845 F.3d 1199
D.C. Cir.2017Background
- ANSWER Coalition sought to hold a large demonstration on Freedom Plaza during the 2013 Presidential Inauguration; the Park Service allowed only a small portion of the Plaza because a 2008 regulation reserved portions of the parade route for a Presidential Inaugural Committee priority permit.
- The 2008 rule designates ~13% of the parade-adjacent footage for ticketed bleachers and another portion for media, toilets, and D.C. reviewing stand; ~70% remains open for first-come, first-served public permits.
- ANSWER amended its 2005 suit to challenge §7.96(g)(4)(iii)(B)(1) as content- and viewpoint-based discrimination (and an Equal Protection violation), arguing the bleacher allocation displaces dissenting speech from a highly visible forum.
- The Park Service defended the rule as a content-neutral time, place, and manner (TPM) restriction narrowly tailored to facilitate the national Inaugural ceremony; it also argued (alternative defense) that bleacher speech could constitute government speech.
- The district court granted summary judgment for the Park Service; the D.C. Circuit reviewed de novo and affirmed, holding the regulation content-neutral and a valid TPM restriction that leaves ample alternatives for protest.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §7.96(B)(1) is a content- or viewpoint-based restriction | The bleacher allocation favors pro-government spectators and displaces dissent; thus it's content/viewpoint based and triggers strict scrutiny | The rule makes no reference to speech content; it reserves space for non‑expressive functions (bleachers/media/toilets) and is content-neutral | Regulation is facially content-neutral and justified without reference to speech content; not subject to strict scrutiny |
| Whether bleacher areas are government speech (immune from First Amendment challenge) | Bleachers create a visible pro‑administration presence and function as government‑endorsed expression | Bleacher allocation is not intended as governmental communication; spectators may express themselves and seats can be filled by public | Court did not decide government‑speech issue because TPM analysis sufficed; resolved on content neutrality and TPM grounds |
| Whether the priority permit is a valid time, place, and manner restriction (narrow tailoring and alternatives) | Reserving Freedom Plaza substantially burdens ANSWER’s preferred forum; alternatives (e.g., John Marshall Park) are inadequate and the rule is overbroad | The rule serves the significant governmental interest of staging an Inaugural ceremony, is narrowly tailored (only 13% for bleachers), and leaves ample alternative channels along the route | Regulation is narrowly tailored to the Inaugural interest and leaves sufficient alternative channels; survives intermediate scrutiny |
| Facial and as-applied challenge to §7.96(B)(1) | The regulation is unconstitutional on its face and as applied in 2013 because it excludes demonstrators from a historically significant, highly visible forum | The rule is valid both facially and as applied; any past ad hoc vetting or accommodation does not show content‑based purpose | Court rejects both facial and as-applied challenges and affirms summary judgment for Park Service |
Key Cases Cited
- Mahoney v. Babbitt, 105 F.3d 1452 (D.C. Cir. 1997) (invalidating broad Park Service permit that preempted demonstrator permits and revealed viewpoint discrimination)
- Quaker Action Group v. Morton, 516 F.2d 717 (D.C. Cir. 1975) (struck down permitting scheme that gave NPS events unconstrained preemptive authority)
- Women Strike for Peace v. Morton, 472 F.2d 1273 (D.C. Cir. 1972) (constraining agency discretion in public forum permitting to avoid discriminatory enforcement)
- Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) (content‑based regulations are presumptively invalid and require strict scrutiny)
- Ward v. Rock Against Racism, 491 U.S. 781 (1989) (standards for intermediate scrutiny of reasonable time, place, and manner restrictions)
- Hill v. Colorado, 530 U.S. 703 (2000) (upholding content-neutral TPM restriction on proximity‑based protest conduct)
- McCullen v. Coakley, 134 S. Ct. 2518 (2014) (narrow tailoring requirement for TPM restrictions and analysis of substantial burdens on speech)
- O'Brien, United States v., 391 U.S. 367 (1968) (tests for content neutrality in regulations of conduct that affect speech)
- Turner Broadcasting System v. FCC, 512 U.S. 622 (1994) (distinguishing content‑based from content‑neutral regulations)
- Regan v. Taxation with Representation, 461 U.S. 540 (1983) (upholding line‑drawing among groups when justified by policy unrelated to suppressing speech)
- Walker v. Texas Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239 (2015) (government‑speech doctrine principles referenced though court resolved on public‑forum analysis)