d 1179, 1184 (D.C.Cir.1992) (quoting Ward, 491 U.S. at 799, 109 S.Ct. at 2758).
To apply the "narrow tailoring" test in this case, we first determine the extent of the government's asserted interest. We recently recognized that the government has a substantial interest in promoting "the tranquil, contemplative mood at the [Vietnam Veteran's] Memorial wall." Id. at 11. In a similar vein, the Supreme Court has held that an ordinance prohibiting picketing in front of a person's home does not violate the First Amendment because the government
That said, the government certainly may justifiably impose some sound volume restriction upon persons in all parks including Lafayette. The Supreme Court has upheld the government's interest in preventing "excessive" noise in public parks, even in an urban area, see Ward, 491 U.S. at 781, 109 S.Ct. at 2748 (upholding noise ordinance for Manhattan's Central Park). Otherwise, citizens may be confronted with all manner of "unwelcome noise," see City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 806, 104 S.Ct. 2118, 2129, 80 L.Ed.2d 772 (1984) — from evangelical zealots screaming into microphones to over-amplified rock music — and entirely prevented from doing their own thing in the park. But "excessive" noise by definition means something above and beyond the ordinary noises associated with the appropriate and customary uses of the park. The crux of our case, then, is whether § 2.12 as presently written is "narrowly tailored" to serve the interest of preventing "excessive" noise in Lafayette Park.
Section 2.12 is part of a group of regulations promulgated to "provide guidance and controls for public use and recreation activities (e.g., camping, fishing, hunting, winter activities, boating) in areas administered by the National Park Service." 48 Fed.Reg. 30252 (1983). The entire set of regulations deals with uses typical of wilderness areas, such as Yellowstone Park, i.e., campfires (§ 2.13), wildlife protection (§ 2.2), food storage (§ 2.10), and the collection of plant and animal specimens (§ 2.5), not for urban enclaves such as Lafayette Park.
The government contends, nonetheless, that § 2.12's placement in a group of regulations designed for more typical national park usages is not cause for inference that the decibel level, i.e., 60 decibels, was necessarily chosen with non-public forum areas in mind — those settings where even a modest noise from a radio or musical instrument might disturb the wildlife or detract from other visitors' ability to enjoy the soothing sounds of silence. Unfortunately, however, there is zero in the record to support the government's choice of the 60-decibel limit; no evidence indicating how disturbing or "excessive" a noise (by any standard) 60 decibels at 50 feet is. The government feebly suggests that because the Park Service is better suited than we to decide noise limits, its choice of this particular limit must be a reasonable one. But this is not a Chevron situation where administrative discretion is at its zenith. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-44, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984) (if congressional intent is silent or ambiguous in statute which agency administers, court must defer to permissible agency interpretation). Where constitutionally protected activity is implicated, we cannot simply defer to the Park Service's unexplained judgment. See Henderson v. Lujan, No. 91-5258, slip op. at 10 (noting that court "cannot defer to [Park Service's] judgment on the constitutional question" of "narrow tailoring").
In a First Amendment challenge, the government bears the burden of showing that its restriction of speech is justified under the traditional "narrowly tailored" test. That test, moreover, must be applied in a realistic manner which takes into account the nature and traditional uses of the particular park involved. Lafayette Park is not Okefenokee National Wildlife Refuge, even if both are under the Park Service's supervision. On the record before us, it is impossible not to conclude that "the means chosen [are] substantially broader than necessary to achieve the government's interest." Ward, 491 U.S. at 800, 109 S.Ct. at 2759. While the government offered no evidence of its own to show that anything above a 60-decibel sound volume would irritate or injure passersby or nonprotesting users of the Park,
Any regulation imposing noise limits on expressive conduct in a public forum must be "narrowly tailored" to the government's interest in preventing excessive noise. What is excessive must take into account the nature and purposes of the setting, along with its ambient characteristics. We decide here only that no case has been proffered that § 2.12 represents a reasonable restriction on expressive conduct in a park like Lafayette Park that is a recognized "public forum" for speech and assembly; its legitimacy in Yellowstone Park or other wilderness parks, for which the regulation was apparently primarily intended, is not affected by our ruling.
In light of our disposition of Nomad's First Amendment challenge to the regulation, we do not reach her argument that there was insufficient evidence to convict her, or that the district court erred in denying her motion for acquittal.
For the foregoing reasons, the judgment of the district court and Nomad's conviction is reversed. In light of government counsel's steadfast insistence at oral argument that the constitutionality of the regulation was a question of law which could not be supplemented by additional factfinding at the trial court level, we order that the charges against Nomad be dismissed.
It is so ordered.