United States v. Crowthers, 71-1313.

• Decision Date: 20 March 1972
• Docket Number: No. 71-1313.,71-1313.
• Parties: UNITED STATES of America, Appellee, v. Clarence E. CROWTHERS et al., and Nathaniel W. Pierce et al., Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

456 F.2d 1074 (1972)

UNITED STATES of America, Appellee, v. Clarence E. CROWTHERS et al., and Nathaniel W. Pierce et al., Appellants.

No. 71-1313.

United States Court of Appeals, Fourth Circuit.

Argued December 9, 1971.

Decided March 20, 1972.

COPYRIGHT MATERIAL OMITTED

Lawrence E. Freedman, Alexandria, Va., for appellants.

David H. Hopkins, Asst. U. S. Atty. (Brian P. Gettings, U. S. Atty., on brief), for appellee.

Before WINTER, CRAVEN and FIELD, Circuit Judges.

CRAVEN, Circuit Judge:

This is a consolidated appeal from decisions of the district court affirming convictions entered by a United States Magistrate for violations of government regulations said to have occurred during several "Masses for peace" in the Pentagon public concourse during November 1969 and June 1970. The question presented is whether the First Amendment rights of speech and assembly may be exercised in a public concourse of the Pentagon. We think so, and because we conclude that the regulations under which defendants were prosecuted were selectively and unequally applied, we reverse the convictions obtained under § 19.304 without the necessity of considering appellants' contention that the regulation is void for vagueness and overbreadth. The convictions obtained under § 19.307a must be reversed because the regulation contains no standards for approving or disapproving the distribution of printed matter and is void as a prior restraint on freedom of speech.

I

The facts in these cases are virtually agreed. But the government and the defendants are unable to agree on the adjectives describing the admitted activities of defendants. Defendants insist they were conducting religious ceremonies; the government insists it undertook to stop political demonstrations. We think both are right and that the choice of words affords no leverage for decision. Bishop Crowther and others joined with him were arrested for conducting and participating in what they termed a "Mass for peace" in the Pentagon concourse on November 13, 1969. Father Pierce and others joined with him were arrested for similar conduct and for distributing leaflets during Masses on June 15-19, 1970. The GSA regulations under which they were arrested are as follows:

41 C.F.R. § 101-19.304 Disturbances.

The disorderly conduct on property, or conduct on property which creates loud and unusual noise, or which obstructs the usual use of entrances, foyers, corridors, offices, elevators, stairways, and parking lots, or which otherwise tends to impede or disturb the public employees in the performance of their duties, or which otherwise impedes or disturbs the general public from obtaining the administrative services provided on property, is prohibited. The occupant agency involved in a disturbance shall have the initial responsibility for coordinating the observance of this rule by the public.

41 C.F.R. § 101-19.307a Distribution of handbills.

The distribution of material such as pamphlets, handbills, and flyers, is prohibited without prior approval of an authorized official of the agency occupying the space where the material is to be distributed.

The concourse is about 1,000 feet in length and about 500 feet in width, is open to the public, and serves primarily as a way of ingress and egress for Pentagon employees. Several shops are located in the concourse for the convenience of the employees, and although they are forbidden to advertise their presence at the Pentagon to the general public, patronage is not limited to Pentagon employees. The area has been used for religious, recreational, and awards assemblies authorized by Pentagon officials. In the latter half of 1969 it was so used 16 times—including band recitals and a speech by the Vice President. The parties agree that the leafletting caused no disruption—leaflets were simply offered to willing takers. The Mass on November 13 lasted for about 25 minutes and was accompanied by singing and handclapping. About 185 people participated in this Mass. The noise level was said to be loud, but appellants persuasively claim that it was no greater and even less than that of similar activities such as band recitals allowed by the government. The participants behaved peacefully and were kept in a tight-knit group by their own marshalls. The Mass attracted onlookers— personnel of the Department of Defense, members of the public present in the concourse, and members of the press. Some obstruction was caused by the onlookers. During the events of June 15-19, 1970 (except on June 16), onlookers again caused some obstruction. The events of those days may be summarized thus:

June 15—After a liturgical procession of five individuals, and Episcopal priest began reading the Mass in a very low voice. Within seconds, GSA guards read the regulation and arrested the participants.

June 16—A group of 12 people knelt in a circle. An Episcopal priest began the Episcopal Service of Holy Communion in a very low voice. A GSA guard read the regulation and arrested the participants.

June 17—Eight persons knelt in a circle and were arrested. The congestion was sufficient that a GSA guard testified he feared that the plate glass window of a drugstore would break. It did not.

June 18—Forty-two persons knelt in a circle and there was again testimony of concern over the congestion caused by onlookers.

June 19—A procession of individuals recited Psalm 102. Nine were arrested.

The November 1969 group sought no permission for their demonstration. Permission was sought and denied for the June 1970 Masses. No permission was sought to leaflet.

II

We reject defendants' first defense that the statute authorizing General Services Administration to promulgate the regulations, 40 U.S.C. § 318, is an unconstitutional delegation of legislative power by the Congress. It has been settled otherwise in this circuit. United States v. Cassiagnol, 420 F.2d 868, 875-877 (4th Cir. 1970).

As previously indicated, because we decide the case on a narrower ground, we need not consider defendants' serious contention that Paragraph 6 of the GSA regulations is unconstitutional because of vagueness and overbreadth. We assume, for purposes of decision, that the regulation is facially constitutional.

The November 13, 1969, charge under the regulation boiled down to an accusation that the defendants conducted themselves so as to create loud and unusual noise, or to obstruct the usual use of entrances, foyers, corridors, offices, elevators, stairways and parking lots, or conduct otherwise tending to impede or disturb public employees in the performance of their duties, or disturbed or impeded the general public from obtaining the administrative services provided in the Pentagon concourse. There is not one scintilla of evidence in the record supporting the accusation that either the general public or Pentagon employees were impeded or disturbed. The ceremonies, whether religious or political, were timed to coincide with the normal lunch hour. That a crowd gathered to watch scarcely supports an inference that the public and/or employees of the Pentagon were disturbed or impeded from normal activity.

There is more to the accusation that the defendants created loud and unusual noise and obstructed the usual use of the concourse. We think there was substantial evidence to support the magistrate's findings that the defendants created loud and unusual noise and obstructed¹ the usual use of entrances, corridors, etc. Nothing else appearing, the convictions would have to be affirmed.

But there is more. Mention has already been made of the 16 other occasions during the latter half of 1969 when the concourse was permitted to be used for both political and religious ceremonies. Beyond question, the government may forbid all ceremonial use of the concourse or any other portion of the Pentagon. But it may not pick and choose for the purpose of selecting expressions of viewpoint pleasing to it and suppressing those that are not favored. It is absurd to argue that defendants' guitar, or the quiet recitation of the 102 Psalm, or the whispered administration of Communion, creates loud and unusual noise and that a band recital does not. The record does not disclose the number of people attending the appearance of the Vice President, nor does it disclose attendance at all of the approved religious ceremonies. But the record does disclose that except on November 13 there were pitifully few participants in the Episcopal Masses for peace. We think when the record strongly suggests invidious discrimination and selective application of a regulation to inhibit the expression of an unpopular viewpoint, and where it appears that the government is in ready possession of the facts, and the defendants are not, it is not unreasonable to reverse the burden of proof and to require the government to come forward with evidence as to what extent loud and unusual noise and obstruction of the concourse may have occurred on other approved occasions. It is neither novel nor unfair to require the party in possession of the facts to disclose them. Chambers v. Hendersonville City Board of Education, 364 F.2d 189, 192 (4th Cir. 1961). We think defendants made a sufficient prima facie showing that application of the noise and obstruction regulation to them was pretensive and that the government, being in possession of the facts as to noise and obstruction of approved activity, should have come forward with evidence, if it could, to rebut the...