A QUAKER ACTION GROUP v. MORTON, 516 F.2d 717 (D.C. Cir. 1975)
A QUAKER ACTION GROUP ET AL. v. ROGERS C. B. MORTON, SECRETARY OF THE
INTERIOR, ET AL., APPELLANTS.
A QUAKER ACTION GROUP ET AL., APPELLANTS, v. ROGERS C. B. MORTON, SECRETARY
OF THE INTERIOR, ET AL.
Nos. 73-2061, 73-2190.
United States Court of Appeals, District of Columbia Circuit.
Argued February 27, 1974.
Decided January 24, 1975.
As Amended February 5, June 25, 1975.
Joseph L. Rauh, Jr., and Ralph J. Temple, Washington, D.C.,
with whom James F. Fitzpatrick, Paul R. Smollar, William A.
Dobrovir, Rosalind C. Cohen, Richard E. Earle, James M.
Johnstone, John G. Murphy, Jr., Tracy A. Western, Washington,
D.C., and Melvin L. Wulf, New York City, were on the brief, for
appellants in No. 73-2190 and appellees in No. 73-2061.
Gil Zimmerman, Asst. U.S. Atty., with whom Harold H. Titus,
Jr., U.S. Atty. at the time the brief was field, John A. Terry
and Arnold T. Aikens, Asst. U.S. Attys., were on the brief, for
appellants in No. 73-2061 and appellees in No. 73-2190. Earl J.
Silbert, U.S. Atty., also entered an appearance for appellants
in No. 73-2061 and appellees in No. 73-2190.
Appeal from the United States District Court for the District
of Columbia.
Before McGOWAN, LEVENTHAL and MacKINNON, Circuit Judges.
LEVENTHAL, Circuit Judge:
[1] In March, 1969, A Quaker Action Group and other plaintiffs[fn1]
filed suit in District Court seeking a declaratory judgment that
regulations governing public gatherings in the White House area
are unconstitutional, and a permanent injunction against their
enforcement by the Department of the Interior. Since then, this
troublesome litigation has dragged on well nigh interminably.
This opinion marks the fourth appearance of the case in this
court; we have previously affirmed an initial grant of
preliminary injunction against the regulations,[fn2] and have
twice reversed summary judgments and remanded the case for trial
of the factual issues.[fn3] Now, at long last, the trial has been
held, and we have before us cross-appeals from the trial judge's
findings and conclusions.[fn4] For reasons set out below, we
affirm the decision of the District Court, although with several
qualifications.
[2] I. BACKGROUND
[3] Because the course of this litigation has been detailed in our
three previous opinions, we shall merely sketch its background
here, to give a frame of reference for our consideration of the
decision below.
[4] 1. On August 10, 1967, the National Park Service (NPS) decided
to enforce an existing, but long neglected requirement that
individuals obtain a permit prior to use of National Park areas
in the District of Columbia for public gatherings.[fn5] The
Regional Director of the National Capital Parks Division
communicated this determination by an internal memorandum (the
"Jett Memorandum") directed to the Chief of the Park Police and
to the Director of the Central National Capital Parks.[fn6] In
the memorandum, the Park Service also announced a new internal
policy of refusing permits for use of the White House sidewalk
(the sidewalk on the south side of Pennsylvania Avenue between
East and West Executive Avenues) by groups exceeding 100 persons,
and for use of Lafayette Park by groups exceeding 500 persons.
Neither of these numerical restrictions was then a part of the
regulation being reactivated by the memorandum.
[5] 2. Thereafter, in the spring of 1969, the plaintiffs, five
organizations wishing to hold demonstrations on the White House
sidewalk or in Lafayette Park,[fn7] filed their action in the
District Court. After an initial hearing on a request for a
preliminary injunction, the District Court concluded that the
numerical restrictions were not reasonably related to the
achievement of substantial governmental interests, that the
permit system conferred unduly broad discretion on officials to
deny permit applications, and that the permit system in fact had
been administered in "an arbitrary, capricious and harassing
manner."[fn8] Accordingly, the District Court issued a
preliminary injunction against enforcement of the permit
requirement.
[6] 3. Quaker Action I. On appeal, we affirmed the issuance of
the preliminary injunction, and ordered that the case proceed to
trial expeditiously.[fn9] But in view of the seriousness of the
governmental interests at stake, particularly the security of the
President and the White House, we modified the injunction so that
its protection extended to groups wishing to hold a public
gathering in the White House area only if they gave the NPS at
least 15 days notice of their gathering.[fn10] As we then noted,
our modification was designed to give the government sufficient
opportunity to seek a temporary restraining order against any
demonstration reasonably felt to present a particular danger to
the safety of the President, an opportunity the government has
since invoked in some fourteen instances.[fn11]
[7] 4. After this initial decision, and notwithstanding our order
that the case proceed to trial, the District Court granted the
government's motion for summary judgment, relying upon the
proffered affidavits of the Director of the Secret Service and
other officials as to the need to protect the President and the
White House.[fn12]
[8] 5. Quaker Action II. We reversed the summary judgment of the
District Court, ruling that the plaintiffs had raised issues
"deserving of further exploration by the full processes of a
trial on the merits, not simply by presentation of untested
affiants' statements and lawyers' arguments."[fn13] Accordingly,
we remanded for a "hearing at which evidence, that may be tested
on cross-examination, establishes the reasons for the regulatory
provisions and the feasibility of others that provide
satisfactory safeguards against violence with less interference
with the right of peaceful protest."[fn14]
[9] 6. The District Court again granted summary judgment for the
Government.[fn15] This new summary disposition apparently
reflected the District Judge's belief that he had been deprived
of discretion to review the regulations by the Secretary's
repromulgation of the regulations after a formal rulemaking
proceeding.[fn16] The judge buttressed his decision by reference
to then recent outbreaks of violence in connection with
demonstration activity around the country, including the Kent
State incident.
[10] 7. Quaker Action III. Again we reversed the grant of summary
judgment and remanded the case for trial.[fn17]
[11] The opinion in Quaker Action III specifically considered the
government's argument, accepted by the District Judge, that the
court should accept any regulation issued by the Secretary that
is both reasonable and supported by substantial evidence in an
administrative record. We repeated our earlier holding that "the
balancing of First Amendment freedoms against safety requirements
require[s] the judgment of the court,"[fn18] and went on to
elaborate as follows:
In view of these vital [First Amendment] issues, we
do not think it can be said that the validity of the
regulations is established by the existence of
substantial evidence in the administrative record
that the Government officials had a reason for
imposing a numerical restriction. The issues
concerning the scope of the regulations and the need
for their extent and restrictiveness are no closer to
resolution now than they were when we first remanded
for trial. The Secretary's reasons for re-adopting
the 100/500 rule in 1970 are essentially the same as
were previously adduced — a letter from the Director
of the Secret Service which the Secretary stated he
could not re-examine, phrased in terms similar to the
affidavit previously submitted to the Secretary which
we previously held was the type of untested assertion
that could not support a summary conclusion upholding
these numerical restrictions.
. . . Of course the health and safety of the
President are of concern to the citizenry. But this
only poses, it does not answer, the question as to
whether the officials involved have transformed this
concern into an excessive preoccupation with security
that is achieved at the unnecessary expense of First
Amendment freedoms. We are aware that the issue is
difficult and delicate. It is too difficult, too
delicate, too dependent on careful assessment and
weighing of constitutional rights, to rest
conclusively on the untested declaration of an
executive official.[fn19]
[12] 8. After this second remand, the matter came on for trial
before Judge Hart between April 23, 1973, and May 2, 1973.
Testifying on behalf of the asserted security justification for
the restrictions were the Director and Deputy Director of the
Secret Service, the Secret Service Agent in charge of White House
security, Chief Wilson of the Metropolitan Police and Deputy
Chief Beye of the Park Police. In turn, the plaintiffs adduced
substantial evidence concerning lack of disruptions at past
demonstrations, and expert testimony about crowd behavior. The
judge also received testimony and other evidence about the other
asserted justification for the permit system.
[13] After this extensive hearing the District Court reached three
conclusions: (1) It affirmed the need for a permit system and
approved the existing permit regulation with a single
modification. (2) It found that there had been no
maladministration of the permit regulation. (3) It concluded that
the 100/500 limitations were too restrictive of the First
Amendment interests asserted by the plaintiffs, and that "[a]ny
limitations of less than 750/3,000 would be more restrictive than
is essential for the furtherance of [the asserted] governmental
interests . ." (District Court Conclusion 2).
[14] The parties have taken cross-appeals, the government objecting
to the raised numerical limitations, the plaintiffs objecting
both to the imposition of any numerical limitations at all and to
the approval of the permit system. Presumably our opinion in this
case will be referred to as Quaker Action IV; hopefully, it
will be the end of the line.
[15] II. REVIEW OF THE DISTRICT COURT DECISION
[16] A. Basic Approach
[17] 1. As we have stressed in our prior rulings, this case is not a
normal review of an executive action or administrative
proceeding. When the executive or the administrative process
abridges constitutional rights, it is subject to closer scrutiny
than otherwise, and ultimately it is the court rather than the
agency that must balance the competing interests. The question in
this case is not whether some support for the regulations may be
adduced, by reference to evidence in the record and a claim of
reasonable inferences or concerns, but is whether the regulations
at issue here are "unnecessarily restrictive for the purpose they
are designed to serve."[fn20]
[18] We now have, for the first time, a judicial determination based
upon factual evidence adduced at a trial, indeed at a rather
extensive and complete trial. To this determination we owe
greater deference than to the untested administrative judgments
with which we have been previously confronted. This decision
being appealed was rendered by a district judge after
consideration of both constitutional considerations, for which a
judge has special concern, and the security considerations
brought forward by the government officials. Moreover, the
district judge had the benefit of the live testimony of the
various witnesses whose assertions could be tested and probed on
cross-examination. Thus, unless we discern clear error in the
district court's findings of fact, or a mistake in its legal
approach, we have no warrant for reversal.
[19] It is in this spirit that we approach our review of the
findings and conclusions made after the trial for which we waited
so long.
[20] 2. In reviewing the District Judge's approval of the permit
regulations, we start with the declaration of Mr. Justice Roberts
in Hague v. C.I.O.:
Wherever the title of streets and parks may rest,
they have immemorially been held in trust for 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.[fn21]
[21] Moreover, as we pointed out in Quaker Action III, the right to
use public parks for expression of ideas is of especial
importance in the District of Columbia:
The general concepts of First Amendment freedoms are
given added impetus as to speech and peaceful
demonstration in Washington, D.C., by the clause of
the Constitution which assures citizens of their
right to assemble peaceably at the seat of government
and present grievances.[fn22]
[22] We find it necessary to stress this basic proposition in view of
the Park Service's continued approach to the use of local park
areas for First Amendment activity. Indeed, in this case and
others,[fn23] we have encountered a recurring Park Service theme
that the use of parks for demonstrations is "not an appropriate
use of Federally-owned park lands . . .,"[fn24] that such
activity is not a part of the "basic mission" of the Park Service
or that demonstrators are somehow not "bona fide" visitors to
park sites.[fn25] This approach of the Park Service is rooted in
a premise that is unacceptable.
[23] The use of parks for public assembly and airing of opinions is
historic in our democratic society, and one of its cardinal
values. Public assembly for First Amendment purposes is as surely
a "park use" as any tourist or recreational activity. It may be
that certain parks can reasonably be reserved for specific park
uses; First Amendment activity might be inappropriate for a
wilderness area such as Yellowstone Park. We approve, however,
the District Court's finding that the White House sidewalk,
Lafayette Park, and the Ellipse constitute a unique situs for the
exercise of First Amendment rights. (Finding 17). We therefore
cannot accord deference to an executive approach to use of the
White House sidewalk that is rooted in a bias against expressive
conduct, or in the premise that such conduct is outside of — and
on a lesser footing than — the "basic mission" of the Park
Service.[fn26]
[24] 3. On the other hand, it is well-settled that expressive
conduct is subject both to contemporaneous and to prior restraint
under certain circumstances.[fn27] Obviously, conduct that
creates a danger to life and property, or that is destructive of
the public order, may be checked by authorities. In such
situations, when the First Amendment rights of demonstrators
compete with other legitimate interests, government may develop a
system of restraints, on the otherwise protected conduct, that
attempts to accommodate these various competing interests. In
such cases, the proper course of government lies (1) in balancing
the First Amendment rights against the other legitimate interests
to arrive at a reconciliation that is both constitutional and an
acceptable accommodation of all the factors; and (2) in
constructing a scheme that does not risk abuse of First Amendment
rights through a broad censorship power or other improper
application of theoretically acceptable restraints.[fn28]
[25] In undertaking to balance the competing interests in several of
these cases the Supreme Court has adhered to certain general
guidelines that have been summarized as follows:
[R]estrictions on expression are valid if (1) the
"[regulation] furthers an important or substantial
governmental interest," (2) the "governmental
interest is unrelated to the suppression of free
expression," and (3) the incidental restriction on
alleged First Amendment rights is no greater than is
essential to the furtherance of that interest.[fn29]
[26] When we remanded this matter to the District Court for trial we
instructed the judge to apply these guidelines to the facts as
developed at trial. And it is in light of this balancing test
that we must examine the findings and conclusions of the District
Court.
[27] 4. Since the 1967 promulgation of the "Jett Memorandum," the
Government has asserted a variety of interests to justify the
permit regulation. Initially, in denying permits, the Government
stated to unsuccessful applicants that the permit regulations
were intended to preserve park values and to limit inconvenience
to vehicular and pedestrian traffic. When the plaintiffs moved
the district court for a preliminary injunction the Government
adduced an additional justification, ". . . the interest of the
security and safety of the Executive Residence, its occupants and
contents . . ." (Bryant finding 13). A fourth interest asserted
by the Government during the litigation has been a desire to
prevent undue distraction of the considerable staff that works in
the White House. In assessing the interests asserted by the
Government in support of its permit system, Judge Hart made no
express finding that any of the interests was "substantial," but
he did find as follows:
22. The precautionary measures that may be used to
protect the President in the White House may be such
as to cover all reasonable contingencies, but they
may not unduly and unnecessarily impinge on the
Constitutional rights of the citizens, including
those under the First Amendment. As applied here, the
interests involved need to be balanced. The free
expression of ideas must be balanced against the
protection of the President and other public
interests involved.
[28] Implicit in this finding is a judgment that the interests
advanced by the Government are "substantial" enough to be taken
into account under the standards of the O'Brien formula.
Balancing these asserted interests against First Amendment
values, and measuring the Park Service's permit regulation as a
means of striking the balance, Judge Hart concluded as a matter
of law that the permit system on its face was a justifiable prior
restraint on demonstration activity in the White House area,
subject only to the different minimum numerical limitations
prescribed in his conclusions.[fn30]
[29] 5. Accepting his implicit finding that the asserted
governmental interests justify some prior restraint on First
Amendment activity in the White House area, we affirm the
District Judge's conclusions that the permit system, as written,
is basically a constitutional prior restraint on First Amendment
activity. In so holding, we are approving the overall permit
system as being justified by the asserted governmental interests,
and as being no more restrictive than necessary to preserve those
interests.[fn31] At the same time, however, we disapprove some
particulars of the regulation as needlessly vague or unacceptably
restrictive of the First Amendment interests at stake. It is our
view that such a course, which allows the continued existence of
a regulation that appears necessary, but which focuses upon
certain undesirable aspects of the regulation, is the most
constructive approach to this delicate problem, avoiding the
extremes of either an unqualified approval of the existing
regulation, with its faults, or a total abrogation of that
regulation.
[30] Plaintiffs contend that the Government has failed to show any
interest so compelling that it would justify the permit system,
either absolutely or in preference to a notice system.
[31] We do not consider this argument, or the plaintiffs' various
criticisms of the regulation and its past administration — many
of which we accept — to culminate in a determination that the
entire regulation is unconstitutional. First, the security
interest at stake in this litigation, no matter how ineptly
presented by the Government, cannot be blinked. This interest
alone justifies a prior restraint of some kind on public
gatherings in the White House area. Second, since the White House
area is a "unique situs" for demonstration activity, as the
District Court found, there is a need for a governmental
mechanism for allocating the scarce time and space resources of
the White House area among competing applicants. A permit system
allows such allocation while a notice would be inadequate for
that purpose. We accord a different reception to other
contentions of plaintiffs which challenge certain substantive and
procedural provisions of the regulations as vague and overbroad,
and criticize inadequacies in the regulation that have allowed
alleged maladministration to take place in the past. Some of
these criticisms are valid and we shall explore specific
substantive and procedural aspects of the regulation, and
prescribe certain necessary modifications. We are satisfied
however that our overall approach is a sufficient answer to the
plaintiffs' criticisms, and that if the regulation is
appropriately modified it will meet constitutional standards.
[32] In addition we wish to make clear to the Park Service that the
premise of our holding is that the provisions of the permit
system will be enforced uniformly and without discrimination and
that there will be no deviation from the regulation's language
that works an abridgment of communication by the applicant group.
[33] B. Substantive provisions in the permit regulation
[34] 1. Occasions requiring a permit.
[35] There are certain substantive provisions of the regulation that
we do not disapprove in principle, but that we believe must be
made more precise in order to minimize the possibility of any
inadvertent or deliberate abuse of official discretion. In
particular we are concerned about the following provision:
[36] "[p]ublic gatherings, other than NPS events, may be held only
pursuant to a valid official permit issued in accordance with the
provisions of this section."[fn32] This provision raises two
problems, one being the appropriate definition of a "public
gathering," the other concerning the "NPS event" concept.
[37] (a) Definition of "public gathering" for enforcement
purposes.
[38] The regulations define a "public gathering" as including, but
not limited to, "demonstrations, picketing, speech-making,
holding of vigils, parades, ceremonies, meetings, entertainment
and all other forms of public assembly."[fn33] Assuming the
validity of the permit regulation, we see no constitutional
objection to this definition, which in no way discriminates
against First Amendment activity. The problem is that the Park
Service may have defined "public gathering" for enforcement
purposes to mean only those public gatherings with expressive
content. We inquired on this point at oral argument. Government
counsel then took the position that a "public gathering" would be
any group in which at least one person carried a sign or engaged
in First Amendment activity. By contrast, counsel noted that a
group of persons in the White House area would not be considered
a "public gathering" if there were no manifestation of such
expressive activity. Further, Government counsel put it that even
a single individual constituted a "public gathering" by taking up
a sign and marching in behalf of some cause. This result is
absurd and it demonstrates the aridity of the Government's
approach. Accordingly, we sustain the validity of the permit
system on the assumption — which can be enforced judicially if
need be — that the Park Service will issue an implementing
regulation defining "public gathering" in terms that do not
impermissibly discriminate against First Amendment activity, e.
g., whether a person has a sign, or whether the sign has an
acceptable message. The Park Service may wish to avoid unwieldy
administrative burdens by exemptions from the permit requirement,
e. g., groups of less than a specified size.
[39] (b) Designation of "NPS events".
[40] The second problem with the "public gathering" provision
involves the exemption from the permit requirement granted to
"NPS events." These events are defined as "any celebration,
commemorative, or recreational event sponsored or co-sponsored by
the National Park Service."[fn34] We are troubled by the lack of
any expressed standards for selection of "NPS events," and by the
total absence of an announced procedure for such selection. In
view of the Park Service's record in this and other cases, the
lack of standards and procedures gives rise to the concern that
the Park Service may discriminate against First Amendment
activity by selective granting or withholding of "NPS event"
status and of the accompanying exemption from the ordinary permit
requirements. In a previous litigation, the Park Service tried to
limit certain protest activities because of conflict with an "NPS
event" which was not without political overtones.[fn35] There was
a lack of any announced standards for selection of "NPS events":
. . . we are left without a coherent framework of
regulations, governing public gatherings in park
areas subject to the jurisdiction of the National
Park Service based on thorough and reflective
consideration of park values, including First
Amendment rights. The Department of the Interior has
not shouldered the responsibility to provide
discriminating, rather than discriminatory, park
regulations. A forthcoming and careful exercise of
administrative responsibility may serve to avoid
administrative disarray.[fn36]
[41] The Park Service, however, has let its regulations stand
unchanged, in any material way, and there have been no procedures
for refining responsibility.
[42] In the future, if the Park Service wishes to enforce the
regulations requiring a permit for public gatherings in the
regulated areas, it must require a permit for every public
gathering in those areas. We see no burden on the Park Service as
to what it now treats as an "NPS event" — it can simply issue a
permit for such an event. If it wishes to issue a permit for,
say, more than 3,000 persons in Lafayette Park, it can do so by
incorporating in its regulations a provision for waiver of that
numerical limit, with appropriate standards — and all applicants
will in the future at least have opportunity to submit for
consideration a petition to waive that limit. Or, if the Park
Service wishes, it could retain a system of "NPS events," reserve
time in, say, Lafayette Park, and even publish advance schedules.
This could be done, for instance, by establishing in advance an
announced schedule of recurrent annual events.
[43] 2. Grounds for permit denial.
[44] Plaintiffs challenge as vague and overbroad the regulation's
provision that a permit may be denied if "[i]t reasonably appears
that the proposed public gathering will present a clear and
present danger to the public safety, good order, or health . .
."[fn37] In particular, plaintiffs argue that this wording allows
Park Service officials to refuse permits on the basis of the
ideological position of the applicant group, in effect to equate
"leftist tendencies" with an unacceptable tendency to violence.
It would be impermissible to grant or deny a permit merely on the
basis of the content of the views to be expressed in the
demonstration, assuming no violation of law appears in a mixture
of speech and conduct.
[45] Given the uniqueness and importance of the security interest of
protection of the White House as justifying a greater limitation
than would be applicable generally to use of public streets and
parks, we conclude that the Constitution is not offended by the
standard in the regulation, limited as it is (1) to the presence
of a clear and present danger, that is (2) confined to the need
to protect public safety and public health (including in public
safety the avoidance of disorder). This is not like the ordinance
held invalid in Shuttlesworth v. Birmingham, 394 U.S. 147, 89
S.Ct. 935, 22 L.Ed.2d 162 (1969) which authorized members of a
city commission to deny a permit if "in its judgment the public
welfare, peace, safety, health, decency, good order, morals, or
convenience require that it be refused." The Court held that this
gave the commission "virtually unbridled and absolute power" to
prohibit a demonstration on the city's ways. (394 U.S. at 150, 89
S.Ct. 935.) The regulations before us do not extend to categories
as amorphous as welfare, decency and convenience. And they do not
define the granting of the permit in terms of the subjective
judgment of the officials. The regulations before us are defined
in terms of substantive criteria and the courts are open in the
event of maladministration to hear concrete evidence in support
of such a complaint. See Niemotko v. Maryland, 340 U.S. 268, 71
S.Ct. 325, 328, 95 L.Ed. 267, 280 (1951); Quaker Action Group v.
Hickel, cited supra note 12.[fn38]
[46] 3. Numerical Restrictions.
[47] We turn to the Park Service's program to restrict the number of
persons able to participate in a public gathering in the White
House area.[fn39] The question we face is how to balance the
First Amendment interest against the asserted security
justification, because none of the other interests that would
justify some limitation of crowd size, i. e., physical space,
park values, pedestrian and vehicular traffic, can seriously be
advanced in behalf of so stringent a limitation as is contained
in the regulation.
[48] The record is inconclusive as to the relationship between the
size of a public gathering and the threat that gathering might
pose to White House security. The testimony by the Secret Service
and other security officials may be summarized as follows: (1) It
is their belief that any demonstration, especially a large one,
would pose an unreasonable danger to the security of the
President and of the White House.[fn40] (2) There has never been
a demonstration, including the quite large ones, that actually
posed a security threat to the White House or to the President.
(3) There has never been a demonstration about which the police
and other authorities lacked adequate information obtained from
sources independent of any permit and notice machinery.[fn41]
Although the Government made strenuous attempts to have the court
rely upon an asserted "potential for violence disorder"[fn42] and
upon the alleged instances of "violent demonstration conduct, and
other violent or bizarre conduct, in Washington, D.C. and across
the Nation . . .,"[fn43] Judge Hart found that arrests were made
for disorderly conduct in only five of the 383 then most recent
demonstrations in the White House area (including some 77
demonstrations in excess of the 100/500 limitations), while
violent incidents were reported in only six demonstrations (three
in large demonstrations, and three in small ones).[fn44] The
record also contains expert testimony that as crowds grow larger
they become more docile and less prone to violence and that there
is no causal relationship between a crowd's size and the threat
it might pose to White House security.
[49] This record evidence is helpful, but not dispositive. Thus the
testimony of the Government's witnesses, while credible on the
general issue whether exposure of the President to the public
poses a security threat, has less relevance to the relationship
between variations in a crowd's size and in its danger to the
President. Moreover, the testimony is considerably weakened by
the officials' admission as to the lack of risk presented by past
demonstrations and by Judge Hart's findings as to those
demonstrations.
[50] On the other hand, as Judge Hart recognized, it cannot be
denied that a public gathering presents some measure of hazard to
the security of the President and the White House. Common sense
mandates caution in this matter and the fact that no
demonstration in the past has been a hazard is not decisive. As
Judge Hart states, "[n]o President was ever killed in a theater
until Lincoln, in a railway station until Garfield, in a
reception line until McKinley, or in an open car until Kennedy."
His statement reflects the doubt that any judge feels when
confronted by an interest so compelling as Presidential safety.
It would have been helpful if the Government had really proved a
case, but its failure to do so does not give us license to ignore
potential risks to the President.
[51] Nor can we soothe our troublesome doubt by applying the balm of
the expert testimony offered by plaintiffs' distinguished
witness. While this testimony is responsible, and perhaps highly
predictive of crowd behavior, we are loath to override a concern
for Presidential safety by reliance on the conclusions of a
single expert witness. As was stated in a closely analogous
context,
[such] testimony must be taken as enhancing insight,
not controlling outcome. Insofar as it brings forward
relevant principles . . . it is useful. * * *
[But it] would require stronger proof than this . . .
to override what . . . are the dictates of common
sense.[fn45]
[52] The Court's predicament in the balancing process in the First
Amendment area was captured by one commentator:
[The process depends], to an inordinate extent, on
predictions of behavior — predictions unsubstantiated
by survey data or "interdisciplinary" documentation.
As is true in almost every modern problem area, the
issues that arise out of mass demonstrations must, of
necessity, be resolved without the benefit of
empirical knowledge. Until that situation is
corrected, the choice is between careful guesswork
and analytic paralysis.[fn46]
[53] Because the record does not resolve our dilemma, the court must
proceed by "careful guesswork" to a resolution of the instant
issue, studying the materials at hand, and also factoring in
"common sense," even if that rests on a base of intuitive
perceptions.
[54] As a starting point, we affirm Judge Hart's conclusion that
"[a]ny limitation of less than 750/3,000 would be more
restrictive than is essential for the furtherance of [the
asserted] governmental interests . . ."[fn47] As already seen,
this conclusion rests upon extensive findings rooted in the
history of demonstrations in the White House area, as well as
upon an assessment of the testimony given in the courtroom by the
Government's security experts. Moreover, it is not without
significance that the conclusion that 750/3000 is a minimum
acceptable limitation was reached after trial by the same judge
who had granted summary judgment to the Government when he read
the affidavits, before he pondered the testimony given in open
court.
[55] The 750/3000 limitation figure, developed by the District Court
as a minimum limitation, provides a reasonably firm basis for
projecting that a limitation in this modest range will not mean
substantial security problems. Underlying this conclusion are the
availability of police restrictions on any particular crowd that
proves to be unruly or dangerous; and the capability of the
Washington, D.C. police to become informed concerning the shape
and characteristics of demonstrations.
[56] Plaintiffs object that there is nothing in the record to
support a limitation of 750/3000 — or indeed any limitation at
all. But Judge Hart's figures reflect his finding that only 9 out
of 154 demonstrations in the most active demonstration years,
from 1965 to 1972, exceeded the 750/3000 figures.[fn48] Judge
Hart's figures thus establish the likelihood that 90% of proposed
public gatherings would meet the size limitation requirement. In
a case which turns on efforts to coordinate security with minimum
restriction on right of assembly, this fact points the way to a
common-sensical path and a sound judicial goal.
[57] Moreover, Judge Hart stated his conclusion in a manner that
renders his prescribed figures a minimum limitation. We affirm
his conclusion as such. He did not establish the figures to
become maximum restrictions. Nevertheless, after the appeal was
taken, and the case was lodged in the jurisdiction of this court,
the Park Service promulgated a regulation setting the 750/3000
figures as a maximum limitation. We see problems in this
regulation, which was not mandated by the District Court's order.
We see problems particularly in the 3,000 figure for Lafayette
Park — assuming, as we have reason to believe to be the case,
that the Park Service would tolerate public gatherings in
Lafayette Park above 3,000 in an "NPS event" context. Thus, the
balancing process may come to tolerate larger figures than 3,000
for Lafayette Park, even should a 750 figure be sustained for the
White House sidewalk. This would permit large gatherings in
exercise of the right of assembly, with rotation of members to
the White House sidewalk, but with a limitation of the number
concentrated there at any one time; and it would permit barriers
between Lafayette Park and the White House sidewalk to reduce
possible dangers. Such barriers, mobile, flexible, and without an
intrusive appearance, have been found useful for the purpose.
Other alternatives are possible.
[58] We could remand for District Court consideration of the new
regulation, consideration that would be aided by our action in
upholding the validity of the permit system generally, and our
approval of Judge Hart's ruling on the 750/3000 figures as a
minimum limitation. But in the interest of justice, 28 U.S.C. § 2106,
of the eventual end of litigation, we think it appropriate
to go further and say that in our view the record before us does
not justify an absolute limitation, in anything like the 3,000
range, that was promulgated by the Park Service after the
District Court decision. The regulation could be upheld, if at
all, only if there were provision for waiver of such a limit,
under appropriate standards whereby applicants could show that a
proposed demonstration had been planned and would be patrolled in
such fashion as to render unlikely any substantial risk to the
occupants or officers of the White House or adjoining office
buildings.[fn49]
[59] Thus it is our view that the Park Service cannot maintain in
effect a regulation that rigidly and absolutely precludes all
demonstrations merely because the number projected for Lafayette
Park exceeds 3,000. We do not say that there can be no numerical
limit for Lafayette Park demonstrations. Considerations like
physical space or protection of shrubs would permit such a limit,
but the figures based on such grounds, according to the record,
would run in the neighborhood of 40,000 to 50,000 and would have
no significance for the realities of the problems under
discussion. In issuing permits for assemblies up to 3,000, and in
considering applications above that figure, the Park Service will
have to undertake a more reflective and coherent approach.
[60] We interject to take note of a point pressed at oral argument,
by Government counsel's asking: Why can't applicants hold their
demonstrations on the Ellipse, with the speakers framed against
the rear of the White House? The answer is that there are unique
First Amendment values in use of the White House sidewalk;[fn49a]
and citizens seeking redress of grievances are not unreasonable
if they propose to come to the front of the House rather than, be
shunted to the back door. Of course there may come a time when
the crowd is so huge that it is reasonable to insist that all
facilities be used. Just as Lafayette Park may be a holding
pattern for smaller groups which go to the White House sidewalk,
so it may be reasonable, in case of huge demonstrations, to use
the Ellipse for overflow and a holding pattern.
[61] We have expressed the conclusion that the record, with the aid
of common sense perceptions, provides more warrant for a
limitation of 750 for the White House sidewalk, as a minimum
ceiling, than for a limitation of 3,000 for Lafayette Park. We
envisage, however, that once a waiver procedure is evolved, for
numbers in Lafayette Park, it should be extended to the use of
the White House sidewalk by groups over 750 in number. Such a
flexible approach would be in keeping with our view of the case
and of the Park Service's responsibilities.
[62] 4. Miscellaneous substantive provisions of the permit
regulation.
[63] In addition to the provisions already discussed, there are
several other substantive provisions of the permit regulation
that the plaintiffs have challenged.
[64] (a) Rush hour demonstrations: The regulation prohibits public
gatherings during morning and evening rush hours.[fn50]
Plaintiffs challenge this restriction on the basis of expert
evidence to the effect that demonstrations in Lafayette park and
on the White House sidewalk cause no interference with traffic.
Although the Government apparently made no effort either to rebut
plaintiff's evidence or to introduce other evidence to the
contrary, the District Judge found this requirement was
"reasonable."[fn51] While the record does not present much
support specifically addressed to this requirement we are
inclined to defer to the conclusion of the District Court. We
have in mind the common-sense appeal of the restriction, and the
need for balancing the consideration that the rush hour
prohibition does not apply on weekends, when most large
demonstrations occur. We would also note that the Park Service
may establish a means for waiver of this requirement, especially
for small demonstrations.
[65] (b) Sound amplification equipment: Plaintiffs protest the
regulation's prohibition against the use of sound amplification
equipment on the White House sidewalk, except in connection with
crowd control.[fn52] There is ample justification in the
Government's legitimate asserted interest in keeping the White
House staff free of undue distractions from their work. There is
implied authorization for sound amplification in Lafayette Park.
There is adequate provision for First Amendment communication. We
affirm the trial judge's approval of this restriction.
[66] (c) Limitation on demonstration location: The regulation
further provides that no "permit will be issued for any place
within the White House area, except for the White House sidewalk,
Lafayette Park and the Ellipse."[fn53] Once again, the record is
devoid of any particular justification for this prohibition. The
District Judge has not commented on this requirement. Possibly
there is a problem with dispersal of demonstrators in these other
areas. In any event, the regulation allows public gatherings to
be held in what must be conceded are the crucial areas from a
First Amendment viewpoint. This case really developed in the
context of demonstrations on the White House sidewalk and in
Lafayette Park, and if there genuinely is a problem as to other
White House areas we think it should be focused in separate and
supplemental litigation. It is sound judicial administration to
focus on the core of the controversy, and remit the disposition
of details and minor issues to subsequent consideration, which
will be aided by the content and implementation of the primary
decision.[fn54]
[67] (d) Duration: The regulation prohibits the issuance of a
permit "for a period of more than seven consecutive days . . ."
or for any public gathering "having a duration of more than 24
consecutive hours."[fn55] The asserted justification for this
requirement is that it allows maximum allocation of the scarce
space involved, an interest entitled to some weight. But
accommodation of that interest does not require per se
disallowance of lengthy demonstrations. If a particular
application contemplates a demonstration of such extended
duration as to preclude a competing application, the Park Service
may condition the grant of the permit on an appropriate
limitation of the demonstration's length. The Government
regulations could provide that any permit for a period beyond a
specified limit is subject to displacement if others seek a
permit that precludes double occupancy. In view of the
availability of less restrictive methods to achieve the same end,
this part of the existing regulation must be held invalid.
[68] B. Procedural aspects of the regulations
[69] Although we are affirming Judge Hart's determination that an
overall permit system is not per se in an unconstitutional
imbalance with First Amendment activity in the White House area,
certain procedural inadequacies of the existing permit regulation
must be corrected. The 1969 findings of maladministration made by
Judge Bryant in support of the preliminary injunction,[fn56] and
continuing complaints that the issuance of permits has been
unnecessarily delayed or that applicants are being harassed by
officials, make it appropriate to insist on more formal
procedures governing the timing of permit application and
consideration.
[70] 1. As a starting point, we approve the existing provision
requiring applicants to apply for a permit at least 48 hours in
advance of a planned public gathering.[fn57] This provides the
Park Service ample notice and time to process the application.
[71] We note, however, that the regulations contain no deadline for
administrative action by the Park Service. We believe such a
deadline is an essential feature of a permit system.[fn58] In
principle, an applicant would seem entitled to notice of a
proposed denial of his permit within 24 hours after submission of
the application.[fn59]
[72] If there is disagreement on this point, the parties may apply
to the District Court to formulate a different deadline. In view
of the interests at stake, however, and of the possibility of
procedural abuse, we conclude that the Park Service must revise
the regulation to provide explicitly that a permit application
not acted upon when the administrative deadline has expired is to
be deemed granted.
[73] Should the Park Service discover information leading it to the
reasonable belief that a planned public gathering for which it
has issued or been deemed to have issued a permit will pose a
serious security threat to the President or the White House, it
may exercise an emergency right to withdraw its previously given
approval. But in accordance with our view of the permit
regulation, such emergency withdrawal should be the subject of
express standards formulated to provide for principled
consideration by an official of responsible rank and function,
and should be exercised only in accordance with those standards.
[74] Finally, this opinion does not preclude the Park Service from
abandoning the permit regulation in favor of a reasonable notice
system — provided such system meets guidelines discussed in this
opinion. Or the Government may decide to rely on contemporaneous
police control to assure order, without the addition of a prior
restraint system. We interpolate at this juncture a point that
has broken to the surface in this case, but was not explored in
depth. In the event of any ongoing consideration of this
regulation, administrative as well as judicial, the question may
fairly be put: Why not use straightforward strengthening of the
fence as a technique for enhancing Presidential security? Up to
now, the Park Service seems to have blunted the inquiry with the
comment that this lies within the domain of the Secret Service.
But surely this is a matter on which the government entire is
involved, and the two departments should be coordinated.
Government counsel in this proceeding have met the question by
emphasizing the need for a low profile and aversion to a garrison
state. That seems hyperbolic, like the public outcry when a White
House fence was first put up, in Theodore Roosevelt's time. At
any rate, possibilities remain to be explored, like the use of
stronger materials, for achieving a barrier that combines
increased security with an acceptably open aspect. This may be of
significant value in approaching the ultimate objective of
combining presidential security with minimum infringement of
First Amendment interests. Short of this, the Government may
develop innovations designed to retain a permit system yet
minimize administrative burdens. For instance, the Park Service
may find it convenient to exempt all groups of a certain size
from any requirements at all, to make groups of another size
subject only to a notice requirement, or to apply the permit
requirement only to large groups. While the foregoing
observations are not strictly necessary to our decision, if
courts are called on to consider a complex of legal issues, as we
have been in these cases for some five years, it seems
appropriate to venture a few comments that may possibly avoid
future strains.
[75] CONCLUSION
[76] This litigation has called on the courts to exercise a
searching and sensitive obligation, to reconcile First Amendment
values and the public interest in the security of the White
House.
[77] Fortunately, this court has had the benefit of the District
Court's opinion and order. Its basic and critical rulings
recognize that the White House sidewalk and Lafayette Park are "a
unique situs for the exercise of First Amendment rights", and
that any limitation of crowd size of less than 750 for the
sidewalk, and less than 3,000 for Lafayette Park "would be more
restrictive than is essential for the furtherance of governmental
interests." We have in general affirmed the District Court's
order as a fair balance of First Amendment and security
interests. The District Court heard the testimony tendered by
both citizens and government, including the cross-examination of
government officials and expert witnesses. We find the basic
determinations of the District Court to be supported by the
record testimony as supplemented by common sense judicial
perceptions. In the same vein, we have sustained the District
Court's ruling upholding the continuance of a permit system.
[78] In certain aspects, our judgment contemplates some modification
or supplementing of the District Court's judgment. Thus, the
District Court order only provided that 3,000 was the minimum
figure that could be set as a limit on public gatherings in
Lafayette Park. The subsequent regulation of the Park Service
establishing this 3,000 figure as an absolute limitation is not
required by the District Court ruling, and it is not, in our
view, sustainable on the record. As to this aspect of the case
our order contemplates that the regulation setting 3,000 as a
limit on public gatherings in Lafayette Park is sustainable only
if it is supplemented by a provision that permits waiver of this
numerical limitation on an appropriate showing by an applicant.
Although we have upheld the permit system, we have also required
the Park Service to publish precise regulations defining "public
gathering" by distinctions which turn on security criteria rather
than free speech criteria, and describing the specific
implementing standards for denial of an individual permit.
[79] We have ruled that a permit must be deemed granted unless
denied within a stated time (24 hours, unless the district court
specifies another period). If the NPS does discover that a
particular gathering will be a threat to security, it can
withdraw the permit, but the NPS must act according to express
standards. Our ruling also calls on the NPS to revise its
regulation defining an NPS event and require permits for all NPS
events. No longer will the Park Service be able to limit the use
of the area to seven consecutive days, though it of course has
authority to deny a permit or its extension when there are
competing applicants for the same place and time.
[80] To the extent that reliable security can be obtained with
stronger fences, greater surveillance, and increased
co-ordination with the District of Columbia police force, there
is no reason why it should be obtained through limitations on
liberty of speech and assembly. It is our contemplation that the
Park Service will take a hard look at its own procedures to
insure the viability of the First Amendment in its park
domain.[fn60]
[81] The judgment of the District Court is affirmed in part. In part
the case is remanded so that the District Court may re-fashion
its mandate in a manner not inconsistent with our opinion.
[82] So ordered.
APPENDIX
The regulation at 36 C.F.R. § 50.19 (1973), see footnote 5 of
opinion, contains the following provisions:
§ 50.19 Public gatherings.
(a) Definitions:
(1) The term "public gatherings" includes, but is not limited
to, demonstrations, picketing, speechmaking, holding of vigils,
parades, ceremonies, meetings, entertainment and all other forms
of public assembly.
(2) The term "White House area" means all park areas, including
sidewalks adjacent thereto, within these bounds: on the south,
Constitution Avenue N.W.; on the north, H Street N.W.; on the
east, 15th Street N.W.; and on the west, 17th Street N.W.
(3) The term "White House sidewalk" means the south sidewalk of
Pennsylvania Avenue N.W., between East and West Executive Avenues
N.W.
(4) The term "park areas" shall include all areas, including
sidewalks adjacent thereto, other than the White House area,
administered by National Capital Parks of the National Park
Service.
(5) The term "NPS event" means any celebration, commemorative,
or recreational event sponsored or co-sponsored by the National
Park Service.
(b) Public gatherings, other than NPS events, may be held only
pursuant to a valid official permit issued in accordance with the
provisions of this section. NPS events are excepted from the
operation of this section. They will not require official
permits; may be held in any park area or the White House area;
and may preempt any such areas to the exclusion of other public
gatherings.
(c) Speaker's stands or platforms may be erected, where needed,
as adjuncts to any permitted public gathering, except on the
White House sidewalk; but no other structures (including
billboards, displays, etc.) may be erected on park lands except
in connection with NPS events. All such structures shall be
erected as inconspicuously as possible, and with least possible
damage to basic National Park System values, and shall be
dismantled as soon as practicable after conclusion of the public
gathering.
(d) In connection with permitted public gatherings, except on
the White House sidewalk, movable facilities — such as stands,
lecterns, sound amplification equipment, chairs, portable
sanitary facilities, and press and news facilities — reasonably
necessary as an integral part of a public gathering, shall be
permitted, provided prior notice has been given to the
Superintendent, except that:
(1) The Superintendent reserves the right to limit the sound
amplification equipment, so that it will not unreasonably disturb
nonparticipating persons in, or in the vicinity of, the area.
(2) No sound amplification equipment shall be used on the White
House sidewalk, other than hand-portable sound amplification
equipment which the Superintendent determines, in the exercise of
his judgment, is necessary for crowd control purposes.
(3) The Superintendent may impose reasonable restrictions upon
the movable facilities permitted, in the interest of protecting
the park area involved for the primary park purpose to which it
has been dedicated, traffic considerations, and other legitimate
park value concerns.
(e) Permit applications shall be submitted to the General
Superintendent, National Capital Parks, National Park Service,
110 Ohio Drive, S.W., Washington. D.C. 20243:
(1) White House Area: Permit applications shall be submitted in
writing on a form provided by National Park Service so as to be
received by the Superintendent at least 48 hours in advance of
any proposed public gathering.
(2) Park Areas: Permit applications for all park areas, except
the White House area, shall provide the following information:
Area, date, time, duration, and nature of the public gathering;
estimated number of participants; sponsoring organization; props
and equipment to be used; and name, address, and phone number of
applicant.
(f) The Superintendent shall process with reasonable promptness
applications in order of receipt; and, subject to the limitations
set forth in the next following subsection, he shall issue an
official permit upon proper application, authorizing a peaceable
and orderly public gathering to be held, unless:
(1) A proper prior application for the same time and place has
been received, and has been or will be granted on an "exclusive"
use basis; or
(2) It reasonably appears that the proposed public gathering
will present a clear and present danger to the public safety,
good order, or health; or
(3) The proposed public gathering is of such a nature or
duration that it cannot reasonably be accommodated in the
particular area applied for; in that event, an alternate site if
available for the activity shall be proposed by the
Superintendent to the applicant; in this connection, the
Superintendent shall reasonably take into account possible damage
to the park including trees, shrubbery, other plantings, park
installations and statues.
(4) The permit is subject to denial as contrary to any of the
provisions in this section.
(g) Issuance of permits under paragraph (f) of this section
shall be subject to the following limitations:
(1) No permit shall be issued for any place within the White
House area, except for the White House sidewalk, Lafayette Park,
and the Ellipse.
(2) No more than 100 persons shall be permitted to conduct a
public gathering on the White House sidewalk at any one time.
(3) No more than 500 persons shall be permitted to conduct a
public gathering at Lafayette Park at any one time.
(4) No permit shall be issued to an organization, group, or
other sponsor to conduct public gathering activities on the White
House sidewalk and in Lafayette Park at the same time, except
under the following conditions:
(i) Any overage above subparagraphs (2) and (3) of this
paragraph shall proceed to the Ellipse via 15th Street and/or
17th Street (or shall proceed to some other agreed-upon
designated park site) and shall there conduct public gathering
activities; and
(ii) The organization, group, or other sponsor of such public
gathering activities shall undertake in good faith all reasonable
action — including the provision of sufficient marshals — to
insure good order and self-discipline in carrying on such public
gathering activities, including any necessary movements of
persons, so that the numerical limitations prescribed under
subparagraphs (2) and (3) of this paragraph shall be observed at
all times on the White House sidewalk and in Lafayette Park.
(5) No permit shall be issued for a period of more than 7
consecutive days, and no permit shall authorize any public
gathering having a duration of more than 24 consecutive hours.
(6) No public gatherings shall be permitted to be held between
the hours of 7:00-9:30 a.m. and 4:00-6:30 p.m., except on
Saturdays, Sundays, and legal holidays, unless it shall be made
to appear to the satisfaction of the Superintendent that the
holding of the particular public gathering will not unreasonably
interfere with rush-hour traffic.
(h) Authorized permits may contain additional reasonable
conditions and additional time limitations, consistent with this
regulation, in the interest of protecting the park site involved
for the primary park purpose to which it has been dedicated, the
use of nearby areas by other persons, and other legitimate park
value concerns.
(i) Public gatherings may be held and speeches may be made in
the following areas under the jurisdiction of the National
Capital Parks without official permit. The conduct of any such
gathering shall be reasonably consistent with the protection and
use of the area for the purposes for which it is maintained:
(1) Franklin Park. Thirteenth Street, between I and K Streets
N.W., for no more than 500 persons.
(2) McPherson Square. Fifteenth Street, between I and K
Streets N.W., for no more than 500 persons.
(3) U.S. Reservation No. 31. West of 18th Street and south of
H Street N.W., for no more than 100 persons.
(4) Rock Creek and Potomac Parkway. West of 23d Street, south
of P Street N.W., for no more than 1,000 persons.
(5) Garfield Park. East side of Second Street S.E., between
Virginia Avenue and South Carolina Avenue, for no more than 1,000
persons.
(6) U.S. Reservation No. 46. North side of Pennsylvania
Avenue, west of Eighth Street and south of D Street S.E., for no
more than 25 persons.
[35 F.R. 15393, Oct. 2, 1970, as amended at 37 F.R. 24900, Nov.
22, 1972]
Note: The effective date of the amendments at 35 F.R. 15393,
Oct. 2, 1970 and 37 F.R. 24900, Nov. 22, 1972 have been postponed
pending court action. See 35 F.R. 17552, Nov. 14, 1970.
[fn1] Plaintiffs include five unincorporated associations and
four individuals affiliated with these associations. Besides A
Quaker Action Group, the plaintiff organizations are the Clergy
and Laymen concerned about Vietnam, The Women's Strike for Peace,
Jews for Urban Justice, and the Action Committee on American-Arab
Relations.
[fn2] A Quaker Action Group v. Hickel, 137 U.S.App.D.C. 176,
421 F.2d 1111 (1969) (Quaker Action I).
[fn3] A Quaker Action Group v. Hickel, 139 U.S.App.D.C. 1,
429 F.2d 185 (1970) (Quaker Action II); and A Quaker Action Group v.
Morton, 148 U.S.App.D.C. 346, 460 F.2d 854 (1971) (Quaker Action
III).
[fn4] A Quaker Action Group v. Morton, Civil Action No. 688-69,
362 F.Supp. 1161 (D.D.C. 1973).
[fn5] The regulation is found at 36 C.F.R. § 50.19 (1973) and is
set forth in the Appendix to this opinion.
[fn6] Plaintiff's Exhibit 30-J Pl.A. at Tab 27.
[fn7] Each of the groups except Quaker Action requested a permit.
The permits were denied by the National Park Service (Park
Service) as relevant agent for the Department of the Interior.
Quaker Action alleged that it had not applied for a permit out of
its apprehension that the Park Service would arrest its
demonstrating members if their numbers exceeded the limitations
in the regulations. See Quaker Action I. supra note 2, 137
U.S.App.D.C. at 179-180, 421 F.2d at 1114-1115.
[fn8] A Quaker Action Group v. Hickel, Civil Action No. 688-69
(D.D.C. April 25, 1969). Conclusions of Law at 1-3.
[fn9] Quaker Action I, supra note 2.
[fn10] Id., 137 U.S.App.D.C. at 184, 421 F.2d at 1119.
[fn11] Plaintiffs placed in evidence a table showing fourteen
instances, occurring between September, 1969, and April 1973, in
which the government sought to restrain demonstrations in excess
of the 100/500 limitations contained in the then enjoined
regulation. Plaintiff's Exhibit 46 Pl.A. at Tab 15. On one
occasion the government marched up the hill, and after this court
stayed an order of the district court the government obtained
from the Supreme Court extraordinary relief to reinstate the
district court injunction pendent lite, and then marched down the
hill when it elected not to secure enforcement of the order it
had obtained from the Supreme Court in the face of violations.
See Quaker Action III, 148 U.S.App.D.C. at 355 n.5, 460 F.2d
at 863 n.5.
[fn12] A Quaker Action Group v. Hickel, Civil Action No. 688-69
(D.D.C. Nov. 6, 1969).
[fn13] Quaker Action II, supra note 3, 139 U.S.App.D.C. at 3,
429 F.2d at 187.
[fn14] Id.
[fn15] A Quaker Action Group v. Morton, Civil Action No. 688-69
(D.D.C. November 9, 1970).
[fn16] For a description of the Secretary's proceeding, see
Quaker Action III, supra note 3, 148 U.S.App.D.C. at 348-349,
460 F.2d at 856-857.
[fn17] Quaker Action III, supra note 3.
[fn18] 148 U.S.App.D.C. at 351, 460 F.2d at 859.
[fn19] Id. at 352, 460 F.2d at 860.
[fn20] Id., citing Shelton v. Tucker, 364 U.S. 479. 81 S.Ct.
247, 5 L.Ed.2d 231 (1960). United States v. Robel, 389 U.S. 258,
268, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967); United States v.
O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968).
[fn21] 307 U.S. 496, 515, 59 S.Ct. 954, 964, 83 L.Ed. 1423
(1939).
[fn22] Quaker Action III, supra note 3, 148 U.S.App.D.C. at
351, 460 F.2d at 859.
[fn23] See, e. g., Women Strike For Peace v. Morton, 153
U.S.App.D.C. 198, 472 F.2d 1273 (1972) (Women Strike II); Women
Strike For Peace v. Hickel, 137 U.S.App.D.C. 29, 420 F.2d 597
(1969); (Women Strike I); Jeannette Rankin Brigade v. Chief of
Capitol Police, 342 F.Supp. 575 (D.D.C. 1972), aff'd mem. 409 U.S. 972,
93 S.Ct. 311, 34 L.Ed.2d 236 (1972).
[fn24] See Women Strike II, supra note 23, 153 U.S.App.D.C.
at 200, 472 F.2d at 1275.
[fn25] Deposition of William Failor, former Superintendent of
National Capital Parks, at 60-61, 62-63 (quoted in Plaintiffs'
Brief at 137 n. 248).
[fn26] The Government notes that the Interior Department has made
national capital park sites available for demonstrations, citing
e. g., the "Prefatory Statement" of the Secretary of Interior,
accompanying publication of revised 36 C.F.R. § 50.19 in proposed
form on July 17, 1970 (35 F.R. 11485-92), reprinted in Addendum
to the Government's brief, pages A 21 et seq.
This Prefatory Statement was prepared in the light of the
pending litigation, and discusses the opinions of this court
calling on the Service to undertake a reflective review of its
policies. Its approach is reflected by the statements "The
[National Park] Service's primary function, as set forth therein
[16 U.S.C. § 1] is to aid the American people to achieve full and
unimpaired enjoyment of the park values, including the scenery,
the natural and historical objects, and the wildlife to be found
in these national park system areas. . . . This basic National
Capital Parks conservation policy is, of course, balanced against
other considerations, including the consideration of fostering
the expression of views in such areas."
In short, the Service recognizes that it must consider
constitutional factors, but emphasizes that its statutory "park"
mission is "primary" and "basic".
[fn27] See, e. g., United States v. O'Brien, 391 U.S. 367,
376-377, 88 S.Ct. 1673, 1678-1679. 20 L.Ed.2d 672 (1968) (and
cases cited therein):
This Court has held that when "speech" and
"nonspeech" elements are combined in the same course
of conduct, a sufficiently important governmental
interest in regulating the nonspeech element can
justify incidental limitations on First Amendment
freedoms.
This statement in O'Brien is essentially a restatement of the
principle recognized in e. g., Cox v. Louisiana, 379 U.S. 536,
555, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965), and Cox v. Louisiana,
379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965), that public
conduct is subject to regulation even though it is related to
expression. The Government relies heavily on the Cox cases. But
there is no issue that conduct is subject to regulation. The
issue is whether the regulation is greater than is needed for the
vindication of the governmental interest.
[fn28] It is settled, for instance, "[T]hat an ordinance which,
like this one, makes the peaceful enjoyment of freedoms which the
Constitution guarantees contingent upon the uncontrolled will of
an official — as by requiring a permit or license which may be
granted or withheld in the discretion of such official — is an
unconstitutional censorship or prior restraint upon the exercise
of those freedoms." Shuttlesworth v. Birmingham, 394 U.S. 147,
151, 89 S.Ct. 935, 939, 22 L.Ed.2d 162 (1969).
[fn29] Jeannette Rankin Brigade, supra note 23, 342 F.Supp. at
584-585, citing United States v. O'Brien, supra note 27.
[fn30] Judge Hart's conclusions were as follows:
1. The present 100/500 limitations on the number of demonstrators
in front of the White House is more restrictive of First
Amendment freedoms than is essential for the furtherance of the
following governmental interests:
a. Protection of the President and or White House.
b. Rights of citizens to use the sidewalks and the
streets in front of the White House and Lafayette
Park for the normal uses for which they are provided
and maintained.
c. Safety of citizens using facilities as in b.
above.
d. Safety of demonstrators.
e. Ecology of Lafayette Park.
f. Alternate locations for large protests.
2. Any limitations of less than 750/3000 would be more
restrictive than is essential for the furtherance of
governmental interests as set forth in 1. above.
* * * * * *
4. The permit requirement of 36 C.F.R. § 50.19 does not confer
impermissibly broad discretion on government officials to grant
or deny permits in violation of First Amendment rights except
as set forth in conclusions 1. and 2. above, in this
connection:
a. The requirements of and standards for a permit or
notice are reasonable.
b. The restrictions on rush hour demonstrations are
reasonable.
c. The ban on the use of sound amplification systems
on the White House sidewalk is reasonable.
d. The requirement of marshals for simultaneous
demonstrations in Lafayette Park and the White House
sidewalk is reasonable.
e. The ban on continuous demonstration lasting beyond
24 hours or beyond 7 consecutive days by one group is
reasonable.
A Quaker Action Group v. Morton, Civil Action No. 688-69, 362
F.Supp. 1161 (D.D.C. 1973).
[fn31] In this regard, we note the difficulty of assessing
whether an interest is "substantial" enough to justify
compromising a First Amendment right. As Judge Wright stated:
It is virtually impossible to derive principled
answers to these [balancing] questions. The basic
issue in all cases is how much the First Amendment
requires society to give up in the interest of
communication — that is, what price we are willing to
put on free speech. In the long run, it will not do
to say that we must pay a "substantial" price, since
this answer does not tell us just how substantial the
price must be. The O'Brien test works well at the
extremes, but it may be that a new test will have to
be devised for governing the close cases.
Women Strike II, supra note 23, 153 U.S.App.D.C. at 209, 472
F.2d at 1284. We would only observe that it is our view that the
nature of the asserted governmental interests in this case do not
render it sufficiently "close" that we need undertake a more
rigorous scrutiny of the District Judge's conclusion that the
First Amendment must be compromised in this situation.
[fn32] 36 C.F.R. § 50.19(b) (1973), set forth in the Appendix.
[fn33] 36 C.F.R. § 50.19(a)(1) (1973), set forth in the Appendix.
[fn34] 36 C.F.R. § 50.19(a)(5) (1973), set forth in the Appendix.
[fn35] Women Strike II, supra note 23.
[fn36] Id., 153 U.S.App.D.C. at 228, 472 F.2d at 1303 (opinion
of Judge Leventhal in support of result in which Judge Robb
concurs).
[fn37] 36 C.F.R. § 50.19(f)(2) (1973), set forth in the Appendix.
[fn38] The maladministration that Judge Bryant found had existed
in the pre 1969 era, findings in due course accepted by Judge
Hart, turned on manipulation of procedural requirements. The
possibility of such abuse has been minimized if not completely
obviated by our ruling on the procedural provisions of the
regulations.
[fn39] The numerical limitation is found at 36 C.F.R. §
50.19(g)(2) and (3) (1973), set forth in the Appendix.
[fn40] For instance, in a "Position Paper" dated July 24, 1967,
the Secret Service stated its strong belief:
that the continuation of picketing and demonstrating
by protest groups in front of the White House
constitutes a threat to the safety of the President
of the United States and that this activity should
not be permitted.
(Plaintiff's exhibit 18, Pl.A. at Tab 23). Of course it is
understandable that those charged with Presidential safety would
prefer, as Judge Hart put it, to take "the precautions of a
dictator" to shield him (or the White House complex) from danger.
(Finding 23), A Quaker Action Group v. Morton, Civil Action No.
688-69, 362 F.Supp. 1161 (D.D.C. 1973). This, of course, is simply
not possible in a democracy, for the President cannot be kept in
a steel room away from the public. We would observe, however,
that the President probably faces far fewer risks from even the
largest demonstration at the White House than when he moves in a
parade or visits a baseball stadium or makes any sort of public
appearance. This observation is supported by testimony from the
Assistant Director for Protective Intelligence for the Secret
Service, who rated the White House as virtually the safest place
for the President. (Tr. at 164).
[fn41] Finding 19 states as follows:
The White House sidewalk and Lafayette Park have a
history of demonstrations. None of these
demonstrations in the judgment of the Director of the
Secret Service, up to this time, has posed a serious
threat to the security of the President in the White
House.
A Quaker Action Group v. Morton, Civil Action No. 688-69, 362
F.Supp. 1161 (D.D.C. 1973).
[fn42] Government's brief at 18.
[fn43] Id.
[fn44] Finding 20, A Quaker Action Group v. Morton, Civil Action
No. 688-69, 362 F.Supp. 1161 (D.D.C. 1973).
[fn45] Women Strike II, supra note 23, 153 U.S.App.D.C. at
227-228, 472 F.2d at 1302-1303 (opinion of Judge Leventhal).
[fn46] Blasi, Prior Restraints on Demonstrations, 68 Mich.L.Rev.
1481, 1574 (1970).
[fn47] Conclusion 2, A Quaker Action Group v. Morton, Civil
Action No. 688-69, 362 F.Supp. 1161 (D.D.C. 1973).
[fn48] Finding 20, Id.
[fn49] The provision in the Park Service regulation requiring
Marshalls for large demonstrations is plainly reasonable, for
instance. And compliance with this or like requirements would
presumably be part of the showing in any waiver request. The Park
Service could also require more information for waiver requests
than for ordinary permit applications, including capability of
the sponsors to establish crowd control techniques, supply
emergency aid and facilities.
[fn49a] The Government argues that restrictions on communications
may be upheld "in light of the alternative means of communication
permitted." citing e. g., Pell v. Procunier, 417 U.S. 817, 94
S.Ct. 2800, 41 L.Ed.2d 495 (1974). However, we cannot ignore the
unique quality of demonstrations in front of the White House from
the viewpoint of First Amendment interests. That unique symbolism
may well account for the fact that the Government has never
proposed a complete ban on such demonstrations, the only
absolutely riskless way of avoiding all conceivable danger to the
White House from such demonstrations.
[fn50] 36 C.F.R. § 50.19(g)(6) (1973), set forth in the Appendix.
[fn51] Conclusion 4b, A Quaker Action Group v. Morton, Civil
Action No. 688-69, 362 F.Supp. 1161 (D.D.C. 1973).
[fn52] 36 C.F.R. § 50.19(d)(2) (1973), set forth in the Appendix.
[fn53] 36 C.F.R. § 50.19(g)(1) (1973), set forth in the Appendix.
[fn54] Permian Basin Area Rate Cases, 390 U.S. 747, 767, 88 S.Ct.
1344, 1359-1360, 20 L.Ed.2d 312, 335-336 (1968); Village of
Euclid v. Ambler Realty Co., 272 U.S. 365, 395-397, 47 S.Ct. 114,
121, 71 L.Ed. 303, 314-315 (1926)
[fn55] 36 C.F.R. § 50.19(g)(5) (1973), set forth in the Appendix.
[fn56] An example of the type of harassment that cannot be
tolerated in the future may be found in Judge Bryant's 1969
findings:
14(g) In the course of enforcing 36 C.F.R. § 50.19
(1968), the defendants have frequently required
applicants, among them the plaintiffs, to travel
several times to the Office of the National Capital
Region to furnish detailed information of
questionable relevance before rendering a decision
upon an application. The Office of the National
Capital Region is in an out-of-the-way place; such
travels thus work substantial hardships upon
applicants. For example, during July and August of
1968, one permit applicant was forced to make 13
separate trips to the Office of the National Capital
Region within a period of 4 weeks to obtain
demonstration permits for a few persons to assemble
on the White House sidewalk; on one occasion the
permit was delayed several days so that the occasion
for the demonstration had passed when the permit was
finally granted.
A Quaker Action Group v. Hickel, Civil Action No. 688-69
(D.D.C. April 25, 1969).
The need for procedures to help assure against any recurrence
of maladministration is not obviated by Judge Hart's finding
(par. 29): "There has been no material abuse of the administration
of the permit system since April 24, 1969." This was a period
governed not only by Judge Bryant's preliminary injunction issued
April 26, 1969, but by unusual attention to the situation on the
part of the office of United States Attorney's staff, the
District Court and this court.
[fn57] 36 C.F.R. § 50.19(e)(1), set forth in the Appendix.
[fn58] See generally Blasi, supra note 46 at 1539-45.
[fn59] Support for the reasonableness of this requirement may be
found in Plaintiff's Exhibit 232 (Pl.A. Tab 46) in which the
Superintendent of the National Capital Parks-Central states.
. . . I believe it would be desirable to establish
an administrative policy requiring a reasonable
period of time for issuance of these permits, if
needed I recommend a reasonable length of time be
defined as six hours . . .
[fn60] We are concerned with the possibility that this drawn out
litigation has, to this point, reflected an insensitivity on the
part of the Park Service to the consideration that there are
"park values" in the use of these parks for speech and
demonstrations. It is our contemplation that the Park Service
will evolve coherent policies reflecting the concerns identified
in this opinion, and thereby obviate the continual involvement of
the courts in what should be essentially matters of park
administration and local police responsibility.
[83] MacKINNON, Circuit Judge (concurring in part and dissenting in
part):
[84] While I concur in much of the foregoing opinion, I do have some
disagreement with several of its findings and directions. We are
here dealing with the use of the White House and its environs,
and as the record states:
A. Well, aside from the White House being the
residence of the President, it is of course also his
office both at the White House and in the complex
next to the White House and the Executive Office
Building.
The White House is a center of a tremendously
important * * * defense communications system, since
the President is the Commander in Chief of the
military forces.
It is the seat of the National Security Council; it
has extremely important papers, documents; [and] it
is, of course, also, a national shrine and museum, a
piece of property that is very important to the
American People.
[Tr. 106] The Secret Service has the responsibility
of protecting the President. It also under Section
202 of Title 3 [, United States Code,] has the
responsibility for protecting the White House and the
[White House] grounds through the use of the
Executive Protective Service, formerly the White
House Police.
[85] G.A. IIIA, 274-75.[fn1] It is also common knowledge that the
White House contains the "Hot Line" to the Kremlin, which is a
vital factor in our national security.
I
[86] At the outset I concur in the majority's conclusion that the
present definition of the term "public gathering" is
constitutionally valid, Majority Op. at 728, but I disagree with
the inferences which the majority apparently intends should be
drawn from its discussion of the application of the definition.
Without explicitly so holding, it appears that the majority
intends its opinion to be interpreted to eliminate the
possibility that the regulation could be applied only to
individuals or groups who plan to engage in conduct normally
associated with First Amendment activity and also intends to
prevent its application to individual demonstrators entirely.
While the language of the regulation does not on its face require
the pattern of enforcement which the majority fears, counsel for
the Government did assert that it would be so applied. Assuming
that the permit requirement would be imposed on individuals or
small groups as well as larger demonstrations and assuming that
it would be applied only to those individuals or groups that
engage in conduct which is commonly associated with expression, I
do not find that such a regulation would necessarily be
unconstitutional.
[87] In United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20
L.Ed.2d 672 (1968), the Court stated:
This Court has held that when "speech" and
"nonspeech" elements are combined in the same course
of conduct, a sufficiently important governmental
interest in regulating the nonspeech element can
justify incidental limitations on First Amendment
freedoms.
[88] Id. at 376, 88 S.Ct. at 1678-1679. The validity of the
regulation thus depends on the presence of "nonspeech" conduct
which the Government has a legitimate interest in regulating. By
holding that the permit system is a constitutional prior
restraint on First Amendment activity, the majority has of
necessity found that certain elements of the conduct of a "public
gathering" are properly within the scope of government
regulation. However, when the Government chooses to regulate
certain conduct on the White House sidewalk and in Lafayette
Park, it is certainly not required to regulate all conduct by all
persons who may happen to enter that area and technically fall
within the definition of a "public gathering," so long as
distinctions are not made on an improper basis.
[89] It is a perfectly reasonable classification to exclude from the
permit requirement those individuals and groups who use the White
House sidewalk and Lafayette Park for non-assertive conduct, such
as tourists or normal pedestrians, while requiring individuals
and groups who use the area for combined speech and nonspeech
conduct to notify the authorities of their intended use and
obtain a permit under the applicable constitutional standards.
There may well be other aggregations of people which are
technically "public gatherings" but which do not pose a security
threat or interfere with the other interests protected by the
regulation.[fn2] Where no governmental interests are threatened,
it would certainly be reasonable for the National Park Service to
adopt regulations exempting such activities. However, the
majority's proposal for a minimum size limit on the permit
requirement is not supported by any evidence that smaller "public
gatherings" do not engage in conduct which is properly the
subject of regulation or that such gatherings do not pose dangers
which require prior notice and a permit.
[90] The majority states that the criteria for enforcement may not
"discriminate against First Amendment activity, e.g., whether a
person has a sign, or whether the sign has an acceptable
message." Majority Op. at 728. In fact, picketing is one form of
conduct specifically included in the definition of "public
gathering" in which the majority sees "no constitutional
objection." Clearly the Government can choose to regulate the
type of conduct known as picketing by requiring a permit. What
the Government is constitutionally prohibited from doing, as the
majority correctly notes, is discriminating in the enforcement of
the regulation on the basis of the message conveyed by that sign.
[91] The majority also concludes that it would be "absurd" to apply
the regulation to a single demonstrator and suggests the
redefinition of "public gathering" in terms of a group of some
minimum size, which would completely exempt individuals from the
permit requirement. In United States v. O'Brien, supra, the
Court held that the application of a statute which involved
"incidental limitations on First Amendment freedoms" to a
single public demonstrator was constitutional. In my opinion,
the National Park Service can similarly apply the instant
regulation to individuals as well as groups that engage in
conduct for which a permit may be required. Several
considerations support this conclusion.
[92] A major purpose of the requirement that demonstrators apply for
a permit is to provide the authorities with advance notice of
proposed uses of the White House area so that appropriate
precautionary measures may be taken for the safety of all
concerned. This need is at least as great if 50 individual
demonstrators propose to appear at the same time as it is in the
case of one group of 50 demonstrators. In fact, the need for
advance notice is even greater where an individual or small group
intends to take a position hostile to or provocative of other
demonstrators lawfully in the area.
[93] The need for being alert to all possible threats to the
President and to the White House is also justification for
requiring permits of single individuals engaged in expressive
conduct. After all, every assassination of a President in our
history was the work of a single individual and only one (Booth)
had known confederates. The two most recent penetrations of the
White House security barriers were also by single individuals —
one landed in a helicopter and one, Marshall Fields, Jr., as
recently as December 25, 1974, crashed the gate in an automobile
and appeared to be wired to explosives.[fn3] Admittedly, the
permit requirement will have little effect on individuals with
such purposes in mind, but it cannot be said with certainty that
the restriction has no deterrent value. If we were to limit the
permit requirement to groups and exempt individuals therefrom, we
could be excluding those that history has demonstrated pose the
most serious threat to our Presidents, i.e., individuals acting
alone. I can not join in suggesting the adoption of such a
deficient regulation. To do so under the guise of protecting free
speech would deny necessary protection to the President, the
White House and its other occupants. To my mind the majority
opinion does not fully recognize the nature of the security
threats that the record and history reflect are traditionally
directed against the President and the White House.
[94] While I thus believe that the Government's power to require
permits of those who desire to demonstrate in the White House
area is not as limited as the majority suggests, the present
language of the regulation seems insufficient to support its
enforcement in the manner indicated by Government counsel. If it
is to be applied to individuals as well as groups, the definition
of "public gathering" should be clarified to give notice of
exactly who must apply for a permit.
II
[95] The foregoing opinion also strikes the exemption for "NPS
events" and requires the National Park Service to get a permit
from itself for events which its sponsors that would fall within
the definition of a "public gathering." This seems a somewhat
useless exercise. However, this alteration of the regulations
might produce some good by requiring that permit applications for
all White House area events be cleared internally through the
same section of the National Park Service. It will also encourage
coordination of those agencies concerned with presidential and
White House security matters, which was one of the
recommendations of the Warren Commission.
III
[96] I concur in approving the denial of permits where the
application and investigation indicate a "clear and present
danger to the public safety, good order or health."[fn4] To my
mind "good order" includes some right to deny permits to
applicants who would use the facilities in a manner incompatible
with the normal use of the White House and its environs.
IV
[97] This brings us to the maximum number of demonstrators who may
be granted a permit to use (1) the White House sidewalk on
Pennsylvania Avenue and (2) Lafayette Park.
[98] In 1967, with the Attorney General (Ramsey Clark)[fn5] and
Department of the Interior and Secret Service personnel
participating,[fn6] it was decided that permits would be granted
for groups of up to 100 persons to use the White House sidewalk
and up to 500 persons to use Lafayette Park. The subsequent
application of these limitations led to protracted litigation
which has involved several instructional remands from this court.
In the interim the instant regulations were promulgated. These
originally carried forward the 100/500 limitations.[fn7]
Following our last remand the trial court ruled[fn8] that any
limits of less than 750/3000 would be more restrictive than is
essential for the protection of the President and the White House
and for the protection of the other interests asserted by the
Government.[fn9] This increase to 750/3000 from 100/500 resulted
from the remands of this court as interpreted by the trial court.
To conform to the court's orders, the National Park Service on
September 4, 1973, amended its regulations to incorporate the
750/3000 limitations.[fn10]
[99] I continue to adhere to the views concerning the reasonableness
of the 100/500 limitations expressed in my dissenting opinion in
A Quaker Action Group v. Hickel.[fn11]
[100] To my mind the 100/500 limitations were reasonable and proper and
the evidence of record was sufficient to support them. Mr.
Rowley, Director, U.S. Secret Service, testifying as an expert on
the security considerations applicable to the President and the
White House, stated:
A we feel [that] you can [better] contain 100
people [in a confrontation situation] with a minimum
[show] of force and in low key[,] and keep them under
control[,] than you could with any greater [show of]
force[.] * * * [In our view] the greater the [show
of] force [by the Government], the greater your
security appearance [will necessarily be.] * * *
[A]nd the greater your security appearance[,] * * *
the greater [will be the chance that violence will be
sparked during any confrontation. The opportunity
presented to militants to create a violent
confrontation is greater, if we] convey [that our
defensive forces are operating] under a fortress or
military condition.
[101] G.A. IIIA, 244-45 (Brackets in original).
What * * * [I'm] trying to convey is that we * * *
[believe in] maintain[ing] * * * [a] low [security]
profile [around the White House], and avoiding any
appearance * * * that we are in a military [garrison
state] or under military rule[,] or something of that
nature[.] * * * [That] might be the [very] objective
* * * some of the [dissident] people [seek] to convey
* * * [in order] to bring [noncommitted persons as]
sympathizers into their [dissident] ranks.
[102] Id., 246-47.
A I'm saying this is what we have in effect today.
There's no [show of a garrison-like appearance
during] demonstrations, there's nothing * * * [to
indicate that we are expecting to have to deal with
confrontation and violence occurring during the
demonstration,] * * *. And with * * * [our low-key
security force] appearance, [we convey the impression
that we expect] nothing untoward * * * [to be]
happening in the Government[.] except that the
President is functioning in the normal course of his
daily work[, while the demonstration is peaceably
taking place in the immediate vicinity of the White
House].
Q How does conveying to the public that there is
no concern over the President's security, because you
don't have so many armed people around there, add to
his security?
A I think [what] * * * we are trying to convey [is
that,] without any [abhorrent garrison-like
appearance,] we are conducting our [security] work
efficiently[, and this helps conduce peaceable
demonstrations, without confrontations sparking any
violent outbreaks].
Q You say on page 8 of your affidavit, "It is, of
course, possible to protect the White House against
assaults from Pennsylvania Avenue by the use of
sufficient personnel armed with adequate weapons."
That's the same point, [Dep. 100] but you don't want
to do that, you'd rather have a low profile; is that
the point?
A That's right.
Q On page 9 you said, "Additional military type
devices have been considered and rejected as both
dangerous and inappropriate to the area."
[103] Id., 248-49. Later Director Rowley gave his expert opinion that
the available Secret Service personnel would be able to handle
the situation if a 100-person limitation was maintained with
respect to the White House sidewalk.
[the 100-person limitation] would enable us to
contain any group of that size with what we have
present at the present time in the form of security
personnel [in front of the White House].
[104] Id., 264 (emphasis added).
[105] All this is in keeping with the need for maintaining a "low
profile" of security forces around the White House.
We [must] provide a secure environment in which he
can carry out the duties of the Presidency. Now, in
that regard, we feel that what the American people
want[,] and what is necessary [for us to maintain] in
this country * * * [considering the nature of our]
democracy, is not to have [the White House maintained
as] a fortress in which the President lives and
carries out his [Presidential] office [duties]. We
feel that [maintaining a fortress —] kind of * * *
security [around the White House] merely exaggerates
the [protective security] problem that is caused when
people [see that we] have a heavy security force
[present as] necessary to keep demonstrators in line.
We [strive to] maintain * * * comparatively few
officers visible around the White House[.] * * *
[A]nd all of our security measures are * * *
[centered] around this [basic] concept that we ought
to have our protective] security [force] as invisible
as it possibly can be in our society.
[106] Id., 287. Director Rowley was testifying that based on his
experience, he considered that the presence of an expanded
uniformed White House security force necessary to control a large
crowd of demonstrators might prove to be provocative to the
demonstrators whereas a smaller group of security officers would
not be provocative. Recent experience in a number of militant
confrontations at the White House has proved the wisdom of this
conclusion.
[107] In my opinion, the foregoing excerpts from the record are
sufficient evidence to sustain the 100/500 limits prescribed in
the regulation and to prevent this court from embarking on its
own legislative scheme which amounts to nothing more than the
imposition of judicial government. The fact that the trial court
found that larger demonstrations in the past had not posed a
serious threat to the President is no justification for
authorizing higher limits. All that experience proves is that,
to date, larger groups have not degenerated into unruly mobs or
been used successfully as shields for aggressive action against
the White House or its occupants, but that is no guarantee for
the future. Also, increasing the number of allowable
demonstrators because larger groups have not gotten out of hand
in the past ignores the expert testimony of the Secret Service
that the 100-person limitation was what the security personnel at
the White House were presently able "to contain." Id., 264.
[108] Of course, the Secret Service could meet the larger threat of
the 750/3000 limitations, but that would require a substantial
enlargement of the security personnel surrounding the White
House. Congress would have to appropriate substantial additional
funds. This would be in addition to the several million dollars
per year recently provided by Congress because of increased
militant activity.[fn12] The question is why should the Secret
Service be required to increase its White House force or why
should Congress be required to appropriate more money. The
100/500 limits, with any overflow using the nearby Ellipse, to my
mind reasonably accommodate all conflicting interests and rights.
To increase the limits sevenfold will attract larger
demonstrations and the White House will then appear to be a
citadel with security personnel bristling everywhere. That is not
my idea of the proper use of the White House or of the appearance
that the citizens of our country desire it to present. The White
House is intended primarily as a residence, not an American Hyde
Park. As the Secret Service personnel testified, the large
increase in security personnel required by the increased limits
can be a factor that incites violence. To best discharge their
assigned mission, they therefore desire to maintain a
non-provocative "low profile." Since the 100/500 limitations,
with the Ellipse handling any overflow, adequately recognize all
First Amendment rights, I would approve such limits.
[109] The majority opinion recognizes that it might be necessary to
erect "a barrier" around the White House and seeks comfort in the
possibility that this "barrier" might have "an acceptably open
aspect." Majority Op. at 736. However, it is very difficult for a
barrier to give the appearance of being open and still fulfill
the function of a barrier. The majority wants to carry water on
both shoulders. This discussion, more than anything else, really
discloses what the majority opinion may do to the environs of the
White House if their suggestions were to be followed.
V
[110] Whatever limits on the number of demonstrators are adopted, I
do concur in permitting the waiver of such limits after a proper
showing. This will permit the exercise of some judgment in
evaluating the provocative nature of a proposed gathering. In
addition to this authority to increase the limits, I also believe
that the regulations should permit the National Park Service to
impose lesser limits in those cases where smaller groups might
pose a larger than ordinary threat.[fn13] This is only a slight
modification of the right and duty to deny permits altogether
where too great a threat is posed.
VI
[111] The foregoing opinion strikes out of the regulation the
provision limiting permits to no more than seven consecutive days
and no more than 24 consecutive hours. This provision was
apparently viewed as being designed to allow the allocation of
scarce space to competing demonstrators. If it had this limited
purpose, the majority might be correct in finding it to be unduly
restrictive and in requiring the NPS to consider each application
individually. However, the area in question is intended for
official use by the President, his staff and those having
business with the Executive branch of the Government, and for use
by citizens who have no desire to convey a message (e. g.,
everyday pedestrians and visitors to the nation's capital) as
well as by citizens bent on exercising their First Amendment
freedoms. The seven day-24 hour restruction appears to me to be a
reasonable attempt to balance the interests of all citizens in
the use of the White House area. Certainly no group is entitled
to exclude the rest of the nation from these public areas for an
extended period of time. If anything, the regulation is overly
solicitous of the interests of demonstrators.
[112] Rather than eliminating the seven day-24 hour provision, if
flexibility is desired, the better course would be to provide for
waiver upon an appropriate showing as was done with the numerical
limitations.
VII
[113] The majority suggests the adoption by the NPS of standards to
be applied in revoking permits. As I see it, these standards are
already in the act, i. e., the same standards that would
justify the denial of the permit in the first instance.[fn14]
[114] I respectfully dissent from the majority opinion to the extent
it is inconsistent with my views as set forth above. Subject to
the foregoing exceptions, I concur in the other holdings of the
majority opinion. However, I consider the paragraph immediately
preceding the Conclusion, Majority Op. at 735-736, supra, to be
unnecessary to our decision. Too frequently our dicta cause
future strains rather than avoid them.
[fn1] G.A. refers to Government Appendix.
[fn2] See note 9 infra.
[fn3] Secret Service personnel testified in this case that
persons intent on "assaulting a President" could "run a car
through a gate . . . . Those gates aren't secure, they are
decorative fences that mark off the perimeter of the [White]
House. They are not security fences." G.A. IIIA, 302.
[fn4] 36 C.F.R. § 50.19(f)(2) (1973).
[fn5] G.A. IA, 64.
[fn6] Id., 65.
[fn7] 36 C.F.R. § 50.19(g)(2), (3).
[fn8] A Quaker Action Group v. Morton, Civ. No. 688-69 (D.D.C.
Aug. 28, 1973), entered following remand by this court in A
Quaker Action Group v. Morton, 148 U.S.App.D.C. 346, 356,
460 F.2d 854, 864 (1971).
[fn9] G.A. IA, 84:
b. Rights of citizens to use the sidewalks and the
streets in front of the White House and Lafayette
Park for the normal uses for which they are provided
and maintained.
c. Safety of citizens using facilities as in b.
above.
d. Safety of demonstrators.
e. Ecology of Lafayette Park.
f. Alternate locations for large protests.
[fn10] 38 Fed.Reg. 24218 (Sept. 6, 1973).
[fn11] 139 U.S.App.D.C. 1, 4-9, 429 F.2d 185, 188-193 (1970).
[fn12] See Pub.L. 91-217, 84 Stat. 74, 91st Cong., 2d Sess.,
Mar 19, 1970, amending 3 U.S.C. §§ 202-207 to establish the
Executive Protective Service and increase the security force from
250 to 850.
[fn13] For instance, if the Palestine Liberation Organization
requested a demonstration permit for 600 and 2500, the Park
Service might well consider granting a permit for smaller
numbers.
[fn14] 36 C.F.R. § 50.19(f).
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