Iskcon of Potomac, Inc. v. Kennedy
| Decision Date | 08 August 1995 |
| Docket Number | No. 93-5301,93-5301 |
| Citation | 61 F.3d 949 |
| Parties | ISKCON OF POTOMAC, INC.; George Levinton, Appellees, v. Roger G. KENNEDY, Director National Park Services; Robert Stanton, Chief of National Capital Region; Robert E. Langston, Chief, United States Park Police, Appellants. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Sally M. Rider, Asst. U.S. Atty., with whom Eric H. Holder, Jr., U.S. Atty., John D. Bates, and R. Craig Lawrence, Asst. U.S. Attys., Washington, DC, were on the briefs, argued the cause, for appellants.
David M. Liberman, with whom Durvasula S. Sastri, Washington, DC, was on the brief, argued the cause, for appellees.
Before BUCKLEY, GINSBURG, and SENTELLE, Circuit Judges.
Opinion for the court filed by Circuit Judge BUCKLEY.
The National Park Service appeals from a district court decision that its regulations governing solicitation and sales in the parks within the National Capital Area violate the First Amendment. The court concluded that the regulations are unconstitutional to the extent that they prohibit members of the International Society of Krishna Consciousness of the Potomac ("ISKCON") from soliciting donations and selling audio tapes and religious beads within an area of the National Parks on which it had received permission to conduct a "Krishnafest" program. Accordingly, the court enjoined the Park Service from enforcing these regulations in an area of the National Mall adjacent to the Air and Space Museum. We affirm in part and reverse in part.
Congress has charged the Park Service with the task, among others, of
regulat[ing] the use of ... national parks [and] monuments ... by such means and measures as conform to the fundamental purpose of the said parks [and] monuments, ... which purpose is to conserve the scenery and the natural and historic objects ... and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.
16 U.S.C. Sec. 1 (1988); see also 16 U.S.C. Sec. 20 (1988) (). The Park Service's duty extends to areas within the National Capital Region, which include, among others, the National Mall, the Washington Monument grounds, and the Lincoln, Jefferson, and Vietnam Veterans Memorials.
The Mall, which is the site of this controversy, is an area of particular significance in the life of the Capital and the Nation. It extends almost two miles from the United States Capitol on the east to the Lincoln Memorial on the west and includes the grounds of the Washington Monument. This vast expanse serves a multiple of purposes, none of them commercial. It is a place where the public will relax and enjoy its landscaped vistas between visits to the eight museums and galleries that flank the eastern half of the Mall. Its lawns are used for a variety of activities ranging from kite flying to baseball, to picnics, to exhibitions. In season, it is filled by the crowds who come to listen to the annual Memorial Day concert or to watch the Fourth of July fireworks. It is also the place where men and women from across the country will gather in the tens of thousands to voice their protests or support causes of every kind. It is here that the constitutional rights of speech and peaceful assembly find their fullest expression.
The Park Service has been directed to protect the "fundamental purposes" of the Mall and of the other parks and monuments within the National Capital Region. To this end, it has promulgated regulations governing their use. See 36 C.F.R. Sec. 7.96 (1994). These provide, in part, that "[d]emonstrations and special events may be held only pursuant to a permit issued in accordance with [its provisions]." Id. at Sec. 7.96(g)(2). They also prohibit "[s]oliciting or demanding gifts, money, goods or services" in any of the parks. Id. at Sec. 7.96(a) & (h) (1994). With respect to sales, at the time the district court issued its injunction in this case, section 7.96(k) of the regulations provided:
(1) No sales shall be made ... and no article may be exposed for sale without a permit except as noted in the following paragraphs.
(2) The sale or distribution of newspapers, leaflets, and pamphlets, conducted without the aid of stands or structures, is allowed in all park areas open to the general public without a permit except [certain areas not relevant here]....
36 C.F.R. Sec. 7.96(k) (1994).
Pursuant to an informal "enforcement guideline" adopted by the Park Service, demonstration and special event permittees were provided with a sheet of "additional conditions of permit" which informed them that, in addition to books, newspapers, periodicals, and pamphlets, they would be allowed to sell bumper stickers, buttons, posters, and T-shirts so long as those items "have a message relative to your cause/activity." The guideline also contained a noninclusive list of "those items most commonly offered erroneously for sale," which included jewelry, hats, coffee mugs, and "records/tapes."
In May 1994, the Park Service published a notice in which it sought comments on a proposed amendment to the sales regulation. See National Capital Region Parks; Sales, 59 Fed.Reg. 25,855 (1994) ("Notice of Proposed Rule"). In it, the Service stated that after ten years of experience, it had concluded that the guideline had adversely affected the National Capital Region Parks. Specifically, it determined
that the display and sale of bumper stickers, buttons, posters and T-shirts, ... irrespective of the message presented, ha[d] brought discordant and excessive commercialism, as well as degraded aesthetic values, ... and ha[d] ... den[ied] visitors the variety of opportunities to safely enjoy park resources.
Since oral argument, the Park Service issued its final rule amending the sales regulation and rescinded the enforcement guideline. The revised regulation now limits the exemption from the Service's general prohibition on the sale of merchandise within the National Capital Region parks to books, newspapers, leaflets, pamphlets, bumper stickers, and buttons. See National Capital Region Parks; Special Regulations, 60 Fed.Reg. 17,639, 17,649 (1995) (). The new rule thus continues to allow the sale of certain printed materials, such as books and buttons, while prohibiting the sale of all other articles, including audio tapes, that may carry a message. The new rule, however, moots one of ISKCON's less compelling arguments; namely, that because the enforcement guideline had not been adopted in a formal rulemaking, it was subject to a kind of arbitrary application that is inconsistent with a valid "time, place, and manner" restriction on speech.
In May 1989, ISKCON obtained a Park Service permit to conduct a "Krishnafest" on the Mall in an approximately 100 square-foot area directly across from the National Air and Space Museum. According to ISKCON, a Krishnafest
entails public singing of Krishna conscious prayers and songs, discussing Krishna consciousness with interested persons, distributing religious literature, audio cassette tapes, and religious beads to interested persons, and soliciting voluntary contributions from the general public.
Plaintiffs' Statement of Material Facts as to Which There Is No Genuine Issue at 7. ISKCON asserts that a basic tenet of Krishna Consciousness requires its adherents to engage in "sankirtan," which means "to venture into public places for the purpose of spreading religious truth, proselytizing and attracting new members, and raising funds to support their religious activities." Id. at 5. ISKCON contends that the sale of audio tapes and religious beads and the solicitation of contributions from the public are important aspects of sankirtan. ISKCON's initial permit, which authorized a twenty-one day program, was routinely renewed with only minor modifications until March 26, 1991, when it was revoked after a Park Service Police Officer determined that the group was offering beads, audio tapes, and incense for sale.
The day after the Park Service revoked ISKCON's permit, ISKCON asked the Service to reconsider that decision. Subsequently, ISKCON sought relief from the Office of the Solicitor, United States Department of the Interior. After these efforts proved unavailing, ISKCON and its community outreach director, George Levinton (collectively, "ISKCON") brought this action requesting a declaration that the Park Service's regulations governing solicitations and sales were unconstitutional and an order enjoining the Park Service from enforcing those regulations. The parties agreed to resolve the case through cross-motions for summary judgment and, on August 6, 1993, the district court granted ISKCON's motion and entered an order enjoining the Park Service and its "agents and employees ... from enforcing sections 7.96(h) and [ (k) ] ... in the area of the Mall adjacent to the Air and Space Museum." Iskcon of Potomac, Inc. v. Ridenour, 830 F.Supp. 1, 5 (D.D.C.1993). With the consent of the parties, the court subsequently amended its order, narrowing its scope "to plaintiffs' activities with respect to sankirtan, and the sale of beads and audio tapes." ISKCON of Potomac, Inc. v. Kennedy, No. Civ. A. 92-1092, slip op. at 2 (D.D.C. June 26, 1995).
ISKCON asserts that, as applied to its activities, the Park Service's solicitation and sales regulations violate both the First Amendment and the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C....
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