Friends of Vietnam Veterans Memorial v. Kennedy, Civ. A. No. 95-808.

• Decision Date: 12 September 1995
• Docket Number: Civ. A. No. 95-808.
• Citation: 899 F. Supp. 680
• Parties: FRIENDS OF the VIETNAM VETERANS MEMORIAL, et al., Plaintiffs, v. Roger G. KENNEDY, et al., Defendants.
• Court: U.S. District Court — District of Columbia

899 F. Supp. 680

FRIENDS OF the VIETNAM VETERANS MEMORIAL, et al., Plaintiffs, v. Roger G. KENNEDY, et al., Defendants.

Civ. A. No. 95-808.

United States District Court, District of Columbia.

September 12, 1995.

Alexander P. Humphrey, Chevy Chase, MD, David Liberman, Los Angeles, CA, for Friends of the Vietnam Veterans Memorial, Warriors Incorporated, Last Firebase Archives Project, Americans for Freedom Always, Gaudiya Vaishnava Society, One World One Family Now, Inc., Open Art, Inc.

Marina Utgoff Braswell, U.S. Attorney's Office, Washington, DC, for Roger G. Kennedy, Robert G. Stanton, Robert E. Langston.

Valerie J. Menard, Washington, DC, pro se.

David Ingles Stone, Fairfax, VA, pro se.

Arthur Barry Spitzer, American Civil Liberties Union, Washington, DC, for American Civil Liberties Union of the National Capital Area.

Craig A. Johnson, Wiley, Rein & Fielding, Washington, DC, for American Alliance for Rights and Responsibilities.

MEMORANDUM OPINION

SPORKIN, District Judge.

The issue before this Court is whether a National Parks Service Regulation banning the sale of message bearing T-Shirts on the Mall and other parks in the National Capital area violates the First Amendment of the Constitution. Plaintiffs are a number of non-profit groups, who engage in the sale of message-bearing T-Shirts on the National Mall.

I. Background

Seven groups, Friends of the Vietnam Veterans Memorial (FVVM), Gaudiya Vaishnava Society (GVS), One World One Family Now (One World), Warriors Incorporated, Open Art, Last Firebase, Americans for Freedom Always (AFFA),¹ have challenged the Parks Department Regulation 36 C.F.R. § 7.96(k)(2) as a violation of their rights under the First Amendment to the Constitution.² Four of the seven groups attempt to raise public awareness about POW/MIAs from the Vietnam War and use message bearing T-shirts as a way to spread their message. Other plaintiff groups, such as Open Art are protesting environmental damage such as global warming and depletion of the ozone layer.

In pertinent part the regulation in question, 36 C.F.R. § 7.96(k)(2) reads:

No merchandise may be sold during the conduct of special events or demonstrations except for books, newspapers, leaf-lets, pamphlets, buttons, and bumper stickers.

The primary focus of the parties has been the effect of the regulation as it applies to the sale of T-shirts on the National Mall. Indeed, in its commentary on the regulation, the National Park Service had this to say:

After careful consideration, the NPS has concluded that the basic problem of commercialization and attendant adverse impacts on park values is caused by T-shirt sales. It has also concluded that the problem cannot be abated by other than a ban on such sales on park land. (National Capital Regions Parks; Special Regulations, 60 Fed.Reg. at 17642 (1995).)

The Mall runs from the grounds of the Capitol to the Lincoln Memorial and is bordered by a series of major thoroughfares including Pennsylvania Avenue, Madison Drive, and Constitution Avenue to the North and Maryland Avenue, Jefferson Drive, and Independence Avenue on the South. Tourist attractions such as the Smithsonian Institute, and the National Air and Space Museum, and numerous government buildings border the Mall.

Millions of people come to the Mall every year. It is regularly visited by sunbathers, runners, softball and touch football players, strollers and others visiting the monuments or simply coming to enjoy the park. It is the site of festivals and concerts both large and small.

The National Mall also has a venerable history as the site of some of the largest demonstrations in this nation's history concerning important issues. Martin Luther King made his "I Have A Dream" speech before a crowd of over 100,000 on the Mall during the 1963 March on Washington.³ Numerous demonstrations against the Vietnam War were held there;⁴ more recently groups advocating for and against restrictions on abortion have gathered on the Mall.

Although the parties focused on the Mall in their briefs and in argument, the ban on sales applies to other parks in the District of Columbia, including Dupont Circle, the Ellipse and Rock Creek Park.

II. Analysis

A.

In determining whether the regulation is constitutional as applied, the Court must first determine whether plaintiffs are engaged in activities protected by the First Amendment. Although the language of the First Amendment refers to "freedom of speech," it is undisputed that the Constitution protects more than oral expression. The Supreme Court has found burning the American flag, Texas v. Johnson, 491 U.S. 397, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989), words written on clothing, Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971),⁵ and black armbands worn to protest the Vietnam War, Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 505-06, 89 S.Ct. 733, 735-36, 21 L.Ed.2d 731 (1969), to be protected by the First Amendment. The plaintiffs in this case are selling materials that convey distinct messages, such as T-Shirts that attempt to raise public concern about the plight of MIAs and POWs in Vietnam.

B.

In Iskcon v. Kennedy, 61 F.3d 949 (D.C.Cir.1995), the Court of Appeals considered a challenge by the International Society of Krishna Consciousness to the validity of the Parks Service regulation as applied to solicitation and the sale of religious beads on the Mall. Judge Buckley's majority opinion and Judge Ginsberg's dissent in Iskcon set forth much of the applicable First Amendment law.

The Mall and other parks in the Nation's Capital are public forums. See United States v. Grace, 461 U.S. 171, 177, 103 S.Ct. 1702, 1706, 75 L.Ed.2d 736 (1983) ("Public places historically associated with the free exercise of expressive activities, such as streets, sidewalks, and parks, are considered, without more, to be `public forums.'").

In determining how far the government may go in imposing restrictions on expression in a public forum, the Iskcon panel analyzed the regulation under the test set forth in Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 2753, 105 L.Ed.2d 661 (1989). Under that test, restrictions are valid if they are 1) content neutral, 2) narrowly tailored to serve a significant governmental interest, and 3) leave open ample alternative channels for communication of the information. See Id. at 791, 109 S.Ct. at 2753.⁶

The Iskcon court found the regulation at issue here was content neutral.⁷ But the panel unanimously found that the regulation banning solicitation was not narrowly tailored. See Iskcon, at 956 (Government interest in preventing "ills associated with runaway solicitation" does not justify sweeping ban on in-person solicitation throughout the Mall.) The majority of the panel upheld the ban on sales as applied to beads and audiotapes, because it was narrowly tailored and left open ample alternative means of communication.⁸ The opinion was silent with respect to message-bearing T-shirts.

III. The Cited Governmental Interests

"In a First Amendment challenge, the government bears the burden of showing that its restriction of speech is justified under the traditionally narrowly tailored test." United States v. Doe, 968 F.2d 86, 90 (D.C.Cir.1992). In attempting to justify the new sales regulation the government has proffered five interests that it claims are significant.

The government places the most emphasis on its first purported interest — eliminating "discordant and excessive commercialism on federal land" and the resulting "degraded aesthetic values." Administrative Record (hereinafter "AR") at L. The government also claims that the sales regulation is narrowly tailored to serve the significant interest of relieving "increasing pedestrian and vehicle congestion," AR at E, preventing damage to the Mall's trees, shrubs, grass and soil, id. preserving unimpaired views of the monuments, and finally preventing "criminally related offenses." Id.

The primary interest that the government relies on to justify its regulation is preventing "discordant commercialism" and eliminating a "flea market" atmosphere in National Parks. AR at C.⁹ The government has developed the record on this issue more than on any other. It has submitted numerous written statements about the effect of vendors on the Mall and photographs of various portions of the Mall. Despite the Park Service's action, the Court finds the absolute ban on the sale of T-Shirts invalid on two grounds. First, the sales ban does not leave open ample alternative means of communication; second, it is not narrowly tailored to achieve the government's interest.

IV. Ample Alternative Means of Communication

In Iskcon, the divided panel found that a sales ban on beads did leave open ample alternative means of communication. Beads and T-Shirts are a significantly different form of communication, however. A complete ban on the sale of message-bearing T-Shirts, does not leave open ample alternative means of communication for two reasons. First, the message-bearing T-shirt is a unique and especially effective means of communicating the plaintiffs' point of view. Second, sale of the T-shirts is the primary source of funds that enable these groups to continue to engage in their First Amendment activities.

The T-Shirt has become a unique means of spreading messages over the last twenty years. Unlike a book or pamphlet, the T-Shirt not only carries a message, it also turns the wearer into a "human billboard". See Affidavit of Larry Bice at ¶ 6 ("The sale of T-shirts containing a POW/MIA message is also our most effective form of communication. By obtaining and wearing one of our shirts, visitors carry our message all over the United States and the world. Indeed, no other mode of communication within our financial capacity has had the positive impact of message-bearing T-shirts."); see also affidavit of Gregory Scharf at ¶ 4; affidavit of Walt Sides at...