Women Strike for Peace v. Rogers C. B. Morton, Secretary of the Interior

proper public park use of land in Dis- Atty., Zimmerman, Mr. Gil Asst. U. S. broadly, trict of More Columbia.1 Flannery, with whom Messrs. Thomas A. poses again age-old question once Atty. U. S. at the time were the briefs may, whether Government filed, Terry Joseph John M. and A. guise regulation, system institute a Hannon, Attys., Asst. S. U. were prior standardless restraint si- which brief, appellants. except meeting lences voices those of- Smith, Washington, Mr. A. Stuart D. approval. ficial C., Margery Mrs. Waxman whom years, For over three Women Strike Smith and Messrs. Elliott Lichtman C. (hereinafter WSP) for Peace has been Ralph Temple, C., Washington, J. D. seeking permission small, to erect a tem- brief, appellee. were porary display in a national area WRIGHT, Before LEVENTHAL and Ellipse.2 structure, known as the ROBB, Judges. Circuit eight high, long feet 20 feet and six feet deep, styrofoam consists 11 tomb- PER CURIAM: stones, and is intended to commemorate Appellee organization anti-war those who have died in Southeast Asia.3 seeking for some rejected time When the has been Government Group Morton, large rectangular See A Quaker Action v. is a U.S.App.D.C. general vicinity 148 460 F.2d 854 the White (1971) ; Group length along Quaker A Action v. House. Its runs Constitu Hickel, U.S.App.D.C. 139 F.2d tion Avenue 429 between 15th th17 (1970) ; Streets, N.W., 185 Women Strike for Peace and its width extends Hickel, U.S.App.D.C. city v. 137 F. 420 three blocks from Constitution Ave ; (1969) Findings Group 2d A 597 to E Quaker Action nue Street. See Fact Hickel, U.S.App.D.C. v. 421 137 entered the close of the limited re ; (1969) hearing, Appendix (herein F.2d 1111 Jeannette mand Rankin Joint Brigade Police, JA) Capitol v. Chief of the after at 58. U.S.App.D.C. 421 F.2d (1969) ; Brigade Hickel, Jeannette Rankin 3. See Women for Peace v. Strike Capitol Police, D.D.C., D.D.C., 1455-69, Chief F. Civil Action Dec. No. Supp. Hickel, (unreported), Allen at 26. JA Cf. 424 F.2d (1970) . play, claratory application gues to use the it has filed injunctive permit a First so suit long relief. erect the seeking as it It ar- does dis- de- been nities, questions. * * * places has, rights, ” Such and liberties use of the from ancient privileges, of citizens. streets immu- times, substantially interfere with Supreme has re- Court Hague, Since Moreover, it maintains park activities. Amend- peatedly the First reaffirmed refuse the Government that right places public for ment of access to Ellipse while permission to use it course, subject, expression of views — granting permission simultaneously such narrowly regulations to reasonable wishing groups use private to to competing in- protect other to drawn response, purposes. for similar terests.7 argues dis- that WSP’s the Government this most of us consider But while reg- applicable by play is forbidden constitu- to a of our basic park governing use of national ulations apparently jurisprudence, tional regulations land,4 constitute open question Department to at still proper of the Government’s exercise Department Thus the Interior. land,5 powers public 6and plenary over deny initially it could contended fairly regulations and been have any stating request rea- without WSP’s consistently applied. beyond the eon- son for the denial join ex- parties issue on The thus clusory proposed dem- assertion that obligat- tent to which the Government appropriate use was “not an onstration public land ed use of to turn over Federally-owned lands engage seeking in * * private groups * protec- not consistent with the It should be First Amendment conduct. 8 Ellipse area.” Two tion and hardly an noted at this is the outset years litigation have coaxed and a half ago impression. Years issue first other, seemingly variety more sub- Hague 496, 0., 59 S.Ct. v. C. 307 U.S. I. stantial, Department excuses from the 954, (1939), Mr. Justice 83 L.Ed. 1423 grant- why request cannot be for Roberts declared: although are baf- But these reasons ed. “*- * * fling prolixity,9 complexity in their the title of Wherever they rest, of sub- do not amount to the sort parks have streets governmental stantial interest which immemorially for held in- trust been Supreme found to be neces- public Court has and, time out the use of the sary speech-related conduct is to be purposes of mind, been used for pointing thoughts communicating Instead assembly, curbed.10 be- interest, discussing public such discrete the Government citizens, tween 290, 312, regulations, response 340 U.S. 71 S.Ct. 95 L.Ed. 280 4. revised (1951) ; Maryland, case, v. Niemotko 340 U.S. this court’s first remand this can 268, 325, (1951) ; (1972). 95 L.Ed. 71 S.Ct. 267 be found 36 C.F.R. 50.19 § York, 558, New Saia v. 334 U.S. 68 S.Ct. Interpretive See, g., 5. e. Shuttle Universal 1148, (1948). 92 L.Ed. 1574 Corp. Washington Metropolitan Area v. 191-194, 186, Failor, Com’n, 8. letter K. See William Su- Transit 393 U.S. perintendent Parks-Central, (1968). 354, of National 89 21 L.Ed.2d 334 S.Ct. WSP, Dec. at 101. JA 515, 59 307 U.S. S.Ct. independ- 9. The Government states three See, g., Organization e. Better for a are, ent its reasons for action Keefe, 415, 402 91 S.Ct. Austin v. turn, 10 subdivided into no fewer than (1971) ; 1575, L.Ed.2d 1 Shuttles- 29 require and which three full subreasons 147, Birmingham, 394 U.S. 89 worth v. merely pages in its brief to state. See (1969) ; 935, L.Ed.2d S.Ct. appellants vii-x. brief Gregory Chicago, 89 S. v. 394 U.S. O’Brien, (1969) ; 391 U.S. 10. See United States Cox L.Ed.2d Ct. 367, 376-377, Louisiana, 20 L.Ed.2d York, (1965) ; v. New L.Ed.2d Kunz ultimately upon the chooses rest sweeping constitu- assertion “[its] began dispute This on November * * * power tional to limit uses application for filed an consistently public property its permit a junct as an ad- erect views as what reasonable Pageant to the Christmas ‘general and the comfort annually Peace, dur- held paramountly require, is not convenience’ ing the The Christ- Christmas season.13 If to be doubted.”11 the Government Pageant, a mas so-called “National Cele- by pow- such means assertion portion Event,” occupied bration by lawyers in er is not doubted during each Christmas sea- Department then it is Interior, son since 1954.14 restating merely proposition made all organization private duced civic Department’s too unfor- obvious Peace, known as litigation. But tunate record Inc., co-sponsorship the of the with Na- likely, if, as seems more the Government tional Park Service.15 It consists of a accept means that courts must curtail- large at of the Christmas tree the center activity ment of First Amendment in Ellipse group displays and a of satellite pre- with a no more accordance standard together occupy only por- which a small interest,” “public cise the then its than park.16 tion of requested the WSP

position raises the most serious sort of display be allowed to erect its on “[a]n constitutional doubt.12 adjacent Ellipse area cupied by the to that oc- Pageant the of Peace but suf- below, my For reasons detailed ficiently removed as to so avoid judgment power the Government lacks to already terference with scheduled pick among wishing and choose citizens events.” to communicate their views on the basis of what some administrator thinks is response the Government denied “public Moreover, interest.” request, contending WSP’s that “the en- Government has failed to come forward tire area is scheduled to be used specific the kind of substantial and conjunction Pageant in Peace,” with the countervailing jus- interest which would and that it would therefore be tify speech-related curtailment of WSP’s inappropriate organi- to allow another conduct. WSP therefore has a constitu- portion zation use park. to a of the right tional to erect position Government despite took this Ellipse area. the fact that the Christmas was appellants 11. Brief at 67. Regional 13. See letter from to WSP Director, Capital Region, National Na- Birmingham, 12. Shuttlesworth Cf. Service, 4, 1968, tional Park Nov. JA at supra 150-151, note 89 S. 97. Ct. at 938: “ * * * deciding [I]n whether or not Pageant, 14. For a full of the discussion see permit, withhold the members of Hickel, supra Allen v. note 1. guided only the Commission were to be 15. See Attachment A to Affidavit Rus- ‘public welfare, their own ideas of Dickenson, Superintend- sell E. General peace, safety, health, good decency, or- ent, Capital Parks, National National der, morals or convenience.’ This ordi- Service, Park 24. JA at written, therefore, nance it was fell squarely many within the ambit 22-23; .deposition 16. attachment Id. decisions of Failor, this Court over the last 30 Superintendent, R. William years, holding subjecting Capital Parks, law National National Park exercise First Amendment freedoms Service, JA prior license, restraint with- Letter, note at 97. JA narrow, objective, out definite guide licensing WSP, standards author- Letter R. William Failor ”* * * ity, is unconstitutional. Nov. JA at 98-99. (Footnote omitted.) granted Judge only portion of occupy District Hart a small judg summary chose to Government’s motion for Ellipse. also The Government filing opinion.23 ignore explicit it ment without written assurance WSP’s accept a site for its panel re appeal, a this court On Pageant.19 way with the in no interfered and remanded the case versed steps Speaking a ma Moreover, cir took District Court.24 WSP jority Judge preemption panel, held Leventhal cumvent Government’s pro argument against display, pictorial displays such as that erection ground prima posed by least a “have shifted Government granting express for not facie relevance to freedom of reasons found other ion,”25 “must permit. its initial Park Service Thus, after aWSP * * * rebuff, proper for the mat concede take WSP elected to into account a non-frivolous had ex ters that have at least moment during and must take aspect, to use the constitutional clusive give applied reflective hard them them season, and look at the Christmas Judge during imme con Leventhal the weeks sideration.”26 Although that, diately following record as further said Christmas.20 stood, group failed scheduled to use the then had no other was Government why more none time, at this show was Government objectionable again reject re asso than the structures theless chose to Pageant. The of dis quest; this erection ciated with the Christmas time because appropriate specifically plays deemed “an court found that the Christ was not Pageant, Federally-owned display, “does park lands mas like the use of * WSP * * protec have, mes and is intended to not consistent with Ellipse sage, mere of the area.”21 the effort to label it as tion use [and] ly ‘recreational,’ However, hope failed to ex in it can the Government larger why plain of dis kind of on the erection much assimilated use Pageant Ellipse games, plays an was illustrated softball the Christmas Federally-owned entirely support “appropriate of too restric shallow use why tion lands” or small struc on First Amendment activities.”27 WSP’s endangered “protection and Moreover, fact the Christmas ture Ellipse display, Pageant, the Christ unlike was area” whereas the WSP Pageant co-sponsored by. agency did not. mas Government “may was “not found ^decisive” since it After WSP had been rebuffed several questions raise than answers.” more per in more times its efforts to secure Judge display Nonetheless, at rec mission various Leventhal also erect ognized year,22 proposed of times filed this suit WSP’s injunc requesting “non-speech” the District Court contained as well 10, declaratory “speech” July “a tive and On elements and hence relief. letter, supra 13, Day 6th). (August 19. See note JA at 97. sliima See letter from WSP William R. Failor at JA 20. See letter from to William R. WSP 104-106. Failor, 4, 1968, 99-100. Dec. JA at 23. 12. See at JA WSP, 21. Letter Failor from William R. Hickel, at 24. Dec. JA 100-101. See Women Strike for Peace v. 1. note applied 22. On Jan. WSP permit conjunction U.S.App.D.C. 25. at to erect its 420 F.2d n with a proposed Easter 600. Peace though similar, “which would be smaller U.S.App.D.C. 26. F.2d at scope, to the Christmas Letter to William Peace.” WSP 420 F.2d April 25, Failor, R. at 101-102. JA On request a similar to erect WSP filed 28. Ibid. structure connection with Hiro- reg They operation this section. substantial Government interest require permits; non-speech ulation of the element will not official justify any park be held in or the White restriction First area incidental area; may preempt House freedoms.” Because specify Government such areas to the exclusion had failed to what public gatherings.” relying on, substantial it was the case was remanded so that the Gov (Emphasis added.) Moreover, 36 C.F.R. request ernment could reconsider WSP’s * * * 50.19(c) provides that “no § complete in the context “a more speaker structures than stands [other illuminating presentation Park Serv * ** platforms] may be erected on policy papers than ice is available on the except lands in connection with NPS before us.” added.) (Emphasis events.” remand, disposition On the case was rely Purporting provi new delayed Department so the Interior could deny sions, proceeded to the Government regulations revise its in accordance with application portion for use of a park policy respecting some coherent ex- during Christ 1970-71 rights.31 ercise of First Amendment three mas season. The cited Government meantime, suggestion Judge at the reasons this refusal 36—reasons which Hart, the Government entered into a First, it now reiterates before this court. stipulation permitting erection argued was Government on an interim basis attempting to unre erect structure pending litiga- the final outcome any “public gathering” lated to within tion.32 meaning 50.19(c). of 36 C.F.R. § delay year following After a of over a permits speaker This section erection of remand, Department this court’s adjuncts platforms stands and “as finally produced the Interior its revised any gathering.” permitted public regulations completed form on Octo- apparently position Government took the Despite spe- ber 1970. this court’s negative preg that the section contains a warning cific co-spon- that Government forbidding erection even these nant — sorship was not a “decisive” factor in conjunction limited with structures determining groups which should have “public non-NPS events which are parks,33 regulations access to the the new gatherings.” Next, the con Government distinguished between those sharply, that, proposed tended even if dis WSP’s sponsored by events which are the Na- play “public gather were considered a (so-called tional Park Service “NPS ing,” by prohibited its erection was still events”)34 and those which are Thus not. 50.19(c) display 36 C.F.R. since the was § provides: 50.19(b) C.F.R. § speaker platform not a stand or “may therefore be erected on [not] gatherings, “Public other NPS than except land in connection with NPS events, may only pursuant be held Finally, events.” Government ar permit a valid official issued in ac gued permits 50.19(b) that 36 C.F.R. § provisions cordance with the of this preempt NPS excepted events an area to the

section. NPS events are from 50.19(a) U.S.App.D.C. 33, 34. 29. See 36 C.F.R. § 420 F.2d at 601. Superintend 35. See letter WSP ent, Capital Parks-Central, U.S.App.D.C. Na National 420 F.2d at Service, Park tional June JA 113-119. Hickel, 31. See Women for Strike Peace v. supra 36. See letter from William R. Failor note JA at WSP, Dec. JA at 120-124. 32. See JA at 2. Hickel, 33. Women Strike for Peace v. note 420 F.2d at 602. pendente order gatherings. Court’s ified the District public of other

exclusion display to lawfully to restrict WSP’s erect lite so as could Thus, even if WSP Christmas for the 1970-71 during site time of an alternative some grant also portion This court se ason.42 year, use even it could not and ex a limited motion for during ed sea WSP’s Ellipse the Christmas for Court pedited to the District Pageant remand NPS of Peace —an son when purpose permitting the District area. preempted the entire event —had dis WSP’s to determine whether Court ex remedies its administrative With significantly play with interfere again Dis hausted, turned Pageant Pur of Peace:43 the Christmas Judge Appearing before trict Court. Judge Waddy held remand, to this suant Waddy, parties offered cross-motions testimony hearings heard at which he upon summary judgment which the for WSP,44 superin from a member of 14, 1970.37 on December court ruled of Na of the Central District tendent scope re Judge Waddy held that Parks,45 Capital psychologist and a tional regulations was administrative view of expert qualified in the field of is a who of whether determination limited to a perception con mechanisms.46 At them, and rational basis there was a Judge evidentiary hearing, clusion of the to believe rational basis was findings Waddy of fact announced 19 pro Government’s finding alia,, inter included, tecting sufficient land was significant inter “there would be no justify on WSP’s incidental restriction Pageant ference the 1971 There freedoms.38 First Amendment granted permission of Peace if were fore, placed on WSP’s restrictions gathering proposal for a [WSP’s] not, them public park land did during structure on the violate First Amendment. selves, 1971 Christmas season.”47 however, found, court further capricious arbitrary to exclude was in turn This ultimate conclusion was allowing while WSP’s subsidiary buttressed a number of larger struc a much to erect Peace findings. Specifically, the District Court ture, this invidious discrim and that physical space held that for the “there is equal ination violated WSP’s simultaneous inclusion of both [WSP’s] Judge Waddy specifically protection.39 display and the Christmas held that there was no rational basis Ellipse,”48 Peace “ distinguishing non- NPS and between during presence [WSP’s] NPS events.40 The court therefore 1971 Christmas season would granted summary motion for physically visitor’s interfere with the judgment enjoined defendants viewing Ellipse access to the refusing permission erect to 49 Peace,” and that during on the “[o]nly persons especially those who are Christmas season.41 politically sensitive will view [WSP’s] proposed part than as thereupon filed a The Government general peace. po- theme of Such timely and, appeal from this order litically people like- will all sensitive motion, mod this the Government’s court 43. See id. at Hickel, 36-37. 37. See for Peace v. Women Strike 3, at 26-35. note JA 38-46, 44. See id. at 147-150. 38. id. at See 31. 47-56, 45. See id. at 140-145. id.

39. See at 32-34. 46. id. at See 150-173. 40. id. at See 33-34. id. at 59. See id. at See 34-35. See id. at 58. 49. See ibid. 42. See JA at 137.

1280 only minority proved speech. First Amendment a small lihood constitute country protects the voice people visit this will who 50 government. See, people, against during season.” even the Christmas Keyishian Regents, g., e. v. Board 385 evidentiary completion re- With 675, 603, 589, 17 L.Ed.2d U.S. S.Ct. finally in a hearing, mand case is this (1967). posture the merits for review on suitable ambiguity carefully by or doubt examin- There can be no this court.51 After findings postulates ing Judge Waddy’s about of constitu- these basic factual They im- arguments parties, democracy. far presented tional too portant far too I same time District Court was conclude that —and they fragile holding that stand while correct the Government’s us to —for away by permit refusal to the WSP while dicta. are whittled unreversed Although simultaneously right protection co-sponsoring equal the much larger Pageant vital, of Peace violated WSP’s the laws is no substitute right right equal protection. independent con- ex- I also of free pression. clude, the District Court should be however, This case therefore holding erred in had no First resolved in with the consti- that WSP accordance right place provision structure tutional which was written Ellipse. deal with such situations. WSP has right protest petition voked its and to While in the District Court errors grievances. redress of court Our way in no the final affect outcome of system just was created to vindicate such litigation, this are too fundamental claims, equivoca- hesitation or pass always It unnoticed. been tion on our involve a relin- thought that citizens have an absolute quishment respon- of our constitutional right speak their mode of com when sibility. way munication interferes with rights See, g., Tinker others. e. II Independent Community v. Des Moines District, 503, School 89 S.Ct. Although reject I the Government’s (1969); Gregory 733, 21 L.Ed.2d 731 argument can, under these cir- Chicago, 112, 946, 89 S.Ct. U.S. deny cumstances, WSP access to the (1969). Stanley 22 L.Ed.2d 134 v. Ellipse, suggest Cf. do mean to that all Georgia, 394 U.S. governing principles the constitutional (1969); 22 L.Ed.2d 542 Sherbert entirely this area are free from doubt. Verner, 83 S.Ct. U.S. fact, relating the law to communica- (1963). L.Ed.2d If could developed tive point conduct has to the only government be exercised is where a full reconciliation of all the cas- willing co-sponsorship to offer its longer possible. es is no As law has speaker, system expression free gradually evolved, it has revealed basic indistinguishable sys would be from a conflict in attitudes —a conflict prior tem of restraint. Niemotko v. just beginning appreciated. Cf. We Maryland, assuming can be confident that even- L.Ed. 267 tually The First Amend legal theory emerge a new will designed ment protect was not to theory from this conflict —a which takes government government-ap voice of or society’s countervailing full account of 50. See id. at 59. present “[w]hen controversies what are essentially recurring public issues of in- application 51. This case is moot. An terest are mooted because the for use of the for the 1971-72 particular most recent occasion for con- pending Christmas season was at the time sideration the issue has come and of our in order case. See this letter from gone.” Women for Strike Peace Superintendent, Capital WSP to National Hickel, supra Parks-Central, Service, note 137 National Park 25, 1971, Moreover, June JA at 131-133. 420 E.2d at 604. * * * * (cid:127)» * alone, speech free in full discussion and interests meantime, particular expression con- remains In there mixed with order. impor- premises in fact which There hard of shared duct.” a core demonstrating theory tant differences between must form the basis of new demonstrating legislature and sufficient for resolution before a and which are courthouse, but these differenc- before a of the case before us. clearly dif- with the es do not correlate symbolic Thus, speech while the law speech and ferences between conduct —at changi rapidly and as a whole unclear is used in those common least as terms ng,52 rests upon this case which law parlance. terms, com- Nor are ironically, But, is and clear immutable. monly used, responsive to interests apprecia necessary to it is have some designed Amendment was First can tion conflict we area of before say protect. in ordi- Thus we would certainty. hope the area understand making nary man conversation that a grad genesis in This conflict has telephone “speaking” call is obscene dis clear ual deterioration once distributing is a man handbills whereas speech hand on the one tinction between “acting.” situation, in Yet years, For conduct other. surely speech than the the act rather “[o]nly agreed most scholars protected. which should be gravest endangering para abuses, interests, give per mount occasion may be, course, that advocates It speech,53 while missible limitation” dichotomy speech-conduct mean regulated more conduct much special, in a those terms be understood long government so remains freely, legal in com- sense rather than as used rationality. within loose bounds Emerson, parlance. Professor mon dichotomy thought This was basic example, attempted has func- draw a analysis. Professor First speech and conduct. tional line between Emerson, thought example, “action,” he harm attributable de task is in “[t]he first to formulate says, and instantaneous” “immediate ‘expression’ tail between distinction except by punishing and “irremediable * * * and ‘action.’ whole [T]he thereby preventing conduct.” theory practice of ex freedom op. supra,, Emerson, L.J. Yale cit. pression any of the realization of hand, —the Speech, “has on the other attempts upon values it to secure —rests consequences, ir- less less immediate Emerson, this distinction.” Toward impact.” in at 881. remediable Id. Amendment, Theory General of the First are, fact, There some indications (1963). 72 Yale L.J. just Supreme has such Court made opin- however, recent a distinction in number of recent years, it has be- apparent that, engaged speaker come When the such ions. distinction, his cre- is, is often one a dif- “conduct” —that actions without impact Supreme ference. ate direct Thus Court found and irremediable peaceful prevent— demonstration in front of which the state has a legislature punished state v. South he can be or But Edwards restrained. is, engaged speech when he is Carolina “an [free exercise —that speech] pristine immediately most clas- when his do not [its] actions form,” any legitimate government peaceful sic whereas the dem- vade presumably onstration in front court- involve little the state showing stronger house “not societal Cox v. Louisiana was costs —a far Symbolic generally Note, Carolina, Conduct, 52. See 54. Edwards v. South 680, 683, (1968). 9 L.Ed.2d Colum.L.Rev. Collins, 53. Thomas 323 U.S. 65 v. supra 315, (1945). Louisiana, 7, L.Ed. 55. Cox v. note S.Ct. 89 430 379 564, 480, at at 13 L.Ed. 85 S.Ct. 2d 487. litigation symbolic speech may government in most sue must be made before conduct of inimical amount concerns the constitutionally impose Com- restraints. interest must tolerate Inde- the state pare, Des Moines g., e. Tinker v. allowing Obvi- free communication. Community su- pendent District, School government ously, it insufficient Hardway, is pra, v. 394 U.S. with Barker all, any legitimate at interest (1969) point to 1009, 905, 22 L.Ed.2d remote, aas minor or concurring). no how (Mr. matter Fortas, See Justice suppression commu- 536, justification generally Louisiana, 379 U.S. Cox v. long cases A line of (1965). nicative conduct. 13 L.Ed.2d S.Ct. countervailing gov- establishes approach, difficulty such an The reach a certain must ernmental interest carefully however, exam- that when is having regulation level before threshold speech con- to turn into ined it tends all upon speech will be an incidental effect imposes some All duct. communication State,58 permitted. v. Thus, Schneider society chooses on a direct costs Supreme faced with Court was oral, it noise “If it is to tolerate it. narrowly group statutes drawn else; may interrupt if it and someone hibiting in cer- of handbills distribution Kalven, written, may litter.” places. cities public The various tain Concept Cox of the Public Forum: justification ordi- for the asserted Louisiana, Sup.Ct.Rev. 23. v. obviously valid nances the state destroy grass,56 and All demonstrations littering. Writing preventing newspapers pollution.57 There cause cog- Court, took Justice Roberts Mr. simply way have a which we can .interest, but found nizance of this thoroughgoing system expression of free justify effect incidental sufficient paying while no societal costs for our expression: had on free ordinance freedom: *** leg- every “In where case “ * * * process of full dis- [T]he rights abridgment [of islative all, open involves risks cussion, some asserted, expression] the courts free society practices At it. the effect should to examine be astute delay may times substantial challenged legislation. Mere working prob- in the out of critical legislative preferences re- or beliefs guar- There lems. can be no ironclad specting matters of convenience antee that in end a decision benefi- regulation support well directed society cial to will be reached. activities, personal insuf- but be process, diversity by encouraging justify diminishes ficient such as dissent, does at times tend to loosen rights vital the exercise of so society common bonds that hold institu- maintenance of democratic together bring threaten to arise, the deli- tions. And as cases so, giv- about its dissolution. The answer upon the cate difficult task falls high en is that the and that stakes are weigh circumstances courts ” ** * the risks must run. substantiality appraise Emerson, op. supra, cit. 72 Yale L.J. support of advanced in reasons regulation enjoyment the free 886. rights.” clear, then, virtually It is all com- Nor whisper is Schneider an isolated aberra- munication —from the faintest Supreme large compound tion. At various times the to a demonstration —is a legitimate “speech” Court has subordinated state The real “conduct.” is- Group Hickel, 58. Ibid. Quaker A Action Cf. note Id. at 151. S.Ct. 421 F.2d at 1117. State, Schneider Cf. 84 L.Ed. 155

1283 Amendment First control,60 with tions interfere revenue in traffic interests * * * say licensing rights, “it no answer raising,61 prevention,62 crime *** regu- 63 purpose pro- occupations control64 and noise high merely pro- to insure lations The was values. tection of First to curtail and not fessional standards validity when involved of the statutes not, may expression. For a State free did applied conduct to noncommunicative profes- guise prohibiting under they with conflicted them not save misconduct, ignore constitutional sional Thus, Mur- interests. communicative Button, 115, rights.” 105, 371 U.S. v. N.A.A.C.P. Pennsylvania, 319 U.S. dock v. 341, 438-439, 9 L.Ed. 415, 328, (1943), 83 S.Ct. 870, 876, L.Ed. 1292 87 63 S.Ct. (1963). v. Little See also Bates 2d 405 licensing “non- tax was the fact that a 412, Rock, 4 80 L.Ed. 516, 361 S.Ct. U.S. diseriminatory” “imma- was held (1960); 480 Alabama 2d N.A.A.C.P. v. terial” : 449, “ Patterson, 78 S.Ct. * rel. 357 U.S. * * ex protection afforded (1958). 1163, 2 L.Ed.2d 1488 so is not re- the First Amendment certainly does tax stricted. A license agree can Mr. Jus- But while I with validity acquire be- constitutional Douglas free- tice that First Amendment pro- privileges cause it classifies “along not be with doms should classified along by the First Amendment tected hucksters wares and merchandise of and merchandise Pennsylvania, with wares peddlers,” v. Murdock peddlers and treats 876, hucksters 115, 319 63 S.Ct. at supra, U.S. equality in treat- them all alike. Such agree Mr. Chief must also with Jus- ment does not save the ordinance. Hughes not be tice would “[o]ne speech, press, Freedom freedom of ignoring justified red the familiar religion preferred freedom light thought his traffic he because position.” religious disobey duty municipal sought by command that means to di- govern- It should be clear then that rect attention to an announcement regulate ment communicative Hamp- opinions.” v. New his Cox simply the conduct im- conduct because 762, 569, 574, shire, 312 U.S. 61 society S.Ct. poses have costs which (1941). 765, It cannot 85 1049 L.Ed. to avoid if were not linked every speech be curtailed time constitutionally protected commu- gov- legitimate point state can Congress empowered pro- nication. ernmental other- which would parks tect our normal harm under regulation since, justify wise as shown circumstances, example, “the but above, degree speech imposes to some protect shrubbery plants need govern- societal and hence invades costs justify cannot alone restrictions mental But can it interests. neither imposed upon sort demonstrations any- permits true that Constitution Lafayette Quaker Action Park.” A long anything one to do time so Group Hickel, 176, v. 137 expres- he acts in name of free 1111, (1969). 182, 421 F.2d 1117 State Adderley legislatures ample sion. See power Florida, 385 U.S. set v. qualifications fessional lawyers, 242, 87 S.Ct. 17 L.Ed.2d 149 regula- legitimate when the otherwise (1966). every problem case Texas, 413, 60. See Jamison v. 318 U.S. City Struthers, 62. See Martin v. 319 416, 669, (1943). 63 S.Ct. L.Ed. 87 869 141, 862, U.S. L.Ed. S.Ct. Chrestensen, But Valentine v. (1943). Alexandria, of. But Breard v. 52, 920, U.S. 62 86 L.Ed. 1262 920, L.Ed. U.S. 71 S.Ct. (1942). (1951). Pennsylvania, 61. See Murdock Collins, supra 63 See Thomas v. note 53. (1943). 63 S.Ct. 87 L.Ed. 1292 York, supra New See Saia v. note 7. Grosjean Co., Press v. American Cf. Cooper, But see Kovacs U.S. 56 S.Ct. 80 L.Ed. 660 (1949). 93 L.Ed. 513 1284 begs principled question between it to strike a balance of how “substan governmental right communi- tial” the individual need be interest regulation permitted. of the state cate his and the before The views will be governmental aspect prosecuting “conduct” of that to control the interest 65 maintaining forgers draft card communication. and in 66 prison security seems to be “substan provided Supreme has now The Court pre tial.” Governmental interests weighing preliminary these test venting littering67 regulating ad rights in conflict: 68 “* * ->: n apparently vertisers are “insubstan ‘speech’ ‘non- [W]hen tial.” But a substan how does one tell speech’ combined elements are something tial interest from one which is sufficiently conduct, a same course of preven less than substantial? Is fire governmental important interest enough tion, example, a substantial regulating nonspeech can element against justify prohibition interest justify on First incidental limitations flag burning interest ? Is the state’s Amendment character- freedoms. To discipline substantially im school governmental quality in- ize the paired by permitting to wear students appear, terest must the Court which virtually impossible ? armbands It is employed descriptive variety principled to derive answers substantial; compelling; terms: sub- questions. basic in all such issue ordinating ; cogent; paramount; cases is much the First Amendment how strong. imprecision Whatever requires society give up in the inter terms, heres in these we think is, price est of communication —that what government regulation clear that a willing put speech. we are free sufficiently justified if it is within long run, say it will not do to power the constitutional of the Gov- pay price, we must a “substantial” since ernment; important if it furthers just this answer does not us tell how interest; governmental or substantial price substantial must be. governmental if the interest unre- extremes, O’Brien test works well at the suppression lated to the of free ex- be that a new test will have pression ; and if the incidental re- governing to be devised for the close alleged striction on First Amendment cases. greater freedoms is no than is essen- tial to the In the inter- meantime, courts relied on furtherance ”* * * principles est. number of which suffi- many cient to resolve of the cases. The 367, United States v. O’Brien, U.S. important most of these is the one ex- 376-377, 88 1678, S.Ct. 1673, 20 L.Ed.2d plicated upon by and relied the O’Brien (1968). (Footnotes omitted.) Court itself. Whatever one’s view as then, It clear, is at least coun price paid which must be for First tervailing governmental must be Amendment freedoms, it should least “important” gov or “substantial” before government be clear must show regulation incidentally ernment affect some interest which it seeks to vindicate ing speech permitted. will be It should be by suppression of the communication. however,

noted, test must be Moreover, this interest must have inde- regarded preliminary only, since it pendent validity and must be unrelated Specifically, fails to resolve close cases. York, 576, 69. O’Brien, Street v. New supra 394 U.S. See United States v. Cf. 89 S.Ct. 22 L.Ed.2d note 10. (Mr. (1969) dissenting). Fortas, Justice Adderley Florida, 66. See v. 385 U.S. Independent Tinker v. Des Moines (1966). 17 L.Ed.2d Cf. Community District, School 393 U.S. State, supra note 57. See Schneider v. 89 S.Ct. 21 L.Ed.2d 731 City Struthers, 68. See Martin v. note 62. goal Hague per 453; speech suppression of se—a prohibits O., supra, 505-506, 59 C. I. the First government pursuing. Unit re See A moment’s reflection S.Ct. 954. only O’Brien, why so. The supra, 391 U.S. veals this should be ed States v. Stanley why permit a re 376-377, reason the courts will 88 S.Ct. 1673. Cf. Georgia, supra. is striction on conduct communicative the an inde because pendent state asserted course, principle alone does this Of legitimate can be interest which fully Amendment free- protect First not only by a vindicated such restriction. above, virtually argued since, as doms in ifBut the state has allowed some society speech imposes which costs all the vade that obvious that interest, is However, preventing. interest has an purpose tois of a restriction on others of im- principle has a number also the suppress speech vin their than to rather sweep portant its which extend corollaries any independent dicate interest. broadly. fol- First, somewhat more in- requirement of an from lows the Thus, Maryland, supra, in Niemotko v. countervailing dependent interest example, inde state asserted pursue a less restrictive must the state pendent legitimate interest, similar possible it curtails before alternative case, keeping the one asserted in this conduct. See United communicative parks tranquil quiet. its But “what and' O’Brien, supra; United States States possibly ever force this contention could 258, 267-268, Robel, 88 S.Ct. v. 419, testimony light have is lost in * * * (1967). * * * If the state L.Ed.2d per at the trial that goals by legitimate achieve its could always mits had religious organizations been issued for [other] regulation curtail a does not Sunday- speech, a cannot said to have then it be picnics. might point out We also school legitimate regulating speech. interest designate attempt sanctuary peace quiet as a not It must that some of be conceded only appellants, does not defeat ambiguity test itself of the O’Brien whose own created no disturb corollary conduct It could heres in this it. position ance, than but this is also more argued that the state be with some force slightly inconsistent, since, on the first always a restrictive al- could devise “less Sunday involved, here was not a ternative” if societal costs were Flag Day ceremony mean, situs for the must test consideration. What the discriminatory Order of Elks.” use a therefore, that the must is state independent interest assertion of an if it can do less alternative restrictive makes real clear that the state’s concern incurring costs. so without substantial regulation of the content our But this formulation returns us to regulation speech rather than of con determining original difficulty in how purpose duct. Such a one which a “substantial” cost must be. substantial prevents First Amendment the state attempting Without ma, to resolve dilem- this pursuing, regula from and therefore say the state we can at least question tion in regulate must fall. permitted should not legiti- speech all its when it can achieve legitimate independent Moreover, regulation goals mate some only requires interest test not that the very little or no extra cost. regulation speech narrowly drawn fairly applied. The standards con- legitimate corollary to the A second regulation tained in the must also independent test when interest precisely specifically worded directed group fa allows one state toward identifiable abuses. cility expression must al of views it “ * * * opportu groups a similar use of low all other Even supra, nity. g., Louisiana, Cox v. streets is involv- See, e. and sidewalks 272-273, Maryland, note 71. Niemotko v. 340 U.S. at 71 S.Ct. at * * * group Finally, separate municipality ed, flowing which, while not licensing considerations roam empower officials legitimate directly independent from will, dispensing or with- essentially at bearing assemble, test, nonetheless have holding speak, permission to on case. can according considerations parade, their These picket, or form a co be said to regarding potential opinions own philosophy approach or question herent activity effect inexora First Amendment to follow ‘decency,’ ‘welfare,’ or ‘morals’ bly prior premises. They are, in community.” stead, part evolving commonlaw Birmingham, 394 U.S. Shuttlesworth 147, adjudication, of First Amendment based L.Ed.2d primarily hoc, on custom and ad com loosely statute A worded monsense which have accommodations enforcing giving au the or ordinance all-embracing place had to take the of an thority an un creates discretion wide theory. although But rules ap rule be acceptable will risk that the case-by-ease developed been basis a plied regulate the content of as to the so usually and must facts, be limited to their expres speech mode of rather than the enough to there are now them of deny grant or sion. An official who can good cover a deal at more of least the right speak according he to what the to typical prob sort of First Amendment “public to in the interest” deems established, lems. ample, It has been for ex respects indistinguishable in relevant handbilling in a downtown long Supreme of A line a censor. allowed,72 picketing, area must be while prior re Court holds such cases least, perhaps at some situations can adequate standards straint without prohibited altogether,73 and that the against precisely the sort abuse grounds capítol appro of a state is an primarily di Amendment was First priate place hold to a demonstration74 See, g., Bir rected. e. v. Shuttlesworth 75 76 jailhouse while the and courthouse Mary mingham, supra; Niemotko v. inappropriate. are 271, 325; land, supra, 340 U.S. 71 S.Ct. purpose try put It would serve no to to York, 558, 559- Saia 601, New 334 U.S. v. pattern such into rules a coherent or to (1948); 1148, 68 92 L.Ed. 1574 S.Ct. Rather, extend them to cover new cases. Griffin, 444, 452, 58 Lovell v. they recognized must be and utilized for 666, (1938). 82 949 If L.Ed. they group what are: a aids useful regulate speech, then state wishes to community’s admittedly derived from the a must undertake precise burden to show vague might sense of what be called First speech nexus between that etiquette. purpos- For our right some evil which the state has a es, it is sufficient to note that three prevent. narrowly drawn to Without bearing these rules have a direct on this judicial standards review insure First, case. it seems to make im- an impossible, such existence nexus is portant difference whether the area any if the First Amendment means chosen general- for the demonstration is thing requires at all it that a least ly open public. Thus, in Adder- party given judicial determination ley Florida, supra, Supreme v. Court such nexus exists before the state necessary point found it out: Mary can him. silence See Freedman v. “ * * * Edwards, In land, 380 85 S.Ct. 13 L. the demon- U.S. (1965). strators went Ed.2d 649 South Carolina supra State, 74. Carolina, supra See Edwards See Schneider v. note v. South note 54. Louisiana, supra Cox v. note Cf. Adderley (Mr. Florida, supra 75. See U.S. 85 S.Ct. 453 Justice note 66. Black, concurring dissenting). Louisiana, 76. See Cox v. note 7. grounds protest. speech peaceful Capitol demonstra- as to State C., by they jail. clause Washington, Tradi- tion D. went to this case tionally, grounds citi- capítol are assures Constitution which state peace- right public. Jails, for se- assemble open built zens their ” * * * government ably curity purposes, not. the seat are Quaker grievances.” present Action A Louisiana,78 Similarly, while in Brown v. Morton, Group upheld blacks the Court (1971). There 351, 460 F.2d public library, au- demonstrate significance symbolic unmistakable explain- opinion subsequently thor demonstrating close to White “might have been ed that the well result grounds Capitol House which, en- the demonstrators had different” quanti- easily while library closing after time. See tered importance fiable, undoubted is of Concerning Fortas, A. Dissent and Civil Although balance. the constitutional Disobedience justify theory used been Second, opinions clearly establish eapitols as demonstrations state near that, spectrum appropriateness, in the Carolina, well, see Edwards v. South capitol parks like are much more state L.Ed.2d jails grounds than like pe- Washington (1963), is in —where long been and courthouses. Parks have regarded grievances national tition redress particular as “a of com kind brought literally the the- must ory —that Anglo- munity that, under area See, application. primary has its tradition, available, at American are Hickel, Quaker g., Group Action v. e. A and on a least to some reasonable extent (1970); U.S.App.D.C. 1, 429 F.2d 185 139 groups basis, for of citizens concern Brigade of Chief Rankin v. Jeannette expression ed with of ideas.” Women 155, Capitol Police, 137 U.S.App. Hickel, for Strike Peace v. 137 (1969); United v. F.2d 1090 States 421 29, (1969). 32, 597, D.C. 420 F.2d 600 (1970). D.C.C.A., Nicholson, A.2d 56 263 a false in Davis Massachus After start v. etts,79 Supreme Court been con has sistently Ill solicitous of the claims groups seeking religious parks use for background, this constitutional With political expression. See, g., or e. Kunz begin conten- WSP’s to evaluate we can 312, York, 290, v. New 340 U.S. 71 S.Ct. right place its dis- that it has a tion play (1951); Maryland, 95 L.Ed. 280 Niemotko v. Ellipse. Such evaluation pra; supra. York, Saia v. New turn, su must, the observa- in start with Moreover, this solicitude extended display proposed consti- tion WSP’s temporary to erection of structures on conduct. of communicative tutes a form park land for connection with opinion, pointed out in our first As we activity. communicative See Saia displays “Certainly pictorial have York, supra. New prima to freedom facie relevance least a 32, expression.” U.S.App.D.C. at 137 It should be too courts noted that the display sym- past particularly is simi- have in the pathetic 420 F.2d at 600. WSP’s been Stromberg flag Cal- groups lar to the red which have assert- sign ifornia,80 picket in Thornhill v. pos- ed a to demonstrate as as close government. Alabama,81 arm band “The and the black sible the seat of general Independent concepts Com- Tinker v. Des Moines of First Amendment given munity is a impetus in that it District82 freedoms are added School 532, 359, 41, 77. L.Ed. 385 51 S.Ct. 75 87 at 244. 283 U.S. U.S. S.Ct. (1931). 1117 131, 719, 78. 383 15 L.Ed. U.S. 86 S.Ct. 736, (1966). 84 L.Ed. 2d 60 S.Ct. 637 (1940). U.S. 42 L.Ed. (1897). 21 L.Ed.2d 89 S.Ct. 82. 393 U.S. noted that WSP’s should also be designed views It to communicate device strengthened ad further importance. claim is It on matters dis- hoc, considerations “common law” of a true erection proposes to erect It cussed above. prototypical First one would call what temporary in an area out structure activity precisely or Amendment public park, sort of area doors expression which the framers mode of customarily to First devoted Rights But it is envisioned. Bill activity.85 Parks have been expression none- Amendment of views a vehicle for airing degree of mind”86 used “time out hence, and, theless entitled to grievances expression of views. protection. First “Hyde Indeed, Park” have the words keeping connection, mind it is worth language passed name warning into the now Black’s Mr. Justice customarily any location medium or many people have who “[t]here debating public speaking used but disseminate ideas that wish to Ellipse is a And enough issues. of course the money to own who do not particularly appropriate site for WSP’s publishing plants, newspapers, or control immedi- inasmuch in the moving radios, picture studios, chains vicinity of the White House —the Cooper, ate places.” Kovacs v. show message pri- place to which WSP’s L.Ed. Quaker marily directed. A Action opinion). (1949) (dissenting Cf. Morton, supra. Group v. Moreover, proposed fact Nonetheless, it must conceded that the Interior does not fit within proposal, virtually like “public Department’s definition posals for exercise of First Amendment gathering”83 way detracts in no rights, speech alone, involves It has Amendment character. First speech. conduct mixed with Under thought that citizens must never been legitimate independent out- test gather together enjoy in order above, may regulate lined the Government Indeed, expression. of free benefits aspect conduct if of WSP’s activities primary force of the First doing it can show reason so. a valid for is directed toward activities as such Moreover, permissible reg- it is such thinking reading, writing and which are speech aspect ulation to curb the typically conducted solitude. An indi- if the can activities Government show pro- vidual’s claim to First Amendment countervailing that interest is “im- strongest tection is at when he is in its portant” or “substantial.” home, privacy of his own far remov- purports gather- “public meet this from Government ed the bustle of by pointing ings.” Stanley Georgia, supra. test sorts of substan- two Cf. that, tial interests posi- It which it fears would be follows the Government’s permitted contrary if notwithstanding,84 vaded is its tion to WSP to erect display. First, argues right display the Government WSP’s to erect its is in no way that erection of a land propose diminished failure ecological “public gathering” would interfere with its that incident preserving parks display. aesthetic any interests Indeed, if this factor has unspoiled quiet strengthens areas for all, and contem- relevance at it plation. argument Second, gathering it contended since a that ac- display during companying erection impose Christ- greater mas season would interfere with on- societal costs than dis- would the going play Christmas of Peace alone. Hague O., 50.19(c). v. C. I. 83. See U.S. § C.F.R. 83 L.Ed. 1423 supra. 84. See text at note 36 supra. 87. See text at notes 58-70 supra. 85. See text at notes 78-79 regulations, recently panel A held which, of this court has under Government pro- preempt that mere assertion of tecting interest in the entire entitled to safety of the President is not area exclusive use. for its justify curtailment of free sufficient question Government’s I do not Quaker Group expression. A Action legitimate preserving un interest Morton, supra. forthrightly panel spoiled parks and in co nature of rejected argument Government’s sponsoring national celebra controlling judgment is that “the Ellipse. do I Nor wish to tion on the engage Secretary, con- this is quibble such in a over whether supported if clusive substantial evi- “impor can be denominated interests dence,” holding instead balanc- “the although may “substantial,” tant” or ing of First Amendment freedoms noting passing be worth Su against safety requirements require [s] preme hardly could had Court have erec judgment of the court.” 148 U.S. tion Christmas trees mind when App.D.C. 351, 460 F.2d at 859. If said that First Amendment freedoms judiciary competent to evaluate infringed they could be conflict the force of the Government’s asserted governmental ed with substantial intere in so an area as sensitive categorically reject I do sts.88 But Executive, tection of the Chief then suggestion in Government’s that mere surely judges can also decide them- complete vocation these interests selves the extent which First Amend- argument long stopper. It has been activity ment will interfere with erection clear that the courts must examine of a Christmas tree. The Court District supposed themselves the nexus between ruling reg- therefore erred activity First Amendment and a harm ulations are immune First Amend- government pre has a challenge ment “not arbi- See, g., e. vent. New York Co. v. Times trary capricious” and “a basis States, United 2140, 403 U.S. S.Ct. in fact.” (1971); 29 L.Ed.2d 822 Cox v. supra, Louisiana, 85 S. We have thus examined on our own Ct. 453. The Government must make a the nature of the nexus which the Gov- “specific showing constitutionally val alleges ernment between erection of the * * * regulate speech.” id reasons to and invasion of substantial Independent Tinker v. Des Moines Com governmental interests. find that the munity supra, District, School prove Government has failed to Moreover, at 739. “in such nexus exists.89 It system, follows that the our ap undifferentiated fear or * * * prehension enough regulation unjustified contested is not to is an in- overcome the to freedom ex of terference with WSP’s constitutional pression.” Id. rights and, hence, is invalid. 88. The sorts of Armory interests which meetings. panel the Su- trict for its A preme uphold Court has found “substantial” of this court the denial over First past the have included challenge the state’s inter- because “[t]here raising army (United est showing States v. was a substantial that the use O’Brien, supra 10) ; protecting by any organization note any por the outside of integrity judicial system (Cox Armory tion of the at the time the Guard Louisiana, 7) ; assuring note upon maintaining pub is called to act in security prisons (Adderley the of its lic order would interfere with the func Florida, supra 66). note tioning U.S.App.D.C. Guard.” the Here, F.2d at in con clearly distinguishable This is thus trast, case showing a substantial was made Jones v. District of Columbia Arm that the WSP would in create no ory Board, terference with simultaneous use of the po Ellipse F.2d 138 by In Pageant case a the Christmas group litical was denied access Dis- Peace. See text notes 94-97 infra. ideology dis- groups erect one to A permission to denying such plays while co- light Park Service’s See, popular groups views. with less Pageant sponsorship the Christinas supra. Maryland, g., e. Niemotko v. accept Peace, the Govern- I cannot the sort constitutes discrimination Such the contention that erection of ment’s imper- regulation of ideas which substantially inter- display would

WSP most narrow under even the missible legitimate park values. fere with First Amendment. construction holding Court was correct District permissible for course, it would be Of allow to that the Government’s decision discriminate between permission Government to Pageant Christmas if it deny- Christmas WSP displays while erect showing making some succeeded ing permission such to WSP constituted greater imposed societal one is viola- discrimination which invidious relied other and regula- costs than the equal protection. Since tive regulations precisely drawn narrow speech some park land for tion of use prevent costs. of these incurrence upon constitutional and debate trenches rights, supra. g., See, Hampshire, e. Cox v. New any created are classifications example, for permissible, for It would be subject scrutiny. Shapiro v. to strict Cf. El- to limit use of the Government lipse Thompson, regulate hours to certain (1969). Applying such 22 L.Ed.2d 600 scrutiny displays or aesthetic character of classification, size see I can Indeed, previous our built on land. making a dis- constitutional basis premised hope that remand was display and tinction between the WSP develop a set Government would display. It fol- the Christmas regulations of a co- such narrow protection equal familiar lows under park policy. herent The Government principles that cannot the Government approach, elected to disdain such deny while to WSP however, rely en- and instead chose to permits similar use tirely on the fact of co- Government Pageant. categorize sponsorship appli- various holding But in Government’s displays Thus all in con- cations. built protection equal action here violated the junction permitted with NPS events neglected clause, Court the District by entirely private while those erected inequality in observe that the treatment groups approach are forbidden. This is also First Amend- relevant WSP’s saying only tantamount offi- argument because the treat- ment —not position cial voice heard —a per unequal se, ment but because patently which is inconsistent with inequality undermines the Government’s protec- Constitution. First Amendment it has a contention that substantial thought tion has never been to be legitimate interest which prerogative exclusive press ex- of those who displays in El- vaded erection of meeting approval views hardly lipse area. The Government can government functionary. some argue would ir- reparably destroy course, basic if values Of conten- the Government’s willingly co-sponsor co-sponsorship it has as the tion un- served were correct that regulation substantially operated merely of a similar erected der an the Pageant. may licensing type the Christmas It form of alternative the Supreme repeated- fact be for the which constitutional Govern- Court has the ly sustained, nothing ment to aside area set the there would be con- sanctuary stitutionally objectionable in which no structures of about it. may built, although kind be unnec- outcome of this should turn on the is case essary question rights parties for us to reach this substantive involved clearly unconstitutional, It is how- rather than the labels which at- here. are ever, rights. permit tached to the those should Government It however, g., noted, “co-sponsorship” See, e. Shuttles- ment freedoms. supra. particularly inappropriate Birmingham, label to at- worth v. regulatory it im- tach to a plies scheme since Belatedly sensing NPS that the fact governmental approval of the ideas case, hardly the co-sponsorship aids being expressed standard which can —a presses distinc- another Government now play licensing no in a constitutional role Pageant and tion between the Christmas system. Moreover, ignore even we Pag- display. the The Christmas WSP it, label the attached to this li- form of eant, argues, non- Government censing pass fails to constitutional mus- nonpartisan. political dis- Licensing systems only permis- ter. are hand, play, on is a device they sible when narrowly are administered under communicating partisan political “mes- regulations providing drawn sage.” argument need not detain This appropriate which, alia, standards inter us, place, dis- In the first however. pinpoint precisely legitimate gov- “apoliti- “political” tinction between protected. ernmental interest to Li- displays in the cal” contained is nowhere granted promptly censes must be to all regulations upon which Government demonstrating those infringe will not rely purported when it denied WSP’s interests, quick judi- those hardly application. The Government can review must cial be assured. Without permitted up to make the law as protection, great such there is a dan- too goes along. If Park Service wished ger that front line officials use will deny parks with use to those regulate their discretion to views rather messages, political it should said regulate than to mode which those govern- regulations supposedly inso expressed. “Although views ing park applications. recognized Court has statute Moreover, provision such a even if prevents be enacted which serious inter- regulation, I am in the were contained usage ference with normal of streets far from constitutional convinced of its ** * parks, and ly we have consistent- gov- validity. established It is well licensing systems condemned place ernment not an added burden vest in an official discre- administrative simply on conduct because it constitutes grant tion to permit or upon withhold a right. an exercise of a constitutional broad proper criteria regu- unrelated to obviously impermissible for Thus it is public places.” lation of Kunz v. New deny applica- Government to York, supra, 340 293-294, U.S. at very tion reason that at 315. posed display is First Amendment ac- protection necessary This a li- make tivity. course, may be, of that WSP’s It censing system proper sorely lacking impose First Amendment conduct here. There indication that selec- impos- costs some societal not additional tion of those events which are to receive activity. nonspeech bur- But ed cosponsorship NPS license is made demonstrate den is on the Government to narrowly accordance with drawn criteria regu- such additional tailor costs and to Rather, announced in advance. deci- designed prevent narrowly lations sion as to which events are to receive interfering exer- them without with the government blessing seems to be en- left rights. cise of WSP’s First tirely in the discretion of the officials argued above, has As the Government regulations. who administer the To be begun to meet this burden here. sure, those officials assure us prem- underlying Finally, reject discretion eye is exercised argument. It is of the Government’s ise interest and basic values. Pag- simply true that the Supreme But repeatedly Court nonparti- totally apolitical eant is standards, held that such even with offi- surprising Indeed, that it is san. good cial faith, assurances of offer in- con- to this chooses renew Government protection sufficient in this decision to after our first Amend- tention First policy decision, explicitly held heard and the ultimate In that case. we Pageant “plainly would be frustrated. First Amendment that Christmas Broadcasting have, have, v. United a National and is intended to See Co. does States, L. message 63 S.Ct. effort it as to label [. T]he (1943). merely ‘recreational,’ hope Professor Kalven Ed. 1344 As that argued, convincingly quite prop it is kind use has it can be assimilated to the government to insure two er for speakers that on the games, illustrated softball speak attempt entirely support do not to at the too to is shallow long place same time so the same restriction on First Amendment activi- government regulations designed to F.2d ties.” narrowly Nothing this drawn record achieve end at 602. added to Kalven, op. scrupulously fair. See first remand caused me to since our change has Sup.Ct.Rev. supra, cit. at 23-27. this view.90 a where Thus this were case unpersuaded any legiti I am thus that attempted apply pre- Government to governmental mate interest in mainte regulation fairly cise and administered nance of values would undermin prevent in order to substantial interfer- display. ed It does auto WSP’s Pageant ence Christmas with the follow, matically however, the dis reject Peace, I would be forced to play permitted, should be since the Gov emphati- Supreme claim. The Court has analytically another, ernment asserts cally “people discredited the notion that separable, interest which it claims to protests propagandize who want protecting. Specifically, Govern right views do have constitutional so argues ment it they whenever please.” Adderley however and wherever regulating competing First Amendment Florida, supra, 385 so do not interfere activities U.S. at 247. WSP argu support with each of this other. right right speak equal has a portion ment Government cites organizers Pag- of the of the Christmas regulations permitting an NPS eant, but neither has the shout “preempt” event to an entire area down the other. for its duration.91 above, Unfortunately, however, requires As indicated the Christmas imagination unmistakably of Peace rather is creative to turn de signed “message” government case ly into one in communicate mere- making particular point patrolman, to further a acts as a traffic of view. Therefore, Pageant, everyone gets certain that like the fair chance display, degree speak. place, entitled to a In the can hard- of First first protection. ly regulations be maintained of that that these Part protection opportunity scrupulous is the to com meet test of evenhanded- required municate government regu- free from ness interference from wishing others propagate activity. lates First Amendment views. regulation analogy Government airwaves, regulations again to broadcast example, premised Supreme ap- belief instructive. Court has everyone that if proved government regulation designed talked at the same time over medium, the same one insure would be two do broadcasters my Moreover, opinion regard press Clearly, in this its views. the Govern strengthened by permitted new evidence inserted in ment cannot be to exclude oth indicating expressing record after remand ers from their on a mat views pro controversy using has been used to ter of while the same position. mote the Government’s view medium to advance its own about Cf. prisoners war held in North Vietnam. Wirta v. Transit Alameda-Contra Costa only District, Cal.Rptr. 430, See JA at 141-145. Not is the 68 Cal.2d plainly partisan political; POW issue P.2d 982 aspect very it is also an same con troversy 50.19(b). about which WSP wishes to ex § 36 C.F.R. wavelength true, example, attempt that a It is doubt the same use activity doing protected so, political the convention But before the same time. “Congress government did a and that would itself that local Court assured rights designated par- a within if it not the choose authorize Commission to po- among upon of their ticular hall for the exclusive of applicants the basis a during views, up- party political, convention or litical week. economic or social did, hardly capricious proposi- any If it from basis. But on other follows government by Regula- tion if these the decide Commission could the among appli- “preempted” en- proposed the convention the a choice tions basis, city speech all upon issue tire and that other was cants some such the wholly illegal therefore would be different.” while the convention before us By token, Broadcasting was in the the National Co. v. United town. same preempt portion States, supra,, 63 S.Ct. Government U.S. enough Ellipse large the at 1014. to insure substantially other do not in- activities reg however, Here, the Government’s ongoing terfere with the dis- Christmas appli between ulations discriminate do play. preempt But it the entire constitutionally unacceptable cants aon partial only preemption require basis. Whereas other events fully vindicate its hav- interest permits they held, can be NPS before ing Pageant. an unobstructed A total permitted proceed events are without preemption in this situation would con- permit.92 Furthermore, NPS events infringement an stitute Amend- First permitted —unlike all other events —are rights any countervailing ment without preempt an entire area.93 Taken governmental by hypoth- since, interest together, provisions mean that these two esis, countervailing fully Government-sponsored displays are partial preemption. vindicated always given preference dis over other plays ap particular dis- which do meet with The extent which a play requires preemption proval land Government officials. Such surrounding question fact, analogized to it is a de- discrimination cannot be pending on nature of evenhanded enforcement rules competing the nature It activities. the road. constitutes instead the moreover, government censorship is, It kind a difficult and subtle blatant question Obviously, of fact. more is which the framers of the First Amend than a intended volved mere determination of ment to outlaw what forever. physically ques- will on fit the land in Moreover, regulations these even if tion. inis facially nondiscriminatory, were event, beauty an aesthetic applied would still be overbroad easily scene could certain ruined requirement therefore violative of types competing displays even lo- that the least method used restrictive cated from some distance it- regu- rights when First Amendment hand, self. On possi- other also O’Brien, lated. United See States v. imagine unobtrusive, ble how taste- supra, 1673; S.Ct. suitably ful structure removed Robel, supra, United States Pageant might go center of the almost 267-268, It is true that might unnoticed or blend in government may curb communication displays Pag- associated with the speaker of one so that another can have eant. his chance. But such restriction express Fortunately, unnecessary it is for me views must be nar- rowly infringe impres- drawn so as matter of first as to decide First rights prototypes only sion which closest nec- extent rights case, essary to this since the District Court held to vindicate the of others. 93. See 92. See ibid. ibid. opinion very issue, stated thorough hearing For the in this reasons on a given by Judge Waddy District rather than those the conclusion which

the of Court, findings par- I in the affirmance its In concur of fact.94 detailed of made judgment. Waddy ticular, Judge found that the substantially display would not WSP Pageant, either aestheti- the Judge:. terfere with LEVENTHAL, Circuit independent per- My cally physically.95 or I concur affirmance Dis- the convinces me that of the record usal judgment, Court’s trict construed as findings clearly are erroneous. judgment today, vided in our in our as Indeed, myself complete I accord find judgment 10, 1971, of so December geo- large Ellipse them. a with application plaintiff the of Women graphic area remains uncrowded temporary for a Strike Peace erect Pageant entire Christmas even when the by display occupied “adjacent to that —reindeer, log Yule and all —has been Pageant . the of . . Christmas Peace contrast, on it.96 In assembled the WSP general vicinity in the of the other dis- quite modest in dimensions. plays” by a location is satisfied within many visi- The evidence indicates broadly defined, Ellipse area tors to know would not even within circular area” occu- the “central there, it was and most others Pageant pied by of Peace. the Christmas gen- merely assume it was regula- park-use The Government’s display.97 Accordingly, eral Christmas tions, they case, pertain are to this as spirit why, in the I see no reason unconstitutionally discriminatory and season, Pageant the Christmas and They as overbroad. are invalid insofar cannot, WSP as District they (a) wholly at all times disable and peacefully held, Court coexist groups such for Peace as Women Strike Ellipse. (WSP) erecting display structures course, Of I that a “privilege” doubt few according while people surprised upon will be -sponsored co-sponsor- come or “NPS Events” — display. others, the WSP A few I am ed Park National Service —such sure, annoyed by message will be as the Christmas of Peace conveys. country But in a as (CPP) (b) diverse contemplate and otherwise ours, there will be a few who park are sur preemption blanket land in favor prised annoyed by any message and in cases NPS Events of simultaneous Indeed, substance. is a function of proposals park-use by an Event NPS speech surprise annoy. may “It Event. non-NPS absence * *(cid:127) -» high purpose best regulations serve its narrowly drawn it induces unrest, condition creates and contain articulated criteria for dis- dissatisfaction with conditions tinguishing, objective basis, those are, anger.” people even stirs structures, Ter who not erect Chicago, miniello 1, 4, disability S. that avoid the constitutional Ct. determining through We park L.Ed. land use pay price right speak censorship, is entitled court re- —a price which can be measured in protecting hard lief to use currency rage, instability lands, thereon, incon displays and to include venience. But the wisest men are some limited avoidance of interference with gladly annually pay times piper. those who erected repression full Peace. cost of and uniformi ty greater would be far and, ultimately, my It will be evident views coin- would be more than of us would like large part Judge Wright’s. cide to bear. However, ais difference between Findings Fact, 94. See JA at 96. See 56-59. JA 146.

95. See id. at 58-59. 97. See JA at 150-173. regu- substance, Park Service appropriate decree. More- us as to this: lations come down opinion paints First Amend- over, his un- land other local brush than freedoms with a broader ment jurisdiction curtailed might say der Park Service freer stroke. us?, some display, does permissible because it as to of opinion a reorientation reflects His sponsorship an government as enjoy may not analysis. This be First regulation falls That thought “NPS Event.” sound, requires it but additional squarely ambit of those cases unnecessary within think case that I prior re- condemn, Wright invalid Thus, Judge points out hand. shortcomings regulatory straint, scheme concept pure an official of regulatory empowers officials speech- distinguished speech from seeking among pick those and choose plus-action. taken If that distinction is public for communicative facilities philosophical absolute, it beset as a narrowly providing activity, shortcomings; without is taken as if it of- of shorthand, may drawn standards for exercise imperfections be applies The doctrine greater ficial discretion. than those encountered in often through programs operate both to principled judicial of the use doctrine Mary- practice, an informal land, Niemotko v. regjilating the affairs of Struc- men. 325, 268, 340 71 95 L.Ed. though U.S. S.Ct. park land, tempo- tures even (1951), licensing pro- 267 and to formal rary, of are within reach freedom cedures, Birmingham, Shuttlesworth v. communications, they may but have of 147, 935, 394 22 L.Ed.2d ingredient U.S. the kind of message added to the extra (1969), York, 162 v. goes Kunz New 340 U.S. beyond Tinker’s arm- 95 71 L.Ed. 280 Stromberg’s flag permits ap- S.Ct. band or regulation. A nonapparent basis government selection of unarticulated propriate among criteria those I. applying for facilities for communica- regulations challeng- The Park Service activity discriminatory tive amounts to a Quaker Group Morton, ed in A Action v. denial selected those not of constitu- (D. 346, 460 F.2d 854 tionally guaranteed rights of of freedom C.Cir.1971), following were issued expression equal protection. and of proceeding same administrative led Maryland, supra, Niemotko v. regulations adoption to lenged They chal- 71 S.Ct. 325. harbor prior here. The court prospect censorship. liti- gation Quaker of this case Action is vitality The decisions adequately Judge Wright’s forth set underlying principles by is underscored opinion and I need not retrace here. Department Chicago Mosley, Police Quaker Action remanded to the we 33 L.Ed.2d U.S. S.Ct. 2286, evidentiary District Court for an (1972). Noting hear- the close intertwin- ing into ing the reasonableness of numerical equal protection and First Amend- restrictions, put in the forward interests cases, ment in these interests the Court safety, of Presidential size may grant stated: not “[ Government White House demonstrations. In the people the use forum whose views bar, case at there is no need for further deny acceptable, finds use to those proceedings. The content of Park wishing express Serv- less favored or more * * * policies ice has been clarified and em- controversial views. Selective regulations.1 exposure bodied The exclusions from a forum they are shows alone, be based unconstitutional. on content opinion case, 1. In our first yet in this per- unclear, Women ters that are as Hickel, Strike for U.S.App. Peace haps modifying policies on further (1969), D.C. 420 F.2d reflection as interaction we invited the Park properly Service various interests taken into ac- . to define and a set announce of co- count. park policies, clarifying herent the mat- Amendment, protection justified the First to content reference be among picket- . . . And to that discrimi- discriminations alone.” the extent significant sub- necessary ers tailored to must serve nation is to further ** interests, governmental governmental stantial discrimina- interest. regulation Equal requires Protection Clause must be tions made affecting narrowly that statutes First Amend- tailored to a substantial serve narrowly governmental ment The Court said: interests tailored interest. (408 legitimate objectives. to their continually recognized that We citations “time, place and manner” reasonable omitted.) regulations picketing may neces- significant regulations sary govern- con- before us do not to further * * * drawn, narrowly enough tain mental interests. Conflict- standards ing place may they any indeed do not the same contain standards demands on compel regulations in are make choices Nowhere State all. among potential determining And criteria users uses. what legitimate groups designation. are to receive the State “NPS” prohibiting picketing Secretary The terest some comments of the protect public proposing regulations Interior order. But were, justifications essence, adopted, suggest for selective exclusions public carefully designation may very from a forum must be “NPS” re- well be picketing plainly stricted scrutinized. Because in advance to certain enumerated expressive presentation events.3 this involves conduct within the While noted Secretary responded Interior The such areas public exclusion of other 1, supra, invitation, gatherings. our note see (c) proposed rulemaking, Speaker’s platforms may issued notice stands or Fed.Reg. 11485, erected, needed, adjuncts see 35 in which a be number where as regulations governing gatherings any permitted public gathering, ex- park proposed. cept sidewalk; areas were on the White House regulations posed adopted (including were substan- but no other structures bill- tially intact, Fed.Reg. 15393, boards, displays, etc.) may see 35 et be erected seq., provides: park except so that 36 CFR now lands in connection with gatherings. 50.19 § Public All NPS events. such structures shall (a) inconspicuously possible, Definitions: be erected as as (1) “public possible gatherings” damage The term and with least to basic includes, System to, values, but is not limited demon- National Park and shall strations, picketing, speechmaking, practicable be hold- dismantled as soon as ing vigils, parades, ceremonies, public gathering. meet- after conclusion ings, entertainment and all other forms offer that it material to our consid- public assembly. stage regu- eration at this whether the truly product lations are of “reflec- (4) “park consideration,” The term areas” tive shall in- rather than adminis- areas, including reflex, precisely clude all sidewalks trative achieve adjacent thereto, totally excluding than other same White result —of area, permitting House administered National small while Capital larger displays Parks of the National Park much CPP we were —that Service. unable to sanction the case last was (5) The term event” “NPS before us. means any celebration, commemorative, or rec- sponsored cosponsor- Fed.Reg. 11490-91, reational event or See 35 11492: park having ed the National Park Service. As for areas natural set- (b) gatherings, tings, Public other than the National Park Service con- events, may only pursuant prime responsibility NPS be held siders its to be preserve permit unspoiled to a valid official issued in them in as ac- a state possible. provisions general, cordance with the as this activities which excepted public’s section. are tend NPS events to interfere with the en- operation joyment They particularly appeal- of this section. will of their require permits; may ing official recreational-and-mental-health-re- any park encouraged. held in or area White storative-values Of area; may preempt any designation course, House and mainte- ing particular billboards, displays, etc.) may listed were events park harmony pur- park except erected on with basic lands in connec- deemed poses, a concluso- tion with was stated in events. All both NPS such struc- any ry way carried into tures inconspicu- and not over shall be erected as ously governmental requirement. possible, as possi- and with least damage ble to basic National Park restricting regulation System values, and be dismantled shall provides, CFR structures see 36 50.19 practicable as soon after conclusion (c): public gathering. platforms (c) Speaker’s stands Looking Secretary’s comments needed, where ad- erected support re- juncts gather- structure any permitted public assuming, striction4 and arguendo, ing, except House side- White walk; (includ- support there is other structures some Secretary’s in the adequate speakers’ platforms nance of recreational areas stands and to be erected, needed, sites are within these national where connection proper permitted incidents of considered essential demonstration or public enjoyment public assembly. regula- values. These Additionally, many park sites under tions also allow movable facilities —in- Capital cluding stands, floats, National Parks administration chairs —to be city play function used in also as recreational connection with such activities. particular However, In the areas reserved areas. other structures will not be athletics, playing permitted for outdoor the to be in erected connection permitted baseball, tennis, games, softball with etc. demonstrations or other Moreover, park Capital there are other activi- assemblies on National directly exception made, to An ties related fulfillment of Parks. has been Capital responsibilities however, National Parks relative to structures incident system administering park by in an to events urban determined the National Washington, sponsor- for Park D.C. These include Service to warrant ship cosponsorship. sucli activities the or annual Folk Festi- staged by val the Smithsonian Institu- tion, by staged Fed.Reg. the Art See 35 annual Show 11492: Columbia, Secretary the District Sum- is of the view that al- lowing program by park mer-in-the-Parks structures to conducted be erected on Capital generally undesirable, land National Parks itself. unless a park adjunct supervening park purpose requires Mall functions aas to the Gallery, inevitably since National Art the erection of and the various structures injuries park Smithsonian causes Institution museums. The basic values. cultural, Secretary’s judgment, barring In the educational and recreational purposes temporary which those erection civic activities of structures (other harmony speakers’ plat- than are dedicated are with stands or forms) park permitted basic connection witli values the Mall. assemblages park Finally, celebration, on there are national lands has minimal impact on effectuation commemorative and recreational events communi- sponsored (or cosponsored) by cation are value that first amendment Proposed the National Park freedoms. 36 Service. These in- CFR 50.19 adequate provision Peace, makes for clude movable Cherry Festival, facilities, signs, placards, etc., Blossom Inde- con- pendence Day (July 4th) Celebration, permitted nection with demonstrations Cup Regatta, park Going the President’s and In- or yond on assemblies lands. be- augural Day temporary events. the bar to the erection per- These and similar features Nation- in connection structures Capital assemblages park lands, al Parks administration are mitted on Secretary deemed to be essential incidents of view further moting maintaining proper public freedom to communicate ideas does not erecting park Capital use of National on Parks sites extend structures advertising park “messages” purposes for the basic value lands which primarily group are dedicated. some or individual wishes general con- vey public. The detri- park As for the if erection of ment to basic values billboard structures and bringing “messages” park movable or structure were facilities Proposed permits permitted park 36

lands: CFR be erected over the 50.19 1298 events, CFR land in favor of NPS expertise” conclusion for his “park requirement of a ’50.19(b), generally without are park land structures showing limited simultane- injuries either (“inevitably causes undesirable group threaten another ous values”), no com there to basic Event, or interference with NPS support

parable for his conclusion compromise unduly that such use would speakers’ stands than structures responsibility the Park Service’s only rela minimal platforms have parks as recreational fa- maintain value tion to the “communication ’ large public at as well Again, cilities as freedoms.” amendment first activity communicative park expertise loci for suming support groups. “messages” individuals and in dis his conclusion enjoyment play hinder structures people’s great injury parks (“cause II. unblemished, re beautiful, enjoyment of v. Under the doctrine of United States areas”), poseful uncluttered (1967) Robel, 258, 88 S.Ct. U.S. ac Secretary in full failed seems to have O’Brien, and United States v. proposition ceptance of the (1968), an incidental society, park values as whole free restriction on First Amendment activi- to, opposition rather properly in justified ties embrace, com freedom of values important it furthers substan- Hague CIO, munication. governmental interest; gov- tial if the L.Ed. 1423 ernmental is unrelated to the (1939); Peace Women Strike suppression expression; of free Hickel, 29, 32, 420 F. alleged if the incidental restriction on finally And 2d no First Amendment freedoms support of his own terms can be greater than is essential to the further- values,” concept park of “basic limited ance of that interest. concept apparently not to considered a O’Brien, supra, States U. United parks, use of embrace communicative atS. S.Ct. at draws in terms for distinctions he Wright’s Judge opinion suggests deciding park that of basic values by higher good approach the conventional to such are to be overborne some First cases, differentiating (because NPS-sponsored), Amendment of event is protected offsetting (be “expression” good unprotected and is when there “action,” only request giv- cause there is for freedom should and indeed ing way in not communicate a cause that has to a new First the- to ory, sponsor explicit been more or to merit NPS decreed interest-bal- less analysis, ancing theory ship). last is all that in which communicative presented ipse protected to us is an inchoate will inverse activities criteria, dixit, though accompanying proportion without “so- indefinite NPS-sponsored that are deemed cietal events costs” that stem from the activi- “supervening park purposes.” Judge Wright goes have ties. And con- on to necessary justify than More this is clude from his own examination that regulations. Quaker the restrictive See is no such nexus Government Action, supra, alleges between the erection of the WSP governmental F.2d and substantial (153 U.S.App.D.C.-, F.2d terests legal of is ac- vice discrimination 1289). by companied overbreadth, one of resulting regu- My approach invalidity, say insofar as own would tobe that provides preemption park rejecting possibil- lation for I have no basis

landscapes great injury people’s enjoyment It is obvious. result could responseful unblemished, beautiful, offensive and unaesthetic defacement park vistas, park features and and cause and uncluttered areas. case, ity park on a nexus between structures that a simultaneous WSP governmental unacceptable would seren- land been “interfer- park ity displays. use. ence” with the CPP “Conflict- ing place may on demands the same com- Wright Judge understand conclude I pel among to make choices State nexus, claim Government’s potential uses,” Depart- Police users values, impair park structures Chicago ment Mosley, supra, 408 by permission undercut CPP 33 L.Ed.2d 212 correctly If I understand structures. said, what Government officials have recognize they premise (Br. that' even CPP structures It is the Government’s just 68) impair park presence values. It anywhere by higher impairment offset think would have in- regula- values. The overbreadth troduced permits tions that them derive such jarring, politically partisan strident, unconstitutional, offensive, offset always factor into what been— undercut the notion that does inception since the of the Christmas impair park values. structures nonparti- Peace 1954 —a however, regula- point is, nonpolitical that a san and National Celebra- vidicating nexus must tion be nar- tional Event. criteria, rowly drawn, with articulated The Government’s characterization censorship. possibility avoid I cer- “nonpartisan nonpolitical” CPP as envisage tainly disposed not be up, does stand as is demonstrated ruling reg- evenhanded condemned Judge Wright’s discussion, permitted demonstration ulations generally, activity parks but barred question, There is an “interference” park few them areas selected apart partisan/nonpartisan from the is might primeval park purposes. further sue, given and this is needed context might regulation validly conclude that a adverting to the actual dimensions of display structures, prohibit impos- area. The total area involved ing especially severe burdens on rectangle, city is a three some blocks values.5 long city and two wide. blocks focal Its activity land, Communicative (the point area”) “central circular ais though important, particularly so here large, generally elliptical area immedi government, at of the the seat Nation’s ately south White of the House lawn. Quaker Action, supra, rectangle corners of the sides and separated bound five smaller areas from 460 F.2d at is nonetheless by the central circular area access road only one of a number interests of that ways. during appears It the course accommodated, proper sys- be must usually CPP, displays of the its account park governance, social, of cultural tem for somewhat more than half of the area problems recreational. But those are and within Appar the central circular area. high- before them not us. mention ently displays no CPP are erected the light of the limited nature our action in outlying areas.6 this case. At our District behest the Court held evidentiary hearing III. question the findings of relevant interference. Its requires This ease of the consideration are follows: as position, fail-back the Government’s display regula- preemption physical space structure and “10. There the applied plaintiff’s tions are sustainable as inclusion of both simultaneous display stipulate 5. note 4. See be the WSP could “physically of accommodated a corner hearing, Ellipse,” meaning the At remand counsel for the the outside the “eircu- willingness I, Ellipse portion.” Government indicated lar J.A. Pageant display possibility mini- be and the Christmas confusion would display Ellipse, Peace on the both inside mal. the central circular area and outside Any by plac- “18. created confusion

that area. ing plaintiff’s display in cir- the central Ellipse anticipates cular area of the would not con- Plaintiff most of viewing persons significant display those its will be stitute with interference Pageant already Ellipse the drawn to the of Peace Christmas Pageant plaintiff’s display placed on the of Peace. were Christmas Ellipse outside the central circular area anticipates “12. Plaintiff a token no interference would be created. (approximately number of members Upon “19. consideration of all 10) display to be attendance evidence finds this Court various times. significant be no interference would “13. members Plaintiff’s do Pageant of with the Christmas engage pose any re- vocal or other granted permission Peace if were activity persuasion lated dis- gather- public plaintiff’s proposal for a play propose simply site stand during ing Ellipse and structure on the display. the 1971 Christmas season. ready “14. to the El- There is access lipse from the Constitution Avenue both fear The Government’s was that side E Street Visitors side. display anti- introduction of the WSP enter the area four directions and war would have interfered sentiment proceed plain- display. Whether enjoyment with the of the area inside outside the tiff’s be Pageant of those to see the who came presence Ellipse, circular area of findings pertinent Peace. The during Ellipse Christmas 18) usefully (17 District Court physically season interfere would rearranged (a) follows: If WSP’s be as access the visitor’s area, were in central circular viewing Pageant of Peace is where the Christmas Peace. held, coming to visit placed plaintiff’s display “15. If were Pageant might confused, assume adjacent the Christmas dis- displays sponsored by same both were play peo- perceived by it would be most group. However, cre- confusion so peace. ple part of a unified theme of significant ated “would not constitute a Pageant, (b) persons If Only es- with the “16. interference” who those large placed politically inside the pecially were view the will sensitive

plaintiff’s area, proposed display but outside the circular other than area, general possibility peace. would confusion theme minimal, politically people will in interference Such sensitive only mi- created. all likelihood constitute a small nority people of will visit who findings (b) The forth in above set during Ellipse the Christmas season. clearly supported record, in the and are judgment permitting support our WSP placed plaintiff’s display were “17. If display at time the same to maintain its in the circular area of central Pageant, outside as the Christmas proximity Pa- in to Christmas close the circular area. geant coming to visit might question presented is Peace A more difficult of the Christmas permit- erroneously plaintiff a co- as the claim should consider WSP that sponsor present the cen- entire within ted to analysis gram requires That or on vice versa —thus circular area. tral findings (a). The creating plaintiff’s display in If summarized confusion. recognized Judge imme- placed that an area the were outside central District only diately adjacent support for WSP would location record the testi- is recog- mony apparently psychologist-witness cause confusion and of whose conclusion, nized location within no interference would might confusion, occur, theory circular cause is of area based on a human displays. perception separateness of the two to the mechanisms. relying Finding approach on 17. But No. the testi- was derived from studies of mony backgrounds psychologist-witness, people varying of he how and experience laboratory displays would concluded that such confusion react to significant groups with amount to interference and dots.7 lines Finding displays. No. 18. CPP I do not think constitutional is- Judge Wright’s opinion sues, balancing builds on these dependent claims, findings clearly erroneous.” I conclusively as “not can be resolved on the testi- findings, accept prepared mony single am to expert, holding even one us, special before basis qualifications record in that domain of constitutionally holding plaintiffs psychology perception are deals with psycho-physical judgments.8 states within circular entitled to a containing area the Christmas application principles psychology displays. specific problems requires to testified, alia, might inter 7. The witness J.A. make this clearer to the Court 153-54: and for the record? example, listing Yes. [DIRECT EXAMINATION] A For some according perception Well, principles, Q first structural stages psychology, will different list be that should be and would we differently people parts organize to visual tend react into a whole. laboratory might example, For in the we stimuli? principles Yes, present patterns A of the cardinal one certain dots and perception people person is that different lines and when a is asked de- ' according give you perceive char- will to various scribe these he doesn’t straight description themselves. of those acteristics about dots—or thing he would with the do same Q kind of factors are at work What organizes person lines. them into some considering given He in perceive how a will says pattern kind of a “Well —there given visual stimulus? patterns groupings”. are there are or all, course, A Well first are of the stimulus the characteristics similarly it, people Q take coming Yes— itself, pattern of stimuli identify something in con- tend identify, my eye, in to that I want example text —for in a certain labora- is different than another because this tory example series of numbers about identify— pattern going I am flashed— what so there are the characteristics of Yes, getting A are over into here we there, but then there are cer- out also experience prior the issue background. one's or or tain characteristics factors structural person example, if a For sensory organizes mechanism our anticipate been a series lias trained to per- perceptions our for us. We don’t during an of periment, the course of ex- numbers way per- is the ceive the discrete. This thing flashing ception patterns, fits in wholes. “B”, incomplete like looks A set of influences addition second top a “B” where the line to the personal would be to the structural straight adjoining lines bottom needs, own factors —that is our our person who has been broken —a experience prior wishes, will our —these going expect trained say numbers what we see. influence person if a “thirteen” whereas identify Finally social we can influ- ' experience through been some kind of ences, that is the influence on what we say going letters, it is a he is depending see, will our hear or “B”, you get two different re- so that are in. that we social situation sponses persons. depending on the two you just amplify Q the Could Experience background is what and this structural de- Court’s edification responses there. the determines opposite equation. in its terminant physio- is, in was That logical if someone reacts a The doctoral dissertation witness's Psycho- way “Personality you subject, in the a structural on —could —in give laboratory example Judgments.” physical some lay- knowledge understanding particu- in an kind. Even untutored of ferences and ap- conditions, must man that mico- and macro- trier of fact aware lar and the is likely plications present special necessarily make some evaluation are question concerning problems. judgment those There at least a is witness’s integrating organizing empha- and himself whether the The witness matters. tendency may powerful for not be more in to the “structural” sized addition that configurations paper, a perception, are line-and-dot of there on determinants displays physical- “personal spectators much more than for so influences” ly displays, (“our wishes, prior separated. individual our needs, own our (de- presently, spread are experience”) and influences described social be walking situation”). pendent requires some over an area that their “social on area, say, place place of, the from Yet witness’s conclusion the —an put square gravestones, There who inside 2-3 are some blocks. of gain roadway, by an Christmas on circular area where the drive the lit-up impression responded without presented, overall trees be of is pred- of the individ- a total exhibit” was awareness of content to “in of terms passers- entirely displays; presumably ual those “structural icated almost organize is not in how we the audience which WSP which define factors person perceptions” some- who comes to “a of interested. Since a our —that integrated displays thing He can- into examine the whole.” together, displays not the structural factors view the concluded that time, distance, any potential except operate obvious- “would resolve same at a ly psychological percep- problem the WSP conflict” between of there is at least a Pageant; integration, I find this and the tual do Christmas problem stimuli” essen- discussed the witness. due to the “massive organ- tially disparate elements would significant, isWhat more witness’s integrated “unity in around ized and testimony mention, much does less peace;” only for a of theme grapple dynamics with, the situ- minority” politically “sensi- “small considering We are not stimuli ation. personal tized” would there visitors presented emphasis, in a with neutral perception would discern factor of laboratory. persons What involved are (J.A. political to the overtone area, coming from who are often this 162-65). distance, express a considerable for the purpose inspecting the much-heralded testimony respect, must With all Pageant. presented, Then would be enhancing insight, not con- be taken as addition, with what must least brings trolling it outcome. Insofar as described different kind of exhibit. as a percep- principles forward relevant includes Peace Christmas tion, It makes a contri- is useful. also segments: scene, Nativity general emphasizing bution struc- tree, array of National integration tendency toward tural presented by states and trees smaller I hand, find it dis- On stimuli. turbing foreign nations, display, reindeer specifi- did not witness stage speaking bandstand various cally himself the issue address presentations. The WSP musical weight influ- how structural proposed display consisted several large is affected when out-of-doors ence gravestones. is a different are involved. stimuli This significant seems It to me point his that involved in assertion aspects displays are emotional stimuli had research tactile that his distinguish both CPP and WSP that stimuli, application to visual because perception problems from those involved general principles percep- “the same drawings. relatively abstract line-dot (J.A. any modality” hold tion would Indeed, completely unless misunder- any modality, 152). My point that, in about, is the stand what this case make dif- differences scale very purpose present to a dis- circular area of WSP the central road- access enough ways. play from that will be different Pageant the to make the Christmas supports our affirm- conclusion This say spectator stop reflect.9 To that order, con- of the District Court’s ance gravestones taken stark would be WSP’s by entitling plaintiff strued to a location as single passers-by most of a necessarily within the but not Pageant continuum with Christmas the within the circular “central area.” unlikely I would re- seems so to me stands, I not On record as it am stronger quire proof than record prepared enjoin imple- defendants, in what I contains lead me to override menting policy respecting plaintiff’s a of common think are dictates sense. rights, but without interference to undue Fortunately, question of whether CPP, prohibiting from a location WSP a location for central circu- WSP within the central circular area at the likely to cause lar area would have been Pageant same Peace. for time presents question harder interference appeal requires than this be answered. IY. specifically demand a loca- WSP did not At the end of line we are left with- any particular point. tion It asked regulations, out coherent framework for governing gatherings park Ellipse adjacent an occupied by to that area subject jurisdiction areas to the Pageant the Christmas thorough National Park Service based on general vicinity in the ... Peace. and reflective consideration of val- displays the other of the Christmas ues, including rights. First Amendment Pageant provide for in order to Peace Department The of the Interior Strike for Peace Women responsibility provide shouldered the police protection with the same accord- discriminating, rather than discrimina- ed for to the Christmas forthcoming tory, park regulations. A Peace. It is not the intention of and careful administrative exercise of their Women Strike Peace responsibility may serve to avoid admin- display interfere with scheduled disarray. istrative Pageant for event of the Christmas are, my view, entitled to Plaintiffs continuing Peace. restraining injunction App. 132. regulations prohibit- enforcement ing structures area, sub- had WSP While this be what ject qualification plaintiffs balancing mind, on a I conclude that are not entitled or structure appropriate is result of interests the interference, establishes from that viewpoint application by satisfy loca- large brought crowds general Ellipse park tion in the area the area each Christ- From outside the central circular area. Peace, their use mas us, the exhibits submissions before enjoyment Capital area. of this Court, that the conclusion of the District meaningful Judge Wright’s passage opinion WSP would not threaten A regard terference, clearly supported (p. suggests 1292) prohibition proper to a location for on one of out- of such interference is WSP segments lying separated regu- precise fairly “a administered testimony purpose honoring 9. See the as to fact that we have a tombstone Vilastrigo, Ellipse, Edith Mrs. our American dead on the WSP, hearing, at remand J.A. 148: near to his house. object display] objective clearly is to be [of our educational many people possible close AVliite House where the de- let as know as made, are, cisions on the war are we would we that we have this —that we are opposed like the President to be aware of the to the war Viet Nam. Pageant. If with the Christmas be fairness fere must That there lation.” then enough. are allowed land structures on plain in administration granted with an even regula- permission must be precise must be a there Whether avoiding hand. subject interfer- tion oil the cer- question. It would another ence is avoiding any pos- desirable, tainly be censorship. charge But indirect sible regula- say prepared I am not validly permit the Park not

tion could any deny permits for Service officials “interfer- would cause structures that being impact communicat- ence” with Murray FIELDS, already permitted. ed structures Corporation, Foods Consolidated any event, has come this case Appellants, or not of whether on the issue focus I do interference. would be SCHUYLER, Jr. William E. requires think record as stands No. 71-1525. determina- rejection of an administrative cir- within tion that a WSP Appeals, Court United States interference of Columbia Circuit. constitute District cular area would denying warrant with that would CPP Argued Sept. permit. However, the absence Decided Oct. regulations, valid defendants denying plaintiffs enjoined stand from ground struc- permit mere prohibited activities for all tures Events.

other than NPS Judge:

ROBB, Circuit Judge result reached

I concur for Peace

Leventhal Women Strike place tombstones imitation their circular area the central nearby put loca- them at some

tion. nothing

I find in the Constitution gives for Peace Women Strike upon the

to intrude propaganda. See their 47-48, Adderley Florida, 385 U.S. (1966) 17 L.Ed.2d Certainly Park Service should not

. required circular to make central Pageant, area, occupied by.the Christmas ideological pitch midway open seeking ready-made

man On audience. Park hand, Service since

permits structures on the erection of Pageant, land for the Christmas say for Peace

cannot that Women Strike placing prohibited

can an exhibit nearby inter

in a area where it will not

Case Details

Case Name: Women Strike for Peace v. Rogers C. B. Morton, Secretary of the Interior

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

Date Published: Jul 14, 1972

Citation: 472 F.2d 1273

Docket Number: 24913

Court Abbreviation: D.C. Cir.