Response to proposed rules on limiting public protests near the White House

How to comment: 

The deadline for comments is 11:59pm Monday, October 15th

I am writing to voice strong opposition to the National Park Service’s (NPS) proposal (RIN: 1024-AE45).

The First Amendment states that “Congress shall make no law…abridging…the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” These words, both in original intent and as interpreted by the courts, make it clear that in public spaces, such as the areas governed by 36 CFR § 7.96, “permitting” a demonstration is not a discretionary act. In Meyer v. Grant, the court declared that “the First Amendment mandates that we presume that speakers, not the Government, know best both what they want to say and how to say it.” Permit processes do not exist because citizens need the government’s permission to demonstrate in public streets, sidewalks, or parks. We emphatically do not need such permission. Indeed, a requirement that a person obtain a permit before speaking is a prior restraint on speech. The proposed changes extend such prior restraint in a broad and unconstitutional manner.

The NPS has tried implementing similar policies in the past, and the courts rebuffed these attempts to infringe on Americans’ First Amendment rights. In 1967, the federal government attempted to limit protests near the White House. The American Civil Liberties Union (ACLU) of the District of Columbia sued, and after years of litigation, the courts rebuffed the government’s effort. In A Quaker Action Group v. Morton, the court reminded the NPS that the White House area and the National Mall “constitute a unique [site] for the exercise of First Amendment rights.” The court order specifically allows demonstrations of at least 750 people on the White House sidewalk, saying that any lower limit is “invalid and void as an unconstitutional infringement of plaintiffs’ rights to freedom of speech and to assemble peaceably and to petition the Government for a redress of grievances.” Under this order, NPS issued regulations that guaranteed quick action on permit applications for large demonstrations, and accommodated spontaneous protests as much as possible.

The practice of gathering in front of the White House–often called The People’s House–has a long history, back to the women’s suffrage movement. Under the proposed rule change, the NPS would close most of the White House sidewalk and limit demonstrators to a 5-foot sliver of sidewalk along Pennsylvania Avenue. This closure would directly violate the existing [1975] court order, and abrogate the people’s right to express our views in front of the White House.

The park service offers no justification for this infringement on our constitutional rights. Security concerns have already been addressed by the planned construction of a new fence with specialized anti-climbing features that is specifically designed to “meet contemporary security standards” while allowing the sidewalk to remain open. During the planning process for the new fence, the Secret Service stated that their “priority is to maintain the public’s access…It is in fact a quintessential First Amendment site.” Security concerns are not a reasonable justification for this unprecedented attack on the rights of the people to freely assemble and petition their government.

Additionally, the proposed regulation seeks to eliminate the distinction between “demonstration” and “special event” in the permitting process, the latter of which refers to concerts, sports events, or similar performances. Special events can incur significant fees. Eliminating this distinction would mean that fees could be assessed on citizens exercising their First Amendment rights to free speech and assembly. The NPS fails to explain or justify the basis for eliminating this distinction, in direct violation of the Administrative Procedure Act’s requirement of reasoned rulemaking. The proposed rule would treat demonstrations that include “elements” such as singing or costumes–which are protected by the First Amendment–as less than fully protected speech. In doing so, the proposed regulation would violate the law as codified by numerous court decisions (including 491 US 781, 790 (1989); 529 US 277, 289 (2000); and 472 F.2d 1273 (DC Cir. 1972)). It is incumbent on the NPS to specifically and clearly state the basis for eliminating the distinction between demonstration and special event, which it failed to do in the current proposal. This proposed change would have broad and far-reaching implications for our First Amendment rights, and must be adequately explained and justified. At this point, NPS has done neither.

I strongly oppose the proposed changes to the permitting process and the locations under these regulations because they are arbitrary, unnecessary, and antithetical to the very ideals our republic was founded on.