In 1982, the National Park Service issued a permit to respondent
Community for Creative Non-Violence (CCNV) to conduct a
demonstration in Lafayette Park and the Mall, which are National
Parks in the heart of Washington, D.C. The purpose of the
demonstration was to call attention to the plight of the homeless,
and the permit authorized the erection of two symbolic tent cities.
However, the Park Service, relying on its regulations --
particularly one that permits "camping" (defined as including
sleeping activities) only in designated campgrounds, no campgrounds
having ever been designated in Lafayette Park or the Mall -- denied
CCNV's request that demonstrators be permitted to sleep in the
symbolic tents. CCNV and the individual respondents then filed an
action in Federal District Court, alleging,
inter alia,
that application of the regulations to prevent sleeping in the
tents violated the First Amendment. The District Court granted
summary judgment for the Park Service, but the Court of Appeals
reversed.
Held: The challenged application of the Park Service
regulations does not violate the First Amendment. Pp.
468 U. S.
293-299.
(a) Assuming that overnight sleeping in connection with the
demonstration is expressive conduct protected to some extent by the
First Amendment, the regulation forbidding sleeping meets the
requirements for a reasonable time, place, or manner restriction of
expression, whether oral, written, or symbolized by conduct. The
regulation is neutral with regard to the message presented, and
leaves open ample alternative methods of communicating the intended
message concerning the plight of the homeless. Moreover, the
regulation narrowly focuses on the Government's substantial
interest in maintaining the parks in the heart of the Capital in an
attractive and intact condition, readily available to the millions
of people who wish to see and enjoy them by their presence. To
permit camping would be totally inimical to these purposes. The
validity of the regulation need not be judged solely by reference
to the demonstration at hand, and none of its provisions are
unrelated to the ends that it was designed to serve. Pp.
468 U. S.
293-298.
(b) Similarly, the challenged regulation is also sustainable as
meeting the standards for a valid regulation of expressive conduct.
Aside from
Page 468 U. S. 289
its impact on speech, a rule against camping or overnight
sleeping in public pars is not beyond the constitutional power of
the Government to enforce. And as noted above, there is a
substantial Government interest, unrelated to suppression of
expression, in conserving park property that is served by the
proscription of sleeping. Pp.
468 U. S.
298-299.
227 U.S.App.D.C.19, 703 F.2d 586, reversed.
WHITE, J., delivered the opinion of the Court, in which BURGER,
C.J., and BLACKMUN, POWELL, REHNQUIST, STEVENS, and O'CONNOR, JJ.,
joined. BURGER, C.J., filed a concurring opinion,
post, p.
468 U. S. 300.
MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J.,
joined,
post p.
468 U. S.
301.
JUSTICE WHITE delivered the opinion of the Court.
The issue in this case is whether a National Park Service
regulation prohibiting camping in certain parks violates the First
Amendment when applied to prohibit demonstrators from sleeping in
Lafayette Park and the Mall in connection with a demonstration
intended to call attention to the plight of the homeless. We hold
that it does not, and reverse the contrary judgment of the Court of
Appeals.
I
The Interior Department, through the National Park Service, is
charged with responsibility for the management and maintenance of
the National Parks, and is authorized to promulgate rules and
regulations for the use of the parks in accordance with the
purposes for which they were established.
Page 468 U. S. 290
16 U.S.C. §§ 1, 1a-1, 3. [
Footnote 1] The network of National Parks includes the
National Memorial-core parks, Lafayette Park and the Mall, which
are set in the heart of Washington, D.C., and which are unique
resources that the Federal Government holds in trust for the
American people. Lafayette Park is a roughly 7-acre square located
across Pennsylvania Avenue from the White House. Although
originally part of the White House grounds, President Jefferson set
it aside as a park for the use of residents and visitors. It is a
"garden park with a . . . formal landscaping of flowers and trees,
with fountains, walks and benches." National Park Service, U.S.
Department of the Interior, White House and President's Park,
Resource Management Plan 4.3 (1981). The Mall is a stretch of land
running westward from the Capitol to the Lincoln Memorial some two
miles away. It includes the Washington Monument, a series of
reflecting pools, trees, lawns, and other greenery. It is bordered
by,
inter alia, the Smithsonian Institution and the
National Gallery of Art. Both the Park and the Mall were included
in Major Pierre L'Enfant's original plan for the Capital. Both are
visited by vast numbers of visitors from around the country, as
well as by large numbers of residents of the Washington
metropolitan area.
Under the regulations involved in this case, camping in National
Parks is permitted only in campgrounds designated for that purpose.
36 CFR § 50.27(a) (1983). No such campgrounds have ever been
designated in Lafayette Park or the Mall. 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
Page 468 U. S. 291
of sleeping), or storing personal belongings, or making any
fire, or using any tents or . . . other structure . . . for
sleeping or doing any digging or earth breaking or carrying on
cooking activities."
Ibid. These activities, the regulation provides,
"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."
Ibid. Demonstrations for the airing of views or
grievances are permitted in the Memorial-core parks, but for the
most part only by Park Service permits. 36 CFR § 50.19 (1983).
Temporary structures may be erected for demonstration purposes, but
may not be used for camping. 36 CFR § 50.19(e)(8) (1983).
[
Footnote 2]
In 1982, the Park Service issued a renewable permit to
respondent Community for Creative Non-Violence (CCNV) to conduct a
wintertime demonstration in Lafayette Park and the Mall for the
purpose of demonstrating the plight of the
Page 468 U. S. 292
homeless. The permit authorized the erection of two symbolic
tent cities: 20 tents in Lafayette Park that would accommodate 50
people and 40 tents in the Mall with a capacity of up to 100. The
Park Service, however, relying on the above regulations,
specifically denied CCNV's request that demonstrators be permitted
to sleep in the symbolic tents.
CCNV and several individuals then filed an action to prevent the
application of the no-camping regulations to the proposed
demonstration, which, it was claimed, was not covered by the
regulation. It was also submitted that the regulations were
unconstitutionally vague, had been discriminatorily applied, and
could not be applied to prevent sleeping in the tents without
violating the First Amendment. The District Court granted summary
judgment in favor of the Park Service. The Court of Appeals,
sitting en banc, reversed.
Community for Creative Non-Violence
v. Watt, 227 U.S.App.D.C.19, 703 F.2d 586 (1983). The 11
judges produced 6 opinions. Six of the judges believed that
application of the regulations so as to prevent sleeping in the
tents would infringe the demonstrators' First Amendment right of
free expression. The other five judges disagreed, and would have
sustained the regulations as applied to CCNV's proposed
demonstration. [
Footnote 3] We
granted the Government's petition for certiorari, 464 U.S. 1016
(1983), and now reverse. [
Footnote
4]
Page 468 U. S. 293
II
We need not differ with the view of the Court of Appeals that
overnight sleeping in connection with the demonstration is
expressive conduct protected to some extent by the First Amendment.
[
Footnote 5] We assume for
present purposes, but do not decide, that such is the case,
cf.
United States v. O'Brien, 391 U. S. 367,
391 U. S. 376
(1968), but this assumption only begins the inquiry. Expression,
whether oral or written or symbolized by conduct, is subject to
reasonable time, place, or manner restrictions. We have often noted
that restrictions of this kind are valid, provided that they are
justified without reference to the content of the regulated speech,
that they are narrowly tailored to serve a significant governmental
interest, and that they leave open ample alternative channels for
communication of the information.
City Council of Los Angeles
v. Taxpayers for Vincent, 466 U. S. 789
(1984);
United States v. Grace, 461 U.
S. 171 (1983);
Perry Education Assn. v. Perry Local
Educators' Assn., 460 U. S. 37,
460 U. S. 45-46
(1983);
Heffron v. International
Society for Krishna Consciousness,
Page 468 U. S. 294
Inc., 452 U. S. 640,
452 U. S.
647-648 (1981);
Virginia Pharmacy Board v. Virginia
Citizens Consumer Council, Inc., 425 U.
S. 748,
425 U. S. 771
(1976);
Consolidated Edison Co. v. Public Service Comm'n of
N.Y., 447 U. S. 530,
447 U. S. 535
(1980).
It is also true that a message may be delivered by conduct that
is intended to be communicative and that, in context, would
reasonably be understood by the viewer to be communicative.
Spence v. Washington, 418 U. S. 405
(1974);
Tinker v. Des Moines School District, 393 U.
S. 503 (1969). Symbolic expression of this kind may be
forbidden or regulated if the conduct itself may constitutionally
be regulated, if the regulation is narrowly drawn to further a
substantial governmental interest, and if the interest is unrelated
to the suppression of free speech.
United States v. O'Brien,
supra.
Petitioners submit, as they did in the Court of Appeals, that
the regulation forbidding sleeping is defensible either as a time,
place, or manner restriction or as a regulation of symbolic
conduct. We agree with that assessment. The permit that was issued
authorized the demonstration, but required compliance with 36 CFR
§ 50.19 (1983), which prohibits "camping" on park lands, that
is, the use of park lands for living accommodations, such as
sleeping, storing personal belongings, making fires, digging, or
cooking. These provisions, including the ban on sleeping, are
clearly limitations on the manner in which the demonstration could
be carried out. That sleeping, like the symbolic tents themselves,
may be expressive and part of the message delivered by the
demonstration does not make the ban any less a limitation on the
manner of demonstrating, for reasonable time, place, or manner
regulations normally have the purpose and direct effect of limiting
expression, but are nevertheless valid.
City Council of Los
Angeles v. Taxpayers for Vincent, supra; Heffron v. International
Society for Krishna Consciousness, Inc., supra; Kovacs v.
Cooper, 336 U. S. 77
(1949). Neither does the fact that sleeping,
arguendo, may
be expressive
Page 468 U. S. 295
conduct, rather than oral or written expression, render the
sleeping prohibition any less a time, place, or manner regulation.
To the contrary, the Park Service neither attempts to ban sleeping
generally nor to ban it everywhere in the parks. It has established
areas for camping, and forbids it elsewhere, including Lafayette
Park and the Mall. Considered as such, we have very little trouble
concluding that the Park Service may prohibit overnight sleeping in
the parks involved here.
The requirement that the regulation be content-neutral is
clearly satisfied. The courts below accepted that view, and it is
not disputed here that the prohibition on camping, and on sleeping
specifically, is content-neutral, and is not being applied because
of disagreement with the message presented. [
Footnote 6] Neither was the regulation faulted,
nor could it be, on the ground that, without overnight sleeping,
the plight of the homeless could not be communicated in other ways.
The regulation otherwise left the demonstration intact, with its
symbolic city, signs, and the presence of those who were willing to
take their turns in a day-and-night vigil. Respondents do not
suggest that there was, or is, any barrier to delivering to the
media, or to the public by other means, the intended message
concerning the plight of the homeless.
Page 468 U. S. 296
It is also apparent to us that the regulation narrowly focuses
on the Government's substantial interest in maintaining the parks
in the heart of our Capital in an attractive and intact condition,
readily available to the millions of people who wish to see and
enjoy them by their presence. To permit camping -- using these
areas as living accommodations -- would be totally inimical to
these purposes, as would be readily understood by those who have
frequented the National Parks across the country and observed the
unfortunate consequences of the activities of those who refuse to
confine their camping to designated areas.
It is urged by respondents, and the Court of Appeals was of this
view, that, if the symbolic city of tents was to be permitted, and
if the demonstrators did not intend to cook, dig, or engage in
aspects of camping other than sleeping, the incremental benefit to
the parks could not justify the ban on sleeping, which was here an
expressive activity said to enhance the message concerning the
plight of the poor and homeless. We cannot agree. In the first
place, we seriously doubt that the First Amendment requires the
Park Service to permit a demonstration in Lafayette Park and the
Mall involving a 24-hour vigil and the erection of tents to
accommodate 150 people. Furthermore, although we have assumed for
present purposes that the sleeping banned in this case would have
an expressive element, it is evident that its major value to this
demonstration would be facilitative. Without a permit to sleep, it
would be difficult to get the poor and homeless to participate or
to be present at all. This much is apparent from the permit
application filed by respondents: "Without the incentive of
sleeping space or a hot meal, the homeless would not come to the
site." App. 14. The sleeping ban, if enforced, would thus
effectively limit the nature, extent, and duration of the
demonstration and to that extent ease the pressure on the
parks.
Beyond this, however, it is evident from our cases that the
validity of this regulation need not be judged solely by
reference
Page 468 U. S. 297
to the demonstration at hand.
Heffron v. International
Society for Krishna Consciousness, Inc., 452 U.S. at
452 U. S.
652-653. Absent the prohibition on sleeping, there would
be other groups who would demand permission to deliver an asserted
message by camping in Lafayette Park. Some of them would surely
have as credible a claim in this regard as does CCNV, and the
denial of permits to still others would present difficult problems
for the Park Service. With the prohibition, however, as is evident
in the case before us, at least some around-the-clock
demonstrations lasting for days on end will not materialize, others
will be limited in size and duration, and the purposes of the
regulation will thus be materially served. Perhaps these purposes
would be more effectively and not so clumsily achieved by
preventing tents and 24-hour vigils entirely in the core areas. But
the Park Service's decision to permit nonsleeping demonstrations
does not, in our view, impugn the camping prohibition as a
valuable, but perhaps imperfect, protection to the parks. If the
Government has a legitimate interest in ensuring that the National
Parks are adequately protected, which we think it has, and if the
parks would be more exposed to harm without the sleeping
prohibition than with it, the ban is safe from invalidation under
the First Amendment as a reasonable regulation of the manner in
which a demonstration may be carried out. As in
City Council of
Los Angeles v. Taxpayers for Vincent, the regulation "responds
precisely to the substantive problems which legitimately concern
the [Government]." 466 U.S. at
466 U. S.
810.
We have difficulty, therefore, in understanding why the
prohibition against camping, with its ban on sleeping overnight, is
not a reasonable time, place, or manner regulation that withstands
constitutional scrutiny. Surely the regulation is not
unconstitutional on its face. None of its provisions appears
unrelated to the ends that it was designed to serve. Nor is it any
less valid when applied to prevent camping in Memorial-core parks
by those who wish to demonstrate
Page 468 U. S. 298
and deliver a message to the public and the central Government.
Damage to the parks, as well as their partial inaccessibility to
other members of the public, can as easily result from camping by
demonstrators as by nondemonstrators. In neither case must the
Government tolerate it. All those who would resort to the parks
must abide by otherwise valid rules for their use, just as they
must observe the traffic laws, sanitation regulations, and laws to
preserve the public peace. [
Footnote 7] This is no more than a reaffirmation that
reasonable time, place, or manner restrictions on expression are
constitutionally acceptable.
Contrary to the conclusion of the Court of Appeals, the
foregoing analysis demonstrates that the Park Service regulation is
sustainable under the four-factor standard of
United States v.
O'Brien, 391 U. S. 367
(1968), for validating a regulation of expressive conduct, which,
in the last analysis is little, if any, different from the standard
applied to time, place, or manner restrictions. [
Footnote 8] No one contends that, aside
Page 468 U. S. 299
from its impact on speech a rule against camping or overnight
sleeping in public parks is beyond the constitutional power of the
Government to enforce. And for the reasons we have discussed above,
there is a substantial Government interest in conserving park
property, an interest that is plainly served by, and requires for
its implementation, measures such as the proscription of sleeping
that are designed to limit the wear and tear on park properties.
That interest is unrelated to suppression of expression.
We are unmoved by the Court of Appeals' view that the challenged
regulation is unnecessary, and hence invalid, because there are
less speech-restrictive alternatives that could have satisfied the
Government interest in preserving park lands. There is no
gainsaying that preventing overnight sleeping will avoid a measure
of actual or threatened damage to Lafayette Park and the Mall. The
Court of Appeals' suggestions that the Park Service minimize the
possible injury by reducing the size, duration, or frequency of
demonstrations would still curtail the total allowable expression
in which demonstrators could engage, whether by sleeping or
otherwise, and these suggestions represent no more than a
disagreement with the Park Service over how much protection the
core parks require or how an acceptable level of preservation is to
be attained. We do not believe, however, that either
United
States v. O'Brien or the time, place, or manner decisions
assign to the judiciary the authority to replace the Park Service
as the manager of the Nation's parks or endow the judiciary with
the competence to judge how much protection of park lands is wise
and how that level of conservation is to be attained. [
Footnote 9]
Accordingly, the judgment of the Court of Appeals is
Reversed.
Page 468 U. S. 300
[
Footnote 1]
The Secretary is admonished to promote and regulate the use of
the parks by such means as conform to the fundamental purpose of
the parks, which is
"to conserve the scenery and the natural and historic objects
and the wild life therein . . . in such manner and by such means as
will leave them unimpaired for the enjoyment of future
generations."
39 Stat. 535, as amended, 16 U.S.C. § 1.
[
Footnote 2]
Section 50.19(e)(8), as amended, prohibits the use of certain
temporary structures:
"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 sensitive equipment or 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 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 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."
[
Footnote 3]
The per curiam opinion preceding the individual opinions
described the lineup of the judges as follows:
"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 joining 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
MacKinnon and Bork concur."
227 U.S.App.D.C. at 19-20, 703 F.2d at 586-587.
[
Footnote 4]
As a threshold matter, we must address respondents' contention
that their proposed activities do not fall within the definition of
"camping" found in the regulations. None of the opinions below
accepted this contention, and at least nine of the judges expressly
rejected it.
Id. at 24, 703 F.2d at 591 (opinion of Mikva,
J.);
id. at 42, 703 F.2d at 609 (opinion of Wilkey, J.).
We likewise find the contention to be without merit. It cannot
seriously be doubted that sleeping in tents for the purpose of
expressing the plight of the homeless falls within the regulation's
definition of camping.
[
Footnote 5]
We reject the suggestion of the plurality below, however, that
the burden on the demonstrators is limited to "the advancement of a
plausible contention" that their conduct is expressive.
Id. at 26, n. 16, 703 F.2d at 593, n. 16. Although it is
common to place the burden upon the Government to justify
impingements on First Amendment interests, it is the obligation of
the person desiring to engage in assertedly expressive conduct to
demonstrate that the First Amendment even applies. To hold
otherwise would be to create a rule that all conduct is
presumptively expressive. In the absence of a showing that such a
rule is necessary to protect vital First Amendment interests, we
decline to deviate from the general rule that one seeking relief
bears the burden of demonstrating that he is entitled to it.
[
Footnote 6]
Respondents request that we remand to the Court of Appeals for
resolution of their claim that the District Court improperly
granted summary judgment on the equal protection claim. Brief for
Respondents 91, n. 50. They contend that there were disputed
questions of fact concerning the uniformity of enforcement of the
regulation, claiming that other groups have slept in the parks. The
District Court specifically found that the regulations have been
consistently applied and enforced in a fair and nondiscriminatory
manner. App. to Pet. for Cert. 106a-108a. Only 5 of the 11 judges
in the Court of Appeals addressed the equal protection claim. 227
U.S.App.D.C. at 43-44, 703 F.2d at 610-611 (opinion of Wilkey, J.,
joined by Tamm, MacKinnon, Bork, and Scalia, JJ.). Our review of
the record leads us to agree with their conclusion that there is no
genuine issue of material fact, and that the most that respondents
have shown are isolated instances of undiscovered violations of the
regulations.
[
Footnote 7]
When the Government seeks to regulate conduct that is ordinarily
nonexpressive, it may do so regardless of the situs of the
application of the regulation. Thus, even against people who choose
to violate Park Service regulations for expressive purposes, the
Park Service may enforce regulations relating to grazing animals,
36 CFR § 50.13 (1983); flying model planes, § 50.16;
gambling, § 50.17; hunting and fishing, § 50.18; setting
off fireworks, § 50.25(g); and urination, § 50.26(b).
[
Footnote 8]
Reasonable time, place, or manner restrictions are valid even
though they directly limit oral or written expression. It would be
odd to insist on a higher standard for limitations aimed at
regulable conduct and having only an incidental impact on speech.
Thus, if the time, place, or manner restriction on expressive
sleeping, if that is what is involved in this case, sufficiently
and narrowly serves a substantial enough governmental interest to
escape First Amendment condemnation, it is untenable to invalidate
it under
O'Brien on the ground that the governmental
interest is insufficient to warrant the intrusion on First
Amendment concerns, or that there is an inadequate nexus between
the regulation and the interest sought to be served. We note that
only recently, in a case dealing with the regulation of signs, the
Court framed the issue under
O'Brien, and then based a
crucial part of its analysis on the time, place, or manner cases.
City Council of Los Angeles v. Taxpayers for Vincent,
466 U. S. 789,
466 U. S.
804-805,
466 U. S.
808-810 (1984).
[
Footnote 9]
We also agree with Judge Edwards' observation that "[t]o insist
upon a judicial resolution of this case, given the facts and record
at hand, arguably suggests a lack of common sense." 227
U.S.App.D.C. at 33, 703 F.2d at 600. Nor is it any clearer to us
than it was to him "what has been achieved by this rather
exhausting expenditure of judicial resources."
Id. at 34,
703 F.2d at 601.
CHIEF JUSTICE BURGER, concurring.
I concur fully in the Court's opinion.
I find it difficult to conceive of what "camping" means if it
does not include pitching a tent and building a fire. Whether
sleeping or cooking follows is irrelevant. With all its frailties,
the English language, as used in this country for several
centuries, and as used in the Park Service regulations, could
hardly be plainer in informing the public that camping in Lafayette
Park was prohibited.
The actions here claimed as speech entitled to the protections
of the First Amendment simply are not speech; rather, they
constitute conduct. As Justice Black, who was never tolerant of
limits on speech, emphatically pointed out in his separate opinion
in
Cox v. Louisiana, 379 U. S. 536,
379 U. S. 578
(1965):
"The First and Fourteenth Amendments, I think, take away from
government, state and federal, all power to restrict freedom of
speech, press, and assembly
where people have a right to be for
such purposes. . . . Picketing, though it may be utilized to
communicate ideas, is not speech, and therefore is not, of itself,
protected by the First Amendment."
(Emphasis in original; citations omitted.)
Respondents' attempt at camping in the park is a form of
"picketing"; it is conduct, not speech. Moreover, it is conduct
that interferes with the rights of others to use Lafayette Park for
the purposes for which it was created. Lafayette Park and others
like it are for all the people, and their rights are not to be
trespassed even by those who have some "statement" to make. Tents,
fires, and sleepers, real or feigned, interfere with the rights of
others to use our parks. Of
Page 468 U. S. 301
course, the Constitution guarantees that people may make their
"statements," but Washington has countless places for the kind of
"statement" these respondents sought to make.
It trivializes the First Amendment to seek to use it as a shield
in the manner asserted here. And it tells us something about why
many people must wait for their "day in court" when the time of the
courts is preempted by frivolous proceedings that delay the causes
of litigants who have legitimate, nonfrivolous claims. This case
alone has engaged the time of 1 District Judge, an en banc court of
11 Court of Appeals Judges, and 9 Justices of this Court.
JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins,
dissenting.
The Court's disposition of this case is marked by two related
failings. First, the majority is either unwilling or unable to take
seriously the First Amendment claims advanced by respondents.
Contrary to the impression given by the majority, respondents are
not supplicants seeking to wheedle an undeserved favor from the
Government. They are citizens raising issues of profound public
importance who have properly turned to the courts for the
vindication of their constitutional rights. Second, the majority
misapplies the test for ascertaining whether a restraint on speech
qualifies as a reasonable time, place, and manner regulation. In
determining what constitutes a sustainable regulation, the majority
fails to subject the alleged interests of the Government to the
degree of scrutiny required to ensure that expressive activity
protected by the First Amendment remains free of unnecessary
limitations.
I
The proper starting point for analysis of this case is a
recognition that the activity in which respondents seek to engage
-- sleeping in a highly public place, outside, in the winter for
the purpose of protesting homelessness -- is symbolic speech
protected by the First Amendment. The majority
Page 468 U. S. 302
assumes, without deciding, that the respondents' conduct is
entitled to constitutional protection.
Ante at
468 U. S. 293.
The problem with this assumption is that the Court thereby avoids
examining closely the reality of respondents' planned expression.
The majority's approach denatures respondents' asserted right, and
thus makes all too easy identification of a Government interest
sufficient to warrant its abridgment. A realistic appraisal of the
competing interests at stake in this case requires a closer look at
the nature of the expressive conduct at issue and the context in
which that conduct would be displayed.
In late autumn of 1982, respondents sought permission to conduct
a round-the-clock demonstration in Lafayette Park and on the Mall.
Part of the demonstration would include homeless persons sleeping
outside in tents without any other amenities. [
Footnote 2/1] Respondents sought to begin their
demonstration on a date full of ominous meaning to any homeless
person: the first day of winter. Respondents were similarly
purposeful in choosing demonstration sites. The Court portrays
these sites -- the Mall and Lafayette Park -- in a peculiar
fashion. According to the Court:
"Lafayette Park and the Mall . . . are unique resources that the
Federal Government holds in trust for the American people.
Lafayette Park is a roughly 7-acre square located across
Pennsylvania Avenue from the White House. Although originally part
of the White House grounds, President Jefferson set it aside as a
park for the use of residents and visitors. It is a 'garden park
with a . . . formal landscaping of flowers and trees, with
fountains, walks and benches.' . . . The Mall is a
Page 468 U. S. 303
stretch of land running westward from the Capitol to the Lincoln
Memorial some two miles away. It includes the Washington Monument,
a series of reflecting pools, trees, lawns, and other greenery. It
is bordered by,
inter alia, the Smithsonian Institution
and the National Gallery of Art. Both the Park and the Mall were
included in Major Pierre L'Enfant's original plan for the Capital.
Both are visited by vast numbers of visitors from around the
country, as well as by large numbers of residents of the Washington
metropolitan area."
Ante at
468 U. S. 290.
Missing from the majority's description is any inkling that
Lafayette Park and the Mall have served as the sites for some of
the most rousing political demonstrations in the Nation's history.
It is interesting to learn, I suppose, that Lafayette Park and the
Mall were both part of Major Pierre L'Enfant's original plan for
the Capital. Far more pertinent, however, is that these areas
constitute, in the Government's words, "a fitting and powerful
forum for political expression and political protest." Brief for
Petitioners 11. [
Footnote 2/2]
The primary [
Footnote 2/3]
purpose for making sleep an integral part of the demonstration was
"to reenact the central reality of
Page 468 U. S. 304
homelessness," Brief for Respondents 2, and to impress upon
public consciousness, in as dramatic a way as possible, that
homelessness is a widespread problem, often ignored, that confronts
its victims with life-threatening deprivations. [
Footnote 2/4] As one of the homeless men seeking to
demonstrate explained:
"Sleeping in Lafayette Park or on the Mall, for me, is to show
people that conditions are so poor for the homeless and poor in
this city that we would actually sleep outside in the winter to get
the point across."
Id. at 3.
In a long line of cases, this Court has afforded First Amendment
protection to expressive conduct that qualifies as symbolic speech.
See, e.g., Tinker v. Des Moines School Dist., 393 U.
S. 503 (1969) (black armband worn by students in public
school as protest against United States policy in Vietnam war);
Brown v. Louisiana, 383 U. S. 131
(1966) (sit-in by Negro students in "whites only" library to
protest segregation);
Stromberg v. California,
283 U. S. 359
(1931) (flying red flag as gesture of support for communism). In
light of the surrounding context, respondents' proposed activity
meets the qualifications. The Court has previously acknowledged the
importance of context in determining
Page 468 U. S. 305
whether an act can properly be denominated as "speech" for First
Amendment purposes and has provided guidance concerning the way in
which courts should "read" a context in making this determination.
The leading case is
Spence v. Washington, 418 U.
S. 405 (1974), where this Court held that displaying a
United States flag with a peace symbol attached to it was conduct
protected by the First Amendment. The Court looked first to the
intent of the speaker -- whether there was an "intent to convey a
particularized message" -- and second to the perception of the
audience -- whether "the likelihood was great that the message
would be understood by those who viewed it."
Id. at
418 U. S.
410-411. Here, respondents clearly intended to protest
the reality of homelessness by sleeping outdoors in the winter in
the near vicinity of the magisterial residence of the President of
the United States. In addition to accentuating the political
character of their protest by their choice of location and mode of
communication, respondents also intended to underline the meaning
of their protest by giving their demonstration satirical names.
Respondents planned to name the demonstration on the Mall
"Congressional Village," and the demonstration in Lafayette Park,
"Reaganville II." App. 13.
Nor can there be any doubt that in the surrounding circumstances
the likelihood was great that the political significance of
sleeping in the parks would be understood by those who viewed it.
Certainly the news media understood the significance of
respondents' proposed activity; newspapers and magazines from
around the Nation reported their previous sleep-in and their
planned display. [
Footnote 2/5]
Ordinary citizens, too, would likely understand the political
message intended by respondents. This likelihood stems from the
remarkably apt fit between the activity in which respondents seek
to engage
Page 468 U. S. 306
and the social problem they seek to highlight. By using sleep as
an integral part of their mode of protest, respondents
"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."
Community for Creative Non-Violence v. Watt, 227
U.S.App.D.C.19, 34, 703 F.2d 586, 601 (1983) (Edwards, J.
concurring).
It is true that we all go to sleep as part of our daily regimen,
and that, for the most part, sleep represents a physical necessity,
and not a vehicle for expression. But these characteristics need
not prevent an activity that is normally devoid of expressive
purpose from being used as a novel mode of communication. Sitting
or standing in a library is a commonplace activity necessary to
facilitate ends usually having nothing to do with making a
statement. Moreover, sitting or standing is not conduct that an
observer would normally construe as expressive conduct. However,
for Negroes to stand or sit in a "whites only" library in Louisiana
in 1965 was powerfully expressive; in that particular context,
those acts became "monuments of protest" against segregation.
Brown v. Louisiana, supra, at
383 U. S.
139.
The Government contends that a foreseeable difficulty of
administration counsels against recognizing sleep as a mode of
expression protected by the First Amendment. The predicament the
Government envisions can be termed "the imposter problem": the
problem of distinguishing bona fide protesters from imposters whose
requests for permission to sleep in Lafayette Park or the Mall on
First Amendment grounds would mask ulterior designs -- the simple
desire, for example, to avoid the expense of hotel lodgings. The
Government maintains that such distinctions cannot be made without
inquiring into the sincerity of demonstrators, and that such an
inquiry would, itself, pose dangers to First Amendment values,
because it would necessarily be content-sensitive. I find this
argument unpersuasive. First, a
Page 468 U. S. 307
variety of circumstances already require government agencies to
engage in the delicate task of inquiring into the sincerity of
claimants asserting First Amendment rights.
See, e.g.,
Wisconsin v. Yoder, 406 U. S. 205,
406 U. S.
215-216 (1972) (exception of members of religious group
from compulsory education statute justified by group's adherence to
deep religious conviction, rather than subjective secular values);
Welsh v. United States, 398 U. S. 333,
398 U. S.
343-344 (1970) (eligibility for exemption from military
service as conscientious objector status justified by sincere
religious beliefs). It is thus incorrect to imply that any scrutiny
of the asserted purpose of persons seeking a permit to display
sleeping as a form of symbolic speech would import something
altogether new and disturbing into our First Amendment
jurisprudence. Second, the administrative difficulty the Government
envisions is now nothing more than a vague apprehension. If
permitting sleep to be used as a form of protected First Amendment
activity actually created the administrative problems the
Government now envisions, there would emerge a clear factual basis
upon which to establish the necessity for the limitation the
Government advocates.
The Government's final argument against granting respondents'
proposed activity any degree of First Amendment protection is that
the contextual analysis upon which respondents rely is fatally
flawed by overinclusiveness. The Government contends that the
Spence approach is overinclusive because it accords First
Amendment status to a wide variety of acts that, although
expressive, are obviously subject to prohibition. As the Government
notes,
"[a]ctions such as assassination of political figures and the
bombing of government buildings can fairly be characterized as
intended to convey a message that is readily perceived by the
public."
Brief for Petitioners 24, n. 18. The Government's argument would
pose a difficult problem were the determination whether an act
constitutes "speech" the end of First Amendment analysis. But such
a determination is not the end. If
Page 468 U. S. 308
an act is defined as speech, it must still be balanced against
countervailing government interests. The balancing which the First
Amendment requires would doom any argument seeking to protect
antisocial acts such as assassination or destruction of government
property from government interference, because compelling interests
would outweigh the expressive value of such conduct.
II
Although sleep in the context of this case is symbolic speech
protected by the First Amendment, it is nonetheless subject to
reasonable time, place, and manner restrictions. I agree with the
standard enunciated by the majority:
"[R]estrictions of this kind are valid provided that they are
justified without reference to the content of the regulated speech,
that they are narrowly tailored to serve a significant governmental
interest, and that they leave open ample alternative channels for
communication of the information."
Ante at
468 U. S. 293
(citations omitted). [
Footnote 2/6]
I conclude, however, that the regulations at issue in this case, as
applied to respondents, fail to satisfy this standard.
According to the majority, the significant Government interest
advanced by denying respondents' request to engage in sleep-speech
is the interest in
"maintaining the parks in the heart of our Capital in an
attractive and intact condition, readily available to the millions
of people who wish to see and enjoy them by their presence."
Ante at
468 U. S. 296.
That interest is indeed significant. However, neither the
Government nor the majority adequately explains how prohibiting
respondents' planned activity will substantially further that
interest.
The majority's attempted explanation begins with the curious
statement that it seriously doubts that the First
Page 468 U. S. 309
Amendment requires the Park Service to permit a demonstration in
Lafayette Park and the Mall involving a 24-hour vigil and the
erection of tents to accommodate 150 people.
Ante at
468 U. S. 296.
I cannot perceive why the Court should have "serious doubts"
regarding this matter, and it provides no explanation for its
uncertainty. Furthermore, even if the majority's doubts were well
founded, I cannot see how such doubts relate to the problem at
hand. The issue posed by this case is not whether the Government is
constitutionally compelled to permit the erection of tents and the
staging of a continuous 24-hour vigil; rather, the issue is whether
any substantial Government interest is served by banning sleep that
is part of a political demonstration.
What the Court may be suggesting is that, if the tents and the
24-hour vigil are permitted, but not constitutionally required to
be permitted, then respondents have no constitutional right to
engage in expressive conduct that supplements these activities. Put
in arithmetical terms, the Court appears to contend that, if X is
permitted by grace, rather than by constitutional compulsion, X + 1
can be denied without regard to the requirements the Government
must normally satisfy in order to restrain protected activity. This
notion, however, represents a misguided conception of the First
Amendment. The First Amendment requires the Government to justify
every instance of abridgment. That requirement stems from our
oft-stated recognition that the First Amendment was designed to
secure "the widest possible dissemination of information from
diverse and antagonistic sources,"
Associated Press v. United
States, 326 U. S. 1,
326 U. S. 20
(1945), and "to assure unfettered interchange of ideas for the
bringing about of political and social changes desired by the
people."
Roth v. United States, 354 U.
S. 476,
354 U. S. 484
(1957).
See also Buckley v. Valeo, 424 U. S.
1,
424 U. S. 49
(1976);
New York Times Co. v. Sullivan, 376 U.
S. 254,
376 U. S. 266
(1964);
Whitney v. California, 274 U.
S. 357,
274 U. S.
375-378 (1927) (Brandeis, J., concurring). Moreover, the
stringency of that requirement is
Page 468 U. S. 310
not diminished simply because the activity the Government seeks
to restrain is supplemental to other activity that the Government
may have permitted out of grace, but was not constitutionally
compelled to allow. If the Government cannot adequately justify
abridgment of protected expression, there is no reason why citizens
should be prevented from exercising the
first of the
rights safeguarded by our Bill of Rights.
The majority's second argument is comprised of the suggestion
that, although sleeping contains an element of expression, "its
major value to [respondents'] demonstration would have been
facilitative."
Ante at
468 U. S. 296.
While this observation does provide a hint of the weight the Court
attached to respondents' First Amendment claims, [
Footnote 2/7] it is utterly irrelevant to whether
the Government's ban on sleeping advances a substantial Government
interest.
The majority's third argument is based upon two claims. The
first is that the ban on sleeping relieves the Government of an
administrative burden because, without the flat ban, the process of
issuing and denying permits to other demonstrators asserting First
Amendment rights to sleep in the parks "would present difficult
problems for the Park Service."
Ante at
468 U. S. 297.
The second is that the ban on sleeping
Page 468 U. S. 311
will increase the probability that
"some around-the-clock demonstrations for days on end will not
materialize, [that] others will be limited in size and duration,
and that the purpose of the regulation will thus be materially
served,"
ante at
468 U. S. 297,
that purpose being "to limit the wear and tear on park properties."
Ante at
468 U. S.
299.
The flaw in these two contentions is that neither is supported
by a factual showing that evinces a real, as opposed to a merely
speculative, problem. The majority fails to offer any evidence
indicating that the absence of an absolute ban on sleeping would
present administrative problems to the Park Service that are
substantially more difficult than those it ordinarily confronts. A
mere apprehension of difficulties should not be enough to overcome
the right to free expression.
See United States v. Grace,
461 U. S. 171,
461 U. S. 182
(1983);
Tinker v. Des Moines School Dist., 393 U.S. at
393 U. S. 508.
Moreover, if the Government's interest in avoiding administrative
difficulties were truly "substantial," one would expect the agency
most involved in administering the parks at least to allude to such
an interest. Here, however, the perceived difficulty of
administering requests from other demonstrators seeking to convey
messages through sleeping was not among the reasons underlying the
Park Service regulations. [
Footnote
2/8] Nor was it mentioned by the Park Service in its rejection
of respondents' particular request. [
Footnote 2/9]
The Court's erroneous application of the standard for
ascertaining a reasonable time, place, and manner restriction is
also revealed by the majority's conclusion that a substantial
governmental interest is served by the sleeping ban because it will
discourage "around-the-clock demonstrations for days," and thus
further the regulation's purpose "to limit wear and tear on park
properties."
Ante at
468 U. S. 299.
The majority cites no evidence indicating that sleeping engaged in
as symbolic speech will cause
substantial wear and tear on
park property.
Page 468 U. S. 312
Furthermore, the Government's application of the sleeping ban in
the circumstances of this case is strikingly underinclusive. The
majority acknowledges that a proper time, place, and manner
restriction must be "narrowly tailored." Here, however, the
tailoring requirement is virtually forsaken, inasmuch as the
Government offers no justification for applying its absolute ban on
sleeping, yet is willing to allow respondents to engage in
activities -- such as feigned sleeping -- that is no less
burdensome.
In short, there are no substantial Government interests advanced
by the Government's regulations as applied to respondents. All that
the Court's decision advances are the prerogatives of a bureaucracy
that over the years has shown an implacable hostility toward
citizens' exercise of First Amendment rights. [
Footnote 2/10]
III
The disposition of this case impels me to make two additional
observations. First, in this case, as in some others involving
time, place, and manner restrictions, [
Footnote 2/11] the Court
Page 468 U. S. 313
has dramatically lowered its scrutiny of governmental
regulations once it has determined that such regulations are
content-neutral. The result has been the creation of a two-tiered
approach to First Amendment cases: while regulations that turn on
the content of the expression are subjected to a strict form of
judicial review, [
Footnote 2/12]
regulations that are aimed at matters other than expression receive
only a minimal level of scrutiny. The minimal scrutiny prong of
this two-tiered approach has led to an unfortunate diminution of
First Amendment protection. By narrowly limiting its concern to
whether a given regulation creates a content-based distinction, the
Court has seemingly overlooked the fact that content-neutral
restrictions are also capable of unnecessarily restricting
protected expressive activity. [
Footnote 2/13] To be sure, the general prohibition
against content-based regulations is an essential tool of First
Amendment analysis. It helps to put into operation the
well-established principle that
"government may not grant the use of a forum to people whose
views it finds acceptable, but deny use to those wishing to express
less favored or more controversial views."
Police Department of Chicago v. Mosley, 408 U. S.
92,
408 U. S. 95-96
(1972). The Court, however, has transformed the ban against content
distinctions from a floor that offers all persons at least equal
liberty under the First Amendment into a ceiling that restricts
persons to the protection of First Amendment equality -- but
nothing more. [
Footnote 2/14] The
consistent
Page 468 U. S. 314
imposition of silence upon all may fulfill the dictates of an
evenhanded content-neutrality. But it offends our "profound
national commitment to the principle that debate on public issues
should be uninhibited, robust, and wide-open."
New York Times
Co. v. Sullivan, 376 U.S. at
376 U. S. 270.
[
Footnote 2/15]
Second, the disposition of this case reveals a mistaken
assumption regarding the motives and behavior of Government
officials who create and administer content-neutral regulations.
The Court's salutary skepticism of governmental decisionmaking in
First Amendment matters suddenly dissipates once it determines that
a restriction is not
Page 468 U. S. 315
content-based. The Court evidently assumes that the balance
struck by officials is deserving of deference so long as it does
not appear to be tainted by content discrimination. What the Court
fails to recognize is that public officials have strong incentives
to over-regulate even in the absence of an intent to censor
particular views. This incentive stems from the fact that of the
two groups whose interests officials must accommodate -- on the one
hand, the interests of the general public and, on the other, the
interests of those who seek to use a particular forum for First
Amendment activity -- the political power of the former is likely
to be far greater than that of the latter. [
Footnote 2/16]
The political dynamics likely to lead officials to a
disproportionate sensitivity to regulatory, as opposed to First
Amendment, interests can be discerned in the background of this
case. Although the Park Service appears to have applied the revised
regulations consistently, there are facts in the record of this
case that raise a substantial possibility that the impetus behind
the revision may have derived less from concerns about
administrative difficulties and wear and tear on the park
facilities than from other, more "political," concerns. The alleged
need for more restrictive regulations stemmed from a court decision
favoring the same First Amendment claimants that are parties to
this case.
See 468
U.S. 288fn2/1|>n. 1,
supra. Moreover, in response
both to the Park Service's announcement that it was considering
changing its rules and the respondents' expressive activities, at
least one powerful group urged the Service to tighten its
regulations. [
Footnote 2/17] The
point of these observations is not to impugn the integrity of the
National Park Service. Rather, my intention is to illustrate
concretely that government agencies, by their
Page 468 U. S. 316
very nature, are driven to over-regulate public forums to the
detriment of First Amendment rights, that facial
viewpoint-neutrality is no shield against unnecessary restrictions
on unpopular ideas or modes of expression, and that, in this case
in particular, there was evidence readily available that should
have impelled the Court to subject the Government's restrictive
policy to something more than minimal scrutiny. For the foregoing
reasons, I respectfully dissent.
[
Footnote 2/1]
The previous winter, respondents had held a similar
demonstration after courts ruled that the Park Service regulations
then in effect did not extend to respondents' proposed activities.
Community for Creative Non-Violence v. Watt, 216
U.S.App.D.C. 394, 670 F.2d 1213 (1982) (
CCNV I). Those
activities consisted of setting up and sleeping in nine tents in
Lafayette Park. The regulations at issue in this case were
promulgated in direct response to
CCNV I. 47 Fed.Reg.
24299 (1982).
[
Footnote 2/2]
At oral argument, the Government informed the Court "that, on
any given day, there will be an average of three or so
demonstrations going on" in the Mall-Lafayette Park area. Tr. of
Oral Arg. 3-4. Respondents accurately describe Lafayette Park "as
the American analogue to
speaker's Corner' in Hyde Park." Brief
for Respondents 16, n. 25.
[
Footnote 2/3]
Another purpose for making sleep part of the demonstration was
to enable participants to weather the rigors of the round-the-clock
vigil and to encourage other homeless persons to participate in the
demonstration. As respondents stated in their application for a
demonstration permit:
"If there was ever any question as to whether sleeping was a
necessary element in this demonstration, it should be answered by
now [in light of the previous year's demonstration]. No matter how
hard we tried to get [homeless persons] to come to Reaganville [the
name given to the demonstration by respondents], they simply would
not come until sleeping was permitted."
App. 14.
[
Footnote 2/4]
Estimates on the number of homeless persons in the United States
range from two to three million.
See Brief for National
Coalition for the Homeless as
Amicus Curiae 3. Though
numerically significant, the homeless are politically powerless,
inasmuch as they lack the financial resources necessary to obtain
access to many of the most effective means of persuasion. Moreover,
homeless persons are likely to be denied access to the vote, since
the lack of a mailing address or other proof of residence within a
State disqualifies an otherwise eligible citizen from registering
to vote.
Id. at 5.
The detrimental effects of homelessness are manifold, and
include psychic trauma, circulatory difficulties, infections that
refuse to heal, lice infestations, and hypothermia.
Id. at
14-15. In the extreme, exposure to the elements can lead to death;
over the 1983 Christmas weekend in New York City, 14 homeless
persons perished from the cold.
See N.Y. Times, Dec. 27,
1983, p. A1., col. 1.
[
Footnote 2/5]
See articles appended to Declaration of Mary Ellen
Hombs, Record, Vol. 1.
[
Footnote 2/6]
I also agree with the majority that no substantial difference
distinguishes the test applicable to time, place, and manner
restrictions and the test articulated in
United States v.
O'Brien, 391 U. S. 367
(1968).
See ante at
468 U. S.
298-299, n. 8.
[
Footnote 2/7]
The facilitative purpose of the sleep-in takes away nothing from
its independent status as symbolic speech. Moreover, facilitative
conduct that is closely related to expressive activity is itself
protected by First Amendment considerations. I therefore find
myself in agreement with Judge Ginsburg, who noted that
"the personal noncommunicative aspect of sleeping in symbolic
tents at a demonstration site bears a close, functional
relationship to an activity that is commonly comprehended as 'free
speech.'"
Community for Creative Non-Violence v. Watt, 227
U.S.App.D.C. 19, 40, 703 F.2d 586, 607 (1983).
"[S]leeping 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."
Ibid. For me, as for Judge Ginsburg, that linkage
itself
"suffices to require a genuine effort to balance the
demonstrators' interests against other concerns for which the
government bears responsibility."
Ibid. .
[
Footnote 2/8]
See 47 Fed.Reg. 24301 (1982).
[
Footnote 2/9]
App. 16-17.
[
Footnote 2/10]
At oral argument, the Government suggested that the ban on
sleeping should not be invalidated as applied to respondents simply
because the Government is willing to allow respondents to engage in
other nonverbal acts of expression that may also trench upon the
Government interests served by the ban. Tr. of Oral Arg. 15, 23.
The Government maintains that such a result makes the Government a
victim of its own generosity. However the Government's
characterization of itself as an unstinting provider of
opportunities for protected expression is thoroughly discredited by
a long line of decisions
compelling the National Park
Service to allow the expressive conduct it now claims to permit as
a matter of grace.
See, e.g., Women Strike for Peace v.
Morton, 153 U.S.App.D.C.198, 472 F.2d 1273 (1972);
A
Quaker Action Group v. Morton, 170 U.S.App.D.C. 124, 516 F.2d
717 (1975);
United States v. Abney, 175 U.S.App.D.C. 247,
534 F.2d 984 (1976).
[
Footnote 2/11]
See, e.g., City Council of Los Angeles v. Taxpayers for
Vincent, 466 U. S. 789
(1984);
Heffron v. International Society for Krishna
Consciousness, Inc., 452 U. S. 640
(1981).
But see United States v. Grace, 461 U.
S. 171 (1983);
Tinker v. Des Moines School
Dist., 393 U. S. 503
(1969);
Brown v. Louisiana, 383 U.
S. 131 (1966).
[
Footnote 2/12]
See, e.g., Landmark Communications, Inc. v. Virginia,
435 U. S. 829
(1978). It should be noted, however, that there is a context in
which regulations that are facially content-neutral are nonetheless
subjected to strict scrutiny. This situation arises when a
regulation vests standardless discretion in officials empowered to
dispense permits for the use of public forums.
See, e.g.,
Lovell v. City of Griffin, 303 U. S. 444
(1938);
Hague v. CIO, 307 U. S. 496
(1939);
Shuttlesworth v. City of Birmingham, 394 U.
S. 147 (1969).
[
Footnote 2/13]
See Redish, The Content Distinction in First Amendment
Analysis, 34 Stan.L.Rev. 113 (1981).
[
Footnote 2/14]
Furthermore, a content-neutral regulation does not necessarily
fall with random or equal force upon different groups or different
points of view. A content-neutral regulation that restricts an
inexpensive mode of communication will fall most heavily upon
relatively poor speakers and the points of view that such speakers
typically espouse.
See, e.g., City Council of Los Angeles v.
Taxpayers for Vincent, supra, at
466 U. S.
812-813, n. 30. This sort of latent inequality is very
much in evidence in this case, for respondents lack the financial
means necessary to buy access to more conventional modes of
persuasion.
A disquieting feature about the disposition of this case is that
it lends credence to the charge that judicial administration of the
First Amendment, in conjunction with a social order marked by large
disparities in wealth and other sources of power, tends
systematically to discriminate against efforts by the relatively
disadvantaged to convey their political ideas. In the past, this
Court has taken such considerations into account in adjudicating
the First Amendment rights of those among us who are financially
deprived.
See, e.g., Martin v. Struthers, 319 U.
S. 141,
319 U. S. 146
(1943) (striking down ban on door-to-door distribution of circulars
in part because this mode of distribution is "essential to the
poorly financed causes of little people");
Marsh v.
Alabama, 326 U. S. 501
(1946) (State cannot impose criminal sanction on person for
distributing literature on sidewalk of town owned by private
corporation). Such solicitude is noticeably absent from the
majority's opinion, continuing a trend that has not escaped the
attention of commentators.
See, e.g., Dorsen & Gora,
Free Speech, Property, and The Burger Court: Old Values, New
Balances, 1982 S.Ct.Rev.195; Van Alstyne, The Recrudescence of
Property Rights as the Foremost Principle of Civil Liberties: The
First Decade of the Burger Court, 43 Law & Contemp. Prob. 66
(summer 1980).
[
Footnote 2/15]
For a critique of the limits of the equality principle in First
Amendment analysis
see Redish,
supra, at
134-139.
[
Footnote 2/16]
See Goldberger, Judicial Scrutiny in Public Forum
Cases: Misplaced Trust in the Judgment of Public Officials, 32
Buffalo L.Rev. 175, 208 (1983).
[
Footnote 2/17]
See Declaration of Mary Ellen Hombs, Exhibit 1kk,
Record, Vol. 1.