A Quaker Action Group v. Rogers C. B. Morton, Secretary of the Interior, a Quaker Action Group v. Rogers C. B. Morton, Secretary of the Interior

any of the Lawrence stock. group buy quence of relatively corpo- simultaneous unnecessary resolve find it adjustments rate whose order has no hearing on prevail at a issue. To practical effect do not govern appli- that, matter, show would have to AMC cability of 9(a)(2). section The same re- “Tenney” group was not a although the sult would not obtain where the se- holding it statutory company,6 was a quence of corporate adjustments had a source of the same abuses vices harmful effect on investors or public. Congress to enact the Pub which led the Finding no error, reversible we affirm Holding Company Act. lic Utilities See judgment of the Commission. 1, Elimination 79a. § U.S.C. § Affirmed. and directors in non-' common officers utility companies competing was not the

precise purpose of the Act. AMC makes “Tenney” that the allegation group

no any evils set forth in

the source of sec (15 79a). Act 1 of the §

tion U.S.C. having

AMC failed to show that there issues

would have been substantial raised hearing interpretation at the if its —even (a question of the Act were correct QUAKER reach), do not we find A Commis ACTION GROUP et al. abuse sion did not its discretion in re v. fusing approval to vacate its of the sale. Rogers MORTON, Secretary C. B. Interior, al., Appellants. et remaining raised issue petition for was reconsideration QUAKER ACTION GROUP et within this transaction fell whether al., Appellants, 9(a)(2) Act ambit of section [15 and, hence, 79i(a)(2)] required U.S.C. § (see approval 10 of the § Commission Rogers MORTON, Secretary C. B. Act, 79j). Springfield Since U.S.C. Interior, et al. Northampton after merged into had 73-2061, Nos. 73-2190. stock, for bought the Lawrence an in United States Court of Appeals, were stant there three entities —Nor District of Columbia Circuit. Springfield. thampton, Lawrence Thus, argues Springfield, AMC 27, Argued Feb. already which an affiliate of was Nor Jan. Decided thampton, buying was the stock of a company. 9(a)(2) utility Section forbids As Amended Feb. June purchase ap such without Commission proval. The Commission concluded that mеrger Springfield into Nor

thampton closely so related to the was

sale that the transaction should be Northampton,

viewed one in which affiliate, company without an obtained stock. We find the

the Lawrence Com reasoning persuasive.

mission’s as corporate adjust

sessing interrelated

ments, comparison should be made of the prior immediately just to and

situation adjustments. The se-

following the Act, 15 holding U.S.C. § 79b. the definition of in section 2 6. See company Rauh, Jr., Ralph and J. Tem- Joseph L. D.C., Washington, with whom James ple, Smollar, R. William Paul Fitzpatrick, F. Cohen, Dobrovir, Rosalind C. Richard A. Johnstone, Earle, M. John James G. E. Westen, Jr., Tracy A. Wash- Murphy, Wulf, D.C., and Melvin L. New ington, brief, appel- on the City, York were appellees 73—2190and in No. lants in No. 73-2061. Zimmerman, Atty., Asst. U. S.

Gil Titus, Jr., Harold H. U. whom S. with filed, the time brief was Atty. at Aikens, Terry and Arnold T. A. John brief, Attys., were on the U. S. Asst. appellees 73—2061 in No. appellants Silbert, Earl J. 73-2190. U. S. in No. appearance ap- an also entered Atty., appellees in No. 73—2061and pellants 73-2190. No. McGOWAN, LEVENTHAL

Before MacKINNON, Judges. Circuit LEVENTHAL, Judge: Circuit March, 1969, Quaker A Action plaintiffs filed suit Group Besides associations. these unincorporated five associ- Plaintiffs include organizations are plaintiff Group, with affiliated four individuals ations seeking declaratory Court District Capital Division National Parks commu judgment governing by this an nicated determination internal gatherings in the White House (the Memorandum”) “Jett memorandum unconstitutional, perma and a area the Park Chief of Police' directed injunction against nent their enforce of the the Director Central Na and to Department ment Interior. Capital Parks.6 In tional dum, memoran then, litigation this troublesome Since Park Service also announced a dragged nigh interminably. well policy refusing permits internal new opinion marks the fourth appear This (the of White House sidewalk for use court; ance of the case in have we of Pennsylva on the south side sidewalk previously grant affirmed initial and West between East Ex Avenue nia injunction against preliminary regul Avenues) by groups exceeding ecutive ations,2 and have twice reversed summa Lafayette persons, and for use judgments ry аnd remanded the case for exceeding groups persons. Now, long trial of the factual issues.3 last, of these numerical restrictions Neither held, the trial has been have part being was then us cross-appeals before from the trial by the memorandum. reactivated judge’s findings and conclusions.4 For Thereafter, spring below, reasons set out we affirm the de plaintiffs, five organizations wishing Court, although cision the District to hold demonstrations on the White qualifications. several House sidewalk or in Park,7 filed their action in the District Court. After an initial hearing on a request for I. BACKGROUND the of litigation Because course this a preliminary injunction, the District been in our previous has detailed three Court concluded that the numerical re merely we sketch opinions, shall its back- strictions were not reasonably related to here, give a frame ground to of refer- the achievement of govern substantial for our ence consideration decision interests, mental permit that system the below. unduly conferred broad discretion on of 10, August deny permit On ficials to applications, 1. the National and (NPS) system that the Park Service decided to enforce in fact had been long existing, neglected require arbitrary, administered in capricious an “an harassing ment individuals obtain a and manner.”8 Accordingly, to the prior usé of National areas in District Court issued preliminary injunction against public gathe District for the of Columbia enforcement of the rings.5 permit requirement. Regional The Director of the Clergy Laymen Vietnam, and concerned about 6. Plaintiff’s Exhibit 30-J Pl.A. at Tab 27. Peace, for Strike Jews for Ur- The.Women’s except groups Action the Quaker of 7. Each Justice, ban and the Action Committee on permits permit. were denied The requested a American-Arab Relations. (Park Service) Park Service by National the Group Hickel, A2. Action v. Quaker 137 U.S. Department agent the the for relevant App.D.C. 176, (1969) (Quaker 421 F.2d 1111 alleged that it had Action Quaker Interior. I). Action apprehen- of its out applied for a Group Hickel, A3. ‍​‌‌​​​‌‌‌‌‌‌​‌‌​‌​​​‌‌​​​‌​​‌‌‌‌​​​‌​‌‌‌​​‌​‌​​‌‍Action Quaker v. 139 U.S. would arrest its the Park Service sion demonstrating App.D.C. (1970) (Quaker 429 F.2d 185 Ac their numbers ex- members if II); Group tion and A regulations. Action v. Mor Quaker See limitations in the the ceeded ton, U.S.App.D.C. 346, 148 U.S.App. I, 460 F.2d 854 supra 137 note Action Quaker (1971) (Quaker III). Action 179-180, at 1114-1115. 421 F.2d at D.C. Group Morton, A4. Action Quaker Civil Hickel, Group v. Civil Ac Action A8. Quaker 688-69, F.Supp. (D.D.C. Action No. 362 1161 25, 1969), (D.D.C.April Con 688 — 69 No. tion 1973). of Law at 1-3. clusions at 36 C.F.R. 50.19 5. found Appendix (1973) this in the to and is set forth opinion. untested we affiants’ appeal, Action I. On Quaker statements and 3. law yers’ arguments.” preliminary the issuance of Accordingly, the we re

affirmed manded for a the case “hearing at and ordered which injunction, evi dence, that may But expeditiously.9 tested on trial to cross-exam proceed ination, govern the establishes the seriousness reasons view regulatory provisions stake, particularly at and the interests feasibility mental of others provide President satisfactory safe guards against injunction House, violence modified with less White inter ference with the groups right to peaceful extended protection pro so that test.” gathering wishing to hold they gave the only if area again The District grant Court their notice days least NPS summary judgment ed Gove noted, our mod then weAs gathering.10 This new summary dispo rnment.15 give designed was ification reflected apparently sition District opportunity sufficient government Judge’s belief that had deprived he been restraining order temporary seek regulations to review the of discretion reasonably any demonstration Secretary’s repromulgation danger particular present felt rulemaking after a formal President, opportunity safety of the proceeding.16 judge buttressed his invoked since government decision reference to then recent out instances.11 fourteen some of violence connection breaks activity around the demonstration coun decision, not initial After including the Kent try, State incident. case order withstanding our grant Court trial, District Again we re proceed III. Quaker for summa motion government’s judgment summary ed grant versed proffered upon relying judgment, ry trial.17 the case remanded Secret Director affidavits opinion spe- Action III the need as to officials government’s cifically considered the ar- President protect accepted by gument, Judge, the District House.12 accept any regula- court should the by Secretary reversed We tion issued the is both II. Action Quaker 5. District supported by the of reasonable substantial judgment summary the had plaintiffs evidence an administrative the record. ruling Court, explo- repeated holding further our earlier “deserving of issues raised trial balancing of “the of First Amendment free- processes full the by ration requirements presentation safety doms re- simply merits, not the See violations. Action Quaker III, 148 U.S. I, note 2. Action supra 9. Quaker 5, at 355 n. 460 F.2d at 863 n. 5. App.D.C. at 184, at 421 F.2d 137 Id., U.S.App.D.C. 10. 1119. Hickel, v. Civil Group Action 12. Quaker 1969). table (D.D.C.Nov. in evidence show- 11. Plaintiffs placed 6, No. 688-69 Action occurring ing between instances, fourteen U.S. 139 3, note II, supra Action Quaker 13. in which the 1969, 1973, and April September, 187. at F.2d at sought App.D.C. government demonstrations to restrain limitations contained of the 100/500 in excess Id. 14. enjoined regulation. Plaintiffs then Morton, Civil Group Action A Quaker Tab 15. On one occasion 46 Pl.A. at Exhibit (D.D.C. November 688-69 No. Action government hill, the and after marched up the 1970). an order of the district court stayed this court government obtained from the Supreme pro- Secretary’s the the description For the dis- relief to reinstate note extraordinary III, supra Court Action ceeding, Quaker see injunction at and then lite, F.2d pendente trict court 348-349, at U.S.App.D.C. the hill when it elected not down marched 856-857. it had obtain- of the order enforcement secure note III, supra Action 17. Quaker in the face of Court Supreme from ed ty, court,” 18 Metropolitan Chief Wilson of judgment quire[s] Po- w s: Deputy Beye lice and Chief went on to elaborate follo turn, plaintiffs Police. adduced of these vital Amend- In view [First substantial concerning evidence lack of issues, think it can we do not ment] disruptions past demonstrations, validity regula- said that expert testimony about crowd behavior. by the is established existence of tions judge The also received testimony and in the administra- evidence substantial other evidence about other asserted that the Government offi- tive record justification permit system. for the imposing cials had a reason for a nu- hearing After this extensive the Dis- merical restriction. issues con- trict three Court reached (1) conclusions: cerning scope It permit system affirmed the need for a extent and the need for their and re- approved existing permit regula- strictiveness are no closer resolution tion with single (2) modification. It they were when we now than first found that there had been no maladmin- Secretary’s remanded for trial. regulation. istration of (3) It re-adopting the 100/500 reasons concluded that the 100/500 essentially the limitations rule in 1970 are same as were too restrictive of the First Amend- previously were adduced—a letter ment interests the plaintiffs, asserted from the Director of Secret Serv- and that “[a]ny limitations of less Secretary than stated he ice which the 750/3,000 would be more re-examine, restrictive phrased could not terms is essential for the furtherance of previously to the affidavit sub- similar [the governmental interests . .” Secretary asserted] (District which pre- mitted to the 2). Court Conclusion type of viously held was the untested support that could assertion parties have taken cross-appеals, upholding summary conclusion these government objecting to the raised numerical restrictions. limitations, numerical plaintiffs ob- jecting imposition both to the nu- the health Of course merical limitations at all and to the ap- safety are of President concern proval system. of the permit Presuma- citizenry. only poses, But bly opinion our in this case will be answer, question re- it does not as to ferred IV; hopeful- involved whether officials have ly, it will be the end of the line. into transformed this concern an ex preoccupation cessive unnecessary

that is achieved at the ex THE DISTRICT II. REVIEW OF pense First freedoms. DECISION COURT aware the issue We are is diffi difficult, is and It too cult delicate. A. Basic Approach delicate, dependent too on too careful stressed in our I- As we have weighing and assessment constitu is not a rulings, normal prior this case rights, conclusively to rest tional action or admin of an executive review the untested declaration of an execu When the execu proceeding. istrative tive official.19 process abridg the administrative tive or 8. After this remand, subject second it is rights, mat- es constitutional came ter on for otherwise, trial before Judge and ulti scrutiny Hart than closer April 23, 1973, between 2, and May rather than the court mately 1973. it is Testifying on behalf of the competing asserted balance agency se- that must curity justification for the question in this case is restrictions interests. were the Director Deputy support and regu for the Director whether some not Service, Secret adduced, by Secret reference to may Service lations Agent charge of White record and a claim of securi- evidence U.S.App.D.C. 351, 18. 148 at 460 F.2d 19. Id. at 460 F.2d at 860.

724 concerns, but is inferences

reasonable public has, the streets places from at issue here are times, part whether privi ancient been a of the purpose for the “unnecessarily restrictivе immunities, leges, rights, and liberties to serve.”20 designed they are of citizens.21 Moreover, pointed out in time, have, first for the nowWe III, right public parks to use upon fac based judicial determination expression especial of ideas is of im- trial, at a indeed adduced evidence tual portance in the District of Columbia: complete trial. extensive rather aat greater we owe general concepts of First determination Amend To adminis untested given ment freedoms are impe added deference which we have speech judgments peaceful tus as demon trative This deci Washington, D.C., confronted. stration previously been by a was rendered appealed clause of the being Constitution which as sion of both right after consideration citizens of their judge sures to assem district considerations, for which peaceably govern ble at the seat of constitutional concern, securi and the present special grievances.22 ment and judge by the brought forward ty considerations necessary We find it to stress this basic Moreover, the dis officials. government in view proposition of the Park Service’s the live judge had the benefit trict approach continued to the use of local testimony of the various witnesses whose park areas for First Amendment activi probed assertions could be tested and Indeed, in ty. this case and others we Thus, cross-examination. unless we dis recurring have encountered a Park Serv cern clear error in the district court’s parks ice theme that the use of for dem fact, legal findings of or a mistake in its appropriate onstrations is “not an use of approach, we have no warrant for rever Federally-owned park .,” . . lands sal. activity part such of the spirit It is in this approach that we mission” of the Park “basic Service or findings review conclu- our that demonstratоrs are somehow not trial made after the for which we sions park “bona fide” visitors to sites.25 This long. waited so approach of the Park rooted in reviewing the District premise unacceptable. that is approval Judge’s regula tions, we start with the declaration of parks public as The use of Hague Justice Roberts in v. Mr. C.I.O.: airing opinions is historic sembly and society, and one of its parks the title of streets democratic

Wherever in our rest, assembly for they values. Public may immemorially have cardinal purposes surely is as Amendment held trust for use of the First been and, or recreational mind, use” as tourist “park time out of have been used parks certain activity. It be that purposes assembly, communicat- specific thoughts citizens, reasonably be reserved for ing between and dis- can uses; activity First cussing public questions. park Such use of For II); Strike Women (Women Strike Id., citing Tucker, (1972) Shelton v. 364 U.S. 29, 420 U.S.App.D.C. Hickel, 137 (1960); 81 S.Ct. 5 L.Ed.2d 231 Peace United I); Jeannette (Women Strike (1969); Robel, 258, 268, States v. 389 U.S. F.2d 88 S.Ct. Police, Capitol Brigade of v. Chief 419, (1967); 19 L.Ed.2d 508 Rankin United States v. U.S. 409 1972), mem. (D.D.C. aff’d O’Brien, 367, 377, F.Supp. 1673, 575 391 U.S. 88 S.Ct. 20 (1972). 311, 236 L.Ed.2d (1968). 34 972, S.Ct. 93 L.Ed.2d 672 496, 515, 954, 964, 23, II, supra U.S. 21. 307 59 153 S.Ct. 83 note Strike See Women 24. (1939). 200, 1423 L.Ed. at 1275. U.S.App.D.C. 472 F.2d ‍​‌‌​​​‌‌‌‌‌‌​‌‌​‌​​​‌‌​​​‌​​‌‌‌‌​​​‌​‌‌‌​​‌​‌​​‌‍at Failor, III, 22. Quaker Action former Su- supra Deposition William 3, of 25. note 148 U.S. Parks, App.D.C. 351, Capital at 60- at 460 perintendent of National F.2d at 859. n. 137 at Brief 61, (quoted in Plaintiffs’ See, g., 62-63 Women e. Strike For 23. Peace v. Mor- 248). 198, ton, U.S.App.D.C. 1273 153 472 F.2d

725 might inappropriate be for a wilderness develop may system restraints, a of on such as area Yellowstone Park. ap We protected conduct, the otherwise that at however, prove, the District Court’s find tempts to accommodate these various ing sidewalk, that the White House La competing cases, interests. In such Park, fayette Ellipse and the constitute proper government course (1) lies in unique situs for the exercise of First balancing rights the First Amendment rights. (Finding 17). against legitimate other interests to therefore cannot accord deference tо an arrive a reconciliation that is both approach executive to use of the White acceptable and an constitutional accom House sidewalk that is rooted in a bias factors; (2) modation of all the in against expressive conduct, or constructing a scheme that does not risk premise that such conduct is outside of— rights abuse of First Amendment footing and on a lesser than —the “basic through censorship power broad or oth mission” of the Park Service.26 improper application er of theoretically acceptable restraints.28 hand, 3. On the other it is In undertaking to expressive balance well-settled conduct is competing interests in several of subject contemporaneous both to these and to Supreme cases the Court has prior restraint under certain circums adhered to general certain guidelines that have been Obviously, tances.27 conduct that cre summarized as follows: danger property, to life and ates or order, public is destructive of the expression [Restrictions are valid if may by be checked authorities. In such (1) the “[regulation] furthers an im- situations, when the First Amendment portant or governmental substantial rights compete demonstrators interest,” (2) ‘.‘governmental inter- interests, legitimate government other est is unrelated to the suppression of Interior (1968) (and support the in (3) the incidental asserted Government expression,” free permit Judge alleged system, First Amend of its Hart made on restriction express finding any of greater than is es no the inter- rights is no ment “substantial,” was he of that int ests but did find as the furtherance sential follows: erest.29 precautionary 22. The measures the this matter we remanded When may protect be the used President we instructed the for trial Court District House be such as to White guidelines apply these

judge to contingencies, cover all reasonable dеveloped trial. it is in And facts as they may not unduly and unnecessari- balancing test that we must light of this j impinge rights the ly Constitutional findings and conclusions of examine citizens, including of the those under Court. District As applied the First Amendment. of the 4. Since 1967 promulgation here, interests involved need to be Memorandum,” the Government “Jett The expression balanced. free of ideas variety jus- asserted a of interests to against protec- must be balanced Initially, tify permit regulation. in tion of the President and other denying permits, stated Government involved. interests applicants per- to unsuccessful pre- mit were intended to Implicit in this finding judgment is park serve values and to limit inconven- interests advanced by the pedestrian traffic. ience to vehicular and Government are “substantial” enough to plaintiffs moved the district When taken into be account under the stand injunction preliminary court for ards O’Brien formula. Balancing justi- adduced an additional Government these asserted interests First fication, . . values, “. the interest of the Amendment and measuring the safety of the Executive Park Service’s as a Residence, occupants striking and contents balance, means of Judge ” (Bryant finding 13). . . A . as a Hart concluded matter of law that fourth interest asserted permit system Govern- jus on its face was a during litigation prior has been a ment tifiable restraint on demonstration prevent undue distraction activity area, desire in House subject in the considerable staff works only to the different minimum numerical assessing House. the interests prescribed White limitations in his conclusions.30 29. 1. The White b. ests a. the furtherance and the which c. b. above. would number mental f. Alternate e. d. Judge Jeannette Rankin O’Brien, supra Any limitations F.Supp. at Ecology Safety Protection Rights Safety of demonstrators. Lafayette present House. they House Hart’s interests: set furtherance streets of demonstrators more restrictive of citizеns of citizens forth freedoms 584 — locations conclusions were as follows: Park for the is in front of White 100/500 note 27. provided and maintained. in 1. more restrictive 585, citing Brigade, supra the President to use the sidewalks using than less above. governmental limitations following Park. than is essential normal uses for large protests. facilities United front essential 750/3000 note govern- on the and/or States inter- First for tion No. 1973). lasting beyond 24 hours or ble. tion is reasonable. c. The ban tion: conclusions 1. and 2. Amendment b. The restrictions strations e. The ban and the White House sidewalk is reasona- secutive taneous demonstrations d. grant a. broad discretion on 50.19 ^[******] systems or 688-69, requirement requirements days by deny permits are does on the use of sound notice rights except on the White House sidewalk reasonable. Group v. requirement continuous demonstration one are reasonable. government on rush of marshals F.Supp. above, in confer group Morton, violation of First as set Lafayette beyond impermissibly standards hour demon- this connec- reasonable. officials to 36 C.F.R. for simul- amplifica- Civil Ac forth in (D.D.C. 7 con- implicit find Accepting his litigation, ineptly matter how this no governmental the asserted ing Government, that in by cannot presented the be prior restraint justify some justifies terests alone blinked. This interest activity in the White Amendment First restraint of some kind on prior area, the we affirm District White House area. gatherings in the permit sys the Judge’s conclusions that Second, since the House area is written, basically a tem, as is constitu “unique situs” demonstration activi- prior First restraint Amend found, tional ty, as the District Court there is holding, we activity. ap In so ment governmental mechanism for for a need system proving the overall as be space time allocating and re- scarce governmen ing justified the asserted among House area of the White sources interests, being no tal and as more re competing system applicants. necessary preserve to strictive those while a notice such allocation allows time, however, At interests.31 same inadequate purpose. would be that disapprove particulars some of the we reception We accord different to other vague regulation needlessly unac plaintiffs challenge contentions which ceptably restrictive of the First Amend procedural provi- certain substantive and It is our interests at stake. view ment vague sions of and course, such a allows the that which con overbroad, inadequacies and criticize regulation ap that existence of a tinued regulation alleged have that allowed necessary, upon but which pears focuses place maladministration to take in the aspects regula of the certain undesirable criticisms are past. Some these valid tion, approach is the most constructive explore specific we shall substantive problem, avoiding delicate the ex this procedural aspects regulation, approval of either unqualified tremes prescribe necessary certain modifica- existing regulation, its however tions. We are satisfied that faults, abrogation reg or a total of that approach our overall is a sufficient an- ulation. criticisms, plaintiffs’ swer regulation appropriately that if is Plaintiffs contend Govern- meet it will constitutional modified any interest so has failed to show ment standards. justify per- compelling it would system, absolutely pref- either or in mit we addition wish to make system. notice erence clear to the Park argu premise We do not consider holding our is that provi ment, plaintiffs’ or the various criticisms system sions will be en past regulation adminis uniformly forced and without discrimina accept many of which tion and that will there be no deviation —to tration — in а regulation’s culminate determination from language unconstitutional. entire works an abridgment of communication First, interest stake in applicant group. regard, In this works well at difficulty The O’Brien test the ex- we note the tremes, assessing be whether it that a new test will an interest is “substantial” ' enough governing justify compromising have to be devised the close a First right. Judge Wright cases. As stated: II, supra U.S.App. Women Strike note virtually impossible princi- It to derive 209, 472 at 1284. We would D.C. at F.2d pled [balancing] ques- answers to these only observe that it is our view that the na tions. The basic all issue in cases is how governmental ture asserted interests requires society much First Amendment sufficiently this case do not render “close” give up interest communica- rigorous that we need a more undertake scru is, price tion —that willing what we are Judge’s tiny conclusion that the District put speech. run, long on free In the it will compromised First Amendment must say pay do to that we must a “substan- this situation. price, tial” since this answer does not tell just price us how substantial must be. B. “public gathering” constituted a provisions ual Substantive in the taking up sign marching a in behalf of some cause. This result is absurd and requiring Occasions permit. a aridity demonstrates There are certain provi- substantive approach. Accordingly, Government’s sions of the regulation that we do not validity permit sys- we sustain the disapprove in principle, but that we be- assumption tem on the can be —which lieve must be made precise more in order judicially enforced if be—that the need to minimize the possibility of any inad- Park implementing Service will issue an vertent or deliberate abuse of official regulation defining “public gathering” in discretion. In particular we are con- impermissibly terms do not discrimi- cerned about the following provision: against nate First Amendment activity, “[p]ublic gatherings, than person sign, has a NPS e. whether a or g, events, may be held only pursuant sign aсceptable to a whether the has an mes- valid official issued in sage. may accordance The Park Service wish to with provisions of this unwieldy section.”32 avoid administrative burdens provision This raises two problems, by exemptions permit require- from the one being the appropriate ment, g., groups speci- definition e. of a less “public gathering,” the other fied size. concerning the “NPS event” concept. (b) Designation of events”. “NPS (a) Definition “public gathering” problem “public with the second for enforcement purposes. gathering” provision exemp involves permit requirement grant from the tion “public define ed to events.” These “NPS events including, gathering” as limited celebration, “any defined as tive, commemora “demonstrations, to, picketing, speech- sponsored recreational event or or vigils, parades, making, holding of cere co-sponsored by the National Park Serv monies, meetings, entertainment and all We are troubled the lack ice.” public assembly.”33 As other forms of expressed any standards selection of validity permit regula suming the events,” by the total absence “NPS tion, objection no constitutional we see procedure of an announced for such se definition, way which in no dis to this In view of the Park lection. Service’s Amendment criminates First ac cases, in this and other the lack of record problem that the Park tivity. The procedures gives rise standards “public may gath have defined Service Park the concern that the Service ering” purposes for enforcement to mean against First discriminate Amendment only public gatherings expres those activity by granting selective or with inquired point on this sive content. holding of “NPS event” status and of argument. counsel oral Government accompanying exemption from the position “public then took the that a ordinary permit requirements. pre In a any group in which gathering” would be litigation, the Park vious Service tried to person sign one carried'a or en at least protest limit certain activities because of activity. By in First Amendment gaged contrast, event” conflict with an “NPS which was group noted that a counsel political not without overtones.35 There persons in the White area would was a lack of announced standards “public gathering” if not be considered a events”: for selection “NPS there were no manifestation of such ex Further, pressive activity. Government . we are left without coher single put regulations, govern it that even individ- framework of counsel ent (1973), 50.19(b) set forth § 32. 36 C.F.R. 50.19(a)(5) (1973), 34. 36 C.F.R. § set forth in Appendix. Appendix. II, supra 35. Women Strike note 23. 50.19(a)(1) (1973), 33. C.F.R. set forth in Appendix. ”37 park areas gatherings particular, plain health . . . ing public of the Na jurisdiction argue wording subject to the tiffs that this allows Park thorough based permits officials to refuse tional Service on the park ideological position consideration reflective basis of including First values, applicant group, equate in effect Interi- Department of unacceptable “leftist tendencies” with an rights. responsibili tendency to violence. It would not shouldered be im or has discriminating, rather permissible grant deny ty provide regulations. discriminatory, park merely on the basis of the content of the exercise of careful forthcoming expressed and views to be tion, in the demonstra serve responsibility assuming ap no violation of law administrative disarray.36 pears speech in a mixture of administrative and con to avoid duct. Service, however, has let its The Park Given the uniqueness impor unchanged, stand in ma- regulations tance of the security .protec interest of way, pro- and there have been no terial tion of the White House as justifying a responsibility. refining for cedures greater limitation than applicа would be ble generally to public use of streets and future, In the if the Park Serv parks, we conclude that the Constitution regulations ice wishes to enforce the re not offended the standard in the quiring permit public a for gatherings in regulation, (1) limited as it is to pres areas, regulated require it must a ence of a present clear and danger, that permit every public gathering in (2) confined to the protect need to those areas. We see no burden on the public safety public health (including Park Service as to what it now treats as in public safety the avoidance of disor simply event”—it can “NPS issue a der). This is not like the ordinance held permit for such an event. If it wishes to invalid in Shuttlesworth v. Birmingham, for, permit say, 3,000 issue more than 147, 935, 394 U.S. 89 S.Ct. 22 L.Ed.2d 162 Park, persons can do so (1969) which authorized members of a by incorporating regulations pro in its city deny commission to if “in limit, vision for waiver of that numerical judgment public welfare, peace, appropriate ap all standards —and health, safety, decency, good order, mor plicants will in the future at least have als, or require convenience it be opportunity to submit for consideration a refused.” The Court gave held that this Or, petition to waive that limit. if the “virtually commission unbridled and wishes, Park Service it could retain a power” absolute prohibit a demonstra events,” system in, of “NPS reserve time city’s on the ways. (394 tion 150, U.S. at Park, say, Lafayette publish and even 935.) 89 regulations S.Ct. before us done, advance schedules. This could be do not extend categories as amor instance, by establishing in advance phous welfare, decency and conve an announced schedule of recurrent an nience. they And do not define the nual events. granting in terms of the subjective judgment of the officials. Grounds for denial. before us are defined in Plaintiffs challenge as vague and over- terms of substantive criteria and the broad regulation’s provision that a open courts are in the event of malad permit may be denied if reasonably “[i]t ministration to hear concrete evidence in appears proposed that the public gather- support of such a complaint. See Niem ing present will a clear present dan- Maryland, otko v. 340 U.S. 71 S.Ct. ger public safety, good order, or 325, 328, (1951); Quak- 95 L.Ed. 280 Id., U.S.App.D.C. 50.19(f)(2) (1973), 472 F.2d at set forth 37. 36 C.F.R. support Judge (opinion Appendix, Leventhal concurs). Judge Robb of result in which demonstration, including been Hickel, never supra cited Group v. er Action ones, actually posed large quite 12.38 note House or to the White security threat Numerical Restrictions. never (3) There has President. program Park Service’s turn to the which about a demonstration been persons able the number restrict ade lacked and other authorities police gathering in a participate sources information obtained from quate question area.39 any permit and notice independent Amend the First to balance is how face Although the Government machinery.41 secur asserted ment interest attempts to have strenuous made of the oth none because ity justification, upon “potential an asserted rely court justify limi some that would er interests upon the al violence disorder” e., size, physical space, i. of crowd tation of “violent demonstration leged instances vehicular values, pedestrian park conduct, violent or bizarre con and other be advanced in traffic, seriously be can duct, and across the Washington, D.C. as is stringent a limitation of so half .,”43 Judge Hart found . . Nation regulation. in the contained disorderly made for that arrests were only the 383 then most in five of conduct is record inconclusive as to the the White demonstrations recent relationship between the public size of a (including some 77 demon House area gathering and the threat gathering that limita in excess of the 100/500 strations might pose to security. White House were re tions), while violent incidents testimony by the Secret Service and (three only six demonstrations ported security officials be summa demonstrations, and three in large (1) rized as follows: It is their belief ones).44 also contains The record small any demonstration, especially grow expert testimony that as crowds one, large pose would an unreasonable they and less larger become more docile danger security to the President no to violence and that there is prone (2) and of the White House.40 There has cy, kept President in a steel Judge Bryant for the cannot The maladministration 38. away public. era, from the We would ob- pre room find- in the 1969 existed had found however, serve, probably Hart, accepted by Judge President ings due course largest require- faces far fewer risks from even the manipulation procedural on turned than when demonstration at White House possibility abuse has of such ments. parade he moves in a or visits a baseball completely obviated not been minimized if public appear- provisions or makes sort of ruling procedural stadium our supported by This is ance. observation testi- regulations. mony from Assistant Director for Protec- at 36 numerical limitation is found 39. The Service, Intelligence tive for the Secret who (1973), 50.19(g)(2) (3) set forth C.F.R. virtually rated the White House as the safest Appendix. in the (Tr. 164). place for the President. instance, Paper” 40. For in a “Position dated Finding 41. 19 states as follows: 24, 1967, July the Secret Service stated its strong belief: The White House sidewalk and history Park have of demonstrations. picketing the continuation of and dem- judg- None of these demonstrations in the onstrating by protest groups in front of the Service, ment of the Director of the Secret White House constitutes a threat time, posed up to this has a serious threat safety of the President of the United States security the President activity permit- and that should not be White House. ted. Morton, Group v. A Action Civil Ac Quaker (Plaintiff’s 23). exhibit Pl.A. at Tab Of 688-69, F.Supp. (D.D.C. 1161 No. 362 tion charged course it is understandable those 1973). safety prefer, with Presidential would as it, Judge put precautions Hart to take “the brief at 42. Government’s (or to shield him dictator” House Id. complex) danger. (Finding 23), A from Quak- Group Morton, Finding v. Group Civil Action No. er Action 688-69, 688-69, Morton, F.Supp. This, 362 F.Supp. (D.D.C.1973). Civil Action No. (D.D.C.1973). course, possible simply in a democra- not hancing insight, a crowd’s controlling relationship between out- causal might pose brings come. Insofar it forward threat size principles relevant . . . it is use- security. on the the President to the dispositive. Government’s This record evidence is general Thus the witnesses, issue whether public poses testimony helpful, while credible exposure a secur- but not ful than this sense.45 [But it] ^[*] H< would are the dictates of common ... ^[*] require stronger to override what proof threat, ity has less relevance rela- predicament The Court’s in the balanc- tionship between variations in a crowd’s process ing in the First Amendment area danger and in size Moreover, to the President. captured by was one commentator: testimony considerably process depends], to an inordinate [The weakened the officials’ admission as extent, predictions of behavior— presented by past to the lack of risk predictions by survey unsubstantiated by Judge demonstrations and Hart’s data or “interdisciplinary” documenta findings as to those demonstrations. tion. As is true in every almost mod hand, Judge On the other Hart rec- area, problem ern the issues that arise ognized, it cannot be denied that a must, out of mass demonstrations gathering presents some measure of haz- necessity, be resolved without the ben ard to the of the President and empirical knowledge. efit of Until the White House. Common sense mаn- corrected, that situation is the choice dates caution in this matter and the fact guesswork is between careful and ana that no past demonstration in the lytic paralysis.46 been a hazard Judge is not decisive. As Because the record does not resolve our states, Hart President was ever “[n]o dilemma, the court proceed must by Lincoln, killed in a theater until in a “careful guesswork” to a resolution of Garfield, railway station until recep- in a issue, the instant studying the materials line McKinley, tion until or in open an hand, at factoring also in “common Kennedy.” car until His statement re- sense,” even if that rests on a base of any flects the doubt that judge feels perceptions. intuitive by when confronted an interest so com- pelling as safety. Presidental It would starting point, we affirm As a helpful have been if the Government had “[a]ny Judge Hart’s conclusion that limi case, really proved a but its failure to do 750/3,000 of less than would be tation give ignore so does not us po- license to essential for the more restrictive than is tential ‍​‌‌​​​‌‌‌‌‌‌​‌‌​‌​​​‌‌​​​‌​​‌‌‌‌​​​‌​‌‌‌​​‌​‌​​‌‍risks to the President. governmen furtherance of asserted] [the ”47 Nor can we soothe our troublesome already . . . As tal interests by applying doubt the balm of the ex- seen, upon rests extensive this conclusion pert testimony by plaintiffs’ offered dis- history of findings rooted in demon tinguished witness. While this testimo- area, in the White House strations ny responsible, perhaps highly upon assessment of the testi well as an predictive behavior, of crowd we are mony given the courtroom in loath to override a concern for Presiden- security experts. More Government’s safety by tial reliance on the conclusions over, significance that it is not without single expert of a witness. As was stat- that 750/3000 is a mini the conclusion closely context, ed in a analogous limitation was reached acceptable mum judge by the same who had testimоny must be trial taken as en- after

[such] Group v. II, Action supra 45. Women Strike note 153 U.S. 47. Conclusion 688-69, F.Supp. Morton, 362 App.D.C. 227-228, No. Civil at 472 F.2d at 1302-1303 (opinion Judge Leventhal). (D.D.C.1973). of 1161 Blasi, Prior Demonstrations, Restraints on 68 (1970). Mich.L.Rev. 1574 judgment 3,000 summary problems granted particularly see in the affidavits, he read the when figure Lafayette assuming, Government Park — testimony given pondered he case, before we have reason to believe to be the open court. in that the Park would tolerate public gatherings Lafayette in Park figure, devel- The 750/3000 limitation 3,000 above in an event” context. “NPS as a minimum by the District Court oped Thus, balancing process may come to reasonably limitation, firm provides 3,000 larger figures tolerate for La- a limitation projecting basis Park, even fayette figure should a 750 be mean substan- range will not this modest sustained for White House sidewalk. Underlying this security problems. tial large gatherings This would availability police of are the conclusion right assembly, exercise of with any particular crowd restrictions on of members to the White rotation dangerous; unruly proves be sidewalk, a limitation Washington, D.C. capability concentrated there at number one concerning informed to become police time; and it would barriers be- of demon- shape and characteristics tween strations. possible House sidewalk to reduce dan- nothing there object Plaintiffs barriers, mobil, flexible, gers. Such a limitation support record appearance, without intrusive have any limitation indeed 750/3000 —or purpose. been found useful for the Oth- his figures reflect Hart’s Judge But all. possible. er alternatives demon out of only 9 finding that We could remand for District Court demonstra active most strations regulation, consideration the new con 1972, exceeded from years, tion sideration would aided our Judge Hart’s figures.48 750/3000 validity in upholding action likelihood establish thus figures permit system generally, approv and our would gatherings proposed 90% Judge ruling al Hart’s on requirement. limitation size meet figures 750/3000 as a minimum limita to coordi efforts turns which case justice, tion. But the interest restriction minimum security with nate 2106, of U.S.C. the eventual end of' points fact assembly, right litigation, go appropriate we think it a path and a common-sensical way to say further that in our view the goal. judicial sound justify record before us does not an ab limitation, Moreover, anything like Judge his con- solute the Hart stated 3,000 range, promulgated by a that was pre- clusion in manner renders his the Park after figures Service District Court scribed a limitation. minimum regulation up decision. could be affirm his conclusion as such. He We held, all, only provi if at were if there figures not establish the to become did limit, Nevertheless, sion for waiver of restrictions. such under maximum taken, appropriate whereby appli standards appeal was and the case after lodged jurisdiction proposed cants could show that a this demon was court, promulgated planned the Park stration had been and would be Service setting figures patroled in such as to regulation 750/3000 fashion render un prob- likely any We see to the a maximum limitation. substantial risk occu regulation, which was not pants in this or officers of the White House or lems adjoining buildings.49 order. by mandated the District Court’s office waiver The Park Service request. could Finding 20, Id. also more information for waiver require re- regula- in the Park Service 49. The provision than for ordinary quests permit applications, large requiring for demonstra- Marshalls tion including to estab- capability the sponsors instance. And reasonable, tions is plainly lish crowd control emer- techniques, supply like with this or requirements compliance gency aid facilities. showing in presumably part would more warrant for provides perceptions, the Park is our view that Thus 750 for the White House regu- limitation sidewalk, in effect a cannot maintain Service ceiling, than for a minimum absolutely pre- rigidly and lation 3,000 Park. Lafayette limitation merely because all demonstrations cludes however, that once a waiv- envisage, projected Lafayette Park We the number evolved, for numbers in 3,000. say procedure that there er We do not exceeds Park, be extended to it should Lafayette Lafayette limit for numerical be no can House sidewalk of the White use Considerations Park demonstrations. in number. Such a flexi- protection of over space groups physical like keeping with limit, would be in approach permit such ble would shrubs case and of Park of the grounds, our view on such ac- figures based responsibilities. record, cording to the would run in Service’s 50,000 40,000 to neighborhood provi- substantive Miscellaneous significance no for the reali- have would regulation. sions of problems under discussion. ties of provisions al In addition up issuing permits for assemblies discussed, several there are ready considering applications 3,000, permit reg provisions of Park will substantive figure, above have chal plaintiffs a more reflective and ulation to undertake have lenged. approach. coherent demonstrations: (a) Rush hour interject to take note of a prohibits public gatherings pressed argument at oral point evening morning and rush during asking: Why Government counsel’s can’t challenge this restric Plaintiffs hours.50 applicants hold their demonstrations on expert evidence to basis of on the tion speakers Ellipse, framed in Lafa that demonstrations effect of the White the rear House? House side and on the White Park yette that there unique The answer is First with traffic. no interference cause walk values in use of the apparently Although the Government sidewalk;49a and seeking citizens plaintiff’s either to rebut no effort made grievances are not redress unreason evidence introduce other or to evidence they propose if to come to the able front Judge the District found contrary, House rather than be shunted to “reasonable.”51 was requirement the back door. Of course there may present much record does While a time come when the crowd is huge so addressed this re specifically support it is reasonable to insist that all to defer to are inclined quirement be used. Just as facilities District Court. We the conclusion holding be a pattern for small appeal the common-sense in mind have groups go which er sidewalk, to the White House restriction, for bal and the need reasonable, so it may be in case the rush consideration ancing the demonstrations, huge to use the El apply on week does not prohibition hour ends,

lipse holding for overflow and a pattern. large most demonstrations when the conclusion that note that expressed would also We have occur. sense record, aid of common may means for with establish Park Service argues 49a. The Government proposed complete restrictions ban on such demon- never strations, may upheld light on communications be only absolutely “in way riskless per- the alternative means of danger communication avoiding conceivable all White mitted,” citing g., Procunier, e. Pell v. 417 U.S. from such demonstrations. House (1974). 94 S.Ct. 41 L.Ed.2d 495 (1973), 50.19(g)(6) 36 C.F.R. set forth § in However, ignore unique quality we cannot Appendix. of demonstrations in front of the White House 4b, Group 51. Conclusion viewpoint from of First Amendment in- Morton, 688-69, F.Supp. Civil Action No. unique symbolism may tersts. That well (D.D.C.1973). account for the fact that the Government has requirement, of this especially waiver consideration, which will be aided small demonstrations. implementation content and pri mary decision.54 equipment: amplification

(b) Sound regulation’s prohi protest Plaintiffs (d) regulаtion Duration: The amplifi sound use of bition prohibits the issuance of a “for a White House on the equipment cation period of more than seven consecutive ” with connection except in sidewalk, any public gath days . . . or for ample justifi There control.52 crowd “having ering a duration of more than legitimate as Government’s in the cation 24 consecutive hours.”55 The asserted keeping in interest serted justification requirement for this is that distractions undue free staff House it allows maximum allocation of the implied au There is work. their from involved, space scarce an interest enti in amplification for sound thorization weight. tled to some But accommoda pro adequate There Park. Lafayette require tion of that interest does not per communica First vision lengthy se disallowance of demonstra judge’s ap trial affirm tion. We particular If a application tions. con restriction. of this proval templates a demonstration of such ex on demonstration loca (c) Limitation preclude tended duration as to a compet regulation provides further ing application, tion: the Park may “permit any will be issued for grant that no condition the of the on an area, the White House ex place within appropriate limitation of the demonstra sidewalk, cept for the White House La length. tion’s regula Government Ellipse.”53 Park and the Once fayette provide tions could any permit for a any partic again, the record is devoid period beyond specified subject limit is prohibition. this justification ular displacement if others seek a Judge District has not commented precludes occupancy. double In requirement. Possibly on this there is a availability of the view of less restrictive dispersal problem demonstrators end, methods to achieve the same event, areas. in these other part existing regulation of the must be regulation public gatherings allows to be held invalid. in what must be conceded are the held B. aspects Procedural areas from a First Amendment crucial Although really we are viewpoint. developed This case in affirming Judge Hart’s determination that an per context of demonstrations on the overall system per mit is not sidewalk and in in White House se an unconsti tutional Park, genuinely imbalance problem and if there is a with First Amend activity ment White House areas we as to other think area, procedural separate certain sup it should be focused inadequacies of the existing permit litigation. judicial It is plemental sound must be cor to focus on the core rected. The 1969 findings administration of maladmin controversy, istration dispositon Judge and remit the made Bryant sup port and minor issues to subsequent preliminary injunction,56 of details (1973), 50.19(d)(2) set forth example type § 36 C.F.R. 56. An of harassment . Appendix. be tolerated cannot future Judge Bryant’s findings: found in 50.19(g)(1) (1973), set forth in C.F.R. 53. 36 14(g) enforcing In the course of 36 C.F.R. Appendix. (1968), 50.19 the defendants § have fre- Cases, 390 U.S. Area Rate Basin Permian 54. quently required applicants, among them 1359-1360, 1344, 767, 20 L.Ed.2d 747, 88 S.Ct. plaintiffs, to travel several times to the Village (1968); Am- 312, of Euclid v. 335-336 Capital Region Office National to 395-397, 365, Co., 47 Realty U.S. bler questionable furnish detailed information of (1926). 303, 121, 314-315 71 L.Ed. S.Ct. rendering upon relevance before a decision application. an The Office of the National 50.19(g)(5) (1973), set forth § 36 C.F.R. 55. Region Capital out-of-the-way is in an Appendix. issuance complaints Should the continuing Park Service discover unnecessarily de- information leading been it has to the permits reasonable of being ha- planned belief that a applicants layed gathering appropriate officials, it make for which it has by issued or been deemed rassed gov- procedures formal to permit have issued a pose more will on to insist seri application permit timing of ous threat to the erning the President or House, may it consideration. exercise an emergency right to previ withdraw its starting point, 1. As a ap we ously given approval. But in accordance existing prove provision requiring with our view of permit regulation, applicants apply permit to for a at least such emergency withdrawal should be planned public 48 hours advance of a subject express standards formu gathering.57 provides This the Park provide lated to for principled considera ample process notice and time to tion an official of responsible rank application. function, and should be exercised only in accordance with those standards. however, note, that the Finally, opinion this preclude does not administrative deadline no contain the Park Service from abandoning We believe Park Service. by the action permit regulation in favor of a feature reasona- essential is an a deadline such system provided ble notice appli system such principle, In system.58 permit — guidelines meets of a discussed in opin- to notice this entitled seem would cant may ion. Or the Government decide within to permit of his denial proposed rely contemporaneous on police appli-' control submission after hours order, to assure without the addition of a cation.59 system. prior restraint We interpolate point, this disagreement on juncture point at this there that has If broken District to the may apply case, parties to surface this but was not deadline. a different explored depth. formulate the event of any Court stake, how- the interests ongoing consideration of regulation, view In ever, procedural possibility administrative as well judicial, the Park Service abuse, question may fairly conclude put: Why not use provide ex- regulаtion to straightforward revise strengthening must act- not application permit technique fence as a plicitly enhancing Presi- dead- administrative upon security? Up now, when dential ed granted. deemed expired is to be Service seems to have blunted line the in- 26, 1969, April place; thus work substantial such travels issued unusual attention example, applicants. hardships upon part For on situation of the office of permit July August during Attorney’s staff, one United States the District separate to make 13 applicant forced Court and was this court. Capital trips of the National the Office 50.19(e)(1), set forth 36 C.F.R. period Region of 4 weeks within a obtain Appendix. permits persons to for a few demonstration sidewalk; the White House assemble Blasi, generally supra note 46 at 58. See 1539- delayed sever- was one occasion days demon- the occasion for the so that al Support for the reasonableness of this re- passed when the was had stration quirement be found in Plaintiff’s Exhibit finally granted. 46) (PI.A. Superintend- Tab in which the Hickel, Group Ac Civil A Capital the National Parks-Central 25, 1969). ent (D.D.C.April 688-69 No. tion states: help procedures assure The need for I against any believe would be desirable recurrence of maladministration policy requir- by Judge finding (par.29): Hart’s establish an administrative to ing not obviated period a reasonable abuse of the ad- time for issuance been no material “There has permits, system April if needed. I recommend a since of these ministration of the length period governed of time be six reasonable defined as This was a 1969.” injunction only by Judge Bryant’s preliminary hours this lies comment with the more restrictive than is essen- quiry “would be of the Secret Service. governmental domain furtherance of tial for the within which the a matter on surely general this is have in But affirmed interests.” involved, entire is government District Court’s order as fair bal- should be coordinаted. departments security First Amendment and two ance of proceeding in this counsel The District Court Government heard interests. by emphasizing question by have met tendered both citizens and testimony aversion profile including need for low the cross-exami- government, hyper- That seems garrison state. government to a bolic, officials and ex- nation of outcry when a public like the witnesses. We find basic deter- pert put up, in fence was first the District Court to be minations rate, time. At Roosevelt’s testimony Theodore supported by the record explored, like remain to be possibilities judicial supplemented by common sense materials, stronger for achiev- vein, use of In the same perceptions. have increased that combines se- ing a barrier ruling up- the District Court’s sustained aspect. acceptably open curity with an holding sys- the continuance of significant ap- value in may be of This tem. objective of the ultimate com- proaching aspects, judgment our In certain con- security with mini- bining presidential supple- modification or templates some infringement of First Amendment mum menting judg- the District Court’s this, the Government interests. Short Thus, ment. the District Court order develop designed innovations to re- 3,000 was the only provided mini- permit system yet minimize ad- tain a figure that could be set as a limit mum instance, the burdens. For ministrative gatherings Lafayette public Park. may find it convenient to Park Service subsequent regulation of the Park groups of a certain size from exempt all 3,000 establishing figure Service all, any requirements groups to make required absolute limitation an subject only size to a notice of another ruling, not, the District Court and it is apply or to re- requirement, view, on the record. our sustainable As only large groups. quirement While aspect the case our to this order con- foregoing observations are not strict- templates 3,000 setting decision, ly neсessary to our if courts are public gatherings as a limit on complex legal called on to consider a Lafayette only Park is sustainable if it is issues, as we have been in these cases for provision supplemented per- years, appropriate to five it seems some waiver of this numerical mits limitation may possi- few comments that venture a appropriate showing by appli- an bly avoid future strains. upheld Although per- cant. we have system, required we have also mit CONCLUSION publish precise regula- Park defining “public gathering” by tions dis- litigation This has called on the courts which turn on criteria searching and sensitive ob- tinctions to exercise criteria, speech than free and de- reconcile First Amendment rather ligation, to scribing specific implementing stand- values and the interest se- permit. of an individual ards denial curity of the White House. ruled that a must We have Fortunately, this court has had the granted unless denied within a opinion deemed of the District Court’s benefit hours, (24 unless the district critical time rulings Its basic and stated and order. period). another If specifies court recognize that the White House sidewalk particular that a discover Lafayette unique Park are “a situs NPS does security, be a threat to gathering will the exercise of First Amendment permit, but the withdraw the NPS any limitation of can rights”, and that crowd express sidewalk, according to standards. must act of less than 750 for the size on the re- 3,000 ruling also calls NPS to Our and less than (3) The term “White House defining sidewalk” regulation an vise its NPS Pennsylva- means south sidewalk of permits require for all event and NPS N.W., Avenue nia between East longer will the and No Park events. West Executive Avenues N.W. the use of able to limit the area to be days, though it of seven consecutive shall in- areas” “park term (4) The authority deny permit course or adja- sidewalks areas, including all clude there are competing when extensiоn thereto, other cent place the same applicants for and time. by National area, administered House reliable National Serv- extent of the To the Parks Capital fences, stronger with obtained can be ice. surveillance, and increased co-or greater (5) The term event” means any “NPS of Columbia the District with dination celebration, commemorative, or recrea- why force, no reason there is police co-sponsored sponsored event or tional through limitations obtained be should by the National Park Service. assembly. and It is speech liberty of Park Service contemplation our other than (b) gatherings, Public NPS proce at its look own a hard take will events, only pursuant may to a be held viability of the First to insure dures permit issued accordance official valid park domain.60 in its provisions this section. with NPS operation from the excepted are events judgment of the District Court is require will not They section. of this part. part affirmed in the case is permits; may any be held in official that the District remanded so may Court area; or the White House park area and re-fashion its mandate in a manner not any such areas to the ex- may preempt opinion. inconsistent with our public gatherings. of other clusion So ordered. (c) Speaker’s platforms or stands may APPENDIX erected, needed, adjuncts be where as permitted public gathering, except 36 C.F.R. 50.19 § sidewalk; (1973), on the White House opinion, see footnote 5 of no contains (including structures following provisions: billboards, etc.) displays, park be erected on 50.19 Public gatherings. except lands in connection with NPS (a) Definitions: events. All such structures shall be inconspicuously as possible, erected as (1) The term “public gatherings” in- possible damage least to basic cludes, to, but is not limited demonstra- values, System National Park and shall tions, picketing, speechmaking, holding practicable be dismantled as soon as aft- vigils, parades, ceremonies, meetings, er conclusion gathering. entertainment and all other forms of public assembly. (d) In permitted connection with pub- “White area” term House (2) gatherings, lic except on the White including areas, sidewalks sidewalk, park all movable means facilities—such stands, thereto, within these bounds: lecterns, adjacent amplification sound N.W.; Avenue south, equipment, chairs, portable Constitution sanitary on the fa- N.W.; cilities, on the north, H press Street and news on the east, facilities— west, N.W.; and on reasonably necessary an integral 15th Street part public gathering, of a N.W. shall be permitted, 17th Street templation possibility with the 60. We are concerned the Park Service will evolve has, policies litigation point, reflecting out coherent the concerns this drawn to this iden- insensitivity opinion, thereby part tified in on the obviate reflected continual involvement of the courts in Park Service to the consideration there what essentially park “park parks should matters of in the use values” adminis- these police responsibility. tration local speech and demonstrations. It is our con- prior granted given notice has been has been or will be on an provided basis; use except that: “exclusive” Superintendent, (1) (2) reasonably appears Superintendent pro- The It reserves amplification public gathering present will right posed to limit the sound present danger public to the equipment, it will not clear and so unreasona- in, order, health; safety, good or bly nonparticipating persons disturb of, vicinity or in the the area. (3) proposed public gathering The is of (2) amplification a nature or duration that equipment No sound such cannot reasonably par- used on the be accommodated shall be White House side- for; walk, event, in that hand-portable applied other ticular area sound if available for the ac- amplification equipment which an alternate site the Su- determines, tivity ‍​‌‌​​​‌‌‌‌‌‌​‌‌​‌​​​‌‌​​​‌​​‌‌‌‌​​​‌​‌‌‌​​‌​‌​​‌‍proposed by Superin- shall be perintendent in the exercise judgment, applicant; in this necessary of his tendent connec- for crowd tion, purposes. reasonably shall Superintendent control possible damage take into account to the (3) Superintendent The may impose trees, including shrubbery, park other upon reasonable restrictions the movea- plantings, park installations and statues. permitted, ble facilities in the interest of park (4) area protecting permit subject involved to denial for the primary park purpose contrary any provisions to which it in this dedicated, been traffic considerations, section. legitimate park and other value con- (g) permits para- Issuance under

cerns. (f) graph subject of this section shall be (e) applications Permit following shall limitations: be sub- to the Superintendent, mitted the General (1) any No shall be issued for Capital Parks, National National Park area, the White place within House ex- Service, Drive, S.W., 110 Ohio Wash- sidewalk, cept the White House La- ington, D.C. 20243: Park, fayette Ellipse. and the (1) White appli- House Area: Permit (2) persons No more than 100 shall be in writing cations shall be submitted on permitted public to conduct a gathering provided by form National Park Serv- any on the White House sidewalk at one Superin- as to be ice so received time. at least 48 hours in tendent advance of (3) persons No more than 500 shall be proposed public any gathering. permitted public to conduct gathering

(2) Lafayette any Park at one time. applications Areas: Permit areas, park all except the White (4) No shall be issued to an area, provide House shall the following organization, group, sponsor or other Area, date, time, duration, information: public gathering conduct activities public and nature of the gathering; esti- House sidewalk and in Lafa- participants; sponsor- mated number of time, yette except Park at the un- same organization; props ing equipment and following der the conditions: used; name, address, to be and and (i) Any overage subparagraphs above phone applicant. number of (2) (3) paragraph and of this pro- shall (f) Superintendent shall process Ellipse to the ceed via 15th Street promptness applications with reasonable (or proceed and/or 17th shall Street receipt; and, subject in order of agreed-upon designated park some limitations set forth in the next follow- site) public gath- and shall there conduct subsection, ing he shall issue an official activities; ering permit upon proper application, authoriz- (ii) organization, group, or other ing peaceable orderly public gath- sponsor public gathering of such activi- held, ering to be unless: good shall faith all ties undertake rea- (1) proper prior application for the including provision sonable action — place received, time and same has been good of sufficient marshals —to insure carrying self-discipline (5) Park. East side of Garfield order activities, gathering S.E., Virginia includ- between such Second Street persons, Avenue, necessary movements Carolina ing Avenue and South pre- 1,000 limitations persons. the numerical no more than so that (2) (3) subparagraphs scribed under (6) Reservation U.S. No. 46. North all be observed at paragraph shall of this Pennsylvania Avenue, side of west of sidewalk and times on Eighth Street south of D Street Park. S.E., for no more than persons. pe- be issued for a (5) No shall 15393, 2, 1970, F.R. Oct. as amended [35 days, more than 7 consecutivе of riod 24900, 22, at 37 F.R. Nov. 1972] any public authorize permit shall and no of the effective date Note: The having of more a duration gathering 15393, 2, 35 Oct. amendments at F.R. hours. 24 consecutive than 22, 37 F.R. Nov. 1972 1970 and per- gatherings shall be (6) No postponed pending court been ac- have the hours of to be held between mitted 17552, Nov. 35 F.R. tion. See p.m., except and 4:00—6:30 a.m. 7:00—9:30 legal Sundays, and holi- Saturdays, on MacKINNON, (concur- Judge Circuit to appear it shall be made days, unless dissenting part): in ring part Superintendent the satisfaction the particular public holding of the the that I concur in forego- While much the unreasonably inter- not gathering will ing opinion, disagree- I do have some traffic. with rush-hour fere findings ment with several of its may permits contain (h) Authorized dealing We are with directions. here the conditions and ad- reasonable additional environs, use the White House its limitations, consistent with time ditional the record states: protect- interest regulation, Well, A. aside from the White pri- site involved for the park ing the being House residence of Pres- which it has been purpose to mary park ident, it is of course also his office dedicated, nearby areas use both at the White and in House legitimate park persons, and other complex next to the White House and value concerns. Building. the Executive Office may be gatherings held and (i) Public House a center of The White is following speeches may be in the * made * * tremendously important de- jurisdiction of the Na- under the areas system, fense communications since per- without official Capital Parks tional is the President the Commander gathering such conduct of mit. The military Chief forces. reasonably consistent with the shall be It is the seat of the National Securi- the area and use of for protection Council; ty extremely important it has it is maintained: for which purposes documents; is, it papers, [and] Street, Thirteenth (1) Franklin Park. also, course, and mu- national shrine N.W., I and K for no between Streets seum, piece of that is property very persons. more than People. important to the American (2) Square. McPherson Fifteenth has The Secret [Tr. 106] N.W., Street, I K between Streets responsibility protecting the Presi- persons. no more dent. It also under 202 of Ti- Section SI. (3) Reservation No. West of U.S. Code,] [, has tle United States N.W., and south of H Street 18th Street responsibility protecting the White persons. than 100 for no more grounds House and [White House] the use of through the Executive Pro- Parkway. (4) Creek and Potomac Rock Service, formerly tective Street, P 23d south of West of Street 1,000 House Police. N.W., persons. no more than “nonspeech” IIIA, presence conduct It common 274-75.1 is also G.A. legitimate the White House con which Government knowledge Kremlin, regulating. By holding “Hot Line” interest tains is a system pri- constitutional in our national a vital factor which is activi- First restraint security. necessity majority has of ty, found I certain elements of the conduct of a gathering” properly “public within majori- At the outset I concur scope government regulation. present ty’s conclusion that defini- However, when Government chooses “public gathering” the term tion of regulate certain conduct on the White valid, constitutionally Majority Op. Park, sidewalk and in it I disagree the inferenc- certainly required regulate all majority es which the apparently intends persons all happen conduct who should drawn from its discussion of technically enter fall area and application of the definition. With- “public gather- within the definition of a holding, explicitly appears out so long ing,” so as distinctions are not made majority opinion intends to be improper basis. on interpreted possibility to eliminate the regulation that be applied only the could perfectly It is a classifica reasоnable groups plan to or who individuals to en- permit require to exclude from the tion gage normally in conduct associated with groups those individuals and ment who activity First Amendment and also in- White House sidewalk and Lafa the use prevent application tends to to indi- conduct, yette for non-assertive vidual entirely. demonstrators While pedestrians, or normal such tourists language regulation the does not requiring groups individuals and while require pattern its face the of en- speech for use the area combined who fears, majority forcement which notify nonspeech conduct to the au and counsel for the Government assert did intended use and thorities their obtain that it would applied. Assuming be so applicable permit a under constitu permit that requirement would be There well tional standards. be imposed on groups individuals or small aggregations people which are other larger as well as demonstrations and as- technically “public gatherings” suming applied only that it would to pose security do not a threat which or those groups engage individuals or that pro interfere with interests in commonly conduct which is associated by regulation.2 tected Where no not expression, I do find that such governmental threatened, interests are it regulation a necessarily would be uncon- certainly would be reasonable for stitutional. adopt National Park regula In O’Brien, United States v. 391 U.S. exempting tions such activities. How 367, 1673, 88 S.Ct. 20 L.Ed.2d (1968), ever, the majority’s proposal for a mini stated: Court size require mum limit is supported This Court ment not has held evidence when “public gatherings” smaller “speech” “nonspeech” do not elements engage in conduct which is properly combined in the same course conduct, subject regulation gath a such sufficiently important gov- erings dangers do pose require ernmental which regulating interest in prior pеrmit. notice nonspeech justify element can inciden- tal limitations on First Amendment the criteria states majority The freedoms. may not “discriminate enforcement Id. at activity, e.g., 88 S.Ct. at 1678-1679. First validity regulation or whether depends sign, has a person thus whether Appendix. See G.A. refers to Government note 9 infra. message.” acceptable sign has an being possible need alert to all fact, picketing Op. Majority threats the President and in- specifically conduct one form of is justification also re House gath- “public the definition cluded in ering” quiring permits single individuals en majority sees “no in which all, gaged expressive conduct. After Clearly the objection.” constitutional every assassination in our President regulate choose can Government history single was the work aof individ picketing by known as of conduct type (Booth) only ual and one had known con permit. What the Govern- requiring penetra federates. two most recent prohibited from constitutionally ment is doing, tions of barri notes, correctly majority single were ers also individuals—one enforcement of the discriminating in the one, helicopter landed Marshall message on the basis of Fields, Jr., as recently as December sign. conveyed by that gate crashed the in an automobile appeared explosives.3 to be wired to The majority also concludes that requirement Admittedly, will apply regula- would be “absurd” have little effect on individuals with single sug- tion to a demonstrator and mind, purposes such but it cannot be gests “public gather- the redefinition certainty said with the restriction ing” group of a of some mini- terms no has deterrent If value. we were to size, completely mum empt which would ex- limit the permit requirement to groups individuals from the re- exempt therefrom, individuals quirement. O’Brien, In United States v. could be excluding history those that supra, applica- the Court held that demonstrated pose the mоst serious tion of a statute which “inci- involved Presidents, i.e., to threat our individuals dental limitations on First Amendment acting join alone. I can not in suggest single public to a freedoms” demonstra- ing adoption reg of such a deficient my opinion, tor was constitutional. In guise ulation. To do so under the of similarly the National Park can Service protecting speech deny free would neces apply to instant individu- protection sary President, to the groups engage als as well as in con- White House and occupants. its other permit duct for which a be re- my To majority mind the opinion does quired. support Several considerations fully recognize of the nature the se this conclusion. curity threats that the record and histo ry reflect are traditionally directed requirement purpose of major the President and the White a apply for demonstrators House. advance authorities provide the to the Govern- believe I thus While the White uses of proposed notice of those permits require power to ment’s precau- appropriate area so House in to demonstrate desire the who taken for may be tionary measures the ma- as as limited is not area House is at This need safety all concerned. language present suggests, jority demonstra- individual great if 50 as least sup- to insufficient regulation seems time at the same appear propose to tors indi- the manner enforcement port its of 50 group of one case it is as it is to If counsel. by Government cated fact, for ad- the need In demonstrators. well to individuals applied be greater where even notice vance gather- “public definition groups, to take intends group or small individual give notice to be clarified ing” should provocative to hostile position a permit. a apply must exactly who area. lawfully demonstrators personnel perimeter in this decorative testified fences that mark Service off the Secret “assaulting They persons security of the [White] House. intent are not case that gate IIIA, through fences.” car G.A. “run a President” could secure, they gates aren’t Those . . per II it was decided that participating,6 granted groups up be mits would foregoing opinion also strikes persons to use the White House to exemption events” and re- “NPS up persons sidewalk and to 500 use quires get the National Park Service subsequent Park. appli from itself for events which its pro cation of these limitations led to sponsors that would fall within the defi- litigation tracted which has sev involved “public gathering.” nition This eral instructional remands from this useless seems somewhat exercise. regula court. the interim the instant However, regula- this alteration of the promulgated. original tions were These might produce good by tions some re- ly carried forward the 100/500 limitat quiring applications for all Following ions.7 last our remand White House area events cleared in- trial court ruled8 that limits of less ternally through the same section more restrictive 750/3000 would be National Park Service. It will also en- protection than is essential for the courage agencies coordination those President White House and for presidential concerned with and White protection of the other interests as matters, which was one serted the Government.9 This in of the recommendations of the Warren crease to 750/3000 from 100/500 resulted Commission. the remands from of this court as inter preted by the trial court. To conform to III orders, court’s the National approving I concur the denial of 4, 1973, September amended permits application where the and inves incorporate tigation present indicate a “clear 750/3000 limitations.10 danger safety, good order I continue to adhere to the views con my “good or health.”4 To mind order” cerning the reasonableness of the 100/500 right deny permits includes some expressed limitations in my dissenting applicants who would use the facilities opinion in A Group incompatible a manner with the normal Hickel.11 use of the White House and its environs. my To mind the 100/500 limitations IV proper were reasonable and and the evi- dence of record support was sufficient to brings This us to the maximum num- Rowley, Director, them. Mr. U.S. Secret grant- ber of demonstrators who be Service, testifying expert as an on the (1) ed a to use the White House security applicable considerations Pennsylvania sidewalk Avenue House, President and the White stated: Lafayette (2) Park. 1967, with the Attorney General feel you can [that] [better] (Ramsey Clark)5 Department people contain 100 a confrontation [in personnel Interior Secret with a minimum situation] [show] 50.19(f)(2) (1973). House and Lafayette § 4. 36 C.F.R. the normal uses for which are they provided and main- 64. IA, 5. G.A. tained. Id., 65. c. using Safety citizens facilities as in (3). 50.19(g)(2), 7. 36 C.F.R. b. above. d. Safety demonstrators. v. Morton, Action Civ.No. Group A Quaker Ecology e. 1973), (D.D.C. Aug. entered fol- Park. 28, 688-69 large f. Alternate locations lowing in A protests. this court remand 148 Morton, U.S.App.D.C. Group Fed.Reg. (Sept. 1973). 10. 38 24218 6, (1971). 854, 460 F.2d 864 356, 84: IA, 9. G.A. 4-9, 429 F.2d 139 U.S.App.D.C. (1970). Rights 188-193 b. of citizens to use the side- and the streets in front of the White walks keep them key[,] and and in low force many people so armed around have there, with you could control[,] than under security? add to his *** * * * any greater force[.] [show of] are A I think we [what] greater the our [show of] view] [In that,] any convey to without trying [is Government], greater [by the force appearance,] garrison-like [abhorrent we are neces- appearance security your [will conducting [security] our work * * * greater sarily [A]nd be.] helps efficiently[, and this conduce * * * security appearance[,] your demonstrations, without con- peaceable chanсe greater be the [will any violent out- sparking frontations sparked during will be violence breaks]. opportunity confrontation. Q your affi- say page You create a vio- to presented to militants davit, is, course, possible pro- “It to if greater, we] lent confrontation tect the assaults White forces are convey our defensive [that Pennsylvania the use from Avenue military or under a fortress operating] personnel of sufficient armed with ad- condition. equate weapons.” That’s same IIIA, (Brackets original). G.A. 244-45 point, [Dep. you don’t want to 100] * * * that, you’d pro- have a do file; rather low trying What to con- [I’m] * * * point? is that the vey is that we in] [believe * * * maintaining] low right. [a] [secur- A That’s profile House], ity] [around said, Q you “Additional page On * * * avoiding any appearance con- military type devices have been military [garrison that we are in a rejected dangerous both sidered and military rule[,] or under state] to area.” inappropriate * * * something of that nature[.] Id., gave Rowley 248-49. Later Director might [very] objective be the [That] expert that the available opinion Se- his * * * people some of the [dissident] personnel would able cret Service * * * convey [in [seek] to order] 100-person if a limi- handle situation bring persons [noncommitted as] respect was maintained with tation into sympathizers their [dissident] White House sidewalk. ranks. would en- 100-personlimitation] [the Id., 246-47. any group able us to contain present saying A I’m this is what we have size what have security today. present effect There’s no of a time in form [show garrison-like appearance during] personnel front of dem- [in * * * onstrations, nothing there’s House]. expecting indicate that we [to Id., added). (emphasis with confrontation and have deal keeping with the All this is in need occurring during the demon- violence maintaining profile” “low * * * * stration,] *. And with the White House. forces around low-key appear- security force] [our provide We a secure environ- [must] ance, convey impression the that [we carry the he out ment which can * * * nothing expect] we untoward Now, Presidency. in that duties the happening in the be] [to Government^] regard, that what the Ameri- we feel is except the President function- that want[,] is people and what neces- can sary ing daily in the normal course of his to in this coun- us maintain] [for work[, the demonstration is while * * * [considering the nature try taking place the peaceably immedi- democracy, is not to have of our] [the vicinity ate of White House]. maintained fortress White House as] pub- to conveying lives car- Q which the President How does concern over office that there is no ries out his lic [Presidential] you don’t security, [maintaining because feel that President’s We [duties]. * * * security kind of security personnel ] at the White fortress — merely the White ex- House were presently [around able House] “to contain.” Id., aggerates [protective security] problem people that is caused when course, Of the Secret Service could heavy security have a that [see we] meet the larger threat of the 750/3000 [present necessary keep force to as] limitations, require but that would a sub in line. demonstrators stantial enlargement security per * * * maintain sonnel surrounding [strive to] White House. comparatively Congress few officers visible would have to appropriate sub * * * around stantial additional funds. House[.] This would be security all of our measures in addition to the [A]nd several million dollars * * * around this per year recently provided by [centered] [basic] Congress concept that ought to have our because of increased militant activity.12 protective] security as invisible [force] question why is should the Secret possibly as it society. can be in our required be to increase its White Id., why House force оr Congress should Rowley testifying 287. Director was be required appropriate to more experience, that on his money. based he con- limits, The 100/500 with any presence expanded sidered that of an overflow using nearby Ellipse, to security my uniformed White House force mind reasonably accommodate all necessary large conflicting to control crowd of rights. interests To might prove increase provoc- demonstrators to be limits larger sevenfold will attract ative to dem the demonstrators whereas onstrations and the White House group security smaller officers will would appear then to be a citadel provocative. security not be experience Recent personnel bristling everywhere. in a number of militant That is confrontations my proper idea of the proved the White House has use the wis- White appearance dom of House or of the this conclusion. that the citizens of our country desire it my opinion, foregoing excerpts present. The White House is intended from the record are sufficient evidence residence, primarily as a not an Ameri to sustain the 100/500 prescribed limits Hyde can Park. As the Secret Service prevent and to personnel testified, large increase in embarking court from legisla- on its own personnel required by the in tive scheme nothing which amounts creased limits can be a factor that incites imposition judicial more violence. To discharge best their as government. The fact trial signed mission, they therefore desire larger court found that demonstrations non-provocative maintain pro “low past posed in the had not a serious limitations, file.” Since 100/500 justification threat to the President is no Ellipse with the handling any overflow, authorizing higher limits. All adequately recognize all First Amend that, experience proves date, larger rights, approve ment I would such limits. groups degenerated have not unruly into successfully mobs or been majority used opinion recognizes shields it aggressive action might necessary to erect “a barrier” House or occupants, is no the White House and seeks com- around guarantee Also, for the future. possibility increas- this “barrier” fort ing the number of allowable acceptably open aspect.” demonstra- have “an might larger groups tors because got- However, have not Op. at 736. Majority ten out past ignores give of hand in the very a barrier difficult expert testimony the being open of Secret of and still fulfill appearance Service 100-person the majority limitation was what of a barrier. The function the 91-217, Cong., 12. See Pub.L. tive Service 84 Stat. 91st and increase the force Sess., 19, 1970, amending 2d Mar. from 250 to 850. 3 U.S.C. 202-207 to §§ establish the Executive Protec- carry Government, to wants water on both shoulders. and for use branch discussion, else, anything convey than This more have no desire to by citizens who majority g., really opin- message (e. everyday pedestrians discloses what the a the may do to environs of capital) ion the as to the nation’s and visitors suggestions exercising if their were to be bent on citizens well followed. freedoms. First Amendment their to day-24 appears restruction hour seven

V attempt to bal- be a reasonable me to all citizens the of ance interests Whatever the limits on number Certainly House area. of the White use adopted, demonstrators are I do concur rest entitled to exclude the group is no such permitting in the waiver of limits nation from these areas proper showing. This will permit after any- If period time. an extended judgment in the exercise some evalu thing, regulation overly solicitious the ating provocative the pro nature the interests of demonstrators. posed gathering. to addition this au eliminating Rather seven limits, thority to increase the I also be flexibility if day-24 provision, hour is de- should permit lieve sired, pro- would be to better course impose the National Park to less upon appropriate vide waiver in cases where er limits those smaller showing with the numerical as was done groups might larger pose a than ordi limitations. nary only slight threat.13 This is modi the right duty deny

fication to VII permits altogether great where too posed. ‍​‌‌​​​‌‌‌‌‌‌​‌‌​‌​​​‌‌​​​‌​​‌‌‌‌​​​‌​‌‌‌​​‌​‌​​‌‍threat suggests adoption majority applied to be

the NPS of standards in VI it, As I see these revoking permits. e., i. act, already in standards foregoing opinion strikes out of justify that would standards same provision limiting per- first denial no than seven consecutive more mits instance.14 and no than 24 consecutive days more provision apparently This was I respectfully majori- hours. dissent from the ty being designed opinion allow the to the extent viewed is inconsistent space competing my with allocation scarce views as set forth above. Sub- ject If it had limited foregoing exceptions, demonstrators. I concur purpose, majority might be correct holdings majority finding unduly However, it to be restrictive opinion. and in I para- consider ap- graph to consider each requiring immediately NPS preceding the Conclu- However, individually. sion, plication Majority Op. 735-736, supra, question is intended official unnecessary area to our decision. Too fre- President, by the his staff quently use and those our dicta cause future strains having rather them. business Executive than avoid instance, 13. For if the Palestine Liberation Or- 50.19(f). 14. 36 C.F.R. § ganization requested a demonstration for 600 and might the Park Service well granting consider for smaller num- bers. notes cases cited there- 672 L.Ed.2d 20 Government park capital national in): made has Department g., demonstrations, citing e. available “speech” sites when held that This Court Secretary of “Prefatory Statement” “nonspeech” in аre combined elements revised publication accompanying Interior, conduct, sufficiently course of the same important 17, July proposed form in 50.19 C.F.R. governmental regulat- interest Adden- reprinted in 11485-92), (35 F.R. justify ing nonspeech can inci- element brief, 21 et pages A Government’s dum First Amendment free- dental limitations on seq. doms. This statement essentially O’Brien is a re- prepared Prefatory was Statement This statement principle recognized g., in e. litigation, pending and discusses light Louisiana, Cox 536, 555, 379 U.S. 85 S.Ct. calling on the Service opinions this court 453, (1965), 13 L.Ed.2d 471 and Cox v. Louisi- policies. of its review a reflective to undertake ana, 559, 476, 379 U.S. 85 S.Ct. 13 L.Ed.2d 487 statements approach is reflected Its (1965), subject conduct regula- is primary func- Service’s Park] “The [National though tion even expression. is related to tion, to aid U.S.C. is § 1] forth therein [16 set heavily Government relies on the Cox people unim- achieve full and American cases. But there is no issue that conduct values, including park enjoyment of the paired subject regulation. The issue is whether the objects, scenery, and historical the natural greater than is needed for the these national be found in wildlife and park governmental vindication of the interest. basic National system . . . This areas. course, is, policy Capital conservation Parks settled, instance, It is an ordi- “[T]hat considerations, includ- balanced which, one, peace- nance like this makes the expres- fostering ing the consideration enjoyment ful of freedoms which the Consti- such areas.” of views sion upon guarantees contingent tution the uncon- short, recognizes requiring the Service trolled will of an official —as that it must factors, granted emphasizes constitutional or license which consider or statutory “park” “primary” in the discretion of such mission is withheld official—is censorship prior an unconstitutional and “basic”. re- upon straint the exercise of those freedoms.” O’Brien, See, g., States v. e. United Birmingham, Shuttlesworth v. 394 U.S. 376-377, 1673, 1678-1679, 88 S.Ct. 935, 939, (1969). U.S. 89 S.Ct. L.Ed.2d 162

Case Details

Case Name: A Quaker Action Group v. Rogers C. B. Morton, Secretary of the Interior, a Quaker Action Group v. Rogers C. B. Morton, Secretary of the Interior

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Feb 5, 1975

Citation: 516 F.2d 717

Docket Number: 73-2061, 73-2190

Court Abbreviation: D.C. Cir.