U.S. v. Doe

• Decision Date: 30 June 1992
• Docket Number: No. 91-3111,91-3111
• Citation: 968 F.2d 86,296 U.S. App. D.C. 350
• Parties: UNITED STATES of America, Appellee, v. Jane DOE, a/k/a Diane Nomad, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 86

968 F.2d 86

296 U.S.App.D.C. 350

UNITED STATES of America, Appellee, v. Jane DOE, a/k/a Diane Nomad, Appellant.

No. 91-3111.

United States Court of Appeals District of Columbia Circuit.

Argued May 7, 1992.

Decided June 30, 1992.

Michael C. Wallace, Sr., Asst. Federal Public Defender, with whom A.J. Kramer, Federal Public Defender, was on the brief, for appellant.

Arthur B. Spitzer, with whom Elizabeth Symonds was on the brief, for amicus curiae urging that the Court reverse appellant's conviction.

Mary-Patrice Brown, Asst. U.S. Atty., for appellee. Jay B. Stephens, U.S. Atty., John R. Fisher, Brian M. Murtagh, and Elizabeth H. Danello, Asst. U.S. Attys., were on the brief, for appellee.

Before WALD, EDWARDS and WILLIAMS, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

While beating a drum as part of a political protest in Lafayette Park across the street from the White House, Diane Nomad violated a federal regulation which prohibits playing a musical instrument at a higher than prescribed decibel level in a national park. In this appeal Nomad challenges the constitutionality of that regulation on the ground that it impermissibly restricts her First Amendment rights to engage in expressive conduct in a public forum. The district court ruled that the regulation survives First Amendment scrutiny as a "reasonable time, place, and manner" restriction on speech. We do not agree. The government has failed to carry its burden of showing that the regulation is "narrowly tailored" to further the government's interest in preventing excessive noise in a national park that is also an acknowledged public forum. The record before us is barren as to support for the government's position that the decibel limit imposed on musical instruments is a reasonable one; what evidence there is suggests the contrary, that given the amount of ambient noise generally present in Lafayette Park, the decibel level may be unreasonably low.

I. BACKGROUND

As a protest against the United States' bombing of Iraq during the Gulf War, Diane Nomad, along with other protestors, chanted and beat drums in Lafayette Park for several days and evenings in January 1991. After a week of such protests, the United States Park Police warned the protestors that they were violating a federal regulation relating to national parks, which prohibits "operating ... an audio device, such as a ... musical instrument, in a manner that exceeds a noise level of 60 decibels measured on the A-weighted scale at 50 feet." 36 C.F.R. § 2.12(a)(1)(i) (1991). A police officer utilizing a sound meter with an A-weighted scale found the noise level in the park to exceed 70 decibels measured from two different locations, one 54 feet away and one 74 feet away from the chanting and drumming protestors. After three unheeded warnings, the police officers arrested Nomad and the other demonstrators for violation of the 60-decibel regulation.

Nomad moved in district court to dismiss the charge on the ground that the regulation itself violated the First Amendment. She argued that the regulation is overbroad because it prohibits a substantial amount of expressive conduct beyond the government's legitimate interest in preventing excessive or disturbing noise. The district court denied her motion, finding that the challenged regulation was a reasonable time, place and manner restriction, justified by the governmental interest of maintaining "a peaceful setting" in Lafayette Park. As "part of the group" of demonstrators beating the drums in violation of the § 2.12(a)(1)(i) decibel level, Nomad was subsequently convicted in a bench trial for "aid[ing] and abett[ing] this concerted action."

II. DISCUSSION

There can be no question that beating a drum in the context of a clearly identified anti-war demonstration is expressive conduct protected by the First Amendment. See, e.g., Ward v. Rock Against Racism, 491 U.S. 781, 790, 109 S.Ct. 2746, 2753, 105 L.Ed.2d 661 (1989); Texas v. Johnson, 491 U.S. 397, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989). We are additionally spared the need for any extended "forum analysis" in this case, as no one disputes that Lafayette Park is a "quintessential public forum," see White House Vigil for ERA Committee v. Clark, 746 F.2d 1518 1526-27 (D.C.Cir.1984), and accordingly, "the government's ability to permissibly restrict expressive conduct [there] is very limited." United States v. Grace, 461 U.S. 171, 177, 103 S.Ct. 1702, 1706, 75 L.Ed.2d 736 (1983); see Hague v. CIO, 307 U.S. 496, 515-16, 59 S.Ct. 954, 963-64, 83 L.Ed. 1423 (1939).

Furthermore, the Supreme Court has provided us with a three-pronged test which a government restriction must meet to restrict First Amendment protected speech in a public forum; the first of which is not in dispute in this case and the third of which we need not reach. "Even in a public forum the government may impose reasonable restrictions on the time, place or manner of protected speech, provided the restrictions 'are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open alternative channels for communication of the information.' " Ward, 491 U.S. at 791, 109 S.Ct. at 2754 (quoting Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 3068, 82 L.Ed.2d 221 (1984) (emphasis supplied)). Section 2.12 of the national park regulation on its face is content neutral. It prohibits the playing of all musical instruments above the prescribed level for whatever purpose or cause, and no one claims here that the regulation has been applied inconsistently or that Nomad has been singled out for prosecution because of her message. See Clark, 468 U.S. at 288, 104 S.Ct. at 3068.

The dispute here pivots on the second prong of the "time, place, and manner restrictions" test. Nomad and amicus, the American Civil Liberties Union of the National Capital Area, assert that the decibel-limit for musical sounds specified in the regulation is not narrowly tailored to serve an important governmental interest in preserving Lafayette Park for appropriate uses. Rather, they argue, it is a blunderbuss weapon which results in severely impairing speech rights in a situs where the government not only tolerates but explicitly permits demonstrations and protests because of its unique location across the street from the White House. Nomad asserts the absence of any "tailoring," let alone "narrow tailoring" of the sound volume limit to the unique nature of Lafayette Park.

The government counters on two fronts. First, it asserts that it has a substantial interest in maintaining "the peaceful setting" in the nation's public parks. Appellee's Brief at 11. According to the government, "people turn [to public parks] for refreshment from the commotion and turmoil of everyday life. Maintaining Lafayette Park as a place of quiet enjoyment, therefore is a legitimate goal [of government]." Id. Second, it contends that it is not within this court's province "to finetune" the regulation or substitute its judgment for that of the Park Service as to whether § 2.12 should be applied to Lafayette Park. Id. at 13 (quoting White House Vigil v. Clark, 746 F.2d at 1529). As long as the Park Service's judgment on its application is reasonable, it is irrelevant that the Park Service--or the court--might have drawn the line differently, to allow more expressive conduct.

Whether the regulation meets the "narrowly tailored" requirement is of course a question of law, to be reviewed by an appellate court de novo. See, e.g., White House Vigil v. Clark, 746 F.2d at 1529. This court has characterized "the test of 'narrow tailoring' ... as a balancing test, inquiring whether the restriction 'burdens more speech than is necessary to further the government's legitimate interests.' " Henderson v. Lujan, 964 F.2d 1179, 1184 (D.C.Cir.1992) (quoting Ward, 491 U.S. at 799, 109 S.Ct. at 2758).

To apply the "narrow tailoring" test in this case, we first determine the extent of the government's asserted interest. We recently recognized that the government has a substantial interest in promoting "the tranquil, contemplative mood at the [Vietnam Veteran's] Memorial wall." Id. at 11. In a similar vein, the Supreme Court has held that an ordinance prohibiting picketing in front of a person's home does not violate the First Amendment because the government has a significant interest in protecting the integrity of the home and a person's feelings of "well-being, tranquility, and privacy." Frisby v. Schultz, 487 U.S. 474, 477, 108 S.Ct. 2495, 2498, 101 L.Ed.2d 420 (1988). Courts in these cases have found significant governmental interests in maintaining a tranquil atmosphere stemming from the essential nature of the locations involved--the sidewalks in front of a person's home and a memorial honoring the nation's war dead. Nothing in these cases, however, remotely suggests the existence of any generalized government interest in maintaining the same level of quiet in all public spaces. ¹ Indeed, the very concept of a situs being designated as a "public forum" for First Amendment purposes presupposes that the situs has "been used for purposes of assembly, communicating thoughts between citizens and discussing public questions." Hague, 307 U.S. at 515-16, 59 S.Ct. at 963-64. Much like Hyde Park in London, Lafayette Park in Washington, D.C. has become a primary assembly point for First Amendment activity aimed at influencing national policies. Facing Pennsylvania Avenue and located directly across the street from the White House, it is exposed to every form of urban commotion--passing traffic, bustling tourists, blaring radios, performing street musicians, visiting schoolchildren. By no reasonable measure does Lafayette Park display the characteristics of a setting in which the government may lay claim to a...