Petition — Clark v. Community for Creative Non-Violence

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In the Supreme Court of the ted—

OCTOBER TERM, 1982

JAMES G. WATT, SECRETARY OF THE INTERIOR, ET AL.

Uv.

THE COMMUNITY FOR CREATIVE NON-VIOLENCE, ET AL.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

Rex E. LEE

Solicitor General

J. PAUL MCGRATH

Assistant Attorney General

PAUL M. BATOR

Deputy Solicitor General

ALAN I. HOROWITZ

Assistant to the Solicitor General

LEONARD SCHAITMAN

KATHERINE S. GRUENHECK

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

Whether the National Park Service violated the First

Amendment by enforcing 36 C.F.R. 50.27(a), which re-

stricts camping in the national parks, to prevent respon-

dents from sleeping in Lafayette Park and on the Mall inf™

connection with a demonstration of the plight of the

homeless.

PARTIES TO THE PROCEEDING

Manus J. Fish, Regional Director of the National Capital

Region of the National Park Service, was named as a de-

fendant in the complaint and is a petitioner here. Mitch

Snyder, Mary Ellen Hombs, Harold Moss, Clarence West,

Monroe Kylandezes, Fred Randall, and Mike Scott were

plaintiffs in the district court and are respondents here.

(1)

TABLE OF CONTENTS

Page

OMAR DGIOW ooo 65s cnc since ccs oes eces scons. l

ON oboe coi con cons te hea anetes 1

Constitutional and regulatory provisions involved .. l

SES AE OPO EEG OE AS ee 3

Reasons for granting the potition CT A 9

i en eh ccc eee stn casees 16

Pe ae a ee ec la

FE Bio iin cn pecker sl concn trveceneceqens 88a

pe Oe ee ee 90a

PO occ boon rei cc dec dc can ee iesncnnnbodss 9la

TABLE OF AUTHORITIES

A Quaker Action Group v. Morton, 516 F.2d

5 ve Ee Se 5, 9

Adderley v. Florida, 385 U.S. 39 ........++- =

Community for Creative Non-Violence v. Watt,

Ce Gh ot I 5

Grayned v. City of Rockford, 408 U.S. 104 ... 12

Heffron vy. International Society jor Krishna

Consciousness, Inc., 452 U.S. 640....... 12. 14. 16

Hicks vy, Miranda, G22 U.S: GEES oc ccccccvecss 11

Morton v. Quaker Action Group, 402 U.S. 926 1]

Perry Education Ass'n v. Perry Local Educa-

tor’s Ass’n, No. 81-896 (Feb. 23, 1983)...... 15

Spence v. Washington, 418 U.S. 405 ....... 6, 12, 13

Tinker v. Des Moines School District, 393 U.S.

be sack he Scie onion dees nenens 12

United States v. Abney, 534 F.2d 984 ...... 5, 9, 12

United States v. Grace, No. 81-1863 (Apr. 20,

uc cic occ eenpessueeoeeceeres 15

United States v. O’Brien, 391 U.S. 367. .6, 7, 8, 12, 13

Vietnam Veterans Against the War v. Morton,

Oe ao oki beck cpcckadei cee sceveeves ll

Women Strike for Peace v. Morton, 472 F.2d

cous cues cemuvieeresereerees 5, 9, 12

Constitution, statutes and regulations: Page

i pee, eee Fo... el. 1% 4, 6, & 10.

li, 12; 13, 14, 16

os eWeb evoke desc ck. 4

We eee GO VD PE iio kee c i cece, 4

ee vee acds veekca tens k. 4

36 C.F.R.:

eT een Me 4

RN gc cccceiccnee. 2, 4,5, 9

Perse GUT... tL... 2, 4.5

Miscellaneous:

47 Fed. Reg. (1982):

WO vo ee oich iis cccccc ck 4

a A 13

In the Supreme Court of the United States

OCTOBER TERM, 1982

No.

JAMES G. WATT, SECRETARY OF THE INTERIOR, ET AL.

THE COMMUNITY FOR CREATIVE NON-VIOLENCE, ET AL.

PETITION FOR A WRIT OF CERTIORARI TO

THt UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

The Solicitor General, on behalf of James G. Watt. Secre-

tary of the Interior, and Manus J. Fish, Regional Director

of the National Capital Region of the National Park Serv-

ice, petitions for a writ of certiorari to review the judgment

of the United States Court of Appeals for the District of

Columbia Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App. A, infra,

1a-87a) is reported at 703 F.2d 586. The opinion and order

of the district court (App. D, infra, 90a-112a) are not yet

reported.

JURISDICTION

The judgment of the court of appeals (App. B, infra,

88a-89a) was entered on March 9, 1983. The jurisdiction of

this Court is invoked under 28 U.S.C. 1254(1).

CONSTITUTIONAL AND REGULATORY

PROVISIONS INVOLVED

The First Amendment provides in pertinent part:

Congress shall make no law * * * abridging the free-

dom vf speech, or of the press, or the right of the peo-

(1)

ple peaceably to assemble, and to petition the Govern-

ment for a redress of grievances.

36 C.F.R. 50.27(a) provides:

Camping is defined as the use of park land for living

accommodation purposes such as sleeping activities, or

making preparations to sleep (including the laying

down of bedding for the purpose of sleeping), or stor-

ing personal belongings, or making any fire, or using

any tents or shelter or other structure or vehicle for

sleeping or doing any digging or earth breaking or car-

rying on cooking activities. The above-listed activities

constitute camping when it reasonably appears, in

light of all the circumstances, that the participants, in

conducting these activities, are in fact using the area

as a living accommodation regardless of the intent of

the participants or the nature of any other activities in

which they may also be engaging. Camping is per-

mitted only in areas designated by the Superintendent

who may establish limitations of time allowed for

camping in any public camping ground. Upon the post-

ing of such limitations in the campground no person

shall camp for a period longer than that specified for

the particular campground.

36 C.F.R. 50.19 (e)(&) provides:

In connection with permitted demonstrations or spe-

cial events, temporary structures, [sic] may be

erected for the purpose of symbolizing a message or

meeting logistical needs such as first aid facilities, lost

children areas or the provision of shelter for electrical

and othe sensitive equipment or displays. Temporary

structures may not be used outside designated camp-

ing areas for living accommodation activities such as

sleeping, or making preparations to sleep (including

the laying down of bedding for the purpose of sleep-

ing), or storing personal belongings, or making any

fire, or doing any digging or earth breaking or carry-

ing on cooking activities. The above-listed activities

constitute camping when it reasonably appears, in

light of all the circumstances, that the participants, in

conducting these activities, are in fact using the area

as a living accommodation regardless of the intent of

the participants or the nature of any other activities in

which they may also be engaging. Temporary struc-

tures are permitted to the extent described above,

provided prior notice has been given to the Director,

except that:

(i) No structures shall be permitted on the White

House sidewalk.

(ii) All such temporary structures shall be erected in

such a manner so as not to unreasonably harm park re-

sources and shall be removed as soon as practicable af-

ter the conclusion of the permitted demonstration or

special event.

(iii) The Director may impose reasonable restrictions

upon the temporary structures permitted, in the inter-

est of protecting the park areas involved, traffic and ©

public safety considerations, and other legitimate park

value concerns.

(iv) Any structures utilized in a demonstration ex-

tending in duration beyond the time limitations speci-

fied in paragraphs (e)(4)(i) and (ii) of this section must

upon 24 hours notice be capable of being removed and

the site restored or the structure secured in such a

fashion so as to not unreasonably interfere with use of

the park area by other permittees authorized under

this section.

(v) Individuals or groups of 25 persons or less dem-

onstrating under the small group permit exemption of

§50.19(b)(1) shall not be permitted to erect temporary

structures other than small lecterns or speakers plat-

forms. This provision is not intended to restrict the

use of portable signs or banners.

STATEMENT

1. Since 1893, the Interior Department, through the Na-

tional Park Service, has been charged with responsibility

for management and maintenance of all national parks.

These include the \National Memorial-core area parks in

Washington, D.C., ineluding Lafayette Park and the Mall,

which traditionally attPact numerous visitors, as well as

some demonstrators. in particular, the National Park Serv-

ice is required to

promote and regulate the use of the * * * national

parks * * * by such means and measures as conform

to the fundamental purpose of said parks * * *, which

purpose is to conserve the scenery and the natural and

historic objects and the wild life therein and to provide

for the enjoyment of the same in such manner and by

such means as will leave them unimpaired for the en-

joyment of future generations.

16 U.S.C. 1. The Secretary of the Interior is authorized to

promulgate rules and regulations for the use and manage-

ment of these parks in accordance with the purposes for

which they were established. 16 U.S.C. 3; 16 U.S.C. (Supp.

V) la-l.

Pursuant to this authority, tle Secretary of the Interior

has adopted a Wariety of rules and regulations governing

the use of the national parks, including the Memorial-core

area parks. In particular, the Secretary has adopted a reg-

ulation prohibiting camping in the national parks outside of

designated camping areas. No such camping areas have

been designated in the Memorial-core area. “Camping” is

defined as the “use of park land for living accommodation

purposes such as sleeping activities, or making prepara-

tions to sleep (including the laying down of bedding for the

purpose of sleeping), or storing personal belongings, or

making any fire, or using any tents or * * * other struc-

ture * * * for sleeping or doing any digging or earth break-

ing or carrying on cooking activities.” 36 C.F.R. 50.27(a).

The regulation further provides that “[t]he above listed ac-

tivities constitute camping when it reasonably appears, in

light of all the circumstances, that the participants, in con-

ducting these activities, are in fact using the area as a liv-

ing accommodation regardless of the intent of the partici-

pants or the nature of any other activities in which they

may also be engaging.” /bid.

Demonstrations for the expression of views or grievances

may be held in the Memorial-core area pursuant to 36

C.F.R. 50.19. With minor exceptions, such demonstrations

may be held only in accordance with an official permit is-

sued by the National Park Service. bid. The regulations

recognize that temporary structures may be erected in con-

nection with permitted demonstrations but provide that

such structures may not be used for camping. 36 C.F.R.

50. 19(e)(8).}

' These regulations were revised effective June 4, 1982. See 47 Fed.

Reg. 24299-24306 (1982). The revisions were prompted by the decision

2. In 1982, respondent Community for Creative Non-

Violence (“CCNV”) applied for a permit from the National

Park Service to conduct a demonstration in Lafayette Park

and on the Mall beginning on December 21, 1982, and con-

tinuing through the last day of winter, for the stated pur-

pose of demonstrating the plight of the homeless.2 In par-

ticular, CCNV requested permission to erect symbolic

tents, lay down bedding, and sleep as part of its demonstra-

tion. The National Park Service granted the permit on a

seven-day, renewable basis but denied CCNV permission

to lay down bedding or sleep in the symbolic tents, citing

the camping prohibition in the pertinent regulations, 36

C.F.R. 50.19(e)(8) and 50.27(a). (The granting of the permit

allowing CCNV to maintain a 24-hour presence at the park

and to erect temporary structures (including “symbolic

campsites”) in connection with its demonstration was based

on National Park Service regulations that attempted to

comply with prior cases concerning demonstrations in the

Memorial-core park area decided by the District of Colum-

bia Circuit.4)

in Community for Creative Non-Violencs v. Watt (“CCNV I’). 670

F.2d 1213 (D.C. Cir. 1982), which held that sleeping in tents by dem-

onstrators In connection with First Amendment activities did not con-

stitute “camping” prohibited under then-existing regulations.

* CCNV had held a similar demonstration on a smaller scale the pre-

Vious winter after the court of appeals held in CCNV / that the Na-

tional Park Service's “no camping” regulations did -not extend to the

activities in which CCNV sought to engage because they were related

to First Amendment activities.

3 CCNV explained in its application materials that permitting per-

sons “to sleep in relative warmth” as part of the demonstration or “the

incentive of * * * a hot meal” was necessary to attract participants.

See App. A, infra, 45a n.10, 69a: App. D, infra, 98a.

* Based on a settlement of prior litigation and D.C. Circuit prece-

dent, the National Park Service's regulations permit the erection of

temporary structures in connection with a demonstration, including

symbolic campsites. See Women Strike for Peace y. Morton, 472 F.2d

1273 (D.C. Cir. 1972). By the same token. the National Park Service

permitted a 24-hour presence at the demonstration in line with D.C.

Circuit precedent recognizing the First Amendment interest in a

round-the-clock vigil. United States vy. Abney, 534 F.2d 984 (D.C. Cir.

1976). See also A Quaker Action‘Group v. Morton, 516 F.2d 717, 734

(D.C. Cir. 1975) (striking down existing limitation on length of

demonstrations).

On September 7, 1982, CCNV and the other named plain-

tiffs, who are described as either individual members of

CCNV or homeless individuals, brought this suit in the

United States District Court for the District of Columbia,

challenging the constitutionality of the relevant regula-

tions. CCNV sought (retina injunction against appli-

cation of these regulations, arguing that they were vague,

overbroad, unequally enforced, and violative of the respon-

dents’ First Amendment rights. Both parties filed motions

for summary judgment.

The district court denied the request for an injunction

and granted summary judgment for the government, hold-

ing that the regulations were valid both on their face and as

applied (App. D, infra, 91a-112a). The court first concluded

that the act of sleeping in this context was not “sufficiently

imbued with elements of communication to fall within the

scope of the First and Fourteenth amendments.’” Jd. at

102a, quoting Spence v. Washington, 418 U.S. 405, 409

(1974). The court further held that under the standards set

forth in United States vy. O’Brien, 391 U.S. 367 (1968), any

incidental restriction on First Amendment rights created

by the regulations was justified (App. D, infra, 104a-106a).

The court also rejected respondents’ contention that the

regulations had not been fairly and uniformly enforced (id.

at 106a-108a).

3. Respondents appealed, and a panel of the court of ap-

peals heard argument. Before the panel decided the case,

however, the court sua sponte directed that it be heard en

banc. In a one sentence per curiam decision, the en banc

court, by a 6-5 vote, reversed the district court and en-

joined the government “from prohibiting sleeping by dem-

onstrators in tents in sites authorized for [respondents’]

demonstration” (App. A, infra, 2a).5 This disposition was

supported by a plurality opinion, joined in whole or in part

by five judges, and by three concurring opinions. The splin-

tered majority agreed that the National Park Service’s “no

* On March 17, 1983, the Chief Justice ordered the mandate of the

court of appeals recalled and stayed its reissuance pending further or-

der of the Court. On March 21, 1983, the full Court continued that or-

der in effect pending the timely filing and disposition of a petition for a

writ of certiorari (No. A-771).

camping” regulations were valid on their face. It was also

agreed that, in the circumstances of this case, to apply

them to bar sleeping as part of CCNV’s demonstration

would violate the First Amendment. There was, however,

no consensus as to why the regulations as applied were vio-

lative of respondents’ First Amendment rights.

The plurality opinion, by Judge Mikva, found that, in the

context of this particular demonstration, sleeping in sym-

bolic tents would be a communicative act and hence pro-

tected by the First Amendment. Judge Mikva explained

that sleep is expressive in the context of any demonstration

seeking to use sleep to help convey its message, and he spe-

cifically rejected the argument that sleeping in the context

of CCNV’s demonstration was “uniquely deserving” of

First Amendment protection because it directly embodied

the protesters’ message that homeless people have no place

to sleep (App. A, infra, 17a-18a). Purporting to apply the

analysis set forth by this Court in United States v.

. O'Brien, supra, Judge Mikva found that the government’s

interest in enforcing the regulations against respondents

did not justify the attendant burden on First Amendment

rights (App. A, infra, at 19a-28a). Focusing the inquiry on

demonstrators “similarly situated” to CCNV, Judge Mikva

explained that there would be no “incremental savings of

park resources” to be gained by proscribing sleep (id. at

22a-23a). Stating that the National Park Service was enti-

tled to distinguish, in applying its regulation, between

“sleeping that is expressive as part of a twenty-four hour

vigil * * * [and] sleeping that is a mere convenience to day-

time demonstrators” (id. at 25a), Judge Mikva concluded

that the government’s interests would not be sufficiently

furthered “by keeping these putative protestors” from

sleeping (id. at 28a; emphasis added).

Chief Judge Robinson and Judge Wright concurred with

the caveat that they “intimate[d] no view as to whether

sleeping would implicate the First Amendment were it not

to add its own communicative value to the demonstration”

(App. A, infra, 3la). Judge Edwards filed a concurring

opinion, disagreeing with portions of Judge Mikva’s opin-

ion, but reaching the same result (id. at 32a-40a). Judge

Edwards stated that, on the facts of this particular case,

sleeping was “symbolic speech” covered by the First

per

Amendment (id. at 33a-34a). He concluded that under

O'Brien the regulations could not constitutionally be ap-

plied to bar CCNV’s demonstration because there are “rea-

sonable * * * regulatory alternatives less restrictive ef*©

: om ~ =a total ban against sleeping [tnat] still would accom-

modate the significant governmental interests at stake”

(id. at 39a). Judge Ginsburg concurred only in the judg-

ment (id. at 41a-48a). She characterized respondents’ sleep-

ing as “speech plus” (id. at 46a) that was not necessarily

entitled to the same protection as traditional speech, but

was sufficient “to require a genuine effort to balance the

demonstrators’ interest against other [government] con-

cerns” (id. at 47a). Because she found it irrational to allow

“tenting, lying down, and maintaining a twenty-four hour

presence” while forbidding sleeping, Judge Ginsburg con-

cluded that the line drawn in the regulations was not suffi-

ciently “sensible, coherent, and sensitive to the speech in-

terest involved” (id. at 48a).

Judge Wilkey, joined by four judges, dissented (App. A,

infra, 49a-77a). Although expressing considerable doubt on

the issue (id. at 56a-60a), Judge Wilkey assumed that re-

spondents’ sleeping activity would constitute a form of

Speech protected by the First Amendment and that the

O’Brien analysis was therefore applicable (id. at 60a). Ex-

amining the general government interest in preventing

camping in the Memorial-core area (see id. at 63a-66a),

Judge Wilkey concluded that the regulation served a sub-

stantial interest in conserving park resources and preserv-

ing the right of non-campers to enjoy the parks; he found

that this interest outweighed occasional incidental infringe-

ment on the activities of demonstrators (id. at 66a-71a).

Judge Wilkey further stated that there was no constitution-

ally permissible less restrictive alternative to the total ban

on camping (id. at 72a-77a) because “any intermediate posi-

tion designed to accommodate ‘First Amendment camping’

would run afoul of the proscriptions against discretionary

screening” (id. at 73a). Judge Scalia, joined by two judges,

filed a separate dissenting opinion (id. at 78a-87a) denying

that “sleeping is or can ever be speech for First Amend-

ment purposes” (id. at 78a). Because the regulations pro-

scribe the activities in question for reasons having nothing

to do with their communicative character, J udge Scalia con-

cluded that they did not implicate First Amendment

concerns.

REASONS FOR GRANTING THE PETITION

1. The decision below is the culmination of a series of de-

cisions by the District of Columbia Circuit severely limit-

ing, in the name of the First Amendment rights of demon-

strators, the ability of the National Park Service to

administer the Memorial-core area parks for the benefit of

the general public. See United States v. Abney, 534 F.2d

984 (1976); A Quaker Action Group v. Morton, 516 F.2d

717 (1975); Women Strike for Peace v. Morton, 472 F.2d

1273 (1972). These decisions, which have increasingly di-

verged from established principles of First Amendment

law, have steadily eroded the power of the National Park

Service reasonably to regulate the conduct of demonstra-

_ tors in these areas. The use of these parks by demonstra-

tors, of course, is a legitimate use recognized and approved

by the government (see 36 C.F.R. 50.19), but it must be

subject to reasonable manner restrictions. As a result of

these decisions, the use of these parks—constituting a

unique national resource—as a forum for protesters has

been elevated above the primary uses contemplated by

Congress, making it more and more difficult to preserve

them as places where the public can enjoy nature with some

serenity. The decision below leaves the National Park

Service in a position where it cannot effectively prevent

camping in these historic urban parks and casts serious

doubt on its ability to regulate other conduct there that

may be asserted to be connected with First Amendment ac-

tivity. Judge Mikva’s candid observation (App. A, infra,

29a) that “[eJach distinction and each line” drawn by the

National Park Service in regulating sleeping in the park

will be subjected to “close scrutiny” by the court simply un-

derscores the need for this Court to step in and correct the

D.C. Circuit’s misguided course in this area of the law.

The practical impact of the decision below on the Nation-

al Park Service’s administration of the Memorial-core area

parks is far-reaching. Apart from requiring that it issue a

permit to CCNV’s requested demonstration, the fragment-

ed decision gives the National Park Service no guidance on

how to deal with other applications to camp in the parks.

The three opinions of Judges Wright and Robinson,

Edwards, and Ginsburg suggest that there may be cases

where the National Park Service may ban camping in the

parks even if it is asserted to express a message, but they

do not suggest any standards to be applied in distinguishing

among such permit applications and in identifying those

cases in which the First Amendment rights associated with

sleep outweigh the government’s interest in preventing the

use of Lafayette Park and the Mall for camping.* On the

other hand, the opinions of Judge Mikva (App. A, infra,

18a) and Judge Wilkey (id. at 7la-77a) suggest that any at-

tempt to draw such distinctions necessarily would be

content-based and hence violative of the First Amendment.

Thus, the National Park Service is left with two equally

unpalatable alternatives in passing on future applications.

It can safely comply with the decision below by allowing

anyone to camp in the restricted park areas as long as it is

alleged that the camping or sleeping activity is part of a

demonstration. The cumulative impact of granting all these

applications, however, clearly will adversely affect the gen-

eral public’s opportunity to use these parks and severely

overtax;park facilities.? On the other hand, if the Nationa!

Park Service attempts to distinguish among these applica-

tions, denials almost certainly will be the subject of litiga-

tion and apparently will be viewed by a majority of the

judges on the court of appeals as impermissibly content-

based. In short, the divergent viewpoints and conclusions

of the 11 judges of the court of appeals have left the Na-

tional Park Ser'vice in a position where it cannot administer

its regulations in any way that is either manageable or like-

ly to pass constitutional muster. Both the practical difficul-

ties engendered by the decision below and the important is-

sues raised warrant review by this Court.

2.a. The decision below is erroneous. First, it brushes

aside an earlier decision of this Court, rendered in connec-

® Moreover, as Judge Wilkey explains (App. A, infra, 74a-77a), it

would not be difficult for any group wishing to camp on the Mall to ad-

vance a facially valid First Amendment justification for their proposed

activity. See also opinion of Mikva, J., id. at 16a n.16.

7 For example, there is only one sanitation facility in Lafayette

Park.

tion with a previous attempt by demonstrators to establish

that camping on the Mall is protected by the First Amend-

ment. Morton v. Quaker Action Group, 402 U.S. 926

(1971). In 1971 the district court issued an injunction pro-

hibiting the Vietnam Veterans Against the War from, inter

alia, camping on the Mall. The district court defined the

term “overnight camping” as “sleeping activities, or mak-

ing preparations to sleep (including the laying down of bed-

rolls or other bedding) * * *,” which corresponds to the

language in the current regulation.* The court of appeals

modified that order to permit the demonstrators to use

their symbolic campsite 24 hours a day “as an incident to or

as part of their public demonstrations and gatherings, and

for the purpose of sleeping in their own equipment, such as

sleeping bags, on that portion of the Mall.” A Quaker Ac-

tion Group v. Morton, No. 71-1276 (D.C. Cir. Apr. 19,

1971). The following day the Chief Justice vacated the court

of appeals’ order and reinstated the prohibitory order of the

district court. The full Court then upheld the Chief Justice,

vacated the court of appeals’ order permitting sleeping, and

reinstated “with full force and effect” the injunction of the

district court. Morton v. Quaker Action Group, supra.

In this case the plurality brusquely dismissed this

Court’s order in Quaker Action as inapposite (App. A,

infra, 10a n.5) and in fact relied on the vacated court of ap-

peals opinion (id. at lla). It did so notwithstanding the fact

that in Quaker Action this Court upheld an injunction

based on a line much like the line drawn in the existing reg-

ulations that the court of appeals here held invalid. That

ruling, albeit rendered in a summary action (cf. Hicks v.

Miranda, 422 U.S. 332, 344 (1975)), should have been

deemed authoritative in this case.

b. The decision below is contrary to well settled princi-

ples of First Amendment jurisprudence. It is black letter

law that the First Amendment does not accord each citizen

a right to determine the most effective way of presenting

* A detailed summary of this litigation is set forth in Vietugm Veter-

ans Against the War v. Morton, 506 F.2d 53, 56 n.9 (D.C. Cir. 1974).

his views; rather, the exercise of First Amendment rights

is subject to “reasonable time, place, and manner restric-

tions.” Heffron v. International Society for Krishna Con-

sciousness, Inc., 452 U.S. 640, 647 (1981). See also, as.,

Grayned v. City of Rockford, 408 U.S. 104, 115 (1972). In

particular, the Court has rejected the notion that “an ap-

parently limitless variety of conduct can be labeled ‘speech’

whenever the person engaging in the conduct intends

thereby to express an idea.” United States v. O’Brien, 391

U.S. 367, 376 (1968). See also Tinker v. Des Moines School

District, 393 U.S. 508, 515 (1969) (White, J., concurring).

The court below paid lip service to these principles, but

in fact appears to have abandoned them. Judge Mikva’s

opinion holds that respondents’ intent that their “presence”

be expressive, coupled with the fact that their demonstra-

tion would take place “at the seat of our national govern-

ment,” converts sleeping into expressive conduct protected

by the First Amendment (App. A, infra, 17a). This conclu-

sion follows in the footsteps of earlier circuit precedent that

woodenly accorded First Amendment protection to any con-

duct intended to be communicative. Judge Wright’s opinion

in Women Strike for Peace v. Morton, supra, suggested

that no distinction could be drawn between speech and con-

duct (472 F.2d at 1282) and that the erection of any struc-

ture designed to communicate views was entitled to First

Amendment protection (id. at 1287-1288). In United States

v. Abney, supra, the court assumed that a protester’s de-

sire to conduct a round-the-clock vigil was sufficient to

make sleeping an expressive activity protected by the First

Amendment.

These rulings are not supported by the “symbolic speech”

decisions of this Court. Although this Court has used First

Amendment analysis in cases involving expressive conduct,

those cases all involved conduct that had little, if any, pur-

pose other than expression; and they involved activity far

closer to traditional “speech” than the act of sleeping. In

addition, those cases involved government regulations

more directly aimed at expression. See, e.g., Spence v.

Washington, 418 U.S. 405, 410, 414 n.8 (1974): Tinker v.

Des Moines School District, supra. Extending these cases

to cover respondents’ sleeping in the park simply contra-

dicts the Court’s oft-repeated admonition that not all con-

duct intended to be expressive is “speech.” See Spence v.

Washington, supra, 418 U.S. at 409.

c. Even assuming that respondents’ camping is fully pro-

tected by the First Amendment, the court of appeals erred

in holding that the governmental interest underlying the

regulation did not outweigh the incidental infringement of

First Amendment rights. In United States v. O’Brien,

supra, the Court concluded that it did not violate the First

Amendment to prosecute a demonstrator for burning his

draft card as a protest against the Vietnam War. The Court

explained that “when ‘speech’ and ‘nonspeech’ elements are

combined in the same course of conduct, a sufficiently im-

portant governmental interest in regulating the non-speech

element can justify incidental limitations on First Amend-

ment freedoms.” 391 U.S. at 376. Applying a four-part test,

the Court concluded that the government’s interest in ban-

ning draft card burning was sufficient to justify the ban’s

restriction of First Amendment freedoms. The govern-

ment’s interest in banning camping in the Memorial-core

area parks is substantial and fully sufficient under O’Brien

to justify incidental restrictions on demonstrators who pur-

port to camp as a way of conveying a message. The “no

camping” regulations are a valid exercise of the Secretary’s

authority to manage park resources. The Memorial-core

area parks are not designed to handle overnight campers,

and permitting camping would overtax sanitary facilities

and law enforcement personnel. Moreover, camping would

seriously interfere with the enjoyment of the parks by nu-

merous other users. See generally 47 Fed. Reg. 24302

(1982).

® The test set forth in O’Brien states (391 U.S. at 377):

[A] government regulation is sufficiently justified if it is within

the constitutional power of the Government; if it furthers an im-

portant or substantial governmental interest; if the governmen-

tal interest is unrelated to the suppression of free expression;

and if the incidental restriction on alleged First Amendment

freedoms is no greater than is essential to the furtherance of that

interest.

The plurality attempted to minimize these concerns by

stating that the only government interest involyed is that

in prohibiting sleeping “by all those who wish to engage in

sleeping as part of their demonstration and have been

granted renewable permits to demonstrate on a twenty-

four hour basis on sites at which they have also been al-

lowed to erect temporary symbolic structures” (App. A,

infra, 22a). As Judge Wilkey explains, however (id. at

63a-66a), this approach is unsound. Virtually any regulation

can be made to seem unnecessary if the inquiry is focused

on the government interest in not making an exception in

the particular case at hand, rather than on the general reg-

ulation. See Heffron v. International Society for Krishna

Consciousness, Inc., supra, 452 U.S. at 652.10

On the other hand, the “no camping” regulations repre-

sent a minimal infringement of speech. Respondents may

effectively communicate their message to the public at pre-

cisely the same locations, by means other than actually

sleeping. Although they claim that the effectiveness of

their demonstration might be enhanced if they are per-

mitted to sleep—either because sleeping in Lafayette Park

particularly expresses “the poignancy of their plight” (App.

A, infra, 17a) or because the establishment of a place to

sleep with hot meals would attract many persons to the

demonstration (see note 3, supra)—it is well settled that

the Constitution does not create an absolute right to deliver

'° The plurality also focuses narrowly on the interest in preventing

sleeping by demonstrators who are already permitted to remain in

symbolic tents overnight (App. A, infra, 22a-23a). It is important,

however, to remember that the National Park Service allowed respon-

dents to engage in these activities because of its perception of the

First Amendment requirements of applicable circuit precedent, even

though the government does not agree that the First Amendment ac-

tually requires it to permit such activities. See note 4, supra. The

thrust of the regulation is to prohibit the use of the parks for living ac-

commodation purposes. That goal serves an important government in-

terest, and, as Judge Wilkey explains (App. A, infra, 66a-68a,

74a-75a), it is well served by the definition of camping in the regula-

tions. To ignore this broader context and focus only on the government

interest in preventing a particular 24-hour demonstrator from sleeping

is to “nickel and dime [the] regulation to death” (see id. at 65a).

a message in the precise manner thought by the demonstra-

tor to be maximally effective. See, e.g., Heffron v. Inter-

national Society for Krishna Consciousness, Inc., supra,

452 U.S. at 647; Adderley v. Florida, 385 U.S. 39, 47-48

(1966).

The “no camping” regulations operate essentially as a re-

striction on the manner in which respondents may conduct

their demonstration. Such a restriction is valid if it is

““content-neutral, * * * narrowly tailored to serve a signif-

icant government interest, and leave[s] open ample alterna-

tive channels of communication.’” United States v. Grace,

No. 81-1863 (Apr. 20, 1983), slip op. 5; Perry Education

Ass'n v. Perry Local Educators’ Ass’n, No. 81-896 (Feb.

23, 1983), slip op. 7-8. There can be little doubt that the

regulations involved here meet this standard. They are nar-

rowly focused on preserving the parks from the damage

and overloading of resources that use of them for living ac-

commodations would engender, while stil] allowing demon-

strators ample opportunity to communicate their messages.

Indeed, as Judge Wilkey explains (App. A, infra, 71a-77a),

a total ban on camping is a necessity if the government is to

further its undeniable interest in generally preventing the

use of the Memorial-core area parks as campgrounds.

In sum, the decision below, by recognizing as “speech”

protected by the First Amendment any conduct intended to

be expressive and by artificially confining the government’s

interest in regulation to one particular set of facts, has

emasculated the National Park Service’s ability to manage

the Memorial-core area parks. The National Park Service

will be hard-pressed to enforce its regulations at all without

running the risk of making impermissible content-based

distinctions. As a result, if the decision below is permitted

to stand, a significant aspect of the administration of these

parks effectively will be taken out of the National Park

Service’s hands, and the right of the general public to

peaceful enjoyment of the parks—the primary purpose for

which Congress estabiished them—will be subordinated to

demonstrators who claim that conduct inconsistent with the

parks’ primary purpose is nevertheless privileged because

claimed by them to be “expressive.”

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

REX E. LEE

Solicitor General

J. PAUL MCGRATH

Assistant Attorney General

PAUL M. BATOoR

Deputy Solicitor General

ALAN I. HorRowITz

Assistant to the Solicitor General

LEONARD SCHAITMAN

KATHERINE S. GRUENHECK

Attorneys

JUNE 1983

aaa a aii lait

APPENDIX A

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 82-2445

THE COMMUNITY FOR CREATIVE NON-VIOLENCE, et ail.,

APPELLANTS

Vv.

JAMES G. WATT, SECRETARY OF THE INTERIOR, et al.

No. 82-2477

THE COMMUNITY FOR CREATIVE NON-VIOLENCE, et ai.,

APPELLANTS

Vv.

JAMES G. WATT, SECRETARY OF THE INTERIOR, et al.

Appeals from the United States District Court

for the District of Columbia

(D.C. Civil Action No. 82-02501)

ON REHEARING EN BANC

Argued January 14, 1983

Decided March 9, 1983

Before ROBINSON, Chief Judge, WRIGHT, TAMM, MAc-

KINNON, WILKEY, WALD, MIKVA, EDWARDS, GINSBURG.

Bork and SCALIA, Circuit Judges.

PER CURIAM: Circuit Judge Mikva files an opinion,

in which Circuit Judge Wald concurs, in Support of a

judgment reversing. Chief Judge Robinson and Circuit

Judge Wright file a statement joining in the judgment

and concurring in Circuit Judge Mikva’s opinion with

a caveat. Circuit Judge Edwards files an opinion join-

ing in the judgment and concurring partially in Circuit

Judge Mikva’s opinion. Circuit Judge Ginsburg files an

opinion joining in the judgment. Circuit Judge Wilkey

files a dissenting opinion, in which Circuit Judges Tamm,

MacKinnon, Bork and Scalia concur. Circuit Judge Scalia

files a dissenting opinion, in which Circuit Judges Mac-

Kinnon and Bork concur. The judgment appealed from

Court with instructions to enjoin appellees from prohibit-

ing sleeping by demonstrators in tents on sites authorized

for appellants’ demonstration.

MIKVA, Circuit Judge: The Community for Creative

Non-Violence (CCNV) applied for and was granted a

renewable seven-day permit to conduct a round-the-clock

demonstration, commencing on the first day of winter,

on the Mall and in Lafayette Park in Washington, D.C.

The declared purpose of the demonstration was to im-

press upon the Reagan Administration, the Congress, and

the public the plight of the poor and the homeless. The

National Park Service (Park Service) granted CCNV a

permit to set up two symbolic campsites, one on the Mall

with a maximum of one hundred participants and forty

tents, and one in Lafayette Park with approximately

fifty participants and twenty tents.

Although the permit allowed the demonstration par-

ticipants to maintain a twenty-four hour presence at their

symbolic campsites, the Park Service denied the partici-

pants a permit to sleep. According to the government,

such conduct would violate the Park Service’s recently re-

vised anti-camping regulations, see 36 C.F.R. §§ 50.19,

50.27 (1982). CCNV claims that this prohibition strikes

at the core message the demonstrators wish to convey—

that homeless people have no permanent place to sleep.

Accordingly, CCNV and seven individuals who wish to

participate in the demonstration seek a court order in-

validating the permit’s limitation on sleeping as an un-

constitutional restriction on their freedom of expression.

Following cross-motions for summary judgment, the dis-

trict court decided in favor of the Park Service and the

case arose on expedited appeal. After briefing and oral

argument before a motions panel, but before that panel

issued a decision, the case was heard en banc.

Because we conclude that the government has failed to

show how the prohibition of sleep, in the context of

round-the-clock demonstrations for which permits have

already been granted, furthers any of its legitimate in-

terests, we reverse the district court’s decision and grant

CCNV’s request for injunctive relief.

I. BACKGROUND

A. The Regulatory Framework

This case presents the second occasion in which the

government has sought to apply anti-camping regulations

to demonstrations proposed by this appellant. In 1981,

the Park Service allowed CCNV to erect nine tents in

Lafayette Park to symbolize the desperation of homeless

persons, but denied the demonstrators permission to dram-

atize this concern by actually sleeping in the tents. Under

the regulations then in effect, 36 C.F.R. § 50.19(e) (8)

(1981) (use of temporary structures); id. § 50.27(a)

(camping), the Park Service reasoned that overnight

sleeping would carry the demonstration beyond the per-

missible ‘use of symbolic campsites reasonably related to

First Amendment activit[y]” and into the impermissible

realm of “camping primarily for living accommodation,”

see 46 Fed. Reg. 55,961 (1981). CCNV appealed that

ruling.

In Community for Creative Non-Violence v. Watt

(CCNV I), 670 F.2d 1213 (D.C. Cir. 1982), this court

held that the Park Service had misapplied those regula-

tions to CCNV’s proposed activity. Because the regula-

tions precluded only camping “primarily for living ac-

commodation,” and the act of sleeping in CCNV’s dem-

onstration was not to be done for that purpose, the court

found that such conduct fell outside of the Park Service’s

proscription:

[T]here is no evidence in the Record suggesting that

the handful of tents in Lafayette Park is intended

“primarily for living accommodation.” The appel-

lees will not prepare or serve food there; they will

not build fires or break ground; they will not estab-

lish sanitary or medical facilities. Indeed the uncon-

troverted evidence in the case is that the purpose of

the symbolic campsite in Lafayette Park is “pri-

marily” to express the protestors’ message and not

to serve as a temporary solution to the problems of

homeless persons. Thus the only activity at issue

here—sleeping in already erected symbolic tents—

cannot be considered “camping”... .

Id. at 1217. As a result of the court’s decision, CCNV

staged its demonstration, including sleeping, for approxi-

mately seven weeks last winter.

The Park Service has since revised its camping regula-

tions for the National Capital Region through a formal

rulemaking. 47 Fed. Reg. 24,299-306 (1982) (codified

at 36 C.F.R. $$ 50.19, 50.27 (1982)). The new regula-

tions, set out in the margin,’ specifically include within

* As revised, section 50.27(a) prohibits camping in park

areas not designated as public camping grounds, and defines

the term as follows:

Camping is defined as the use of park land for living

accommodation purposes such as sleeping activities, or

making preparations to sleep (including the laying down

of bedding for the purpose of sleeping), or storing

personal belongings, or making any fire, or using any

tents or shelter or other structure or vehicle for sleeping

or doing any digging or earth breaking or carrying on

cooking activities. The above listed activities constitute

camping when it reasonably appears, in light of all the

circumstances, that the participants, in conducting these

activities, are in fact using the area as a living accom-

modation regardless of the intent of the participants or

the nature of any other activities in which they may also

be engaging.

36 C.F.R. §50.27(a) (1982). Section 50.19(e)(8), as

amended, prohibits the use of temporary structures for camp-

ing outside of designated camping areas. It reads as follows:

In connection with permitted demonstrations or special

events, temporary structures may be erected for the

purpose of symbolizing a message or meeting logistical

needs such as first aid facilities, lost children areas or

the provision of shelter for electrical and other sensi-

tive equipment and displays. Temporary structures may

not be used outside designated camping areas for living

accommodation activities such as sleeping, or making

preparations to sleep (including the laying down of

the definition of prohibited camping the act of sleeping

“when it reasonably appears, in light of all the circum-

stances, that the participants, in conducting these activi-

ties, are in fact using the area as a living accommodation

regardless of the intent of the participants or the nature

of any other activities in which they may also be en-

gaging.” 47 Fed. Reg. at 24,302. Although the amended

regulation admittedly permits some leeway for adminis-

trative discretion, the Park Service has determined that

the regulation prohibits the sleeping that would be done

at CCNV’s demonstration this winter.

To understand fully the government’s current policy on

sleeping in the capital’s parks, it is important to note

that sleeping is not, per se, illegal. Visitors to the capital,

or workers on their lunch breaks, may safely catnap for

short periods of time without running afoul of the law.

Sleeping, in these circumstances, conjures up no threats

to peace and public order. Although the Park Service’s

anti-loitering regulation prohibits sleeping with intent to

remain for more than four hours, it contains an excep-

tion for those with the proper authorization of the Su-

perintendent of the National Capital Parks. See 36 C.F.R.

§ 50.25(k) (1982). And, as mentioned, the government’s

camping regulation also allows for “sleeping activities”

that are not deemed to constitute use of the area for liv-

ing accommodation. An example of the discretion in-

herent in this latter determination is evidenced by the

Park Service’s authorization, for participants in a Viet-

bedding for the purpose of sleeping), or storing personal

belongings, or making any fire, or doing any digging or

earth breaking or carrying on cooking activities. The

above-listed activities constitute camping when it rea-

sonably appears, in light of all the circumstances, that

the participants, in conducting these activities, are in

fact using the area as a living accommodation regardless

of the intent of the participants or the nature of any

other activities in which they may also be engaging.

Id. § 50.19(e) (8).

nam veterans’ demonstratien on the Mall in May 1982,”

of all-night sleep at a mock Vietnam War-era “firebase”

where some of the demonstrators were periodically roused

to stand symbolic “guard duty.” * See Park Service Per-

mit to Vietnam Veterans Against the War dated April

20, 1982 and accompanying letter, reprinted in Record

Document (RD) 5. The only apparent distinction between

the sleeping in the veterans’ demonstration and the sleep-

ing proposed by CCNV is that the veterans slept on the

ground, without any shelter. According to the Park Serv-

ice’s interpretation of the new regulations, one’s partici-

pation in a demonstration as a sleeper becomes imper-

missible “camping” when it is done within any temporary

structure erected as part of the demonstration.

The Park Service nonetheless allows the erection of

temporary structures, including tents, in connection with

permitted demonstrations under 36 C.F.R. § 50.19(e) (8)

(1982).* Originally worded to allow any “temporary

* Although the veterans’ application to demonstrate was

filed prior to the effective date of the amended regulations,

the Park Service applied the new regulations. See Letter

from Park Service to Vietnam Veterans Against the War

dated April 22, 1982, reprinted in Record Document (RD) 5.

* Despite conflicting evidence in the record as to whether

some of the veterans slept all night, it is clear that the Park

Service authorized at least some participants in the demon-

stration to “be asleep in the area at all times during the

night.” Jd.

* Section 50.19(e) (8) was promulgated in response to the

decision of this court in Women Strike for Peace v. Morton,

472 F.2d 1273 (D.C. Cir. 1972) (per curiam). See 47 Fed.

Reg. 24,304 (1982). In that case, the court held that Women

Strike for Peace, an anti-war organization, could erect a

temporary display on the Ellipse. Although the per curiam

opinion was followed by three separate statements, the rea-

soning of the judges was clear: “the Park Service is re

quired to allow the erection of structures by demonstrators to

the same extent that it participates in or sponsors the erec-

tion of structures itself.” Jd. at 24,300. The assumption

structures . . . reasonably necessary for the conduct of

the demonstration,” 41 Fed. Reg. 12,879, 12,883 (1976),

this regulation was amended in 1982 to state specifically

that temporary structures “may be erected for the pur-

pose of symbolizing a message,” 47 Fed. Reg. at 24,305.

Since that amendment, the Park Service has, on at least

two occasions besides this one, granted permits to groups

of demonstrators to erect symbolic tents. See Park Serv-

ice Permit to ACORN dated June 18, 1982, reprinted in

RD 5 (50 tents dramatizing housing crisis) ; Park Serv-

ice Permit to Palestine Congress of North America

dated September 8, 1982, reprinted in RD 5 (107 tents

symbolizing Palestinian refugee camp). Tents were also

allowed prior to the amendment to symbolize conditions in

Vietnam, the plight of American Indians, and the plight

of the homeless. 47 Fed. Reg. at 24,301.

B. The Case Law

The dispute in this case over the Park Service’s camp-

ing regulations bears similarities to numerous other dis-

putes that this court has heard within the last fifteen

years, each concerning the proper use of public park

lands within the nation’s capital. E.g., CCNV I, 670 F.2d

1213 (D.C. Cir. 1982) (sleeping in Lafayette Park) ;

United States v. Abney, 534 F.2d 984 (D.C. Cir. 1976)

(sleeping in Lafayette Park) ; Vietnam Veterans Against

the War v. Morton (VVAW), 506 F.2d 53 (D.C. Cir.

1974) (camping on Mall); A Quaker Action Group v.

Morton (Quaker Action), No. 71-1276 (D.C. Cir. Apr. 19,

1971), vacated mem., 402 U.S. 926 (1971) (camping on

that lies behind this proposition is also clear: ‘‘[a structure]

is a vehicle for expression of views ... and [to the extent

that it acts as such is] entitled to a degree of First Amend-

ment protection.”” 472 F.2d at 1288 (Wright, J., concurring) ;

see also id. at 1295 (Leventhal, J., concurring) (“Structures

on park land, even though temporary, are within the reach

of freedom of communications ....”). With our opinion

today, we reaffirm the result reached in that decision.

Mall) ; see also O’Hair v. Andrus, 613 F.2d 931 (D.C.

Cir. 1979) (papal mass on Mall); A Quaker Action

Group v. Morton, 516 F.2d 717 (D.C. Cir. 1975) (public

gathering in Lafayette Park) ; Women Strike for Peace v.

Morton, 472 F.2d 1273 (D.C. Cir. 1972) (display on EI-

lipse) ; Jeanette Rankin Brigade v. Chief of Capitol Po-

lice, 421 F.2d 1090 (D.C. Cir. 1969) (assembly on Capitol

grounds). It should not be surprising, therefore, to learn

that from this considerable history of decisionmaking the

court. has on several occasions addressed the propriety

vel non of sleeping, in connection with public demonstra-

tions, on the Mall and in Lafayette Park.

In 1971, in Quaker Action, No. 71-1276 (D.C. Cir. Apr.

19, 1971), this court modified a district court order lim-

iting an anti-war demonstration on the Mall to the hours

of 9:00 am to 4:30 pm. As a matter of summary rever-

sal, the court lifted the district court’s nighttime curfew

and allowed the demonstrators to use a section of the

Mall “as part of their public demonstrations . . . for the

purpose of sleeping in their own equipment, such as

sleeping bags... .” ZId. at , cited in VVAW, 506

F.2d at 56 n.9. The Supreme Court vacated our summary

reversal in that case by a decree without opinion in

Morton v. Quaker Action Group, 402 U.S. 926 (1971),

an action which a motions panel of this court recognized

as controlling in a dispute between the same litigants and

involving similar sleeping on the Mall three years later.

See VVAW, 506 F.2d at 56. Despite the very specific

nature of its holding, the VVAW panel expressed its

view that camping overnight is an activity “whose un-

fettered exercise is not crucial to the survival of democ-

racy and ... thus beyond the pale of First Amendment

protection.” Jd. at 57-58. In United States v. Abney, 534

F.2d 984 (D.C. Cir. 1976), this court characterized the

gratuitous statements in VVAW as non-binding dicta*

5 See also CCNV I, 670 F.2d at 1217 n.26 (confirming this

distinction). The motions panel in VVAW was correct in

“ 10a

and held that, in the unusual circumstances of an individ-

ual protestor’s round-the-clock vigil in Lafayette Park,

unavoidable sleeping ‘“‘must be taken to be sufficiently ex-

pressive in nature to implicate First Amendment scrutiny

in the first instance.” Jd. at 985. The Abney court then

held the Park Service’s anti-loitering regulation unconsti-

tutional as applied, but stated in dicta that, “[i]t may

well be that [a non-discretionary] across-the-board ban on

sleeping outside official campgrounds would be constitu-

tionally acceptable if duly promulgated and even-handedly

enforced.” /d. at 986.

The question left open by Abney was not squarely be-

fore us last term in CCNV I; the Park Service’s anti-

camping regulation was construed to avoid the consti-

tutional issue. As part of the court’s decision, however,

it was necessary to categorize the sleeping activities of the

protestors as falling within one of two administrative

classifications: (1) the use of symbolic campsites rea-

sonably related to first amendment activities or (2)

camping primarily for living accommodations. The

CCNV I court concluded:

holding that the action taken by the district court “directly

contravened the controlling precedent.” VVAW, 506 F.2d at

55 n.6. We refuse, however, to read the precedent as broadly

as that panel. The Supreme Court’s decision on which that

panel grounded its argument, Morton v. Quaker Action Group,

402 U.S. 926 (1971), was issued without an opinion. Absent

any supporting reasoning, it should not, and indeed cannot,

be cited as precedent for the proposition that sleep can

never be protected by the first amendment. The Supreme

Court has held consistently that summary disposition ex-

tends ‘‘only to ‘the precise issues presented and necessarily

decided by those actions.’”” Metromedia, Inc. v. City of San

Diego, 453 U.S. 490, 499 (1981) (quoting Mandel v. Bradley,

432 U.S. 173, 176 (1977) (per curiam)). As Chief Judge

Bazelon observed in his statement concurring in the denial of

rehearing en banc in the VVAW case itself, it is very diffi-

cult to ascertain what issues the Supreme Court determined

in its 1971 decision. VVAW, 506 F.2d at 61.

lla

We have do doubt as to which category encompasses

the activities in question here. First, the appellees

are engaged in a political protest and a petition for

redress of grievances. As part of their protest, the

appellees desire permission to sleep in their tents in

Lafayette Park. This appears to be no more than

“the use of [a] symbolic campsite[].” Moreover, as

the District Court found, in this case sleeping itself

may express the message that these persons are home-

less and so have nowhere else to go.

670 F.2d at 1216-17 (footnote omitted) (emphasis in

original). When the CCNV I decision is added to the

decisions of this court in Abney and Quaker Action, it is

quite clear that on several occasions this court has ac-

knowledged that sleep can be “expressive,” or part of a

political protest, for the purposes of either administrative

or constitutional classifications.

II. DISCUSSION

The district court’s decision in this case necessarily

followed from its conclusions that: (1) CCNV’s demon-

stration falls within the scope of the amended anti-

camping regulations; (2) sleeping, within the context of

CCNV’s demonstration, falls outside the scope of the first

amendment; and (3) even assuming first amendment

scrutiny is required, the new anti-camping regulations are

constitutional as applied to CCNV’s proposed sleeping

activities. Although we agree that CCNV’s proposed

activities fall within the government’s amended regula-

tions, we cannot uphold the constitutionality of the regu-

lations as applied to CCNV.

A. The Scope of the New Regulations

CCNV contends that it does not fall under the amended

anti-camping regulations because it seeks to use sleep as

a form of expression and not for “living accommodation”

purposes. We cannot accept this argument. The regula-

tion’s exclusion of “the intent of the participants or the

nature of any other activities in which they may also be

12a

engaging,” 36 C.F.R. §§ 50.19(e) (8), 50.27(a) (1982),

underscores the evident purpose of the regulations to

cover “living accommodations” that may also be expres-

sive of the demonstrators’ message. Indeed, in the pref-

atory statement accompanying the 1982 amendments, the

Park Service indicated that it was “amending § 50.19(e)

(8) to forbid specifically the use of any such structures,

including tents, for the purpose of conducting any living

accommodation activity,” which was defined to include

“sleeping.” 47 Fed. Reg. at 24,304 (emphasis added). As

we stated in CCNV I, the court may rely upon an agency’s

contemporaneously issued policy statement as an accurate

representation of the agency’s purpose. 670 F.2d at 1216

(citing Environmental Defense Fund, Inc. v. EPA, 636

F.2d 1267, 1280 (D.C. Cir. 1980)). It thus seems clear

to us that these demonstrators come under the new

regulations.*®

* Because CCNV’s proposed conduct is clearly proscribed

by the regulations, CCNV may not claim that those regu-

lations are constitutionally void for vagueness. See, e.g.,

Parker v. Levy, 417 U.S. 733, 756 (1974) (“One to whose

conduct a statute clearly applies may not successfully chal-

lenge it for vagueness.’’).

We also do not find the regulations to be overbroad because

the amount of constitutionally protected activity covered by

the regulations (assuming arguendo that such activity exists

in this case) cannot reasonably be calculated as ‘‘substan-

tial.”” As the Supreme Court stated in Broadrick v. Oklahoma,

413 U.S. 601, 615 (1973), “[w]here conduct and not merely

speech is involved, we believe that the overbreadth of a

statute must not only be real, but substantial as well, judged

in relation to the statute’s plainly legitimate sweep.” The

government’s ban against sleeping in tents applies to all park

areas administered by National] Capital Parks in the District

of Columbia, Maryland, and Virginia. 36 C.F.R. § 50.1

(1982). Because camping in these areas is primarily for

recreation, the chances of the ban directly conflicting with

sleeping as an arguable form of expression must be esti-

mated as small. There is certainly no evidence before us today

to suggest that any such conflict can be characterized as

“substantial.”

l3a

B. The Scope of the First Amendment

The scope of the first amendment’s protection of free

expression is not as amenable to precise definition as the

Park Service’s prohibition of “camping.” The Supreme

Court has afforded first amendment scrutiny to govern-

ment regulation of such expressive activities as demon-

strating,’ marching,’ leafletting,® picketing,© wear arm-

bands,'' and affixing a peace symbol to an American

flag."* Although we acknowledge that all conduct need

not be labelled “speech” merely because the doer “intends

thereby to express an idea,” United States v. O’Brien, 391

U.S. 367, 376 (1968), we also recognize that expressive

conduct cannot be written out of the Constitution merely

because the government may wish to label it “camping.”

The values implicit in the first amendment are too multi-

faceted to be subject to wooden categorizations.**

* See, e.g., Edwards v. South Carolina, 372 U.S. 229 (1963).

® See, e.g., Shuttlesworth v. City of Birmingham, 394 USS.

147 (1969).

® See, e.g., Schneider v. Town of Irvington, 308 U.S. 147

(1939).

10 See, e.g., Thornhill v. Alabama, 310 U.S. 88 (1940).

" See, e.g., Tinker v. Des Moines School District, 393 USS.

503 (1969).

‘S It is far too late in the day to pretend that the Supreme

Court has sanctioned an unwavering first amendment line

between speech and conduct. Such a view cannot be squared

Moines School District, 393 U.S. 503, 505 (1969) (“[First

amendment] rights are not confined to verbal expression.

They embrace appropriate types of action which certainly

include the right in a peaceable and orderly manner to protest

by silent and reproachful presence ... .”); see also Ely,

l4a

In the present case, our evaluation of the govern-

ment’s ban on sleeping in symbolic structures is under-

scored by first amendment scrutiny because, as applied to

CCNV’s proposed demonstration, the government’s ban

will clearly affect expression: there can be no doubt that

the sleeping proposed by CCNV is carefully designed to,

and in fact will, express the demonstrators’ message that

homeless persons have nowhere else to go. The “test”

used by the Supreme Court to determine whether conduct

is “sufficiently imbued with elements of communication to

fall within the scope of the First . . . Amendment[],”

Spence v. Washington, 418 U.S. 405, 409 (1974) (per

curiam), is to examine the intent of the would-be com-

municator and the context in which his or her conduct

Flag Desecration: A Case Study in the Roles of Categoriza-

tion and Balancing in First Amendment Analysis, 88 HARV.

L. REV. 1482, 1495 (1975) (‘‘The O’Brien Court thus quite

wisely dropped the ‘speech-conduct’ distinction as quickly as

it had picked it up.’’).

The theoretical objections to a speech-conduct distinction

have been noted by several commentators. See, e.g., Baker,

Scope of the First Amendment Freedom of Speech, 25

U.C.L.A. L. REv. 964, 1010 (1978) (“If the distinction is

between ‘expressing’ and ‘doing,’ most conduct falls into both

categories.”) ; Ely, supra, at 1495 (“Attempts to determine

which element ‘predominates’ will . . . inevitably degenerate

into question-begging judgments about whether the activity

should be protected”); Henkin, The Supreme Court, 1967

Term—Foreword: On Drawing Lines, 82 HARV. L. REV. 63, 79

(1968) (“Even singular, idiosyncratic forms of expression

can prove no less articulate, as when Simeon spent his days

sitting on a pillar in the desert or the King of Denmark wore

a six-pointed star.”’) ; Note, Symbolic Conduct, 68 CoLUM. L.

REV. 1091, 1108 (1968) (‘‘Recent work in communications

theory underlines the connection between free choice of the

medium of communication and freedom of expression.’’).

Even Professor Emerson, a leading proponent of the speech-

action distinction, acknowledges that ‘“‘the clearest manifesta-

tion of expression involve[s] some action, as in the case of

holding a meeting, publishing a newspaper, or merely talk-

ing.”” T. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION

80 (1970).

15a

takes place. In Spence, for example, the Court held that

displaying the American flag with an attached peace

symbol in the context of demonstrations against the

bombings of Cambodia and the Kent State killings:

was not an act of mindless nihilism. Rather, it was

a pointed expression of anguish by appellant about

the then-current domestic and foreign affairs of his

government. An intent to convey a particularized

message was present, and in the surrounding circum-

stances the likelihood was great that the message

would be understood by those who viewed it.

Id. at 410-11 (emphasis added). This court has already

held that, within the context of an individual’s round-the-

clock vigil, sleeping could be taken as “sufficiently ex-

pressive in nature to implicate First Amendment scrutiny

in the first instance.” Abney, 534 F.2d at 985. In the

present case, within the context of a large demonstration

with tents, placards,* and verbal explanations,’ the com-

municative context is sufficiently clear that the partici-

pant’s sleeping cannot be arbitrarily ruled out of the

arena of expressive conduct.'*

4 See Photographs of 1981-82 CCNV demonstration dated

February 22, 1982, reprinted in RD 17: Declaration of Gabrial

Leanza, © 7, reprinted in RD 19.

*® See Second Declaration of Mitch Snyder, { 5, reprinted in

RD 15; Declaration of Gabrial Leanza, © 8, reprinted in RD

19.

** Although CCNV clearly evidences in its permit applica-

tion an intent to express a message through the protestors’

sleeping, it also documents a very functional view of sleeping:

that sleeping opportunities are vital to its demonstration in

order to make it possible for the homeless to attend. See

CCNV application to demonstrate filed September 7, 1982,

reprinted in RD 1, at 2. The government contended at oral

argument that CCNV had thus belied any true intent to com-

municate a message through the participants’ sleeping. But

we do not find the government’s argument to be so conclusive.

To the extent that we are assessing CCNV’s intent, and not

its skill in drafting documents, we cannot close our eyes to

the fact that CCNV’s application indicates that sleeping will

l6a

Indeed, we cannot understand how the government

can deny the indicia of political expression that permeate

CCNV’s pointed use of the simple act of sleeping. The

protestors choose to sleep, purposely across from the

White House and Capitol grounds, in sparsely appointed

tents which the Park Service has already designated as

undeniably “symbolic.” Their permit application states

that this conduct is intended to send the same message as

this court recognized was sent in CCNV’s 1981-82

demonstration: that the problems of the homeless will

not simply disappear into the night.’? Unlike the thou-

sands of homeless men and women whose nights are spent

on grates, in doorways, or in back alleys, these demon-

strators propose to sleep within the conspicuous context

of two organized demonstration sites that create a

backdrop—by the combined use of structures, explanatory

serve both an expressive and functional purpose. Moreover,

we note that CCNV need not prove the intent of its demon-

strators by any sort of preponderance of evidence. As we

indicate in note 31 infra, demonstrators should be held to

no higher standard than the advancement of a plausible con-

tention that their conduct is intended to, and in the context

of their demonstration likely will, express a message. In this

case, such a plausible contention is supplied by CCNV’s in-

tent to model this year’s demonstration after last year’s.

Despite what must surely have been the same sociological

realities of the homeless last year, the CCNV J court found

that sleeping in the tents in the winter of 1981-82 sent an

unmistakable message. 670 F.2d at 1217.

“ Although the CCNV I court did not decide the consti-

tutional issue, it is unclear how last year’s sleeping could

have been sufficiently expressive for the purpose of satisfying

the Park Service’s old policy criterion (“use of symbolic

campsites reasonably related to First Amendment activities,”

46 Fed. Reg. 55,959, 55,961 (1981) ), but remain insufficiently

expressive to fall within the first amendment this year. As

CCNV indicates in its 1982 application, the demonstration

planned for this year is modeled after last year’s demonstra-

tion. See CCNV application to demonstrate filed September

7, 1982, reprinted in RD 1, at 2.

l7a

signs, and verbal discourse—to ensure that the message

sought to be sent by the demonstrators’ conduct will, in

all likelihood, be received. True, CCNV has devised a

means of expression that also serves to provide the pro-

testors with the “luxury” of a blanket and a bit of ground-

Space, within a tent, with which to pass a winter’s night.

But for those genuinely homeless persons who choose to

forsake temporarily their grates and doorways for these

tents, the communicative dimension of the sleeping in this

demonstration is not overshadowed by the simultaneous

provision of a single amenity. The first amendment is not

so rarefied that it cannot accommodate within its scope

the conduct of these demonstrators who use their bodies

to express the poignancy of their plight.

We add, moreover, that even were we not to focus on

the peculiarly expressive nature of sleeping, first amend-

ment scrutiny would still be implicated. This conclusion

stems from the fact that the protestors’ purpose, whether

asleep or awake, is to maintain a “symbolic presence that

makes more visible and concrete the results of [ presi-

dential and congressional] inaction” on the conditions of

the homeless. See CCNV application to demonstrate filed

September 7, 1982, reprinted in RD 1, at 2. In short, the

demonstrators seek to create an inescapable night-and-day

reminder to the nation’s political leadership that homeless

persons exist. Given this undeniable intent, and the con-

textual fact that the demonstration will take place at the

seat of our national government, it is clear that CCNV’s

proposed “presence” is intended to be expressive regard-

less of whether the demonstrators sit down, lie down, or

even sleep during the course of the demonstration. Thus,

whatever the particular form of the protestors’ presence

at night, their presence itself implicates the first amend-

ment. In this respect, CCNV’s twenty-four hour presence

is entitled to the same first amendment protection as a

vigil. Although not as small, stylized, or silent as the “re-

proachful presence” in Brown v. Louisiana, 383 U.S. 181,

l&Sa

142 (1965) (siient civil rights vigil in a segregated public

library), it is identical in both concept and purpose to

such conduct. See United States v. Abney, 534 F.2d 984

(D.C. Cir. 1976) (sleeping as part of a vigil in Lafayette

Square entitled to first amendment scrutiny in the first

instance).

We wish to make clear, however, that by holding

sleeping to be expressive conduct within the context of

this particular demonstration, we reject two subsidiary

arguments urged on us by CCNV. First, we reject

CCNV’s contention that sleeping in its demonstration is

uniquely deserving of first amendment protection because

it directly embodies the group’s message that homeless

people have no place else to sleep.'* Under CCNV’s dis-

tinction, a group with a “no-place-to-sleep” message (such

as the homelessness of refugees) could express it by de-

liberately sleeping, but a group with a different message

(such as opposition to the nuclear arms race) could not

sleep. Such a distinction is impermissible, however, be-

cause it would require the government to draw distinc-

tions among groups desiring to express themselves through

sleeping depending on the subject matter or content of

their message and its alleged relationship to sleep, some-

thing the first amendment is designed to prevent. See,

e.g., Consolidated Edison Co. v. Public Service Com-

mission, 447 U.S 530, 5386 (1980); L. TRIBE, AMERICAN

CONSTITUTIONAL LAW § 12-2, at 580 (1978). Second, we

also reject CCNV’s argument that its sleeping must be

protected because it is the most effective means by which

the group can convey its message.’* The first amendment

does not guarantee individuals access to the most ef-

fective channels of communication. See, e.g., Adderley v.

Florida, 385 U.S. 39, 47-48 (1966). On the other hand,

'S Appellants’ Reply to Opposition to Appellants’ Emergency

Motion for Injunction Pending Appeal and Opposition to

Appellants’ Motion for Summary Affirmance 20.

1 Appellants’ Reply, supra note 18, at 12-13.

(

19a

the fact that CCNV’s manner of expression may turn out

to be quite effective does not make it any the less

“speech.” 7°

C. The Regulation as Applied

That CCNV’s conduct comes within the scope of the

first amendment, however, only begins our constitutional

analysis. In United States v. O’Brien, 391 U.S. 367

(1968), the Supreme Court noted 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.” Jd. at 376.

The O’Brien Court then established that a governmental

interest may be sufficiently justified

if it is within the constitutional power of the Gov-

ernment; if it furthers an important or substantial

governmental interest; if the governmental interest is

unrelated to the suppression of free expression; and

if the incidental restriction on alleged First Amend-

ment freedoms is no greater than is essential to the

furtherance of that interest.

Id. at 377. In short, O’Brien requires us to engage in a

balancing of first amendment freedoms and their societal

*° Indeed, as Professor Tribe indicates, there is an identi-

fiable interest in according unorthodox modes of expression

first amendment protection:

If only orthodox modes of expression were protected,

“the old saw that familiarity breeds contempt,” .. . might

mean that truly ejfective communication would be left

undefended by the first amendment. Moreover, ... laws

which leave unorthodox media defenseless in effect favor

orthodox messages...

L. TRIBE, AMERICAN CONSTITUTIONAL LAW § 12-20, at 685

n.12, (quoting Ely, supra note 13, at 1489) (emphasis in

original).

20a

costs *’ that is structured to place a thumb on the first

amendment side of the scales.*?

In approaching this task, we are mindful that CCNV

seeks a permit for the exercise of first amendment rights

on public parkland whose use for communication is of

special importance:

There is an unmistakable symbolic significance in

demonstrating close to the While House or on the

Capitol grounds which, while not easily quantifiable,

is of undoubted importance in the constitutional bal-

ance. Although this theory has been used to justify

demonstrations near state capitols as well, see Ed-

wards v. South Carolina, 372 U.S. 229 (1963), it is

in Washington—where a petition for redress of na-

tional grievances must literally be brought—that the

theory has its primary application.

Women Strike for Peace v. Morton, 472 F.2d 12738, 1287

(D.C. Cir. 1972) (Wright, J., concurring). As the Su-

preme Court added in Grayned v. City of Rockford, 408

U.S. 104, 115 (1972), “[t]he right to use a public place

for expressive activity may be restricted only for weighty

reasons,”

The Park Service argues that its prohibition of CCNV’s

sleeping in the symbolic tents is justified because such

activity could: (1) deprive others of the use of nationally

significant space; (2) cause significant damage to park

resources; (3) create serious sanitation problems: (4)

seriously tax law enforcement resources; and (5) increase

*1 “The basic issue in all such cases is how much the First

Amendment requires society to give up in the interest of

communication—that is, what price we are willing to put

on free speech.” Women Strike for Peace v. Morton, 472

F.2d 1273, 1284 (D.C. Cir. 1972) (Wright, J., concurring).

*2 The metaphor of placing a judicial thumb on the first

amendment side of the scales may be attributed to the genius

of Professor Harry Kalven. See Kalven, The Concept of the

Public Forum: Coz v. Louisiana, 1965 Sup. Cr. REv. 1, 28.

Zla

requests for such activity in connection with other demon-

Strations that would, in turn, create pressure from non-

demonstrating visitors for similar accommodations. 47

Fed. Reg. 24,302 (1982). These interests are identified

by the Park Service in its brief in this case 2? and were

also identified in its 1982 rulemaking to justify the flat

prohibition of “camping.” /d. “Camping,” however, in-

cludes such non-sleeping activities as making fires, dig-

ging, earth breaking, and cooking. 7d. at 24,305. Be-

cause CCNV neither seeks to do any of these activities,

nor requests permission to establish medical or sanitation

facilities, to store personal belongings,?® or even to serve

food,** the government’s interests must be weighed against

only that activity which CCNV seeks to do: sleep within

tents that they have been given permission to erect 2’ and

at which they have been allowed to maintain a twenty-

four hour presence.

*8 Appellees’ Response in Opposition to Appellants’ Emer-

gency Motion for Injunction Pending Appeal 8-9.

** See CCNV application to demonstrate filed September 7,

1982, reprinted in RD 1, at 2.

** See Letter from Mitch Snyder to Park Service dated

March 5, 1982, reprinted in RD 19, at 1,

6 See CCNV application to demonstrate filed September 7,

1982, reprinted in RD 1, at 2.

*7 CCNV has never maintained that it needs or desires to

use cots in these symbolic campsites. See December 5th Decla-

ration of Mitch Snyder, { 5, reprinted in RD 21. We note

that CCNV used bedding materials (blankets) last vear and

that it is quite likely that it will do so again. This use of

bedding is one of the indicia the Park Service employs to

determine if “camping” is taking place. See 36 C.F.R.

§§ 50.19 (e) (8), 50.27 (a) (1982). We hold, however, that in

the context of sleeping in tents, the government has no dis-

cernible reason to prohibit such bedding; bedding in a tent

requires no additional ground space, is out of view, and has

no connection to any of the other interests asserted by the

government in this case—sanitation facilities, law enforce-

ment personnel, or living accommodation subsidies.

22a

This is not to say, however, that the government’s

interest in prohibiting expressive sleeping at symbolic

campsites that is part of a demonstration must be weighed

in a vacuum. In Heffron v. International Society for

Krishna Consciousness, 452 U.S. 640 (1981), the Supreme

Court held that the government’s interest in prohibiting

first amendment activity must be assessed not in terms of

letting just one group pursue the activity but in terms

of letting all similarly situated groups do so. Id. at 654.

Transposed to the first amendment activity involved in

this case, therefore, Heffron requires us to determine if

the government’s interests in park preservation, law en-

forcement, and the like (outlined above) are furthered by

prohibiting expressive sleeping by all individuals or groups

similarly situated to CCN V—that is, by all those who

wish to engage in sleeping as part of their demonstration

and have been granted renewable permits to demonstrate

on a twenty-four hour basis on sites at which they have

also been allowed to erect temporary symbolic structures.

The dissent insists that we weigh the government’s in-

terests in prohibiting sleeping by all groups—whether for

first amendment purposes or not—lest we “nickle and

dime every regulation to death.” Dissenting Opinion at

17. The dissent’s addition of makeweights to the gov-

ernment’s side of the balance, however, shortchanges the

first amendment’s premium on precision. Here, the Park

Service has already established a renewable permit pro-

cedure that limits the number of people who are allowed

to demonstrate or te erect symbolic structures. The in-

terests of people who do not possess a permit are simply

not at issue in this case.

Having properly focused the inquiry, it is difficult to

imagine how the application of the Park Service’s regula-

tions to groups similarly situated to CCNV will further

any important interest. Because such groups are already

allowed to erect tents and maintain an all-night presence

during which time they may sit, stand, or even lie down

23a

in the tents, there are no incremental savings of park

resources, sanitation facilities, or law enforcement per-

sonnel to be gained by proscribing only sleep. Indeed, al-

lowing an all-night presence by wakeful protestors would

seem to tax sanitation facilities, law enforcement per-

sonnel, and the park resource itself to a greater extent

than would allowing those same protestors simply to sleep.

Our review of the prefatory rationale to the revised

regulations reveals at most only one attenuated govern-

mental interest in precluding CCNV’s demonstrators from

sleeping:

Experience with administering the court’s decision

allowing sleeping has revealed that sleeping activity

by demonstrators expands to include other aspects

of living accommodations such as the storage of

personal belongings and the performance of neces-

sary functions which have converted the sleeping

area into actual campsites.

47 Fed. Reg. at 24,301. But this justification must be

found wanting under O’Brien’s “no greater [restriction]

than is essential” test; any interest in preventing other

“camping” activity can be furthered by less restrictive

means.** Here, the Park Service’s renewable permit pro-

*8 It has been suggested by some that the Supreme Court in

Heffron v. International Soc. for Krishna Consciousness, 452

U.S. 640 (1981), signaled a departure from the less restrictive

means test of O’Brien. See Note, 61 NEB. L. REV. 167, 182-

86 (1982). Compare Tacynec v. City of Philadelphia, 687

F.2d 793, 797-98 (3d Cir. 1982) with New York City Unem-

ployed and Welfare Council v. Brezenoff, 677 F.2d 232, 237

(2d Cir. 1982). We find, however, that the majority in

Heffron did apply the test to the regulation of ISKCON’s

activities. See 452 U.S. at 654. The Court examined the

alternatives put forward by ISKCON—penalizing disorder,

‘limiting the number of people authorized to conduct the ac-

tivity, restricting the activity to certain locations within the

forum—and concluded that “it is quite improbable that the

alternative means . . . would deal adequately with the prob-

lems posed ....” Jd. Such is not the case here; the alterna-

tive put forward in Heffron itself, for instance, would better

24a

cedure provides a mechanism whereby permits can be re-

voked if illegal activities occur. See 36 C.F.R. § 50.19(f)

(1982) *

The government’s interest in preserving parkland for

the use of others is also not furthered by its ban on sleep.

If anything, the nighttime enjoyment of Lafayette Park

and the Mall by nondemonstrators would probably be en-

hanced if the 150 CCNV demonstrators were asleep.

Because CCNV has already been granted a renewable

seven-day, twenty-four hour permit to demonstrate at

its two discrete sites, a ban on sleeping simply does not

preserve those parts of the parks for the use of others.

To the extent that other demonstrators wish to use the

space temporarily allocated to CCNV, the Park Service’s

permit procedures already provide for nonrenewal of

CCNV’s weekly permit. See id. § 50.19(e) (5).

We are next urged to consider the government’s interest

in preventing “pressure” for similar living accommoda-

tions from nondemonstrating visitors to Washington, D.C.

47 Fed. Reg. at 24,302. As a practical matter, we seriously

question whether there is a large market for living ac-

commodations in sparse tents on the Mall, in the winter,

without heating, cooking, medical, or sanitation facilities.

Even assuming that such a market is theoretically pos-

serve the Park Service’s interests than a total ban on sleep

and would be less restrictive of the first amendment activity

proposed. See infra notes 29 & 32.

* In addition, we note that the Park Service surely has

the ability to police demonstrations against the expansion of

activities such as cooking, making fires, etc. Indeed, many

pages of the government’s brief are taken up with illustra-

tions of how it has enforced the sleeping ban against other

groups since the new regulations came into effect. Appellees’

Response, supra note 23, at 10-13. It would appear that the

Park Service could simply shift its personnel from nighttime

sleep patrols to policing against these other activities, there-

by assuring the protection of parkland at little, if any, addi-

tional expense.

25a

sible, we note that such an “undifferentiated fear or appre-

hension of disturbance is not enough to overcome the right

to freedom of expression.” Tinker v. Des Moines School

District, 393 U.S. 508, 508 (1969). As a constitutional

matter, moreover, the Park Service is free to apply its

anti-camping regulations to such nondemonstrators who,

by definition, have no first amendment interests to “bal-

ance” against the regulation. We add that any govern-

mental interest in not treating certain groups—even those

exercising first amendment rights—differently from others

would appear to be marginally insignificant. Demon-

strators are already accorded privileges not permitted

nondemonstrators, such as the right to stay in the park

all night despite the anti-loitering regulation, 36 C.F.R.

§ 50.25(k) (1982), and the right to erect temporary

structures, id. § 50.19(e) (8). The additional privilege of

sleeping at the demonstration site as part of the demon-

stration would seem of minimal consequence to the dis-

tinctions on treatment already drawn.

Finally, the government suggests that requests for con-

venient camping by persons pursuing speech activities

would increase. If by this the government means that ad-

ditional camping requests will be made by those who

merely wish to sleep in parks near the sites of daytime

demonstrations, such requests may be denied. It would

seem an entirely permissible distinction to permit sleep-

ing that is expressive as part of a twenty-four hour vigil,

but not to permit sleeping that is a mere convenience to

daytime demonstrators. See Quaker Action Group v. Mor-

ton, 402 U.S. 926 (1971); VVAW, 506 F.2d 53 (D.C.

* Such a fear would be truly undifferentiated because any

increase in requests for living accommodations by nondemon-

strators simply could be refused by the Park Service. Ac-

cordingly, this wholly insubstantial fear of “requests” is of

far less significance than the real possibility in Heffron that

a significant influx of people with a valid right of access to a

state fair would flood the walkways of an already crowded

fairgrounds with leafletters and solicitors. 452 U.S. at 652-538.

26a

Cir. 1974).*' If, on the other hand, the government antic-

ipates an increase in applications for symbolic campsites,

with requests for permission to sleep during all night

demonstrations, it may not deny all such requests merely

because it expects a large number of people to apply.

Our holding does not mean, however, that the Park

Service must grant every request, at any time, for any

number of temporary structures or sleepers. Merely be-

cause we have held that expressive sleep may not be pro-

hibited on the basis of the message conveyed does not

mean that all forms of regulation are foreclosed to the

government.** Thus, the government may use valid,

_ *! We reiterate that the Park Service is not allowed to de-

cide whether it sees a sufficient relationship between the mes-

sage of the would-be demonstrators and their asserted ex-

pressive interest in sleeping. See supra text at 13. Instead, it

need only determine whether the demonstrators seek to sleep

for expressive purposes, as opposed to sleep for mere conveni-

ence or recreation. We note that the Park Service already

makes this same determination in evaluating requests for

temporary structures “for the purpose of symbolizing a mes-

sage.” 36 C.F.R. § 50.19(e) (8) (1982). Accordingly, we do

not expect the Park Service to become enmeshed in any in-

depth probe of the requesters’ ulterior motives. Rather, we

expect that all plausible requests will be accepted at face value

and processed by the Park Service with the same degree of

respect and efficiency that the Park Service has processed

demonstrators’ requests for temporary symbolic structures.

And, we add, that any permits for symbolic sleeping which are

abused by demonstrators may, as always, be rescinded.

*2 The dissent inexplicably assumes that the only less re-

strictive means for furthering the government's interests in

park management is to discriminate among applicants for

“camping” permits on the basis of subject matter or content—

something that neither we, nor the dissent, countenance as

a legitimate governmental option. Whatever the dissent’s

purpose in knocking down this straw man, it nowhere else

discusses the obvious alternative of revoking a demonstra-

tion’s permit should its participants engage in non-sleep

“camping” activities. See supra note 29. Indeed, unlike the

situation in Heffron where the Court found that alternative

27a

content-neutral, time, place, or manner regulations pro-

vided that such regulations are both reasonable and nar-

rowly tailored to further the government’s substantial in-

terests. See Police Department of Chicago v. Mosley, 408

U.S. 92, 101 n.8 (1972); Grayned, 408 U.S. at 115. The

government may, for example, limit the number of tents,

the size of tents or campsites,** and the number of per-

sons allowed to sleep.* It may continue its current prac-

tice of issuing permits on a renewable weekly basis, under

which one group’s permit will not be renewed if another

group requests the space, and under which the permit may

be revoked if the demonstrators engage in such prohibited

activities as cooking or making fires. It may set aside

means for crowd control could not deal adequately with the

potentially large numbers of state fair solicitors, 452 U.S. at

654, both the government and the dissent have underscored

the potential effectiveness of permit revocation as a means of

enforcing the Park Service’s anti-camping regulations in

Lafayette Park and on the Mall:

Furthermore, in the one case where the Park Service

detected a violation of the regulations, it demanded com-

pliance and the next day, after similar violations occurred,

revoked the demonstration permit for non-compliance

with the regulations and conditions of the permit. A

standard of reasonable, even-handed enforcement calls

for no more.

Dissenting Opinion at 9; see a Appellees’ Response, supra

note 23, at 10-13.

38 See Women Strike for Peace, 472 F.2d at 1290 (“It would

be permissible, for example, . . . to regulate the size or

aesthetic character of displays built on park land.”) (Wright,

J., concurring).

“™* We note that both CCNV and the government indicated

some flexibility at oral argument as to the overall number of

demonstrators. While we do not hold that CCNV, or any

group, has a right to as many round-the-clock protestors as it

likes, we also require that the Park Service, in setting any

limitations, do so with an eye to the first amendment values

which we have identified in this opinion.

28a

certain times when no demonstrations are allowed in

order to accommodate other particularly heavy uses of

the parks. See 36 C.F.R. § 50.19(d) (1), (e) (8) (1982).

And possibly, it may be able to set aside some of the more

serene areas of the Memorial Core area as “sanctuaries”

at which round-the-clock demonstrations are never com-

patible.*

In sum, the Park Service has failed to demonstrate that

the government’s interests will be furthered by keeping

these putative protestors from the sleeping activity which

is the sole point in dispute. We reverse, therefore, be-

cause the indiscriminate line the government seeks to

draw against sleeping cannot pass first amendment mus-

ter. Accordingly, we grant CCNV the injunctive relief it

seeks, enjoining the Park Service from prohibiting sleep

at CCNV’s demonstration.

CONCLUSION

The Mall and Lafayette Park are special places in the

stockpile of American fora. They are at the very heart of

the nation’s capital where ideas are to be expressed and

grievances are to be redressed. Thus, the focus of this

case is the symbolic locus of the first amendinent. This

explains the series of understandable difficulties that the

In Washington Free Community, Inc. v. Wilson, 334

F. Supp. 77 (D.D.C. 1971), the court held that the govern-

mental interest in protecting the serenity of such places as

the Lincoln and Jefferson Memorials may be greater than its

interest in promoting the serenity of such busy places as

Dupont Circle, Farragut Square, or Lafayette Park. Jd. at

82. Without expressing any views on the precise calculus of

interests as to any one area, we note that the Memorial Core

area in Washington, D.C. is comprised of discrete, and often

quite different, parts. Although we think that the public’s

interest in expressing its views are particularly strong on the

Mall and in Lafayette Park, see supra text at 14, the Park

Service need not treat the Memorial Core area as a mono-

lithic whole.

29a

Park Service has had in trying to fashion rules that meet

the multifarious demands put upon these unique public

lands. It also rationalizes the number of times that this

court has visited the problems of the Mall, Lafayette

Park, and the first amendment.

But the uniqueness does not justify an abandonment

of either first amendment principles or legitimate govern-

ment interests in managing these public places. Consider-

ing these two imperatives, we reach several conclusions.

First, the Park Service regulations are facially valid

and can be employed in the management of the Mall and

Lafayette Park.

Second, the application of these regulations to specific

fact situations implicating the first amendment must be

measured against the government’s interest in limiting

certain activities and the means it employs to further

those interests. It is in this respect that the Park Service

cannot be upheld in its decision that tenting is all right,

lying down is all right, maintaining a twenty-four hour

presence is all right, but sleeping is impermissible.

Finally, the Park Service cannot mechanically apply its

regulations to requests from groups seeking to exercise

first amendment rights through sleeping. Although the

government can and must retain a “content-neutral”

obliviousness to the kind of message which a particular

group seeks to express through sleeping, the Park Service

cannot be oblivious to the implications of the first amend-

ment—or the attendant complications. Each distinction

and each line the Park Service draws in such applications

must bear close scrutiny to ensure that symmetry of man-

agement does not crowd out first amendment claims.

We doubt that this will be the last occasion that this

court will have to undertake the difficult reconciliation of

first amendment activities with the necessity for order

30a

and management in the Mall and Lafayette Park. In a

pluralistic society boasting of its free expression, we can

expect no less.** :

ie It is so ordered.

*6In his separate dissenting statement, Judge Scalia at-

tempts to extract a simple rule from a complex web of cases.

His efforts are confounded for at least two reasons. First,

to determine if conduct is sufficiently expressive to implicate

first amendment scrutiny, the Supreme Court has instructed

us to look to the context in which the conduct takes place

and the intent with which it is carried out. Spence v. Wash-

ington, 418 U.S. at 410-11. It is not possible to resolve the

question merely by stating, as does Judge Scalia, that “[i]t

is difficult to conceive of any activity inherently less expres-

sive than the act (if it may be called that) of sleep.” The

same judgment could also be made about the act of sitting

down in Brown v. Louisiana, 383 U.S. 131 (1966) (the

library sit-in case), and only proves Professor Ely’s warning

that such intuitive conclusions “inevitably degenerate into

question-begging judgments about whether the activity should

be protected,” see Ely, supra note 13, at 1495. Second, Judge

Scalia collapses the four-pronged O’Brien test into a one-

pronged standard. But in O’Brien the Supreme Court was

analyzing a law that it found not to have been directed

against the communicative nature of draft card burning and

still felt it necessary to consider the extent to which substan-

tial governmental interests were furthered and the possibil-

ity of using less restrictive means. The fact that the Spence

Court invalidated the application of a statute which was

directed against the communicative nature of flag displays,

without reaching the O’Brien test, hardly suggests that

O’Brien was, sub silento, overturned. Judge Scalia’s attempt

to restrict O’Brien to “speech-plus” cases not only overlooks

the wholly nonverbal conduct for which O’Brien was con-

victed but also the values underlying the first amendment.

To suggest that individuals can be punished for expressive

nonverbal conduct because they violate a “neutral” law—

regardless of whether the application of that law to them is

necessary to further an important governmental interest—

puts a premium on spoken or written “speech” that has no

bearing on the values of self-expression and contribution to

the marketplace of ideas that give the first amendment mean-

ing. Judge Scalia’s preoccupation with these types of ‘‘speech”’

ignores the fact that the first amendment’s values may be

furthered by nonverbal, as well as verbal, expression.

3la

ROBINSON, Chief Judge, and WRIGHT, Circuit Judge,

concurring: We join in reversal, and in Judge Mikva’s

opinion with a caveat to one branch of its First Amend-

ment analysis. As the opinion explains convincingly,

sleeping in tents at the demonstration sites is a vivid and

forceful component of the public message the demonstra-

tors seek to convey; it summons First Amendment scru-

tiny because, gua sleeping, it is expressive. We intimate

no view as to whether sleeping would implicate the First

Amendment were it not to add its own communicative

value to the demonstration.

32a

EDWARDS, Circuit Judge, concurring: For the reasons

set forth below, I would reverse the judgment of the Dis

trict Court. In some significant respects, I concur in

Judge Mikva’s opinion. I write separately, however, be-

cause I view the case from a somewhat narrower perspec-

tive than does he.

I find this case to be both difficult and confounding in

several respects. First, it is not entirely clear to me why

the appellants have pursued this litigation. While I am

not prepared to say that this suit was ill-advised, I remain

troubled by certain theoretical inconsistencies in the ap-

pellants’ presentations to this court, the trial court, and

in their application to the National Park Service. It

would seem to me that when one pursues a claim involvy-

ing important constitutional rights in areas affected by

amorphous legal doctrine, the litigation should be founded

on some clear, consistent, and tenable thesis. To insist

upon a judicial resolution of this case, given the facts and

record at hand, arguably suggests a lack of common sense.

his brings me to my second concern, namely, that this

may be one of those “hard cases” that has a high potential

to preduce “bad law.” The diverse range of judicial opin-

ions alone certainly suggests that, at a minimum, this is

a case that finds no easy or consensus solution in the

courts. And it is not entirely clear to me what has been

achieved by this rather exhausting expenditure of judicial

resources. Nevertheless, as a judge, my responsibility is

to decide cases that are properly before the court, how-

ever questionable I may view the pursuit of litigation.

I therefore turn to that task.

II.

The opinions of Judges Wilkey and Mikva set forth

fully the facts and history of this litigation, so I will

not dwell on these details. In my view, the appellants’

most potent challenge to the National Park Service’s pro-

33a

hibition against camping is that the revised regulations,

as applied to bar one aspect of their demonstration, in-

fringe upon their First Amendment rights. To address

this challenge, it is necessary to determine whether sleep-

ing under the circumstances of this case constitutes

“‘speech’”’ protected by the First Amendment. I believe

that it does, and that the Park Service's total ban against

sleeping cannot withstand scrutiny under the test set forth

by the Supreme Court in United States v. O’Brien, 391

U.S. 367, 376-77 (1968).'

The determination whether the challenged regulations

infringe upon the appellants’ First Amendment rights de-

pends largely on one’s characterization of their proposed

activity. In some cases, sleeping in the park may be

wholly facilitative. Here, it is undeniably true that the

appellants’ sleeping is in part facilitative; the appellants

have stated, numerous times, that sleeping is necessary to

attract demonstrators and capture media attention. But

there is more to it than that, for “in this case sleeping

itself may express the message that these persons are

homeless and so have nowhere else to go.” Community for

Creative Non-Violence v. Watt, 670 F.2d 1213, 1216-17

(D.C. Cir. 1982). A nocturnal presence at Lafayette Park

or on the Mall, while the rest of us are comfortably

couched at home, is part of the message to be conveyed.

These destitute men and women can express with their

bodies the poignancy of their plight. They can physically

demonstrate the neglect from which they suffer with an

articulateness even Dickens could not match.

1 Judge Wilkey correctly acknowledges that the alleged

“camping” in this case “is limited to such activities as crect-

ing tents or other structures, laying out blankets, sleeping

bags, and other bedding materials, and sleeping.” ‘[C]ock-

ing, building fires, and digging latrines” are not called into

question in this case because the appellants do not seek to

engage in such activities. Indeed, the only matter in dispute

is sleeping; the Park Service has not sought to bar the ap-

pellants from erecting tents, laying out blankets or bedding,

or even from maintaining a 24-hour presence.

34a

The Supreme Court has not bound the First Amend-

ment to any simplistic speech/conduct distinction. It has

extended heightened scrutiny to governmental regulation

of a wide variety of expressive activities, including leaf-

letting, marching, wearing armbands, burning draftcards,

and dancing. The sleeping proposed by the appellants is,

in the circumstances of this case, every bit as expressive

as those activities. In Spence v. Washington, 418 U.S.

405 (1974) (per curiam), the Supreme Court afforded

First Amendment protection to a peace symbol attached to

an American flag in the context of demonstrations

against the bombings in Cambodia and the Kent State

killings. “An intent to convey a particularized message

was present, and in the surrounding circumstances the

likelihood was great that the message would be understood

by those who viewed it.” Jd. at 410-11. Similarly, in this

case there is both a “‘particularized message” appellants

wish to convey by sleeping in the park and a reasonable

expectation that the message will be understood by those

who view it.

Thus, sleeping in this case is symbolic speech within

the pale of the First Amendment. Accordingly, the regu-

lations at issue here, which have been applied as a total

ban against the appellants’ sleeping in the park, must

satisfy the O’Brien test in order to pass constitutional

muster.

ITI.

In Part III.A. of his opinion, Judge Wilkey assumes

(correctly, I believe), that the sleeping proposed by the

appellants is properly considered “speech” that is pro-

tected by the First Amendment. To the extent that he

equivocates on this point, I disagree with the suggested

analysis.

As I have already suggested, Spence v. Washington

establishes the applicable framework for determining

whether activity is “speech” protected by the First

Amendment. Spence, which was decided six years after

O’Brien, also clearly answers the question intimated in

35a

O’Brien regarding the “variety of conduct [that] can

be labeled ‘speech.’” United States v. O’Brien, 391 U.S.

at 376.. The Spence test ensures that the “variety of

[such] conduct” is not “limitless.” /d. Thus, if Judge

Wilkey means to rely on a passing statement by the

O’Brien Court to suggest that we should draw artificial

lines between “speech” and “conduct” to discern pro-

tected activity, I would reject this as a flawed analysis.

As has been aptly noted:

A constitutional distinction between speech and

nonspeech has no content. A constitutional distince-

tion between speech and conduct is specious.

There is nothing intrinsically sacred about wagging

the tongue or wielding a pen; there is nothing in-

trinsically more sacred about words than other sym-

bols. Other kinds of communication are also effec-

tive—. . . saluting a flag, kneeling in worship, hold-

ing a beloved hand. Even singular, idiosyncratic

forms of expression can prove no less articulate, as

when ... the King of Denmark wore a six-pointed

star.

The Constitution protects freedom of “speech,”’

which commonly connotes words orally communi-

cated. But it would be surprising if those who

poured tea into the sea and who refused to buy

stamps did not recognize that ideas are communi-

cated, disagreements expressed, protests made other

than by word of mouth or pen.

Henkin, The Supreme Court, 1967 Term—Foreword: On

Drawing Lines, 82 Harv. L. REV. 63, 79 (1968) (foot-

note omitted).

I also find specious the argument that in order to judge

expressive activity of the sort here in question the gov-

ernment might be forced to draw distinctions among

groups depending on the content of their message. Any

such “content evaluation” by the government clearly is

prohibited under the First Amendment. But, as the

36a

Spence Court obviously recognized in adopting a contex-

tual approach, it is one thing for government officials to

determine whether a message is intended (and may rea-

sonably be understood as such) and quite another for

them to judge the substantiality or value of a given mes-

sage. The former determination, condoned by Spence, does

not involve any prohibited content evaluation.

IV.

Beyond his Part III.A., however, I agree with the ana-

lytical framework and mode of analysis adopted by Judge

Wiikey to determine whether the activity proposed by the

appellants is constitutionally protected. Excluding Part

III.A., my principal disagreement with Judge Wilkey con-

cerns the application of the “less restrictive alternative”

test, a matter to which I will turn shortly. There are

two other points of analysis at which we may part com-

pany; both deserve brief mention.

At one point in his opinion, Judge Wilkey suggests that

“[t]he convenience of the demonstrators and the media

value of their message will rival in importance the First

Amendment aspects of the camping and thereby further

diminish the claim that their First Amendment interest is

substantial relative to the government’s interest in pre-

venting camping generally” (emphasis added). I reject

this conclusion primarily because I can find no suggestion

in the case law that a court must weigh the facilitative

versus the expressive aspects of a speaker’s conduct to de-

termine the applicability of First Amendment rights. In

other words, a message is not less deserving of First

Amendment protection merely because the manner used to

express it serves other needs of the demonstrators. The

important questions are, simply, whether the demonstra-

tors intend to communicate a message and, viewed in con-

text, whether it is reasonably likely that passersby will

understand the message.

37a

Judge Wilkey also observes that “{c]amping in the

park ... is not a traditional form of speech.” To some

this might imply a sort of hierarchy of protection resting

on the form of expression. Although I do not read Judge

Wilkey’s opinion to embrace this suggestion, I would cate-

gorically reject any such implication.

Apart from these two notes, one of disagreement and

one of clarification, and excluding his Part III.A., I ac-

cept Judge Wilkey’s analytical framework for an assess-

ment of the constitutional interests in this case. When we

consider the question whether there exist any less re-

strictive alternatives to a total ban on sleeping, however,

I part company with the conclusions reached by my

colleague.

If I read his opinion correctly, the essence of Judge

Wilkey’s argument is that the only feasible alternatives

available to the government are to permit all camping or

to ban all camping.’ Thus, he concludes:

If it were possible to accommodate [the appellants’ ]

most effective mode of expression without exposing

the parks to the harms anticipated by the regula-

tion, then the First Amendment might well require

that accommodation. The crucial and dispositive as-

pect of this case is that there is no possibility of a

constitutionally acceptable less restrictive alterna-

tive. The Park Service must either allow all camp-

ing or abide by a flat-out ban.

(emphasis in original) .*

* In this case—because the appellants do not seek to engage

in certain “camping” activity and because the Park Service

does not seek to prohibit all forms of “camping” activity (see

note 1 supra)—sleeping and not full-scale camping is the

only issue in dispute. Thus, the reference to a total ban here

pertains solely to sleeping.

*I find no reason to decide whether “sleeping” is, as Judge

Wilkey says, the appellants’ “most effective mode of expres-

sion.” This is at best an arguable assertion and surely wholly

irrelevant to our inquiry in this case.

38a

Initially, I would note—consistent with the observation

of Judge Mikva—that the Park Service does not presently

impose a “flat-out ban” against all aspects of camping.

As Judge Wilkey acknowledges, the erection and use of

tents, coupled with a 24-hour presence, are integral as-

pects of camping. Nevertheless, they are not forbidden by

the regulations, at least where a symbolic purpose is

asserted.

More importantly, Spence’s very sensible contextual

standard for the identification of symbolic speech pro-

vides a ready basis for differentiating protected from un-

protected sleeping.“I have no doubt that the government

may forbid sleeping in the parks that is in no sense ex-

pressive. It is of course possible, as Judge Wilkey points

out, that some persons may fabricate an expressive pur-

pose for sleeping in the parks. I, for one, however, doubt

that hordes of tourists or others without an expressive

purpose will descend on the parks; more comfortable ac-

commodations are available elsewhere, and the permit ap-

plication process will surely screen out many individuals

who are unwilling to represent their true purpose in an

official proceeding.

Nevertheless, I am willing to concede, for argument’s

sake, that a substantial number of persons may wish to

sleep in the parks for assertedly expressive purposes. I do

not believe, however, that this negates the obligation of

the government to consider less restrictive alternatives to

a total ban against sleeping. Our Constitution will not

tolerate a total prohibition on the exercise of a constitu-

tional right merely because a large number of persons

wish to assert that right. Although reasonable time,

place, and manner restrictions may be appropriate, an

absolute ban on protected activity cannot be justified by

the possibilities that the activity will be extremely popular

or that some mischievous citizens occasionally will at-

tempt to deceive the Park Service into believing that their

conduct is expressive.

39a

Concededly, the Park Service has legitimate interests in

preventing some of the effects associated with widespread,

full-scale camping in certain parks. In recognizing this,

however, I stress that the government’s interest is not in

preventing sleeping per se, but in preventing the adverse

effects associated with camping. For example, the govern-

ment may legitimately seek to ensure that noncampers are

not deprived of use of the parks, to prevent damage to

park resources, and to minimize sanitation and law en-

forcement problems. But neither the District Court nor

the Park Service explored ways in which these interests

could be served through regulatory measures short of a

total ban on sleeping in the parks.

I believe that there are several reasonable time, place,

and manner restrictions that, if employed, would result in

regulatory alternatives less restrictive of demonstrators’

rights than a total ban against sleeping and, yet, still

would accommodate the significant governmental interests

at stake. For instance, in order to enforce legitimate

rules against fire building, cooking or storage of personal

belongings at a demonstration site, the Park Service may

easily use its permit revocation procedure, see 36 C.F.R.

§ 50.19(f) (1982), to revoke the permits of demonstrators

whose sleeping expands to these other impermissible areas

of nonexpressive activities. I believe, moreover, that the

Park Service may legitimately limit the number of per-

sons allowed to sleep in the parks at one time (to avoid

problems of health and congestion), and allocate the avail-

able space among competing groups on a first-come, first-

served basis. Government officials also may limit or pre-

vent the storage of personal belongings, and perhaps pre-

vent any individual from sleeping in the parks beyond a

specified, successive number of hours or days. This list,

of course, is not intended to exhaust the possibilities, but

I emphasize that any restrictions imposed by the Park

Service should be the least restrictive means by which the

government’s legitimate purposes can be attained.

40a

In short, I believe that the appellants’ proposed sleep-

ing is expressive in nature and that the Park Service has

not justified a total ban on that activity. Although a ban

on camping does serve legitimate governmental interests,

those interests can be protected by means less restrictive

of the First Amendment rights of the appellants and

other demonstrators. I would, therefore, reverse the de

cision of the District Court.

4la

GINSBURG, Circuit Judge, concurring in the judgment:

Judge Mikva’s opinion holds that the Park Service has

not adequately justified the prohibition of sleeping by

demonstrators granted permits to pitch sixty tents at

symbolic campsites and to maintain a round-the-clock

presence at those sites.' While I concur in the court’s

judgment, I find the case close and difficult.2 For the

reasons indicated below, I share Judge Edwards’ concern

' Mikva Opinion at 1, 20-21.

* Judge Mikva effectively describes CCNV’s position:

homeless people who sleep as part of their round-the-clock

protest against official neglect convey a message at jeast as

intelligibly as many marchers under banners or speakers from

soap boxes convey points of view: the CCNV demonstrators

show by their presence, awake and sleeping, that they have

nowhere to live. However, Judge Mikva rejects the terminal]

point of CCNV’s argument: the homeless speak when they

sleep, CCNV maintains, the nonhomeless generally do not;

because the homeless are different from demonstrators for

whom sleep facilitates, but does not also or as clearly embody

expression, decision of CCNV’s appeal is appropriately tied

to their special case. Judge Mikva declines to rest his de-

cision on this ground “because it would require the govern-

ment to draw distinctions . . . depending on the subject

matter or content of [a group’s] message, and its alleged

relationship to sleep, something the first amendment is de-

signed to prevent.” Jd. at 16. Most members of the court

concur in that view. See Dissenting Opinion of J udge Wilkey

at 9-10 [hereinafter referred to as Wilkey Opinion]. Judge

Mikva therefore proceeds, as J udge Wilkey observes, id., from

a determination that sleeping is indeed expressive in CCNV’s

case to the conclusion that sleeping must be allowed to “all

those who wish to engage in [it] as part of their demonstra-

tion and have been granted renewable permits to demonstrate

on a twenty-four hour basis on sites at which they have also

been allowed to erect temporary symbolic structures.” Mikva

Opinion at 20. The passage from the initial determination

that CCNV’s sleep is expression to the conclusion that al!

round-the-clock demonstrators with tents may sleep in them

is not a smooth one.

42a

that this case “has a high potential to produce ‘bad

aa **

That potential is revealed most conspicuously, I believe,

in the separate dissenting opinion of Judge Scalia. His

opinion would deny full free speech protection to any ex-

pression of ideas or feelings through symbols other than

words. According to Judge Scalia, only “spoken and writ-

ten thought” fall within the Constitution’s core guarantee

against government regulation “abridging the freedom of

speech, or of the press.”* Others have elegantly stated

why Judge Scalia’s narrow reading of the safeguard

placed first in the Bill of Rights, his separation of lan-

guage from other expressive symbols, will not do. I note

such commentary * in this statement and, to avoid length-

ening the packet of opinions, quote here only these rel-

evant lines: “The Constitution protects freedom of

‘speech,’ which commonly connotes words orally commu-

nicated. But it would be surprising if those who poured

3 Edwards Opinion at 1.

* But see Nimmer, Symbolic Speech, 21 U.C.L.A. L. REV. 29,

83-34 (1973):

It might be argued that “speech” within the meaning of

the first amendment should encompass only those particu-

lar expressions in which the symbols employed consist of

conventional words, . . . Most would agree that it is the

freedom to express ideas and feelings, not merely the

freedom to engage in verbal locutions, which constitutes

the core meaning of the first amendment. Holmes’ “free

trade in ideas” may not be reduced to mere trade in

words. It is the ideas expressed, and not just a particu-

lar form of expression, that must be protected if the

underlying first amendment values are to be realized.

(Emphasis in original; footnotes omitted.).

5 See particularly Kalven, The Concept of the Public Forum:

Cox v. Louisiana, 1965 Sup. Cr. REV. 1: HENKIN, The Su-

preme Court, 1967 Term—Foreword: On Drawing Lines, 82

Harv. L. REV. 68, 76-82 (1968).

43a

tea into the sea and who refused to buy stamps did not

recognize that ideas are communicated, disagreements ex-

pressed, protests made other than by words of mouth or

pen.”” Henkin, supra note 5, at 79. Under the First

Amendment the relevant inquiry should be “whether

meaningful symbols . . . are being employed by one who

wishes to communicate to others”; the extent of protec-

tion should not depend upon whether words, pictures, em-

blems, or other comprehensible means of conveying a mes-

sage are employed. Nimmer, supra note 4, at 61.

Numerous cases can be conceived to illustrate the ar-

bitrary, less-than-fully baked flavor of Judge Scalia’s

theory. For economy, I indicate one category of examples

in which his attempt at tight, tidy analysis does not yield

sensible results. Assume a municipality enacts an anti-

littering ordinance that prohibits distribution of unsolic-

ited materials to passersby in streets or other public

places. This ordinance is passed for health, safety, and

aesthetic reasons. A person hands out leaflets on a street

corner; the leaflets contain words conveying a political

message. Under Judge Scalia’s approach, one must bal-

ance the government’s interests in clean streets against

the leafleter’s First Amendment interest because the anti-

littering law, though aimed at the non-communicative

aspect of the activity, impinges on the distribution of

printed words, core “speech” for Judge Scalia.

A second person, on the same street corner, distributes

small paper American flags (on Memorial Day), red

poppies (on Veterans’ Day), yellow ribbons (while Amer-

ican hostages are being held in Iran), green ribbons

(while young blacks are being murdered in Atlanta), or

peanuts or jelly beans (during a heated presidential cam-

paign). The law as applied to this distributor, according

to Judge Scalia, would attract only minimal scrutiny be-

cause it is aimed at the non-communicative collateral

consequences of nonverbal, albeit expressive, symbols,

which are not “speech” under Judge Scalia’s theory.

Judge Sealia wonld therefore .nraanumah) aphald “ppl

44a

cation of the ordinance against this distributor because

it would meet the minimal rationality equal protection

standard.

The second distributor’s symbols, however, convey as

strong a message as spoken or printed words. That the

two distributors might be treated differently under Judge

Sealia’s theory strays far from “common and common-

sense understanding.” Scalia Opinion at 1. That the two

might be treated equally under Judge Scalia’s theory if

the second distributor prints a word—any word—on the

object distributed, demonstrates the ultimately untenable

character of the attempted distinction.

I am troubled too by an idea tried out tentatively in

Judge Wilkey’s dissenting opinion relating to the appro-

priate classification of the “free speech” interest asserted.

A workable approach to expressive symbols or conduct,

Judge Wilkey’s dissent suggests, might distinguish “tradi-

tional communicative activit[y]” (marching and picketing

are so described), from non-traditional, even if equally

communicative, activity (wearing armbands and display-

ing symbolic flags are cited in this category): all conduct

would count as “speech” sheltered from “proscription

specifically designed to suppress expressive connotation”;

only “traditional activities” would “qualify for purposes of

avoiding a general prohibition not directed at communica-

tive content.”* Case law does not so compartmentalize

conduct that has no purpose other than expression,’ and

* Wilkey Opinion at un. 33 & 34 and accompanying text;

cf. Ely, Flag Desecration: A Case Study in the Roles of

Categorization and Balancing in First Amendment Analysis,

88 Harv. L. REV. 1482, 1488-89 (1975).

*See Tinker v. Des Moines Indep. Community School

Dist., 393 U.S. 508, 508 (1969) (students wearing black

armbands to publicize their objections to the Vietnam war

were involved in the exercise of “direct, primary First Amend-

ment rights akin to ‘pure speech’ ”) : cf. Garner v. Louisiana,

368 U.S. 157, 201 (1961) (Harlan, J., concurring in the

indeomant) fJlaenk anawhen ont ss Ww pevicod SCR C“aLIUL «6S as

45a

I do not grasp the sense of, or the need for, the suggested

two-level approach.* Why should marching attract full

“free speech” protection while armband-wearing attracts

less complete insulation: why should courts stamp speak-

ing with one’s feet “traditional” but flying a symbolic

flag non-traditional? °

At the same time, I hesitate. more than Judge Mikva

and Judge Edwards do, to treat the on-site sleep of a

round-the-clock demonstrator as indistinguishable for the

purpose at hand from the soap box speech, leaflet distri-

bution, protest march, armband or flag display. CCNV’s

sleep may speak “poignantly” to passersby, but it is not

designed “100%” as expression.” It has a more commonly

much a part of the ‘free trade in ideas,’ . . . as is verbal

expression’’).

* See generally Henkin, supra note 5, at 76-82.

* Stromberg v. California, 283 U.S. 359 (1931), holding

unconstitutional a California prohibition on displaying a red

flag as a means of political expression, was among the early

cases acknowledging that “speech” may be nonverbal. Nine

years later, the Court declared peaceful picketing to publicize

a labor dispute constitutionally protected free speech. Thorn-

hill v. Alabama, 310 U.S. 88 (1940). The Court has not been

consistent in its descriptions of protest marches as a form of

“speech.” Compare Edwards v. South Carolina, 372 U.S. 229,

235 (1963) (march to State House reflected “an exercise of

. . . basic constitutional rights in their most pristine and

classic form”), with Cox v. Louisiana, 379 U.S. 559, 563

(1965) (picketing and parading described as “conduct mixed

with speech”). See generally Kalven, supra note 5.

° Cf. Ely, supra note 6, at 1495.

CCNY, in its permit request, acknowledged a non-communi-

cative, “living accommodation” facet of the sleeping it pro-

posed. Referring to CCNV’s experience the preceding year,

the request stated: “[A]bsent a survival-related reason for

being in Lafayette Park—something such as a meal or the

chance to sleep in relative warmth—they [the homeless] did

not and would not come.” Appellants’ Complaint, Exhibit A

at 2

- 46a

recognized aspect;'' sleep enables the round-the-clock

demonstrator to face the next day without exhaustion.

“Speech plus” is a label that has been misused in other

contexts,'* but CCNV’s case may be an instance in which

the description is appropriate.

‘1 The Court said of the flag display at issue in Spence v.

Washington, 418 U.S. 405 (1974), intended to protest the

invasion of Cambodia and the killings at Kent State Uni-

versity: “[I]t would have been difficult for the great majority

of citizens to miss the drift of [Spence’s]- point at the time

that he made it.” /d. at 410. The sleeping demonstrators’

message may be less quickly perceived. Passersby might ob-

serve: (1) they are certainly sleeping: (2) they may be

doing so to facilitate their participation in the protest; (3)

in addition to facilitating their expression, they may be

sleeping as an expressive part of their protest. Sleeping, in

other words, is not as securely or unambiguously seen, as is

wearing an armband, displaying a flag, or marching, as a

“common comprehensible form of expression.”” See Henkin,

supra note 5, at 80.

'2 See Kalven, supra note 5, at 12, 23, 26-27 (labeling a pub-

lic address or a pamphlet “speech pure” and a protest march

“speech plus” lacks an “intelligible rationale”).

Supreme Court opinions have described picketing and liti-

gation, inter alia, as “speech plus.” See Brandenburg v.

Ohio, 395 U.S. 444, 455 (1969) (Douglas, J., concurring)

(“Picketing ... is ‘free speech plus.’ . . . That means it can

be regulated when it comes to the ‘plus’ or ‘action’ side of

the protest.””); Amalgamated Food Employees Union Local

590 v. Logan Valley Plaza, Inc., 391 U.S. 308, 326 (1968)

(Douglas, J., concurring) (“Picketing is free speech plus, the

plus being physical activity that may implicate traffic and

related matters.”) (emphasis in original) ; Communist Party

v. Subversive Activities Control Bd., 367 U.S. 1, 173 (1961)

(Douglas, J., dissenting) (picketing); NAACP v. Button,

371 U.S. 415, 455 (1963) (Harlan, J., dissenting) (“{L]itiga-

tion, whether or not associated with the attempt to vindicate

constitutional rights, is conduct; it is speech plus.”) (em-

phasis in original). But cf. Kalven, supra, at 23 (“[A]Il

speech is necessarily ‘speech plus.’ If it is oral, it is noise

47a

Still, the personal, non-communicative aspect of sleep-

ing in symbolic tents at a demonstration site bears a

close, functional relationship to an activity that is com-

monly comprehended as “free speech”: sleeping in the

tents, rather than simply standing or sitting down in

them, allows the demonstrator to sustain his or her

protest without stopping short of the officially-granted

round-the-clock permission. For me that linkage, while it

does not mean CCNV’s request should attract automatic

approval, suffices to require a genuine effort to balance

the demonstrators’ interests against other concerns for

which the government bears responsibility.

I am mindful of the Park Service argument that it

has gone beyond the “free speech” requirement in permit-

ting as many round-the-clock demonstrators as CCNV

requested and as many tents, and that judgment against

it would penalize the Service for its generosity. Nonethe-

less, in shaping rules of access to a public forum for

demonstrations of ideas and protests,’* the Service, even

when it has generously allocated time and space, must

steer clear of arbitrary or incoherent regulation. Judge

Mikva and Judge Edwards have suggested that controls

tighter than those now in effect might be| put in place by

the Park Service without affront to the First Amend-

and may interrupt someone else: if it is written, it may be

litter.”’).

I use the term “speech plus” here not to describe expres-

sive activity “with collateral consequences that invite[] regu-

lation,” Kalven, supra, at 23, but to refer to conduct designed

both to speak and to accomplish a more readily or commonly

comprehended non-communicative purpose.

8 See Kalven, supra note 5, at 12 (“[G]Jenerosity and

empathy with which [the] facilities (of a public forum] ure

made available is an index of freedom. ... [WJhat is required

is in effect a set of Robert’s Rules of Order for the new uses

of the public forum, albeit the designing of such rules poses

a problem of formidable practical difficulty.’”’).

48a

ment.’ They reason, however, and I agree, that it is not

a rational rule of order to forbid sleeping while permit-

ting tenting, lying down, and maintaining a twenty-four

hour presence.

In sum, in reviewing regulation of the time, place, and

manner of expressive activity, I believe courts should

draw no bright line between verbal speech and other

comprehensible symbols of expression, or between “tradi-

tional communicative activit{y]’” ' and non-traditional

modes of expression. While a more rational line perhaps

might be drawn distinguishing unambiguously communi-

cative activity, traditional or not, from activity that re-

flects a mixture of motives, I would not draw that line in

this case. The non-communicative component of the mix

reflected in CCNV’s request for permission to sleep at the

authorized symbolic campsite facilitates expression and

should therefore attract ordering rules that are sensible,

coherent, and sensitive to the speech interest involved. In

my view, the Park Service determination does not satisfy

that measurement. I therefore concur in the court’s

judgment.

4 Judge Mikva observes that the Park Service may “limit

the number of tents, the size of tents or campsites, and the

number of persons allowed to sleep.” It may “set aside certain

times when no demonstrations are allowed,” and, “possibly,

it may be able to set aside some ... areas ... at which

round-the-clock demonstrations are never compatible.” Mikva

Opinion at 25-26. Judge Edwards adds that “[{g]overnment

officials also may limit or prevent the storage of personal

belongings, and perhaps prevent any individual from sleeping

in the parks beyond a specified, successive number of hours

or days.” Edwards Opinion at 8. Judge Wilkey gives way to

hyperbole when he suggests that these opinions exclude rea-

sonable time, place, and manner regulation and would per-

mit demonstrators to engage in any activity they believe

“will facilitate or improve the [demonstration].” See Wilkey

Opinion at 11.

15 Wilkey Opinion at 11-12.

49a

WILKEY, with whom joined TAMM, MACKINNON, Bork,

and SCALIA, Circuit Judges, dissenting: This case raises

a number of questions concerning the protection to be

afforded symbolic speech and the extent to which, by neu-

trally drafted and applied regulations, the government

may limit First Amendment access to a traditional public

forum. In particular we must decide whether a general

ban on camping in the Memorial core area parks of the

District of Columbia can be applied to prevent camping

that constitutes an integral and expressive part of a dem-

onstration otherwise protected by the First Amendment.

I. BACKGROUND

The Community for Creative Non-Violence (CCNV),

an unincorporated religious association working on behalf

of homeless persons, applied to the National Park Service

for a permit to hold a demonstration in Lafayette Park

and on the Mall beginning 21 December 1982. CCNV

proposed to erect sixty tents in which an estimated 150

demonstrators would sleep in order to draw attention to

the plight of the homeless during winter.

The Park Service granted CCNV a permit to erect two

symbolic tent cities, one on the Mall with forty tents, and

one in Lafayette Park with twenty tents. Permission to

sleep in the tents, however, was denied pursuant to Park

Service regulations governing camping and the erection

of temporary structures for living accommodation.?

CCNV and several homeless men then sued in district

court for an injunction to prevent the Park Service from

enforcing its regulations against them. They alleged four

grounds in support of their suit: first, that the regula-

tions are void for vagueness and overbreadth; second, that

the regulations do not in fact prohibit their proposed dem-

onstration; third, that the regulations have been discrim-

‘See 47 Fed. Reg. 24,299-306 (1982) (to be codified at 36

C.F.R. §§ 50.19, 50.27). Set out at pp. 3-4, infra.

50a

inatorily enforced in violation of their First and Fifth

Amendment rights; and, finally, that the regulations

cannot be construed to prevent the demonstration without

running afoul of the free speech guarantees of the First

Amendment.

Following a hearing, the district court denied plaintiffs’

motion for a preliminary injunction and for summary

judgment, and instead granted summary judgment for the

Park Service.? CCNV immediately filed a notice of appeal

and a motion for an injunction pending appeal, which

was denied by the district court. An emergency motion

for injunction pending appeal was also denied by a panel

of this court.* The appeal, however, was set for expedited

en banc consideration to allow for a determination on the

merits.

II. PRELIMINARY QUESTIONS

Three of appellants’ four contentions can be disposed

of without difficulty. Indeed, a mere citation of the regu-

lations at issue suffices to show that they prohibit the

sleeping proposed by CCNV and that they are neither

vague nor overbroad under applicable Supreme Court

precedent. Furthermore, the district court explicitly

found that the regulations have not been discriminatorily

enforced. This finding is supported by undisputed evi-

dence and therefore must be upheld.

The camping regulations of the National Capital Region

were revised in June of 1982 after formal rulemaking

proceedings.‘ The revisions responded to a recent decision

of this court holding that a prior, almost identical demon-

? The district court delivered its judgment orally on 3 De-

cember 1982. Written Findings of Fact and Conclusions of

Law followed on 9 December.

* Community for Creative Non-Violence v. Watt, Nos. 82-

2445 and 82-2477 (D.C. Cir. 20 Dec. 1982).

* See 47 Fed. Reg. 24,299-306 (1982).

5la

stration proposed by CCNV was not prohibited by the reg-

ulations as then written.’ The panel opinion relied upon a

Policy Statement accompanying the regulations which

drew a distinction between the permissible “use of sym-

bolic campsites reasonably related to First Amendment

activities” and impermissible “camping primarily for liv-

ing accommodations ....” Noting that “the purpose of

the symbolic campsite in Lafayette Park is ‘primarily’ to

express the protestors’ message and not to serve as a tem-

porary solution to the problems of homeless people,”’ the

panel concluded that the regulations allowed appellants

to sleep in the tents as an intrinsic part of their protest.*

No such statutory solution is available to us. As noted,

the regulations were revised after the panel decision.”

These revisions clarify the definition of the term “camp-

ing” as used in 36 C.F.R. § 50.27, which prohibits camp-

ing in park areas not designated as public campgrounds.

The revisions also clarify section 50.19, which covers the

use of temporary structures in connection with permitted

demonstrations and special events.

As revised, 36 C.F.R. § 50.27(a) prohibits camping in

park areas not designated as public camping grounds,

and defines the terms as follows:

Camping is defined as the use of park land for

living accommodation purposes such as sleeping ac-

tivities, or making preparations to sleep (including

the laying down of bedding for the purpose of sleep-

ing), or storing personal belongings, or making any

fire, or using any tents or shelter or other structure

or vehicle for sleeping or doing any digging or earth

breaking or carrying on cooking activities. The

above-listed activities constitute camping when it

* Community for Creative Non-Violence v. Watt, 670 F.2d

1213 (1982).

* Id. at 1217.

* 47 Fed. Reg. at 24,299-306.

» Oca

reasonably appears, in light of all the circumstances,

that the participants, in conducting these activities,

are in fact using the area as a living accommoda-

tion regardless of the intent of the participants or

the nature of any other activities in which they may

also be engaging.

Section 50.19(e) (8), as amended, permits the erection

of temporary structures for the purpose of symbolizing a

message or meeting logistical needs in conjunction with

an authorized demonstration, but prohibits the use of

temporary structures for camping outside of designated

areas for

living accommodation activities such as sleeping, or

making preparations to sleep (including the laying

down of bedding for the purpose of sleeping), or

storing personal belongings, or making any fire, or

doing any digging or earth breaking or carrying

on cooking activities. The above-listed activities con-

stitute camping when it reasonably appears, in light

of all the circumstances, that the participants, in

conducting these activities, are in fact using the

area as a living accommodation regardless of the

intent of the participants or the nature of any other

activities in which they may also be engaging.

There is no single activity that automatically triggers

the application of these sections. Thus, someone might

take a noon-time nap in the park without violating them.

Similarly, in conjunction with a demonstration one may

erect a symbolic tent in which no one will actually be

sleeping or may use “support service tents” for first aid

facilities, lost children areas, or to shelter electrical and

other sensitive equipment or displays.* Only when all the

circumstances are taken into account can it be determined

with certainty whether a particular person or group is

“camping” within the meaning of the regulations.

The determination required is not a difficult one. We

all have a common-sense understanding of what camping

® Id. at 24,305.

53a

is, and the regulations aid that understanding by giving

specific examples of activities that constitute camping

“when it reasonably appears, in light of all the circum-

stances, that the participants, in conducting these activi-

ties, are in fact using the area as a living accommoda-

com... .7*

Appellants propose to erect tents and to occupy those

tents, by sleeping in them at night, for the remainder of

winter."’ Given that “camping” is defined “regardless of

the intent of the participants or the nature of any other

activities in which they may also be engaging,” what ap-

pellants propose is clearly camping. Appellants’ First

Amendment intent does not take them outside the scope

of the regulations.

Furthermore, the regulations give fair notice of the

prohibited conduct and provide sufficiently explicit stand-

ards to guide the discretion of law enforcement officials.”

They are not impermissibly vague.* Neither are they

overbroad. Appellants argue that their proposed camping

constitutes symbolic speech meriting First Amendment

protection. They further argue that the Park Service reg-

ulations impermissibly infringe upon that speech. These

questions will be considered in due course."* But it is not

* Id. at 24,302.

gency Motion for Injunction Pending Appeal and Opposition

to Appellants’ Motion for Summary Affirmance ( Appellants’

Reply Brief) at 3, 8-9.

" Village of Hoffman Estates v. Flipside, Hoffman Estates

Ine., 455 U.S. 489 (1982); Grayned v. City of Rockford, 408

U.S. 104, 108 (1971).

“ This court has already concluded that a regulation pro-

hibiting camping, defined in terms very similar to the current

regulations, was not unconstitutionally vague. See Vietnam

Veterans Against the War v. Morton, 506 F.2d 53, 69 (D.C.

Cir. 1974).

* See Part III, infra.

dda

necessary to decide them in order to reject appellants’

overbreadth challenge.

When, as here, an enactment is directed at conduct

rather than at speech, “overbreadth scrutiny has generally

been somewhat less rigid” so long as the statute regulates

the conduct in a “neutral, noncensorial manner.” **

“(T]he overbreadth of [such] a statute must not only be

real, but substantia] as well, judged in relation to the

statute’s plainly legitimate sweep.”'* Even assuming

there is such a thing as “expressive camping” that merits

First Amendment protection from incidental infringe-

ment, that expressive camping constitutes only a small

fraction of the general camping prohibited by the regula-

tions. It cannot be said that a general ban on camping

is substantially overbroad simply because it encompasses

occasional instances of expressive camping.

Finally, we agree with the finding of the district court

that the Park Service has enforced its new regulations

“in an even-handed and reasonable manner.” ** This find-

ing is based on and amply supported by undisputed facts

contained in a number of exhibits and affidavits filed with

the district court by the Park Service.

Appellants support their contention that the regulations

are being enforced against them selectively and discrim-

inatorily by referring to several past demonstrations in

which sleeping allegedly occurred."’ In judging the pro-

priety of the grant of summary judgment for the Park

Service, we must assume the truth of these factual alle-

gations."* Even so, they fai’ to make out a claim of dis-

Broadrick v. Oklahoma, 413 U.S. 601, 613-15 (1973).

5 Id. at 615.

Findings of Fact and Conclusions of Law at 7.

" See Appellants’ Reply Brief at 44-51.

" See, ¢.g., Bishop v. Wood, 426 U.S. 341, 347 (1976):

Abraham v. Graphic Arts Intern. Union, 660 F.2d 811, 814-15

(D.C. Cir. 1981).

criminatory enforcement in violation of the First and

Fifth Amendments.

Some of the demonstrations relied upon by appellants

occurred before the effective date of the current revisions

and are therefore largely beside the point. As for the

three demonstrations taking place after that date, it is un-

disputed that in each instance the Park Service notified

the participants that camping and the use of temporary

structures for living accommodations was prohibited.”

Furthermore, in the one case where the Park Service de-

tected a violation of the regulations, it demanded compli-

ance and the next day, after similar violations occurred,

revoked the demonstration permit for non-compliance with

the regulations and conditions of the permit.** A stand-

ard of reasonable, even-handed enforcement calls for no

more.

et es

**For example, appellants cite the 1968 “Resurrection

City” demonstration and the 1979 “Farmers March.” A

Vietnam Veterans Against the WAR (VVAW) demonstra-

tion in early May relied on by appellants also took place

prior to the effective date of the amendéd regulations. How-

ever, the Park Service applied the new regulations to that

demonstration, yet still authorized at least some participants

in the demonstration to “be asleep in the area at all times

during the night.” Letter from Park Service to VVAW dated

22 April 1982, reprinted in Record Document (RD) 5. In that

case, however, the sleeping was incidental to an all-night

vigil at a mock Vietnam War-era “firebase” at which the

demonstrators took turns standing symbolic “guard duty.”

Since no tents or other structures were used by the VVAW,

the Park Service determined that the demonstration did not

constitute “camping” within the meaning of the new regula-

tions.

*° See Letter from Park Service to Assoc. of Community

Organizations for Reform Now dated 18 June 1982; Letter

from Park Service to Palestine Congress of North America

dated 8 September 1982: Letter from Park Service to Arab

Women’s Council dated 28 J uly 1982, all reprinted in RD 5.

*" Findings of Fact and Conclusions of Law at 8.

5fia

At best appellants are able to cite two isolated instances

of undiscovered violations of the regulations.** The dis-

trict court rightly noted that this evidence failed to create

a genuine issue of material fact.

The existence of possible undiscovered violations of

the law is not the material issue here. Rather, the

issue is whether or not there existed a policy or

practice by the Park Service of permitting activities

by other persons in violation of the regulations.

Since plaintiffs’ evidence goes only to the former

proposition, not to the latter, it fails to establish a

policy of discriminatory enforcement.”

III. First AMENDMENT CLAIM

We come, then, to the main focus of contention in this

case. Appellants argue that the Park Service regulations,

if construed to prohibit their proposed demonstration, im-

permissibly infringe upon rights guaranteed by the free

speech clause of the First Amendment.

A. Standard of Review

As a preliminary matter, we must determine whether

the camping proposed by appellants is properly considered

“speech” for purposes of the First Amendment protection

claimed here. Thus, in United States v. O’Brien,™* the

case principally relied upon by Judge Mikva to establish

his standard of First Amendment scrutiny, the Supreme

Court began its analysis as follows:

We cannot accept the view that an apparently

limitless variety of conduct can be labeled “speech”

whenever the person engaging in the conduct in-

tends thereby to express an idea. However, even on

the assumption that the alleged communicative ele-

22 See Appellants’ Reply Brief at 54.

8 Findings of Fact and Conclusions of Law at 20-21.

** United States v. O’Brien, 391 U.S. 367, 376 (1968).

57a

ment in O’Brien’s conduct is sufficient to bring into

play the First Amendment, it does not necessarily

follow that the destruction of a registration certifi-

cate is constitutionally protected activity.

Since the Court in O’Brien found that the governmental

prohibition satisfied even the heightened scrutiny appro-

priate for laws that incidentally infringe on protected ex-

pression, it was not constrained to go back and reexamine

the validity of its assumption that First Amendment

standards of scrutiny applied. Judge Mikva, however—

at least if he intends to rely upon O’Brien—must do so.

He must validate the credentials that admit sleep, in this

case, to the realm of the First Amendment without pro-

viding a blanket pass to “an apparently limitless variety

of conduct [that] can be labeled ‘speech.’”* No easy

task, and not one which Judge Mikva has in our view

successfully executed.

The attempt is made in an earlier portion of the opin-

tion,** where two responses are given. First, the “indicia

of political expression . . . permeate CCNV’s pointed use

of the simple act of sleeping.” *" To determine communi-

cativeness, Judge Mikva examines “the intent of the

would-be communicator and the context in which his or

her conduct takes place.” ** One might suppose from this,

and from the quotation from Supreme Court authority

which follows, that Judge Mikva means that here sleep-

ing is a particularly apt method of expressing homeless-

ness, the idea to be conveyed. Several pages later, how-

ever, the opinion abjures such an intent, warning (quite

correctly, in our estimation) that basing the present de-

cision upon CCNV’s contention that “sleeping in its dem-

onstration is uniquely deserving of first amendment pro-

8 Id.

26 Mikva Op. at 11-17.

7 Id. at 14.

28 Id. at 12.

58a

tection because it directly embodies the group’s message

. would require the government to draw distinctions

among groups desiring to express themselves through

sleeping depending on the subject matter or con-

tent of their message and its alleged relationship to

sleep ....”™ We add that it would also require the

Park Service, and ultimately the courts, to make judg-

ments that are more appropriate for Ingmar Bergman

and Andy Warhol.

But if this symbolism-evaluation is not what Judge

Mikva has in mind, then we are at a loss to understand

the point. Does it-mean that, since the particular activity

of sleeping ts expressive in this case (the one-and-only

time we will engage in symbolism-evaluation for this par-

ticular category of conduct) it must always be assumed

to be expressive in the future—so that hereafter one can

sleep in the parks to protest war or to protest peace, to

protest the arms race or to protest unilateral disarma-

ment, all indiscriminately under the protection of the

First Amendment? *

Judge Mikva’s second basis for avoiding the preliminary

inquiry of O’Brien is that the sleeping is part of a demon-

stration that is itself sufficiently communicative to impli-

cate the First Amendment. In other words, “even were

we not to focus on the peculiarly expressive nature of

sleeping, first amendment scrutiny would still be impli-

cated.” The idea seems to be that the First Amendment

gives CCNV the freedom to shape the nature of its own

demonstration and, therefore, a higher standard must be

applied to justify the suppression of al] requested ele-

9 Id. at iS.

*” See id. at n.16 (“demonstrators should be held to no

higher standard than the advancement of a plausible con-

tention that their conduct is intended to, and in the context

of their demonstration likely will, express a message”).

Id. at 15.

59a

ments of that demonstration—including those that are not

even intended to be independently communicative.” We

cannot accept this reasoning, which sugests that since, for

example, a protest march (a traditional form of expres-

sive conduct cannot be banned without meeting the high

First Amendment standards applicable to incidental in-

fringements on speech, neither can any of the other ac-

tivities which the organizing group believes will facilitate

or improve the march.

We think that is plainly wrong. Not a whit more jus-

tification is needed to ban spitting in the street by a pa-

rade of tobacco farmers protesting a new tax on chewing

tobacco than is needed to prevent such activity by the

public at large. Any group’s freedom to shape the nature

of its own demonstration is limited by the well-established

permissibility of “time, place and manner” limitations—

the reasonableness of which is established so long as the

First Amendment activity itself (the speech, the pamph-

leteering, the parade) is not needlessly impeded, regard-

less of the effect on ancillary phenomena. It is hard to

believe that the limiting language in O’Brien, quoted

above, means no more than that inherently unexpressive

conduct need only be joined with expressive conduct or

speech in order to qualify for First Amendment protec-

tion.

The Supreme Court cases, it must be acknowledged, do

not provide guidance as to what conduct beyond tradi-

tional communicative activities such as marching and

picketing may qualify as “speech.” It might be suggested

that only such traditional activities qualify for purposes

of avoiding a general prohibition not directed at com-

municative content—while virtually all conduct is

“speech” for purposes of avoiding a proscription speci-

%2 Jd. (“whatever the particular form of the protestors’

presence at night, their presence itself implicates the first

amendment”).

60a

fically designed to suppress expressive connotation.™

While this analysis may be consistent with the holdings of

the Court, it is difficult to square with the fact that the

O’Brien test itself (applied only after conduct has been

assumed entitled to full “free speech” protection), contains

a step that inquires into the communication-suppressing

nature of the law. Unlike Judge Mikva, we find it unnec-

essary to solve this dilemma in the present case. Like the

Supreme Court in O’Brien, we find that even assuming

the applicability of the more demanding First Amend-

ment standard of review, the regulations here pass

muster.**

The standard of review provided by O’Brien is as

follows:

[A] government regulation is sufficiently justified

if it is within the constitutional power of the gov-

ernment; if it furthers a substantial governmental

interest; if the governmental interest is unrelated

to the suppression of free expression; and if the

incidental restriction on alleged first amendment

freedoms is no greater than is essential to the fur-

therance of that interest.”

8 See, e.g., Spence v. Washington, 418 U.S. 405 (1974)

(per curiam); Tinker v. Des Moines School District, 393

U.S. 503 (1969).

** It may well always be true that conduct which should

not in the first place have been accorded full First Amend-

ment “speech” protection will, even assuming such protection,

readily be proscribable under the O’Brien test. Applying this

test on a case-by-case basis does, however, impose a consid-

erable burden upon administrators and the courts, and may

produce erroneous judgment which (so long as they are not

adverse to demonstrators) are not appealable to the courts.

We do not, therefore, deprecate the value of the more direct

approach which both the O’Brien court and we have avoided;

but in the absence of further clarification from the Supreme

Court we take the safer course fo. the present.

% 391 U.S. at 377.

6la

The first requirement, that the regulation be within

the constitutional power of the government, is rarely a

problem. The second and fourth requirements come to-

gether to constitute a balancing test, as discussed below.*°

Before one even reaches that balancing test, however, the

interest offered by the government to support its regula-

tion must meet the threshold requirement that it be “un-

related to the suppression of free expression.”” In other

words, any burden imposed on free expression must be in-

cidental to the prevention of a harm that arises regard-

less whether any message is conveyed. To illustrate, an

attempt to curtail littering by banning handbills is not

directed at any message to be conveyed. The feared harm

would arise even if the handbills were blank." Similarly,

a ban on sound trucks is designed to prevent noisy dis-

turbances, a harm that would arise even if the sound

truck merely emitted static or other meaningless sounds.**

An attempt to curtail the incitement of lawless action,

on the other hand, is directed at a harm arising from the

specific viewpoint expressed.** Similarly, a ban on foul

language is concerned with the effects of the ideas or emo-

tions expressed on the minds or conduct of those listen-

ing.*° In these latter cases, the regulation will not sur-

vive judicial scrutiny unless the proscribed expression

falls into one of several narrowly defined, unprotected

categories.

% See p. 14, infra.

* See Schneider v. New Jersey, 308 U.S. 147 (1939); Ely,

Flag Desecration: A Study in the Roles of Categorization

and Balancing in First Amendment Analysis, 88 Harv. L.

REV. 1482, 1486-87 (1975).

* See Kovacs v. Cooper, 336 U.S. 77 (1949).

™ See Brandenburg v. Ohio, 395 U.S. 444 (1969) (per

curiam).

“ See Cohen v. California, 408 U.S. 15, 21-22 (1971).

* See, e.g., Paris Adult Theater J v. Slaton, 418 U.S. 49

(1973) (obscenity) : Brandenburg v. Ohio, 394 U.S. 444

62a

In the former set of cases, where the threshold test is

met, then under O’Brien a balancing test is proper: the

state must counterbalance any incidental infringement

on free speech by showing that the regulation narrowly

pursues a substantial governmental interest. This is

properly characterized as a “balancing” test, because the

greater protection that could be afforded speech by a less

restrictive alternative must be balanced against that al-

ternative’s loss of efficiency in achieving the government’s

objective.”

In this case, the governmental interest alleged, the pro-

tection of the parks in the Memorial core area from phy-

sical and aesthetic damage caused by camping, is clearly

unrelated to the suppression of free expression. The harm

is the same whether appellants hope to express a message

by camping or not. Thus, the court must balance the sub-

stantiality of the government’s interest in preventing

camping against the incidental infringement on free

speech, taking due note of the possibility of any less re-

strictive alternative.

B. Application of Standard

The three concepts upon which this case turns, “sub-

stantial interest,” “incidental infringement,’ and “less

restrictive alternative,” are inherently vague. However,

enough can be said about each, as applied to this case, to

leave no doubt as to the proper result.

1. Substantial Interest

Our first responsibility is to determine the exact nature

and scope of the governmental interest called into ques-

(1969) (per curiam) (advocacy of imminent lawless action) ;

Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) (fight-

ing words) .

“ See Ely, supra note 87, at 1482-90; Farber, Content

Regulation and the First Amendment: A Revisionist View,

68 Geo. L.J. 727, 742 n.88 (1980).

63a

tion by this case. It is easy to make a mistake here, im-

Properly expanding or contracting the scope of that in-

terest. Two cautions are necessary. We should look to the

regulations as applied to this case to determine the rele-

vant class of activities that the government is interested

in banning.** But we should not, in judging the substan-

tiality of the interest underlying that ban, limit our con-

sideration to the harms that might be caused by a partic-

ular sub-class of persons, such as

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