White House Vigil for Era Committee v. Clark, No. 84-5271

CourtU.S. Court of Appeals — District of Columbia Circuit
Citation746 F.2d 1518,241 U.S. App. D.C. 201
Decision Date26 April 1984
Parties, 53 USLW 2246 WHITE HOUSE VIGIL FOR the ERA COMMITTEE, et al., Appellees, v. William P. CLARK, Secretary of the Interior, et al., Appellants. . Argued 25 July 1984. Decided 26 Oct. 1984. Appeal from the United States District Court for the District of Columbia (Civil Action). John D. Bates, Asst. U.S. Atty., Washington, D.C., with whom Joseph E. diGenova, U.S. Atty., Royce C. Lamberth, R. Craig Lawrence and Mitchell R. Berger, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellants. John Vanderstar, Washington, D.C., with whom Lyle Jeffrey Pash, David H. Remes, Arthur B. Spitzer, Elizabeth Symonds, Washington, D.C., and Sebastian K.D. Graber, Alexandria, Va., were on the brief, for appellees, Beall, et al. Lena S. Zezulin, Washington, D.C., with whom Thomas J. Hart, Washington, D.C., was on the brief, for appellee, Nat. Organization for Women. Before WILKEY, WALD and STARR, Circuit Judges. Opinion for the Court filed by Circuit Judge WILKEY. Opinion concurring in the judgment in part and dissenting in part filed by Circuit Judge WALD. WILKEY, Circuit Judge: This appeal concerns the constitutional validity of regulations promulgated by the National Park Service to restrict demonstrations and other activities on the sidewalk directly in front of the White House. The district court struck down most of the regulations, and modified the others, in an unpublished opinion of 26 April 1984. On appeal the plaintiff-appellees and intervenors contend that the district court's findings are not "clearly erroneous," and that this court should defer to those findings in what is essentially a factual dispute. The government, as defendant-appellant, urges reinstatement of the original regulations. It defends the regulations as reasonable time, place and manner restrictions which further substantial governmental interests, most notably the security of the President and the aesthetics of the White House view. We agree with the latter position and uphold the regulations
Docket NumberNo. 83-1243,No. 84-5271,No. 83-01243

Page 1518

746 F.2d 1518
241 U.S.App.D.C. 201, 53 USLW 2246
WHITE HOUSE VIGIL FOR the ERA COMMITTEE, et al., Appellees,
v.
William P. CLARK, Secretary of the Interior, et al., Appellants.
No. 84-5271.
United States Court of Appeals,
District of Columbia Circuit.
Argued 25 July 1984.
Decided 26 Oct. 1984.

Page 1519

Appeal from the United States District Court for the District of Columbia (Civil Action No. 83-01243).

John D. Bates, Asst. U.S. Atty., Washington, D.C., with whom Joseph E. diGenova, U.S. Atty., Royce C. Lamberth, R. Craig Lawrence and Mitchell R. Berger, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellants.

John Vanderstar, Washington, D.C., with whom Lyle Jeffrey Pash, David H. Remes, Arthur B. Spitzer, Elizabeth Symonds, Washington, D.C., and Sebastian K.D. Graber, Alexandria, Va., were on the brief, for appellees, Beall, et al.

Lena S. Zezulin, Washington, D.C., with whom Thomas J. Hart, Washington, D.C., was on the brief, for appellee, Nat. Organization for Women.

Before WILKEY, WALD and STARR, Circuit Judges.

Opinion for the Court filed by Circuit Judge WILKEY.

Opinion concurring in the judgment in part and dissenting in part filed by Circuit Judge WALD.

WILKEY, Circuit Judge:

This appeal concerns the constitutional validity of regulations promulgated by the

Page 1520

National Park Service to restrict demonstrations and other activities on the sidewalk directly in front of the White House. The district court struck down most of the regulations, and modified the others, in an unpublished opinion of 26 April 1984. On appeal the plaintiff-appellees and intervenors contend that the district court's findings are not "clearly erroneous," and that this court should defer to those findings in what is essentially a factual dispute. The government, as defendant-appellant, urges reinstatement of the original regulations. It defends the regulations as reasonable time, place and manner restrictions which further substantial governmental interests, most notably the security of the President and the aesthetics of the White House view. We agree with the latter position and uphold the regulations as originally written.

The restrictions embodied in the regulations are of three types. The first set governs the size, construction, and placement of signs on the White House sidewalk. The primary purpose of the sign restrictions is to prevent signs from being used as weapons, as concealment for explosives, or as a means of breaching the White House fence. In light of recent Supreme Court cases which clarify the role of judicial review in the first amendment context, we conclude that the sign restrictions are reasonable as originally drafted. A second type of regulation restricts, but does not prohibit, demonstrations within the "center zone" of the sidewalk. We conclude that this restriction, too, is constitutional as a reasonable means of regulating the place of demonstrations. The government's interest in preserving a relatively unobstructed view of the White House for tourists and passersby constitutes a legitimate aesthetic goal which is not outweighed by the insubstantial infringement on the demonstrators' ability to engage in expressive activities. Moreover, while unrestricted access to the center zone might provide demonstrators with optimal media exposure, appellees have no first amendment right to such exposure. The third type of regulation prohibits the placing of parcels, except momentarily, on the sidewalk. Such activity has no expressive content; at most, it may be said to facilitate expression. It is unclear whether the facilitative activity proscribed here implicates the first amendment. Even if it does, however, the parcels restriction is constitutional as a reasonable restriction on the manner in which speech may be exercised: it is narrowly tailored to prevent the concealment of explosive devices within parcels left unattended on the sidewalk.

I. BACKGROUND

In late 1982 representatives of the National Park Service, the Park Police, the Secret Service and the Department of Justice met to consider ways of protecting the White House and its occupants from terrorist attack. 1 The need for increased presidential security had been tragically illustrated by the events of 8 December 1982, when Norman Mayer, a regular protestor on the White House sidewalk, was killed by police officers after threatening to blow up the Washington Monument. 2 While the agencies reviewed existing regulations and drafted new ones, 3 terrorist activity continued at an alarming rate both at home 4 and abroad. 5

Page 1521

The National Park Service published interim regulations on 22 April 1983; 6 they were to become effective immediately. 7 The regulations required that signs and placards displayed on the White House sidewalk 8 be hand-held by individuals. 9 In addition, they prohibited the deposit of parcels on the sidewalk for longer than one hour and provided that parcels placed on the sidewalk were subject to inspection by police officers. 10

On 27 April officers of the United States Park Police arrested three long-time protestors on the White House sidewalk 11 for failing to comply with the interim regulations. Those arrested, along with other regular White House demonstrators, filed suit in U.S. District Court two days later seeking declaratory and injunctive relief on the ground that the regulations infringed their first amendment rights of free expression. 12 Following an evidentiary hearing on plaintiffs' motion for a temporary restraining order, Judge William B. Bryant concluded that the Park Service had failed to show "good cause" for dispensing with the notice and comment requirements of the Administrative Procedure Act 13 when it issued the interim regulations. 14 He enjoined enforcement of the regulations pending publication of a final rule. 15

The Park Service complied immediately. It republished the regulations as a proposed rulemaking on 17 May 1983, with a public comment period extending to 31 May. 16 The Service received fifteen comments, seven of which supported the regulations as proposed and eight of which opposed some portion of them. 17 The Service studied the comments, modified its interim regulations and published a "final rule" on

Page 1522

17 June 1983. 18 The plaintiffs amended their complaint seven days later to take account of the new provisions. 19

The regulations impose three types of restrictions on activities conducted on the White House sidewalk. The first set of provisions governs the construction, size and placement of signs carried by demonstrators and other individuals. Signs must be constructed of cardboard, posterboard or cloth, while sign supports must be made of wood. 20 Signs can be no larger than three feet in height, 21 twenty feet in length, and one-quarter inch in thickness, while sign supports must have cross-sectional dimensions of no greater than three-quarters of an inch. 22 All signs on the sidewalk must be "attended," a requirement which is met only if the sign is in physical contact with a person. 23 Stationary signs may be no closer than three feet to the White House fence, 24 and no sign may be leaned against or attached to the fence or other structure on the sidewalk. 25

A second type of restriction concerns the "center zone," an area defined as the central twenty yards of the sidewalk. 26 Within the center zone, signs may not be held, placed or set down, but "individuals may demonstrate while carrying signs ... if they continue to move along the sidewalk." 27

The third type of restriction prohibits the deposit of parcels and other property on the ground. An exception is made for items which are "momentarily placed or set down in the immediate presence of the owner." 28

The Park Service prefaced its final regulations with a concise explanation of the governmental interests they were designed to serve. Those interests were threefold: "to minimize potential threats to the [White House] and its occupants and visitors ... to provide opportunities to the visitor to view the White House, and to maintain the free flow of pedestrian and emergency traffic." 29 The Service described in detail the manner in which its regulations were designed to accomplish those ends; in doing so, it relied on its own experience as

Page 1523

well as that of other federal agencies charged with the protection of the White House and its grounds. The Park Service discussed at length the objections which various commentators had registered to the interim regulations, and it noted modifications which it had made in the regulations to take account of criticisms it found valid.

Following an evidentiary hearing the district court entered a preliminary injunction against enforcement of many of the restrictions on 19 July 1983. 30 In the court's view, "the governmental interests served by the regulations could be attained through alternative means which are less intrusive on first amendment freedoms." 31 The court proceeded to "finetune" the regulations: not only did it uphold some restrictions and reject others, it modified the content of individual provisions by substituting its factual judgment for that of the agency. The court approved the twenty foot limit on the length of signs, but created a special exception for those held parallel to the fence. 32 It endorsed the concept of restricting sign and parcel placement, but held that the "physical contact" requirement for signs and the prohibition on parcel placement were unnecessarily restrictive. 33 In their place, the court fashioned a rule which allowed signs and parcels to be placed on the sidewalk if they were "attended at all times," with "attendance" defined to mean "in the immediate presence of the owner." 34 The court approved without modification only three provisions: the restriction on sign materials, 35 the center zone restriction, 36 and the absolute prohibition on the placement of...

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  • Michael Bd.ley v. United States Dep't Of The Interior ., No. 09-5176.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • August 6, 2010
    ...and reverence in the vicinity of” a war memorial) (internal quotation marks omitted); White House Vigil for ERA Comm. v. Clark, 746 F.2d 1518, 1528 (D.C.Cir.1984) (“[T]he government has a substantial interest in the preservation and enhancement of the human environment; aesthetics are a pro......
  • A.N.S.W.E.R. Coal. v. Jewell, Civil Action No. 05-0071 (PLF)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • January 28, 2016
    ...places is “a part of the privileges, immunities, rights, and liberties of citizens.” White House Vigil for the ERA Comm. v. Clark , 746 F.2d 1518, 1526 n. 66 (D.C.Cir.1984) (citation omitted). Freedom Plaza and the sidewalks of Pennsylvania Avenue are “quintessential public forum[s],” Mahon......
  • Finzer v. Barry, No. 84-5327
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • September 9, 1986
    ...1463 L.Ed.2d 298 (1981); Adderley v. Florida, 385 U.S. at 47-48, 87 S.Ct. at 247-48; White House Vigil for the ERA Committee v. Clark, 746 F.2d 1518 at 1520, 1538 (D.C.Cir.1984). Inevitably, many of the most desirable places to demonstrate will be buildings and areas that for other reasons ......
  • International Union, Local 150 v. Orland Park, No. 00 C 5993.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • May 4, 2001
    ...may or should be preferred at the expense of another's, the restriction is content-neutral. White House Vigil for the ERA Comm. v. Clark, 746 F.2d 1518, 1527 (D.C.Cir.1984). Even if the rule may incidentally affect one message or speaker more than another, that does not negate the content-n......
  • Request a trial to view additional results
66 cases
  • Michael Bd.ley v. United States Dep't Of The Interior ., No. 09-5176.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • August 6, 2010
    ...and reverence in the vicinity of” a war memorial) (internal quotation marks omitted); White House Vigil for ERA Comm. v. Clark, 746 F.2d 1518, 1528 (D.C.Cir.1984) (“[T]he government has a substantial interest in the preservation and enhancement of the human environment; aesthetics are a pro......
  • A.N.S.W.E.R. Coal. v. Jewell, Civil Action No. 05-0071 (PLF)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • January 28, 2016
    ...places is “a part of the privileges, immunities, rights, and liberties of citizens.” White House Vigil for the ERA Comm. v. Clark , 746 F.2d 1518, 1526 n. 66 (D.C.Cir.1984) (citation omitted). Freedom Plaza and the sidewalks of Pennsylvania Avenue are “quintessential public forum[s],” Mahon......
  • Finzer v. Barry, No. 84-5327
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • September 9, 1986
    ...1463 L.Ed.2d 298 (1981); Adderley v. Florida, 385 U.S. at 47-48, 87 S.Ct. at 247-48; White House Vigil for the ERA Committee v. Clark, 746 F.2d 1518 at 1520, 1538 (D.C.Cir.1984). Inevitably, many of the most desirable places to demonstrate will be buildings and areas that for other reasons ......
  • International Union, Local 150 v. Orland Park, No. 00 C 5993.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • May 4, 2001
    ...may or should be preferred at the expense of another's, the restriction is content-neutral. White House Vigil for the ERA Comm. v. Clark, 746 F.2d 1518, 1527 (D.C.Cir.1984). Even if the rule may incidentally affect one message or speaker more than another, that does not negate the content-n......
  • Request a trial to view additional results

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