420 F.2d 597 (D.C. Cir. 1969), 23268, Women Strike for Peace v. Hickel

Docket Nº:23268.
Citation:420 F.2d 597
Party Name:WOMEN STRIKE FOR PEACE, Appellant, v. Walter J. HICKEL, Secretary of the Interior, Appellees.
Case Date:August 01, 1969
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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420 F.2d 597 (D.C. Cir. 1969)

WOMEN STRIKE FOR PEACE, Appellant,

v.

Walter J. HICKEL, Secretary of the Interior, Appellees.

No. 23268.

United States Court of Appeals, District of Columbia Circuit.

Aug. 1, 1969

Argued July 16, 1969.

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Mr. Elliott C. Lichtman, Washington, D.C., with whom Mr. Ralph J. Temple and Mrs. Margery Waxman Smith,

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Washington, D.C., were on the motion, for appellant.

Mr. Gil Zimmerman, Asst.U.S.Atty., argued the opposition to the motion for appellees. Messrs. Thomas A. Flannery, U.S.Atty., and John A. Terry, Asst.U.S.Atty., also entered appearances for appellees.

Before WRIGHT, LEVENTHAL and ROBB, Circuit Judges.

PER CURIAM:

The summary judgment granted appellee is reversed, and the cause is remanded for further proceedings. Judge LEVENTHAL has written an opinion supporting this result. Judge WRIGHT is of the view, as set forth in his separate opinion, that the court should enter a further order in protection of the interests asserted by appellant. However, he concurs in Judge LEVENTHAL's opinion as far as it goes, and he joins in the foregoing result for the purpose of obtaining an effective mandate of this court. Judge ROBB has filed a dissenting opinion.

LEVENTHAL, Circuit Judge:

Appellant is a peace organization seeking use of the national park area known as the Ellipse for the purpose of holding an antiwar demonstration in early August 1969, on the anniversary of the bombing of Hiroshima and Nagasaki. A controversy arises because the organization wishes to construct a visual display, 8' high, 20' long, and 6' deep, in order to present a graphic peace message that will focus attention upon appellant's vigil. The National Park Service is willing to consider the issuance of a permit for a public gathering on the Ellipse to express the desire of appellant's members for 'peace in general and for peace in Vietnam in particular.' But the Park Service has categorically refused to issue a permit which will authorize appellant to construct the display it desires.

Appellant brought this action in the District Court urging that the denial of a permit violates its constitutional rights. It contends that the use of a graphic display in order to dramatize its peace message is activity that comes within the protection of the First Amendment, and, further, that the display is crucial to its proposed demonstration. It also claims a denial of equal protection of the law 1 because the Park Service annually authorizes the use of structures on the Ellipse by another private group in connection with the Christmas Pageant of Peace. 2

The Government argues that the case essentially involves only a request for a privilege, to erect a structure on Government park land, 3 and claims that

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freedom of expression is involved only incidentally. It also claims that appellant's demonstration is entirely distinguishable from the annual Christmas Pageant of Peace.

The District Court granted the motion of the National Park Service for summary judgment. We reverse that summary disposition and remand for further proceedings.

We are not called upon here to determine to what extent the interest in communication of ideas is or may be subordinate to other interests of the Government in regard to parks. Assuming that legitimate park policy may permit or require overriding a claim to freedom of expression in some instances, when a group, like appellant, makes a colorable claim of an interest in freedom of expression, the claim requires consideration by the Park Service on a reflective basis. 4

Parks are a particular kind of community area that, under the Anglo-American tradition, are available, at least to some extent and on a reasonable basis, for groups of citizens concerned with expression of ideas. 5 The regulations of the National Park Service expressly contemplate that parks may be used for this purpose. 6

We turn to the narrower question whether appellant may erect a 'display'--what the Government refers to as a 'structure.'

Certainly pictorial displays have at least a prima facie relevance to freedom of expression. Non-speech activities may be protected by the First Amendment. 7 The foregoing is of

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course subject to the doctrine which holds that when activity (or conduct) has both 'speech' and non-speech elements, a substantial Government interest in regulation of the non-speech element may justify an incidental restriction on First Amendment freedoms. 8

We do not understand the Park Service to assert that its regulations requiring a permit for 'structures' would enable it to adopt an iron policy forbidding any and all structures in parks. Such a position would lead to the absurdity of permitting gatherings, but prohibiting speaker's stands.

The record does not clearly set forth the basis on which the Park Service denied the permission requested by appellant for its particular display. The letter of the Park Service denying appellant's request said that 'we do not view the erection of a 'symbolic anti-war display' structure approximately 20 feet long, 8 feet high and 6 feet deep as an appropriate use of Federal park lands.' 9 This letter, which contains what logicians call a negative pregnant, leaves it unclear whether the refusal of the Park Service was based on the theme or the size of appellant's proposed display. These present quite different legal considerations. If the problem had been identified as size, perhaps the matter could have been settled by agreement.

There may obviously be considerations justifying limitations on a display's size, duration, or positioning (e.g., limiting placement to a corner of the park), in order to avoid or limit interference with other simultaneous uses of the park.

The record also contains an earlier Park Service letter which refers to appellant as seeking a permit for an 'illuminated billboard.' 10 Does this indicate that some visual display might be acceptable, but that the Park Service considered an illuminated display to be objectionable as garish? If this was crucial, a clearer statement of the attitude of the Park Service might have obviated or confined the controversy. We would have supposed that all appellant intended to request was a 3-dimensional visual display that was floodlit at night, as is the Nativity scene of the annual Christmas pageant. The Christmas floodlit display is certainly not fairly described as an illuminated billboard. But perhaps this phrase cannot provide illumination for us, and was intended-- and reiterated by counsel at argument-- to provide color for a denial based on other grounds.

Again, it is not clear whether the objection was solely to the display on the Ellipse or would have applied to other Park grounds. It may well be that a sound park policy could accommodate the use of some park areas for public expression, and reservation of certain park areas for other purposes. However, we have not been presented with a coherent statement of park policy along these lines.

Government counsel urged at argument that the case might be disposed of on the principle that some park areas may be reserved for calm and quiet. That principle may be accepted, but it hardly seems pertinent to the Ellipse,

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which frequently witnesses the exuberance of four simultaneous softball games, not to mention arrivals and departures at the centrally located helicopter pad.

The Government does not assert that park policy precludes erection on the Ellipse either of all displays, or of displays that carry a message. The Christmas Pageant of Peace which it annually authorizes includes an enormous Christmas tree, an array of smaller evergreens, various choral, band and speakers' platforms, and a lighted life-size Nativity scene. A prime purpose of the pageant is to proclaim the message of 'peace on earth to men of goodwill.' 11

The affidavit of the head of the Capital Division of the Park Service seeks to distinguish the Christmas Pageant for Peace on the ground that this is a 'recreational event.' It has that aspect but since it plainly does have, and is intended to have, a message, the effort to label it as merely 'recreational, ' in the hope that it can be assimilated to the kind of use on the Ellipse illustrated by softball games, is entirely too shallow to support restriction on First Amendment activities.

The Park Service affidavit also stresses the participation of the President, the Secretary of the Interior, and other Cabinet officers in the Christmas Pageant program. The argument seems to be that this participation identifies the Christmas Pageant program as a 'quasi-governmental activity.' This aspect of the case is not immaterial but reflection reveals that it is not decisive and indeed may raise more questions than it answers. This reflection could begin with the problem of the political party, which in basic legal conception stands on much the same ground as any other organization or assembly of citizens, not excluding appellant-- that is to say, it is a group of persons with rights of assembly, and a desire to express ideas and to influence governmental policy. The President and Cabinet members typically attend meetings of their political party, and indeed, they are expressly exempt from the Hatch Act. There is an undoubtedly close relation between political parties and the Government: they may share the same leaders; they are subject to similar constitutional restraints concerning the responsibility of recognizing rights of individual citizens who desire to affect their programs. But the Park Service could hardly justify granting access to a park by the party in power, because its meeting was attended by Cabinet officers, while denying it to other groups of citizens.

The District Judge referred to the fact that Christmas is a national holiday declared by Congress. And indeed Congress has declared it to be a legal public holiday, see 5...

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