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

MacKINNON, Circuit Judge

(concurring in part and dissenting in part):

While I concur in much of the foregoing opinion, I do have some disagreement with several of its findings and directions. We are here dealing with the use of the White House and its environs, and as the record states: *740 G.A. IIIA, 274-75. 1 It is also common knowledge that the White House contains the “Hot Line” to the Kremlin, which is a vital factor in our national security.

*739 A. Well, aside from the White House being the residence of the President, it is of course also his office both at the White House and in the complex next to the White House and the Executive Office Building.

The White House is a center of a tremendously important * * * defense communications system, since the President is the Commander in Chief of the military forces.

It is the seat of the National Security Council; it has extremely important papers, documents; [and] it is, of course, also, a national shrine and museum, a piece of property that is very important to the American People.

[Tr. 106] The Secret Service has the responsibility of protecting the President. It also under Section 202 of Title 3 [, United States Code,] has the responsibility for protecting the White House and the [White House] grounds through the use of the Executive Protective Service, formerly the White House Police.

*740 I

At the outset I concur in the majority’s conclusion that the present definition of the term “public gathering” is constitutionally valid, Majority Op. at 728, but I disagree with the inferences which the majority apparently intends should be drawn from its discussion of the application of the definition. Without explicitly so holding, it appears that the majority intends its opinion to be interpreted to eliminate the possibility that the regulation could be applied only to individuals or groups who plan to engage in conduct normally associated with First Amendment activity and also intends to prevent its application to individual demonstrators entirely. While the language of the regulation does not on its face require the pattern of enforcement which the majority fears, counsel for the Government did assert that it would be so applied. Assuming that the permit requirement would be imposed on individuals or small groups as well as larger demonstrations and assuming that it would be applied only to those individuals or groups that engage in conduct which is commonly associated with expression, I do not find that such a regulation would necessarily be unconstitutional.

In United States v. O’Brien, 391 U.S. 367 , 88 S.Ct. 1673 , 20 L.Ed.2d 672 (1968), the Court stated:

This Court has held that when “speech” and “nonspeech” elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.

Id. at 376 , 88 S.Ct. at 1678-1679 . The validity of the regulation thus depends on the presence of “nonspeech” conduct which the Government has a legitimate interest in regulating. By holding that the permit system is a constitutional pri- or restraint on First Amendment activity, the majority has of necessity found that certain elements of the conduct of a “public gathering” are properly within the scope of government regulation. However, when the Government chooses to regulate certain conduct on the White House sidewalk and in Lafayette Park, it is certainly not required to regulate all conduct by all persons who may happen to enter that area and technically fall within the definition of a “public gathering,” so long as distinctions are not made on an improper basis.

It is a perfectly reasonable classification to exclude from the permit requirement those individuals and groups who use the White House sidewalk and Lafayette Park for non-assertive conduct, such as tourists or normal pedestrians, while requiring individuals and groups who use the area for combined speech and nonspeech conduct to notify the authorities of their intended use and obtain a permit under the applicable constitutional standards. There may well be other aggregations of people which are technically “public gatherings” but which do not pose a security threat or interfere with the other interests protected by the regulation. 2 Where no governmental interests are threatened, it would certainly be reasonable for the National Park Service to adopt regulations exempting such activities. However, the majority’s proposal for a minimum size limit on the permit requirement is not supported by any evidence that smaller “public gatherings” do not engage in conduct which is properly the subject of regulation or that such gatherings do not pose dangers which require prior notice and a permit.

The majority states that the criteria for enforcement may not “discriminate against First Amendment activity, e.g., whether a person has a sign, or whether *741 the sign has an acceptable message.” Majority Op. at 728. In fact, picketing is one form of conduct specifically included in the definition of “public gathering” in which the majority sees “no constitutional objection.” Clearly the Government can choose to regulate the type of conduct known as picketing by requiring a permit. What the Government is constitutionally prohibited from doing, as the majority correctly notes, is discriminating in the enforcement of the regulation on the basis of the message conveyed by that sign.

The majority also concludes that it would be “absurd” to apply the regulation to a single demonstrator and suggests the redefinition of “public gathering” in terms of a group of some minimum size, which would completely exempt individuals from the permit requirement. In United States v. O’ Brien, supra, the Court held that the application of a statute which involved “incidental limitations on First Amendment freedoms” to a single public demonstrator was constitutional. In my opinion, the National Park Service can similarly apply the instant regulation to individuals as well as groups that engage in conduct for which a permit may be required. Several considerations support this conclusion.

A major purpose of the requirement that demonstrators apply for a permit is to provide the authorities with advance notice of proposed uses of the White House area so that appropriate precautionary measures may be taken for the safety of all concerned. This need is at least as great if 50 individual demonstrators propose to appear at the same time as it is in the case of one group of 50 demonstrators. In fact, the need for advance notice is even greater where an individual or small group intends to take a position hostile to or provocative of other demonstrators lawfully in the area.

The need for being alert to all possible threats to the President and to the White House is also justification for requiring permits of single individuals engaged in expressive conduct. After all, every assassination of a President in our history was the work of a single individual and only one (Booth) had known confederates. The two most recent penetrations of the White House security barriers were also by single individuals — one landed in a helicopter and one, Marshall Fields, Jr., as recently as December 25, 1974, crashed the gate in an automobile and appeared to be wired to explosives. 3 Admittedly, the permit requirement will have little effect on individuals with such purposes in mind, but it cannot be said with certainty that the restriction has no deterrent value. If we were to limit the permit requirement to groups and exempt individuals therefrom, we could be excluding those that history has demonstrated pose the most serious threat to our Presidents, i.e., individuals acting alone. I can not join in suggesting the adoption of such a deficient regulation. To do so under the guise of protecting free speech would deny necessary protection to the President, the White House and its other occupants. To my mind the majority opinion does not fully recognize the nature of the security threats that the record and history reflect are traditionally directed against the President and the White House.

While I thus believe that the Government’s power to require permits of those who desire to demonstrate in the White House area is not as limited as the majority suggests, the present language of the regulation seems insufficient to support its enforcement in the manner indicated by Government counsel. If it is to be applied to individuals as well as groups, the definition of “public gathering” should be clarified to give notice of exactly who must apply for a permit.

*742 II

The foregoing opinion also strikes the exemption for “NPS events” and requires the National Park Service to get a permit from itself for events which its sponsors that would fall within the definition of a “public gathering.” This seems a somewhat useless exercise. However, this alteration of the regulations might produce some good by requiring that permit applications for all White House area events be cleared internally through the same section of the National Park Service. It will also encourage coordination of those agencies concerned with presidential and White House security matters, which was one of the recommendations of the Warren Commission.

III

I concur in approving the denial of permits where the application and investigation indicate a “clear and present danger to the public safety, good order or health.” 4 To my mind “good order” includes some right to deny permits to applicants who would use the facilities in a manner incompatible with the normal use of the White House and its environs.

IV

This brings us to the maximum number of demonstrators who may be granted a permit to use (1) the White House sidewalk on Pennsylvania Avenue and (2) Lafayette Park.

In 1967, with the Attorney General (Ramsey Clark) 5 and Department of the Interior and Secret Service personnel participating, 6 it was decided that permits would be granted for groups of up to 100 persons to use the White House sidewalk and up to 500 persons to use Lafayette Park. The subsequent application of these limitations led to protracted litigation which has involved several instructional remands from this court. In the interim the instant regulations were promulgated. These originally carried forward the 100/500 limitations. 7 Following our last remand the trial court ruled 8 that any limits of less than 750/3000 would be more restrictive than is essential for the protection of the President and the White House and for the protection of the other interests asserted by the Government. 9 This increase to 750/3000 from 100/500 resulted from the remands of this court as interpreted by the trial court. To conform to the court’s orders, the National Park Service on September 4, 1973, amended its regulations to incorporate the 750/3000 limitations. 10

I continue to adhere to the views concerning the reasonableness of the 100/500 limitations expressed in my dissenting opinion in A Quaker Action Group v. Hickel. 11

To my mind the 100/500 limitations were reasonable and proper and the evidence of record was sufficient to support them. Mr. Rowley, Director, U.S. Secret Service, testifying as an expert on the security considerations applicable to the President and the White House, stated:

A We feel [that] you can [better] contain 100 people [in a confrontation situation] with a minimum [show] of *743 force and in low key[,] and keep them under control[,] than you could with any greater [show of] force[.] * * * [In our view] the greater the [show of] force [by the Government], the greater your security appearance [will necessarily be.] * * * [A]nd the greater your security appearance[,] * * * the greater [will be the chance that violence will be sparked during any confrontation. The opportunity presented to militants to create a violent confrontation is greater, if we] convey [that our defensive forces are operating] under a fortress or military condition.

G.A. IIIA, 244-45 (Brackets in original).

What * * * [I’m] trying to convey is that we * * * [believe in] maintaining] * * * [a] low [security] profile [around the White House], and avoiding any appearance * * * that we are in a military [garrison state] or under military rule[,] or something of that nature[.] * * * [That] might be the [very] objective * * * some of the [dissident] people [seek] to convey * * * [in order] to bring [noncommitted persons as] sympathizers into their [dissident] ranks.

Id., 246-47.

A I’m saying this is what we have in effect today. There’s no [show of a garrison-like appearance during] demonstrations, there’s nothing * * * [to indicate that we are expecting to have to deal with confrontation and violence occurring during the demonstration,] * * *. And with * * [our low-key security force] appearance, [we convey the impression that we expect] nothing untoward * * * [to be] happening in the Government^] except that the President is functioning in the normal course of his daily work[, while the demonstration is peaceably taking place in the immediate vicinity of the White House].

Q How does conveying to the public that there is no concern over the President’s security, because you don’t have so many armed people around there, add to his security?

A I think [what] * * * we are trying to convey [is that,] without any [abhorrent garrison-like appearance,] we are conducting our [security] work efficiently[, and this helps conduce peaceable demonstrations, without confrontations sparking any violent outbreaks].

Q You say on page 8 of your affidavit, “It is, of course, possible to protect the White House against assaults from Pennsylvania Avenue by the use of sufficient personnel armed with adequate weapons.” That’s the same point, [Dep. 100] but you don’t want to do that, you’d rather have a low profile; is that the point?

A That’s right.

Q On page 9 you said, “Additional military type devices have been considered and rejected as both dangerous and inappropriate to the area.”

Id., 248-49. Later Director Rowley gave his expert opinion that the available Secret Service personnel would be able to handle the situation if a 100-person limitation was maintained with respect to the White House sidewalk.

[the 100-person limitation] would enable us to contain any group of that size with what we have present at the present time in the form of security personnel [in front of the White House].

Id., 264 (emphasis added).

All this is in keeping with the need for maintaining a “low profile” of security forces around the White House.

We [must] provide a secure environment in which he can carry out the duties of the Presidency. Now, in that regard, we feel that what the American people want[,] and what is necessary [for us to maintain] in this country * * * [considering the nature of our] democracy, is not to have [the White House maintained as] a fortress in which the President lives and carries out his [Presidential] office [duties]. We feel that [maintaining a *744 fortress — ] kind of * * * security [around the White House] merely exaggerates the [protective security] problem that is caused when people [see that we] have a heavy security force [present as] necessary to keep demonstrators in line.

We [strive to] maintain * * * comparatively few officers visible around the White House[.] * * * [A]nd all of our security measures are * * * [centered] around this [basic] concept that we ought to have our protective] security [force] as invisible as it possibly can be in our society.

Id., 287. Director Rowley was testifying that based on his experience, he considered that the presence of an expanded uniformed White House security force necessary to control a large crowd of demonstrators might prove to be provocative to the demonstrators whereas a smaller group of security officers would not be provocative. Recent experience in a number of militant confrontations at the White House has proved the wisdom of this conclusion.

In my opinion, the foregoing excerpts from the record are sufficient evidence to sustain the 100/500 limits prescribed in the regulation and to prevent this court from embarking on its own legislative scheme which amounts to nothing more than the imposition of judicial government. The fact that the trial court found that larger demonstrations in the past had not posed a serious threat to the President is no justification for authorizing higher limits. All that experience proves is that, to date, larger groups have not degenerated into unruly mobs or been used successfully as shields for aggressive action against the White House or its occupants, but that is no guarantee for the future. Also, increasing the number of allowable demonstrators because larger groups have not gotten out of hand in the past ignores the expert testimony of the Secret Service that the 100-person limitation was what the security personnel at the White House were presently able “to contain.” Id., 264.

Of course, the Secret Service could meet the larger threat of the 750/3000 limitations, but that would require a substantial enlargement of the security personnel surrounding the White House. Congress would have to appropriate substantial additional funds. This would be in addition to the several million dollars per year recently provided by Congress because of increased militant activity. 12 The question is why should the Secret Service be required to increase its White House force or why should Congress be required to appropriate more money. The 100/500 limits, with any overflow using the nearby Ellipse, to my mind reasonably accommodate all conflicting interests and rights. To increase the limits sevenfold will attract larger demonstrations and the White House will then appear to be a citadel with security personnel bristling everywhere. That is not my idea of the proper use of the White House or of the appearance that the citizens of our country desire it to present. The White House is intended primarily as a residence, not an American Hyde Park. As the Secret Service personnel testified, the large increase in security personnel required by the increased limits can be a factor that incites violence. To best discharge their assigned mission, they therefore desire to maintain a non-provocative “low profile.” Since the 100/500 limitations, with the Ellipse handling any overflow, adequately recognize all First Amendment rights, I would approve such limits.

The majority opinion recognizes that it might be necessary to erect “a barrier” around the White House and seeks comfort in the possibility that this “barrier” might have “an acceptably open aspect.” Majority Op. at 736. However, it is very difficult for a barrier to give the appearance of being open and still fulfill the function of a barrier. The majority *745 wants to carry water on both shoulders. This discussion, more than anything else, really discloses what the majority opinion may do to the environs of the White House if their suggestions were to be followed.

V

Whatever limits on the number of demonstrators are adopted, I do concur in permitting the waiver of such limits after a proper showing. This will permit the exercise of some judgment in evaluating the provocative nature of a proposed gathering. In addition to this authority to increase the limits, I also believe that the regulations should permit the National Park Service to impose lesser limits in those cases where smaller groups might pose a larger than ordinary threat. 13 This is only a slight modification of the right and duty to deny permits altogether where too great a threat is posed.

VI

The foregoing opinion strikes out of the regulation the provision limiting permits to no more than seven consecutive days and no more than 24 consecutive hours. This provision was apparently viewed as being designed to allow the allocation of scarce space to competing demonstrators. If it had this limited purpose, the majority might be correct in finding it to be unduly restrictive and in requiring the NPS to consider each application individually. However, the area in question is intended for official use by the President, his staff and those having business with the Executive branch of the Government, and for use by citizens who have no desire to convey a message (e. g., everyday pedestrians and visitors to the nation’s capital) as well as by citizens bent on exercising their First Amendment freedoms. The seven day-24 hour restruction appears to me to be a reasonable attempt to balance the interests of all citizens in the use of the White House area. Certainly no group is entitled to exclude the rest of the nation from these public areas for an extended period of time. If anything, the regulation is overly solicitious of the interests of demonstrators.

Rather than eliminating the seven day-24 hour provision, if flexibility is desired, the better course would be to provide for waiver upon an appropriate showing as was done with the numerical limitations.

VII

The majority suggests the adoption by the NPS of standards to be applied in revoking permits. As I see it, these standards are already in the act, i. e., the same standards that would justify the denial of the permit in the first instance. 14

I respectfully dissent from the majority opinion to the extent it is inconsistent with my views as set forth above. Subject to the foregoing exceptions, I concur in the other holdings of the majority opinion. However, I consider the paragraph immediately preceding the Conclusion, Majority Op. at 735-736, supra, to be unnecessary to our decision. Too frequently our dicta cause future strains rather than avoid them.

. G.A. refers to Government Appendix.

. See note 9 infra.

. Secret Service personnel testified in this case that persons intent on “assaulting a President” could “run a car through a gate . . Those gates aren’t secure, they are decorative fences that mark off the perimeter of the [White] House. They are not security fences.” G.A. IIIA, 302.

. 36 C.F.R. § 50.19 (f)(2) (1973).

. G.A. IA, 64.

. Id., 65 .

. 36 C.F.R. § 50.19 (g)(2), (3).

. A Quaker Action Group v. Morton, Civ.No. 688-69 (D.D.C. Aug. 28, 1973), entered following remand by this court in A Quaker Action Group v. Morton, 148 U.S.App.D.C. 346, 356 , 460 F.2d 854, 864 (1971).

. G.A. IA, 84:

b. Rights of citizens to use the sidewalks and the streets in front of the White House and Lafayette Park for the normal uses for which they are provided and maintained.

c. Safety of citizens using facilities as in b. above.

d. Safety of demonstrators.

e. Ecology of Lafayette Park.

f. Alternate locations for large protests.

. 38 Fed.Reg. 24218 (Sept. 6, 1973).

. 139 U.S.App.D.C. 1 , 4-9, 429 F.2d 185, 188-193 (1970).

. See Pub.L. 91-217, 84 Stat. 74, 91st Cong., 2d Sess., Mar. 19, 1970, amending 3 U.S.C. §§ 202-207 to establish the Executive Protective Service and increase the security force from 250 to 850.

. For instance, if the Palestine Liberation Organization requested a demonstration permit for 600 and 2500, the Park Service might well consider granting a permit for smaller numbers.

. 36 C.F.R. § 50.19 (f).