472 F.2d 1273 (D.C. Cir. 1972), 24913, Women Strike for Peace v. Morton

Docket Nº:24913.
Citation:472 F.2d 1273
Party Name:WOMEN STRIKE FOR PEACE v. Rogers C. B. MORTON, Secretary of the Interior, et al., Appellants.
Case Date:July 14, 1972
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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472 F.2d 1273 (D.C. Cir. 1972)



Rogers C. B. MORTON, Secretary of the Interior, et al., Appellants.

No. 24913.

United States Court of Appeals, District of Columbia Circuit.

July 14, 1972

Argued Oct 18, 1971.

Judgment Dec 10, 1971.

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Mr. Gil Zimmerman, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty. at the time the briefs were filed, and John A. Terry and Joseph M. Hannon, Asst. U. S. Attys., were on the brief, for appellants.

Mr. Stuart A. Smith, Washington, D. C., with whom Mrs. Margery Waxman Smith and Messrs. Elliott C. Lichtman and Ralph J. Temple, Washington, D. C., were on the brief, for appellee.

Before WRIGHT, LEVENTHAL and ROBB, Circuit Judges.


Appellee is an anti-war organization which for some time has been seeking permission from the appellants to erect a temporary display in a national area near the White House called the Ellipse. After several unsuccessful attempts to obtain permission, appellee filed this action in the District Court for injunctive and declaratory relief. After initially granting the Government's motion for summary judgment and being reversed by this court, Women Strike for Peace v. Hickel, 137 U.S.App.D.C. 29, 420 F.2d 597 (1969), the District Court eventually granted the relief requested. We affirm.


J. SKELLY WRIGHT, Circuit Judge:

This case presents the latest chapter in the long and acrimonious dispute between various peace organizations and the Department of the Interior over the proper use of public park land in the District of Columbia. 1 More broadly, it poses once again the age-old question whether the Government may, in the guise of regulation, institute a system of standardless prior restraint which silences all voices except those meeting official approval.

For over three years, Women Strike for Peace (hereinafter WSP) has been seeking permission to erect a small, temporary display in a national park area known as the Ellipse. 2 The structure, eight feet high, 20 feet long and six feet deep, consists of 11 styrofoam tombstones, and is intended to commemorate those who have died in Southeast Asia. 3 When the Government rejected WSP's

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application for a permit to erect the display, WSP filed this suit seeking declaratory and injunctive relief. It argues that it has a First Amendment right to use the Ellipse so long as it does not substantially interfere with other park activities. Moreover, it maintains that the Government may not refuse it permission to use the Ellipse while simultaneously granting such permission to other private groups wishing to use it for similar purposes. In response, the Government argues that WSP's display is forbidden by the applicable regulations governing use of national park land, 4 that these regulations constitute a proper exercise of the Government's plenary powers over public land, 5 and that the regulations have been fairly and consistently applied.

The parties thus join issue on the extent to which the Government is obligated to turn over use of public park land to private groups seeking to engage in First Amendment conduct. It should be noted at the outset that this is hardly an issue of first impression. Years ago in Hague v. C. I. O., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939), Mr. Justice Roberts declared:

"* * * Wherever the title of streets and parks may rest, they have immemorially been held in trust for the 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. * * *" 6

Since Hague, the Supreme Court has repeatedly reaffirmed the First Amendment right of access to public places for expression of views-subject, of course, to reasonable regulations narrowly drawn to protect other competing interests. 7

But while most of us consider this right to be a part of our basic constitutional jurisprudence, it is apparently still open to question at the Department of the Interior. Thus the Department initially contended that it could deny WSP's request without stating any reason at all for the denial beyond the conclusory assertion that the proposed demonstration was "not an appropriate use of Federally-owned park lands and * * * not consistent with the protection and use of the Ellipse area." 8 Two and a half years of litigation have coaxed a variety of other, seemingly more substantial, excuses from the Department for why WSP's request cannot be granted. But although these reasons are baffling in their complexity and prolixity, 9 they do not amount to the sort of substantial governmental interest which the Supreme Court has found to be necessary if speech-related conduct is to be curbed. 10 Instead of pointing to any such discrete interest, the Government

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ultimately chooses to rest upon the sweeping assertion that "[its] constitutional power * * * to limit uses of its public property consistently with its reasonable views as to what the public interest and the 'general comfort and convenience' paramountly require, is not to be doubted." 11 If the Government means by this assertion that such power is not doubted by the lawyers in the Department of the Interior, then it is merely restating a proposition made all too obvious by the Department's unfortunate record in this litigation. But if, as seems more likely, the Government means that courts must accept curtailment of First Amendment activity in accordance with a standard no more precise than the "public interest, " then its position raises the most serious sort of constitutional doubt. 12

For reasons detailed below, in my judgment the Government lacks power to pick and choose among citizens wishing to communicate their views on the basis of what some administrator thinks is in the "public interest." Moreover, the Government has failed to come forward with the kind of substantial and specific countervailing interest which would justify curtailment of WSP's speech-related conduct. WSP therefore has a constitutional right to erect its display in the Ellipse area.


This dispute began on November 4, 1968, when WSP filed an application for a permit to erect its display as an adjunct to the Christmas Pageant for Peace, held annually on the Ellipse during the Christmas season. 13 The Christmas Pageant, a so-called "National Celebration Event, " has occupied a portion of the Ellipse during each Christmas season since 1954. 14 The Pageant is produced by a private civic organization known as Christmas Pageant for Peace, Inc., with the co-sponsorship of the National Park Service. 15 It consists of a large Christmas tree at the center of the Ellipse and a group of satellite displays which together occupy only a small portion of the park. 16 WSP requested that it be allowed to erect its display on "[a]n area of the Ellipse adjacent to that occupied by the Pageant of Peace but sufficiently removed so as to avoid any interference with already scheduled events." 17

In response the Government denied WSP's request, contending that "the entire Ellipse area is scheduled to be used in conjunction with the Pageant of Peace, " 18 and that it would therefore be inappropriate to allow another organization to use a portion of the park. The Government took this position despite the fact that the Christmas Pageant was

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to occupy only a small portion of the Ellipse. The Government also chose to ignore WSP's explicit assurance that it would accept a site for its display which in no way interfered with the Pageant. 19

Moreover, when WSP took steps to circumvent the Government's preemption argument against erection of the display, the Government shifted ground and found other reasons for not granting WSP a permit. Thus, after its initial rebuff, WSP elected to concede for the moment that the Pageant had an exclusive right to use the Ellipse during the Christmas season, and applied for use of the park during the weeks immediately following Christmas. 20 Although no other group was scheduled to use the park at this time, the Government nonetheless again chose to reject the request, this time because erection of displays was not deemed "an appropriate use of Federally-owned park lands and * * * not consistent with the protection and use of the Ellipse area." 21 However, the Government failed to explain why erection of much larger displays by the Christmas Pageant was an "appropriate use of Federally-owned park lands" or why WSP's small structure endangered the "protection and use of the Ellipse area" whereas the Christmas Pageant did not.

After WSP had been rebuffed several more times in its efforts to secure permission to erect its display at various times of the year, 22 it filed this suit in the District Court requesting injunctive and declaratory relief. On July 10, 1969, District Judge Hart granted the Government's motion for summary judgment without filing a written opinion. 23

On appeal, a panel of this court reversed and remanded the case to the District Court. 24 Speaking for a majority of the panel, Judge Leventhal held that pictorial displays such as that proposed by WSP "have at least a prima facie relevance to freedom of expression, " 25 and that the Park Service "must * * * take into proper account matters that have at least a non-frivolous constitutional aspect, and must take a hard look at them and give them reflective consideration." 26 Judge Leventhal further said that, on the record as it then stood, the Government had failed to show why WSP's display was more objectionable than the structures associated with the Christmas Pageant. The court specifically found that the Christmas Pageant, like the WSP display, "does have, and is intended to have a message, [and]...

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