U.S. v. Demott
| Decision Date | 10 July 2001 |
| Docket Number | No. CR. 00-404-A.,CR. 00-404-A. |
| Citation | 151 F.Supp.2d 706 |
| Parties | UNITED STATES of America, Appellee, v. Peter J. DEMOTT, Appellant. |
| Court | U.S. District Court — Eastern District of Virginia |
Helen F. Fahey, United States Attorney, William C. Henderson, Special Asst. U.S. Atty., Alexandria, VA, for Plaintiff.
Sebastian K.D. Graber, Esquire, Wolftown, VA, for Defendant.
At issue is the constitutionality of two regulations governing conduct at the Pentagon. Defendant/Appellant Peter J. DeMott ("DeMott") brings this appeal from the decision of the Magistrate Judge finding him guilty of failing to obey a police officer's lawful order to move from one location to another while engaged in peaceful protest on the grounds of the Pentagon. For the reasons set forth below, the Court affirms the opinion of the Magistrate Judge and upholds the challenged regulations.
The following discussion of the facts is drawn from the Magistrate Judge's Report of November 3, 2000. Appellant DeMott was arrested on August 6, 1999, outside the Pentagon, where he and others had gathered, without a permit, for a demonstration to mark the anniversary of the bombing of Hiroshima. The demonstrators gathered on the steps of the River Entrance1 but did not wholly block ingress to the building. After allowing the demonstration to continue for some time, the security officer in charge decided, for security and other reasons, to move the demonstration from the River Entrance steps to a sidewalk at some distance from the River Entrance. Evidence in the record shows that the arresting officer had received word that the Secretary of Defense was en route to the Pentagon, although the demonstrators were not informed of this fact. After several requests that the protesters relocate were refused, Defense Protective Services officers arrested several demonstrators, including DeMott.
After a bench trial and evidentiary hearing, DeMott was convicted of violating 32 C.F.R. § 234.6(b) (the "lawful order" regulation). The Magistrate Judge upheld the constitutionality of that regulation in the face of DeMott's attack on it. He sentenced DeMott to thirty days' imprisonment, which DeMott immediately served.2
DeMott raises three grounds for reversing his conviction: first, that the Pentagon's "permit" regulation, 32 C.F.R. § 234.3(d), is unconstitutional on its face and as applied; second, that the "lawful order" regulation is unconstitutional on its face and as applied; and third, that the evidence was insufficient to establish a violation of 32 C.F.R. § 234.6(b).
"In reviewing a decision of a Magistrate Judge, a district court should utilize the same standard of review utilized by the court of appeals in reviewing a decision of the district court." Florists' Mutual Ins. Co. v. Tatterson, 802 F.Supp. 1426, 1431 (E.D.Va.1992); see also 28 U.S.C. § 636(c)(4) (1992). Therefore questions of law are reviewed de novo, and questions of fact are reviewed under a clearly erroneous standard. United States v. Coyle, 943 F.2d 424, 426 (4th Cir.1991). A court should avoid holding a provision of law to be unconstitutional if it can be fairly construed as constitutional. United States v. Cassiagnol, 420 F.2d 868, 873 (4th Cir. 1970).
DeMott argues first that the Pentagon's permit regulation, 32 C.F.R. § 234.3(d), is unconstitutional on its face and as applied to the facts of his case. The regulation reads as follows:
Any person or organization desiring to conduct activities anywhere on the Pentagon Reservation shall file an application for permit with the applicable Building Management Office. Such application shall be made on a form provided by the Department of Defense and shall be submitted in the manner specified by the Department of Defense.
32 C.F.R. § 234.3(d). In other words, one must secure a permit before conducting any activity on the Pentagon Reservation (the area surrounding the Pentagon building), including staging a demonstration. The permit form requires that the applicant supply "a copy, sample and/or description of any materials or items proposed for distribution." DeMott contends that the permit requirement is constitutionally invalid as a prior restraint on speech and because it is overbroad and vague.
Before the Court can consider the constitutionality of the permit regulation, it must determine the type of forum at issue. The Supreme Court in Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983), identified three types of fora: the traditional public forum, the public forum created by government designation, and the nonpublic forum. Perry, 460 U.S. at 44-46, 103 S.Ct. 948. In traditional public fora, such as public parks and streets, the government may impose content-based regulations only if those regulations are "necessary to serve a compelling state interest and [are] narrowly drawn to achieve that end." Perry, 460 U.S. at 45, 103 S.Ct. 948; see also Shopco Distribution Company, Inc. v. Commanding General of Marine Corps Base, 885 F.2d 167, 171 (1989). In a public forum, the government may impose content-neutral time, place, and manner restrictions only if they are "narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication." Id. Public property which has been opened by the government as a place for expressive conduct is subject to a similar standard, although the government may limit expressive activity to a particular class of speakers or topic. Perry, 460 U.S. at 45-46 and n. 7, 103 S.Ct. 948; see also Warren v. Fairfax County, 196 F.3d 186, 193 (4th Cir.1999) (). The third type of forum is a nonpublic forum, that is "public property that is not by tradition or designation a forum for public communication," Perry, 460 U.S. at 46, 103 S.Ct. 948. In a nonpublic forum, the government may preserve the forum for its lawfully-dedicated purpose, including through the imposition of time, place, and manner restrictions and reasonable, content-neutral regulations on speech. Perry, 460 U.S. at 46, 103 S.Ct. 948; Shopco, 885 F.2d at 171-72.
DeMott argues that the Pentagon Reservation grounds, as the headquarters of a government agency, are a public forum for purposes of First Amendment analysis. Appellant's Brief at 26-27. The Government counters that the Pentagon Reservation grounds are more analogous to a military installation, which courts have consistently held not to be a public forum, than to a public area such as a park or street. In Greer v. Spock, 424 U.S. 828, 836, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976), for example, the Supreme Court noted that although the public has access to Fort Dix, the military installation at issue in that case, it is not correct to assert that "whenever members of the public are permitted freely to visit a place owned or operated by the Government, then that place becomes a `public forum' for purposes of the First Amendment." The Government points out that Fort Dix and the Pentagon Reservation are both defense-oriented facilities and that, in fact, "the government exercises much greater control over the Pentagon Reservation," in that the Defense Protective Services patrols the entire grounds and most of the grounds are constantly under surveillance by video cameras. Government's Opp. at 11.
If it is not already a public forum, the fact that the Pentagon is frequently the site of public discourse does not transform it into a public forum. See Greer, 424 U.S. at 836, 96 S.Ct. 1211; Shopco, 885 F.2d at 173. And because there is no generalized constitutional right to conduct First Amendment activities in a nonpublic forum like a military installation, see United States v. Albertini, 472 U.S. 675, 685, 105 S.Ct. 2897, 86 L.Ed.2d 536 (1985), the government's ability to limit speech in such a forum is broader. As noted above, the Fourth Circuit in Shopco recognized the government's power to impose time, place, and manner restrictions in limited or nonpublic fora. 885 F.2d at 171-72. In addition, the court observed that as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker's views, the government may reserve the forum for its intended purposes. Id.
DeMott cites Townsend v. Carmel, 494 F.Supp. 30 (D.D.C.1979) for the proposition that the Pentagon Reservation is a traditional public forum. In that case, the District Court for the District of Columbia held that although the interior of the Pentagon is a non-public forum, the steps at the River Entrance or nearby sidewalks are public fora, and peaceful demonstrations in those sites do not interfere with the normal operation of the Pentagon. Id. at 33. For this reason, the District Court in Townsend imposed an injunction against enforcement of a permit regulation that was similar to that at issue in this case.
The Fourth Circuit has adopted a similar test in certain cases, although it has not yet considered the First Amendment status of the Pentagon grounds. In Warren, for example, the court considered the constitutionality of a county government's refusal to allow a nonresident of the county to erect a holiday display on an outdoor mall across from the county's government center. The court concluded that the mall area was a traditional public forum. In such a forum, the court held, "restrictions on speech ... are justified to the extent that the speech at issue would interfere with the objective purposes and use of the forum." 196 F.3d at 193. Similarly, in Shopco, a commercial establishment sought to distribute its advertising circular on the Camp Lejeune Marine Corps Base. In upholding the base's prohibition on such distribution, the court noted that the base was not a public forum. How...
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