Vietnam Veterans Against the War/winter Soldier Organization, a Non-For-Profit Illinois Corporation v. Rogers C. B. Morton, Secretary of the Interior

THE VETERANS AGAINST VIETNAM ORGANI- SOLDIER WAR/WINTER ZATION, cor- Illinois a Non-for-Profit poration, et al. Secretary

Rogers MORTON, C. B. Interior, al., Appellants. et

No. 74-1667. Appeals,

United States Court of

District of Columbia Circuit.

June Appellee’s Suggestion Rehearing

On Aug. En Banc

Bazelon, Judge, filed a state- Chief deny why rehear-

ment he voted to

ing en banc. Silbert, Atty., Earl J. U. A. S. John

Terry, Arnold T. Zim- Aikens and Gil merman, Attys., appel- Asst. U. for S. lants. C., Becker, Washington,

Leonard D. H. appellee. WILKEY, Before MacKINNON and Judges. Circuit PER CURIAM: impression This is a case of second jurisdiction. before, Once way this court was a station as emer gency adjudication through sped system.1 Federal Court neces Whatever sity justifies originally it, one of the speedy adjudication drawbacks to is that frequently leaves little but the result litigants judges for later to follow. sufficient, quite Some find this .would yet although clearly actiоn, the instant governed by the result of the con troversy, vigorous has nevertheless been ly reargued purpose de novo. The publishing opinion is to avoid such repetitious judicial process, resort litigated. at least on the issue twice I. appellees, Vietnam Veterans Against Soldiers Or War/Winter ganization, non-profit corpora Illinois (hereinafter VVAW),

tion filed suit May 1974 in United States District seeking enjoin Superintend Capital ent of the National Parks withholding superiors his from from “symbolic to establish campsite” part of a Mall2 as desig- permitted only Gamping accompanying in areas See note 9 text. infra Superintendent National [of nated Capital may limita- establish who Parks] based his on 36 refusal part 50.27(a) of time allowed which in tions public relevant ground. reads: Washington, planned prohibiting while activities demonstration July 1974, popular simply by D.C., inclusive.3 less biased construc from 1 to 4 summary “camping.” tion of the undefined term moved After each side argument judgment, On was heard. oral Since the weekend remained be Friday, U. S. 28 June VVAW, fore the arrival the Gov order, Richey, by opinion ernment moved this Court for granted plaintiff’s motion for reversal of the District order the judgment, defendant Su ordered the and afternoon it was entered.6 Because of Capital perintendent the National of expediting the need for the matter if the encamp permit to the VVAW Parks to parties were to be informed of their sta four-day period.4 for the around the clock tus the before was sched also held that 36 C.F. The District Court begin, permit uled to and in order to the unconstitutionally 50.27(a) was R. parties § appeal to de further so vague Superintendent because it left the sired, granted by we that motion brief to allow citing unfettered discretion Friday with an evening, June, order on by groups, authority Morton, Secretary “the of favored of nocturnal activities by including C.F.R., promulgated the site a and on Secre- concert Title 36 fora pursuant topics (from tary to 16 of felt the 1971 Interior U.S.C. note. VVAW of the parks, camp governing experience) regulations Mall for- on the contains that the base Chapter- part planned staging 50 of would as a area for ests and memorials. serve daytime title, pertaining Park National Adminis- to the marches—to the Veterans’ Department Interior, tration, Justice, Service, Department Lin- em- the of the the of regulations governing Na- coln tinuing vigil” “a con- the use of Memorial—and would constitute bodies tional Parks in the Washington, point area media cover- D. C. focal —a Capital (hereinafter age magnet citizens Parks and a to attract other —the National top- challenged regulation part wishing NCP). express of on these The their views chapter. ics. By - Superintend- Thus, appellants May 1974, in this suit are the Secre- the letter dated subordinate, аuthorizing tary Interior, permit the use of of his ent a the the issued Service, rallies, Park and dis- Director of the National Mall and the persals. area for assemblies subordinate, Superintendent approved Superintendent Na- his of the The also operative govern- Capital Parks, by parade proposed In tional ‍​‌​​​​‌​‌​‌‌​​‌‌​​​​​‌​​​​‌​‌‌​​​‌​‌​​​‌​‌​​​​​‌‍the the routes VVAW. agent consistently addition, permit ment who lias denied the erection sanctioned permission camp out- VVAW and others of first aid administrative tents and sys- designated Mall, areas. side and a mobile sound allowed use of Superintend- tem, signs placards. as the The controverted area this as well and litigation part request Mall cir- utilize the is that ent denied “to VVAAV’s by AVashington including camping purposes, Adams cumscribed and Mall area for (in cooking.” overnight occupancy Drives 4th Wash- suit and 3rd and Streets This ington, C.). nothing fortnight. D. There is a followed within any person or record which indicates that Against 4. the War v. Mor- Vietnam Veterans camp group overnight permitted has ever been 1974). (28 ton, F.Supp. 9 June ful- in that more area. As set out accompanying ly below, occupy notes 16-23 this sitе the VVAW did infra nights text. four 1971. See note infra accompanying text. expeditiously issues because 6. We acted clear, District parade and reversal application Formal directly compelled (under it had 50.19) because was was 36 C.F.R. and to precedent. controlling contravened the March made to on 4 accompanying We text. meeting 22 March with the 1974. At on infra avoid Superintendent’s a desire to delegate, motivated were also an- the VVAW began repetition 1,000 VVAW mobilizing when the purpose of nounced that its law- under color rally support Mall its adherents was for uncondi- order, authority amnesty court’s ful of this tional sisters, re- for all Vietnam-era war subsequently vacated was benefits for for increased Federal dispositive we issued veterans, This time Court. an end to Vietnam-era and for parties’ rights in time military presence declaration American Asia. Southeast ac- alternative to secure allow cognate application commodations. several enumerated camp- proposed nocturnal activities for the litigant Group Interior v. et be fоr a earn rever al., case, 402 U.S. 926 28 L. sal [91 normal (1971),” Ed.2d en 665] court Court’s failure to to and defer follow the plaintiff’s banc later denied clearly motion Court’s 1971 order war Saturday morning, June, disposition rehear- ranted that in this case.9 ing or reconsideration en banc. By its order of 21 June reinstating (after reversal á II. court) Judge requirements forbidding for summa the VVAW from ry part reversal a District Court order are the same point cliche,7 accepted finding familiar and need Court recapitulated Summary overnight camping not be here. re Hart that was not ac tivity or рurview versal dictated here because the was within the despite unequivocal der issued the blanket ban Supreme camping nondesignated of the the decision Court to areas was concerning contrary 1971, supervisory the same reasonable exercise of au litigants resolving legal thority parkland. and public the same over the We may heavy by issues.8 However the burden are bound that determination.10 Since Summary extraordinary Group Morton, 7. reversal an rem Quaker Mall.” A Action “heavy edy, proponent April 1971). (D.C.Cir. which the has a 19 No. 71-1276 demonstrating Thus, began burden of both that his reme to the members when VVAW dy proper they gather evening pro is clearly merits of his claim the on the expe justify legal symbolic so warrant relief as to erect their en ceeded to campment. now Allen, 133 ditious action.” States United U.S.App.D.C. 84, 1287, 85, morning (20 April), F.2d 1288 408 The the Solicitor next Council, (1969) ; presented emergency application Natural Resources Defense General an U.S.App.D.C. 5, 10, Morton, stay 458 Inc. v. 148 of this order to Chief court’s Jus- (1971). acting Burger, F.2d 832 tice as the Circuit Justice The District of Columbia Circuit. Chief Group, 8. v. Quaker Action 402 Morton U.S. p. 20 Justice issued an order 6:00 m. on at (1971). 28 L.Ed.2d 665 April vacating April order of 19 this court’s Friday, April 9. On 16 the Justice De- reinstating Judge prohibitory in- partment sought injunction junction. in District The on the Mall VVAW remained prevent Court to from establish- evening sufferance, pending peti- the VVAW ing camp to a base Mall incident on the tion the full to review proposed April their demonstration of 19-23 Burger’s Chief Justice action. injunction. Judge granted 1971. Hart April, 21 the full Late on afternoon of Morton, Group Quaker A Action No. Supreme Court, Douglas C.A. not Mr. Justice (D.D.C.1971). 688-69 The order therein participating, uphеld the Chief Justice and “overnight camping” terms by order vacated the of this court and “campsite” activities, making “sleeping as or “with full and effect” the reinstated force preparations laying sleep (including preliminary injunction the District Court. bedding), down ing any fire, bedrolls mak- Group, or other or Quaker Morton v. 926, Action any erecting shelter, tent, or (1971). 91 S.Ct. sleeping structure, or ultimately accommodation That dissolved doing any digging breaking, earth or or Department because the Justice declined ” carrying any cooking quality on activities . does fi- enforсe it not affect or ... Judge Hart nality judicial ruled that the VVAW could determination only on rights parties. demonstrate the Mall from 9 m. :00 a. Since daily. p. m. 4:30 Court held 1971 that Government argument After oral enjoin camping on the VVAW’s motion could from on the VVAW Monday, reversal, 50.27, court the Mall violation of C.F.R. § 36 April 1971, 19 modified Hart’s order obviously entitled VVAW prohibit appellants “so as not to from utiliz- the same section of the Mall ing night day, as [the Mall] at well as purpose campsite major argument for the of a so-called base General’s Solicitor part public as an incident to or as of their for reversal of this court’s 1971 order was gatherings, camping, regulated demonstrations and purpose and for the that 50.27, 36 C.F.R. sleeping equipment, expressive conduct, in their own is not and thus sleeping portion bags, such as Mall on that total ban on is not

57 order, society’s proper nothing beyond concern for herein seek personal safety, security property.11 denied that which the al appellant obtained VVAW Government summary judg- propound their lows its members officials are entitled to by assembling, speaking, pam ment on remand. views carrying banners, phleteering, parading, erecting whatever structures III. necessary deem to effective communica message. They their tion of in which This is not case cooking prohibited from this court needs to balance seminal overnight,12 against unfettered political expression activities whose freedom of grant (reversing (1971) prior another Amend of First sense a restraint judgment re activity. See, g., and further for Government v. Presi ment e. Carroll (IV) Group Anne, mand) ; A of Princess dent Commissioners (District Morton, 175, 181, 21 L.Ed.2d U.S. S.Ct. regulations upholding Maryland, mod with Court order Freedman v. 380 U. pending, appeal ifications), 73-2061 51, 57, No. L.Ed.2d 649 S. ; 1974) Sullivan, (argued Books, also Women Feb. Inc. v. Bantam U.S.App.D. 58, 70, for Peace Strike (1972) (total un generally Blasi, ban 472 F.2d Re C. Prior struc Demonstrations, erection of 50.19 on der 36 68 Mich.L.Rev. straints on invalidated). demonstration tures incident Supreme Court, by its reversal of argue permitting Appellees free 1971, be court’s order in found to regard expression time of ideas without scope outside the of the First Amendment. “camp- prohibiting night, them from while of ing,” in in- Since the District action the Court’s laying sleeping bed- down as premised applicability stant case was slumber, is an unen- to such rolls incidental proposed of en- the First Amendment to the absurdity, allows them it because forceable campment, is warranted reversal ground occupy plot for the of the same ground on that alone. period (to of exclusion the same of time permitted they users) generally Procunier, had been 1. See Pell v. 417 U.S. 1 “symbolic campsite.” 817, 826, 2800, 41 to establish their 94 L.Ed.2d 495 S.Ct. 111, (1974) ; Gregory ‍​‌​​​​‌​‌​‌‌​​‌‌​​​​​‌​​​​‌​‌‌​​​‌​‌​​​‌​‌​​​​​‌‍Chicago, cit- to allow anomalous While it is somewhat v. 394 U.S. ground, (1969) ; 125, 946, recline on the izens to sit and even 89 S.Ct. sleeping, enjoining Adderly Anne, supra; the Dis- v. them from note 10 while Princess injunction Florida, 242, would 39, in this case 17 L.Ed. trict Court’s 385 U.S. 87 S.Ct. far-reaching ; (1966) Louisiana, conse- and deleterious had 2d 149 v. 379 U.S. have Cox camp (1965) ; quences. By permitting 536, 453, the VVAW 85 S.Ct. 471 Carolina, simply 229, a nexus had established 83 because Edwards v. South 372 U.S. message 680, (1963) ; and the between that they 9 v. S.Ct. L.Ed.2d Poulos 697 convey, 395, 760, Hampshire, Court wished to New 73 345 U.S. S.Ct. Hamp required in have v. New order would 97 L.Ed. 1105 shire, Cox futuro 762, of 569, in the exercise of L.Ed. NCP 61 S.Ct. 85 Connecticut, 50.27 exam- § under C.F.R. v. 310 his discretion 36 1049 Cantwell organization 900, which nature of each L.Ed. 1213 ine the applied U.S. 84 camping permit regulation, no-camping and considеr a identify message in the tenor of its does not even indi involve the Government camp. groups rectly political expression, task That those entitled to in of control open ground an invitation to would have been stands on than the NCP much firmer type arbitrary place very regulation purporting size, disfa- exclusion of of to limit appellees allege compass is behind in vored voices and Washington of demonstrations conducted Superintendent’s parks. case. See in this denial 36 area Hague CIO, 50.19; Group (I) 59 v. S.Ct. U.S. Quaker A Action Hick (1939), el, U.S.App.D.C. 176, and cases cited F.2d 1111 83 L.Ed. 1423 10, supra. (1969) (modifying preliminary note camping (as against application ; regulations) between The line of demarcation A Quak of by Judge Group (II) Hickel, and reinstated er defined Supreme Hart Action 139 U.S. 1971), App.D.C. (reversing (1970) noctur- and other 429 F.2d 185 50.19, grant governed judgment nal 36 C.F.R. activities of S.U. iridescent, remand) ; Group (III) dis- while is still reasonable not A optimal necessary use U.S.App.D.C. 346, to insure tinction 460 F.2d 854 appellees exercise crucial of specifically survival which the were democracy beyond permitted Camping overnight and which are thus to do. pale public park of First has no more relevance to protection.13 speech say, digging free than latrines in public park, and we think United considering Even as an issue may regulate States Park Service both. original proposition, the benefit without findings sensitivity of and the of Su preme year approval all of to the need for media coverage symbolic campsite of of District Court’s discussion free as a speech year point focal fails to convince us that a distortion of First litigant’s there is connection between freedom Amendment What values. press agent speech appellees what seeks and what requires widely. forbidden do interest the United States differ Al though regulations, every Park over man Service is entitled to make his night public park remonstrance, in a contradistinc no man is entitled —in speech make tion to their free such a exercise remonstrance will be rights by during day, carried on all usual modes three television networks.14 fee, Speech parkland by Free all reasonable the United citizens. Such States 18-21 (1941) legislative (libertarian’s drawing ordinarily view) ; line sub- historical is not L. ject Levy, Legacy judicial Suppression v. Lee alteration. Williamson —Freedom Speech Optical Early Co., History Press U.S. American (revisionist, cynical vii-viii L.Ed. 563 view of origins) ; Anastaplo, Review, Clause’s Book 13. The District Court’s declaration that free (1964) (disputing Levy 39 N.Y.U.L.Rev. 735 preferred position expression dom has thesis) ; see also note infra. pantheon in our certainly values is constitutional unobjectionable. allege complaint Shuttlesworth their Birmingham, since the “attracted outpouring Chicago, press (1969) ; Gregory attentiоn[,] L.Ed.2d 162 . . . supra; beyond Louisiana, [its] Cox v. note Amendment value is dis supra; pute.” Maryland, Niemotko v. Memorandum of 340 U.S. Points and Authori 325, 328, (1951); Support Preliminary ties in S.Ct. 71 Hague 95 L.Ed. 280 of Motion for Injunction CIO, supra. 9. This invocation of First protection However, Rehnquist recently solely by Mr. re- Justice virtue of importance right minded us that “[t]lie of relations value of the not, by itself, scope, unquestioningly accepted ‍​‌​​​​‌​‌​‌‌​​‌‌​​​​​‌​​​​‌​‌‌​​​‌​‌​​​‌​‌​​​​​‌‍by does was Court, determine its “ stated, [p] ractically speaking, therefore we must hark back which continue to origins partic- privilege, the historical it campment, cannot be overlooked that the 1971 en ularly the evils at was to strike.” its central location on the Mall Michigan Tucker, was able to attract 417 U.S. considerable media atten S.Ct. indispensable tion 41 L.Ed.2d 182 which is to the effective origins viewpoints.” of the First Amendment are cat dissemination of the veterans’ alogued (28 elsewhere. New York Times VVAW v. at 12 Sullivan, 1974) 254, 271-277, (emphasis added). v.Co. June S. (1964) ; Warren, Ct. 11 L.Ed .2d To the extent C. that these statements of the Congress, imply The Constitution and the District compelled by that Court the Government Court, (rev. 1935) (Congressional permit Ch. 3 ed. the First Amendment to passagе) ; expression debates at time of Amendment’s the most means of cho effective Story, citizen, they J. sen Commentaries Constitution are disavowed. The (5th 1891) rejected of the United States ed. Court has view (abuses sought curbed). unqualified right to be have citizens to deter time, place AVhile there are academic differences con- mine of their ex manner cerning practices pression. See, Lloyd g., Corp. Tanner, the insidious the First e. Congress sought by passage 551, 567, to eradicate of 407 U.S. 92 S.Ct. Amendment, Adderly Florida, there is no historical 385 U.S. evidence the drаftsmen of the Free L.Ed.2d 149 Speech sought impose upon Louisiana, Clause Cox v. any duty slightly affirmative Government to maxi- However camping may quality mize the effectiveness of widen audi- the ban diminish loquacious demonstration, appellees’ ence for the citizen. See Z. Cha- it is not an in- compels ment of the law the mainte- IV. nance of the inviolate, absolute ban sub- The District further ject only discretionary exceptions implied camping had the ban on public safety. the interest of unevenly been enforced.15 Some District Court also held 36 exceptions opinion, however, cited in its unconstitutionally 50.27 to be clearly examples camping.16 not vague; “camping” defined, since is not only record, Of all the instances in the Superintendent allegedly possesses Army encampment 1932,17 the Bonus unfettered discretion to favored City 1968,18 Resurrection and the nocturnal designating activities them Mayday Tribe bivouac 197119 were “non-camping” prohibit and to disfa ap sense deviations from the literal by denominating vored activities plication of section Far from 50.27. “camping.” The District Court’s 1974 constituting prefer an unconstitutional upon determination rested the erroneous groups, ence for favored the Government premise “camping” the term merely action in those cases was a flexi 21 Judge undefinable Hart’s 1971 order compromise potential ble in the face of term,22 and the disruption public peace. Such by reinstating that order “with emergency action not does create an en full force and effect” bestowed its im groups titlement on other to a similar primatur on that definition. prohibition. variance from the usual On contrary, rights solicitude for the While the Government brief in the every argued citizen to the even-handed enforce- Court cited and the corn- fringement upon right permitting in fact to demon- others to build hovels various open spaces city. strate. The leader of the principle regard Army,” Waters, We find this same with “Bonus main- Walter W. rights. Michigan Tucker, which, charges tained firm note hand over his Cf. supra (accused generally sympathetic at 2365 not with the attitude of perfect trial, one; population, helped entitled to fair sus- the local an amica- creatе pect perfect investigation, during May early not entitled to ble mood June. When only good one). Congress narrowly Bill, faith defeated the Bonus however, the veterans’ mood turned sullen. accompanying 15. See note 20 text. infra eventually Their troops eviction was effected all-night 16. The District Court cited rock Doug- under the command of General (of concerts which there was no evidence in July las MacArthur on 28 1932. The Bonus record), July the annual Fourth of fire- Army, course, formally never obtained display Washington works at the Monument permission public parkland. (which midnight), terminates before and the Department of the Interior decided Sylvan Shakespearean Theatre summertime oppose 5,000 civil to rights productions. spectators Sylvan While at the May 1968 on a section of advocates blankets, clearly do recline on the Mall near the Lincoln Memorial “camping” participants all actors —both City. day is known as Resurrection park by midnight. and audience —leave the and the lasted four weeks The campment also cite their own 1971 en- peacefully. citizens embarked suрports a deviation which theory prohibitory their rule of temporary provided in 19. A was bivouac primarily 50.27 is honored in the breach. period in Park a brief West Potomac argument ignores Such the fact that their monitoring early May 1971, as a means of plan consistently opposed by was activity group intent to en- the gage whose by virtue succeeded pub- disruptive in acts was a matter reversing Judge of this court’s order Hart adju- agreement nev- lic The terms of the record. hasty and the confusion attendant permitted camping, however. er dication of its soundness. consistent The District found “no 20. unorganized May group 17. In late 1932 an practice in [sie\ the Director’s rationale or unemployed Great War veterans descended nighttime activity.” granting permits for upon Washington petition Congress ac- Morton, supra, VVAW maturity celerate date their “Bonus” at 13. 1945). (not payable certificates until 21. Id. arrang- cooperative first, authorities were ing 15,000 supra. quarters many 22. men See note having

píete dispositiveness23 Supreme (Rule in voted favor of it reinstating April Appellate Procedure). Federal Court order of 21 Rules of overnight Judge forbidding Hart’s order Judge BAZELON, Statement of Chief District why rehearing deny as to he en voted to opinion ten-page in Court nowhere its banc. Supreme mentioned the decision Court’s agree expressed I in with the result Instead, in the 1971 case. per opinion curiam issued Court cited the fact that these same liti panel support motions in of its order of gants encamping in successful However, June 28. in of the over- view days.24 the Mall for several We think language panel broad the motions em- precedent the relevant for the District ploys reaching language result, Court to have followed the unani was my mind, may which, to be misunder- approv mous Court’s decision signaling po- stood as a retreat from the ing Judge order, not the ac Hart’s 1971 sition advanced in A tions of mass demonstrators violation Group Morton, U.S.App.D.C. of that order. 460 F.2d 854 and Women Strike Appellants’ motion for re- U.S.App.D.C. for Peace v. granted versal is and the (1972), 472 F.2d I am com- grant summary judgment will for the pelled my to state individual views con- appellants. cerning the basis of of June So ordered. My point departure with the ON APPELLEE’S SUGGESTION oрinion Court’s is the assertion that FOR BANC REHEARING EN public property per se a is BAZELON, Judge, Before Chief regulatable activity and can never have ROBINSON, MacKINNON, ROBB and protected lobbying a connection with tivity. ac WILKEY, Judges. Circuit go I see no need to that far this case which has been heard ORDER summary manner and which has not of Appellant suggestion has filed a opportunity explore fered us an hearing en bane. On consideration connections, full ramifications of the it thereof, is any, protected between lobbying Ordered activities. the matter is the Court en While banc that certainly doubt, suggestion rehearing not free from is at en is de- banc nied, majority Judges open question least an whether of the Circuit proper regular case who are in the denial safe1 active service not 688-68 order of ric there resolved under versy exact factual trict effect’. Ed.2d ‘sleeping spect ‘overnight camping’ ‍​‌​​​​‌​‌​‌‌​​‌‌​​​​​‌​​​​‌​‌‌​​​‌​‌​​​‌​‌​​​​​‌‍ported Quaker Action rolls or other “Judge adversely sleep ^[*] between 665]) of WAW 402 U.S. (Govt. Thus, (including April activities’, taken to the order which the WAW/WSO. to Hs ‘reinstated repetition the Government bedding) 21, Ex. litigation, 926, 1971 order presеnt 2b), # [91 connection with ’. ‘making preparations laying ‘campsite’ with full Quaker (Govt. defined the that 1971 Civil Action It litigation # issued down and WAW 1398, Action Ex. Court, force this Dis % of bed Court’s include contro 2f, is terms rub and No. re re an L. 24. WAW v. 1. I will no First Amendment would, tive der of force and effect’ spect volved ernment Brief “We assert constitutionally entirely dispositive adversary recognize, judgment jeopardize incident April WAW supported by [91 Morton, present hearing, that to its 5, (Govt. course, right. regulable public certain litigation: right of the same demonstration.” reinstating be entitled to a record Ex. Hart’s order that an administra WAW/WSO health camping 2f, activity, L.Ed.2d reported compiled Camping ‘with full point activity at 10. not a in re- safety 665]) great Gov- lias in- or- in

gl my power not, pursuant camp- to that be used facilities which could respect mind, entitled to the ing by lobbyists might in an im- same result legislative weight or values. as a considered pairment Amendment of First through camping, policy I impairment even administrative could occur This unwilling camping discriminatory facili- am to hold this case denial of detering by judicial groups, unpopular of such ad hoc adminis review ties to by proper lobbying place any cannot in the in the first trative decisions ,of exposure requirement limiting that the ad such case include a the media significant degree. permit lobbying groups lobbying ministrator to a symbolic public use or ac facilities us can be dis I the case before believe campsites. sum, In I believe that tual judicial posed to the broad reference of without of this sort of adminis review opinion. assertions discretion, authorized trative we are denying the re Superintendent, while Amend take broader view of First grant permit, quest did for a ment values than if were faced with we greatly permits which of other number legislative judgment.5 a considered by lobbying efforts facilitated exercise of discretion Veterans.2 His he- I am also disturbed the Court’s regard camping on the past erecting the 1971 Su- roic efforts preme lobbying facilitate affirming Mall has also been to There not a scintilla activities.3 preliminary into a definitive Veterans’ evidence in the record that the just precedent I have dis- on the issues any respect efforts retarded certainly elementary juris- cussed. It is camping permit. It the denial of the scope prudence of a to note that Superintendent’s exer follows that precedent ad- the reasons past cise of discretion in this case support Here vanced in of the decision. concerning camping noc absolutely cases and other precedent no we have a with turnal activities on the Mall indicates indeed, supporting and, with no reasons respect the sort of for First being affirmative decid- statement of the issue exact required from ad very values Thus, order could well be ed. reason, litiga- ministrators. For that that the no more than a decision alone, grant of reason I concur in the through proceed normal tion should judicial reversal of the District Court’s complete channels facilitate order in this matter. the case consideration of the issues holding might presented. I hasten add that we have a could also be a It specific of the 1971 different ease if we were confronted that on the facts legislative judgment request with a clear there was no safety sum, per re cur- dictates of quire order and Amendmеnt issue. In iam,’ prohibition camping. sweeping must stand or How s statements ever, reasoning and not that we are faced instead a broad on their own with fall imputed by grant speculation power and undefined to the Superintendent.4 ad hoc decisions Court. Since adjudication weight Smith, 17, relation of 88 S. See Schneider 390 U.S. (1969) ; 682, First Amendment values. Ct. 19 L.Ed.2d 799 Greene McElroy, 474, 506-508, no such in this case. 79 S.Ct. There is record 360 U.S. Cf. 74, ; U.S.App.D.C. (1959) Ruckelshaus, Kent L.Ed.2d EDF v. Dulles, (1971). 1113, 2 L.Ed. 439 F.2d also A 357 U.S. U.S.App.D.C. Group Morton, Arizona v. Cali 2d 1204 also fornia, 546, 585, 593, 83 S.Ct. 460 F.2d 854 Women Strike (Harlan, U.S.App.D.C. dissent L.Ed .2d 542 J. for Peace v. States, ing) ; Watkins United 472 F.2d 1273 curiam, opinion. per

2. See note 3 of the U.S.App.D.C. FCC, 25- Banzhaf v. (1968), ‍​‌​​​​‌​‌​‌‌​​‌‌​​​​​‌​​​​‌​‌‌​​​‌​‌​​​‌​‌​​​​​‌‍cert. 405 F.2d 1093-1096 curiam, opinion. p. per 58 of the 3. See denied, 4. See 16 U.S.C. 3§

Case Details

Case Name: Vietnam Veterans Against the War/winter Soldier Organization, a Non-For-Profit Illinois Corporation v. Rogers C. B. Morton, Secretary of the Interior

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

Date Published: Aug 19, 1974

Citation: 506 F.2d 53

Docket Number: 74-1667

Court Abbreviation: D.C. Cir.