Iskcon of Potomac, Inc. v. Ridenour

• Decision Date: 06 August 1993
• Docket Number: Civ. A. No. 92-1092(HHG).
• Parties: ISKCON OF POTOMAC, INC., et al., Plaintiffs, v. James M. RIDENOUR, et al., Defendants.
• Court: U.S. District Court — District of Columbia

830 F. Supp. 1

ISKCON OF POTOMAC, INC., et al., Plaintiffs, v. James M. RIDENOUR, et al., Defendants.

Civ. A. No. 92-1092(HHG).

United States District Court, District of Columbia.

August 6, 1993.

David M. Liberman, Los Angeles, CA, Durvasula S. Sastri, Shamala J. Bhat, Silver Spring, MD, for plaintiffs.

Richard G. Robbins, Asst. Sol., for defendants.

OPINION

HAROLD H. GREENE, District Judge.

This is an action for an injunction brought by the International Society of Krishna Consciousness¹ and one of its members (Krishnas) to permit certain activities on the Mall in Washington, D.C., notwithstanding regulations issued by the National Park Service.

I

Plaintiffs obtained a permit from the Park Service in May 1989 to hold a so-called Krishnafest program on the Mall across from the Air and Space Museum. This program, which may last as long as twenty-one days, includes the public singing of Krishna prayers, the distribution and sale of audiocassettes and prayer beads, and the solicitation of contributions for the support of Krishna activities. The permit was routinely renewed until March 1991 when the plaintiffs were informed that Park Service regulations forbade the dissemination of audiocassette tapes and jewelry, including prayer beads. The Park Service also prohibits solicitations. See 36 C.F.R. § 7.96(h) and (j) (1991). Since the Krishna's activities were in violation of these restrictions, their permit to engage in the program on the Mall was revoked. Following an administrative appeal, the revocation was sustained. This action followed, and the matter is now before the Court on cross-motions for summary judgment.²

II

The government's defense of the regulations, while couched in varying terminology, in essence presents but a single rationale — that the Mall should be protected from the disruptive activities sought to be engaged in by the Krishnas. Thus, the government contends (1) that the parks should be preserved in an attractive and intact condition, readily available to the people who wish to enjoy them; (2) that the aesthetic aspects of the Mall and other Park Service property in the Washington area would be undermined by the Krishnas' solicitation; and (3) that visitors to the Mall and other parks must be protected from being harassed or bothered. Memorandum in support of Motion to Dismiss at 12-26. In short, the Park Service considers solicitation by the Krishnas a nuisance that would be a blight on the beautiful park property and might be resented by visitors to the Air and Space Museum and its environs, as well as to other parks in the National Capital area.

As will be seen below, none of these purposes presents a valid basis for the denial of the requested activities of the Krishnas. As our Court of Appeals has stated,

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 surely a `park use' as any tourist or recreational activity.

A Quaker Action Group v. Morton, 516 F.2d 717, 724 (D.C.Cir.1975). Similarly, the "public expression of ideas may not be prohibited merely because the ideas themselves are offensive to some of their hearers." Street v. New York, 394 U.S. 576, 592, 89 S.Ct. 1354, 1366, 22 L.Ed.2d 572 (1969); see also, NAACP v. Claiborne Hardware Co., 458 U.S. 886, 910, 102 S.Ct. 3409, 3424, 73 L.Ed.2d 1215 (1982).

It does not detract in any way from the magnificent Air and Space Museum and the beautiful, largely pristine parks in Washington to conclude that, as between the values they embody, and the protection of the First Amendment to the Constitution, the latter cannot validly be relegated by government to second place. Indeed, it is clear that the blunt Park Service prohibition is in violation of settled law.

III

There is no question but that the Mall area in Washington across from the Air and Space Museum is a public forum for protected speech. See generally, Women Strike for Peace v. Hickel, 420 F.2d 597 (D.C.Cir.1969). In fact, it is difficult to imagine an area more clearly established as a public forum than the Mall area in the Nation's Capital. It is also clear — and the government does not seriously contest³ — that plaintiffs' activities are sufficiently communicative to be protected by the First Amendment. That, of course, does not end the inquiry, for it is also established that the government may, in appropriate circumstances, place reasonable restrictions on the time, place or manner of protected speech, as long as alternative means of communication are left open. Ward v. Rock Against Racism, 491 U.S. 781, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989); Heffron v. International Society of Krishna Consciousness, Inc., 452 U.S. 640, 647, 101 S.Ct. 2559, 2563, 69 L.Ed.2d 298 (1981); CCNV v. Kerrigan, 865 F.2d 382, 387 (D.C.Cir.1989).

As indicated, the dispute between the parties now essentially revolves around the request of the Krishnas for permission to distribute beads and audiotapes and to solicit voluntary donations on the Mall at the place described above, and the denial of that request by the Park Service.⁴

As noted, regulations issued by the Park Service absolutely prohibit "soliciting or demanding gifts, money, goods or services." 36 C.F.R. § 7.96(h) (1991). Another regulation allows the sale or distribution of newspapers, leaflets, and pamphlets, 36 C.F.R. § 7.96(j) (1991), and, by a Park Service "enforcement guideline," that of bumper stickers buttons, posters, and T-shirts displaying messages directly related to a particular cause and activity. However, the guideline does not permit the sale or distribution, inter alia, of jewelry, records, and tapes. This case thus involves the issues (1) whether the ban on solicitations violates the First Amendment rights of the Krishnas, and (2) whether the prohibition on the sale by the members of the organization of beads and tapes violates the First Amendment.

With respect the solicitation issue, the government relies essentially on three recent decisions — United States v. Kokinda, 497 U.S. 720, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990); Lee v. ISKCON, ___ U.S. ___, 112 S.Ct. 2709, 120 L.Ed.2d 669 (1992); and Henderson v. Lujan, 964 F.2d 1179 (D.C.Cir. 1992). In the view of this Court, none of these precedents is directly applicable here. Indeed, to the extent that they are pertinent at all, they support plaintiffs' position rather than that of the government.

In Kokinda, supra, the Supreme Court considered the issue of solicitation on premises of the U.S. Postal Service. Holding that, although solicitation is a recognized form of speech protected by the First Amendment, the principal opinion authored by Justice O'Connor stated that it "is not unreasonable to prohibit solicitation on the ground that it is unquestionably a particular form of speech that is disruptive of business. Solicitation impedes the normal flow of traffic.... The Postal Service ... has learned from its experience ... that postal facility managers were distracted from their primary jobs by the need to expend considerable time and energy fielding competing demands for space and administering a program of permits and approvals." 497 U.S. at 733-34, 110 S.Ct. at 3123-24. This rationale is not dispositive in any way of the request of the Krishnas for permission to solicit in the open air on the Mall where no government business is being transacted.

In ISKCON v. Lee, supra, the Supreme Court held that an airport terminal operated by a public authority is not a public forum, and a ban on solicitation must therefore only satisfy a reasonableness standard. ___ U.S. at ___-___, 112 S.Ct. at 2705-08. By contrast, the government has here conceded that the National Mall is a public forum. Defendants' Reply at 5 n. 5. Thus, the Lee decision is likewise inapplicable.

The government's reliance on Henderson is even more misplaced, not only because of the factual differences between that case and this, but even more so because the court's language actually supports the Krishnas' position. In Henderson, the Court of Appeals concluded that the distribution of leaflets at the Vietnam Veterans Memorial could properly be prohibited because the "tranquil, contemplative mood at the Memorial wall — perhaps `awe' captures it better — would be affected by the activity of any leafletters regardless of their message." 964 F.2d at 1184. No comparable mood of awe exists on the Mall near the Air and Space Museum, with its thousands of joyful tourists, its dozens of hot dog vendors, and the commotion that exists almost around the clock in the Museum's vicinity. Further, the court in that case ultimately went on to hold that the Park Service's restriction on the free distribution of literature on the sidewalks adjacent to the Vietnam Memorial — a place similar to the Mall area near the Air and Space Museum — violated the First Amendment. The court pointed...