I have particular interest in this proposed rule for two reasons. First, because the public lands administered by the National Park Service (NPS) in the nation’s capital constitute a “unique situs for the exercise of First Amendment rights,” A Quaker Action Group v. Morton, 516 F.2d 717, 725 (D.C. Cir. 1975); second, because of my active involvement over the last 50 years in protecting the rights of individuals to protest in these areas.
From the 1960s through the 1990s, the ACLU-DC frequently had to sue over the Park Service’s attempts to impose unconstitutional restrictions on the right to protest. See, e.g., Women Strike for Peace v. Hickel, 420 F.2d 597 (D.C. Cir. 1969);Women Strike for Peace v. Morton, 472 F.2d 1273 (D.C. Cir. 1972); Allen v. Morton, 495 F.2d 65 (D.C. Cir. 1973); A Quaker Action Group v. Morton, 516 F.2d 717 (D.C. Cir. 1975); Saffron v. Wilson, 481 F. Supp. 228 (D.D.C. 1979); O’Hair v. Andrus, 613 F.2d 931 (D.C Cir. 1979) (amicus ACLU); White House Vigil for the ERA Committee v. Clark, 746 F.2d 1518 (D.C. Cir. 1984); Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984); Henderson v. Lujan, 964 F.2d 1179 (D.C. Cir. 1992) (amicus); United States v. Doe, 968 F.2d 86 (D.C. Cir. 1992) (amicus); Friends of the Vietnam Veterans Memorial v. Kennedy, 116 F.3d 495 (D.C. Cir. 1997) (amicus); Torossian v. Hayo, 45 F. Supp. 2d 63 (D.D.C. 1999).
In more recent years, the rules have been stable, and NPS has generally respected First Amendment rights. Indeed, the Park Service’s own Foundation Document for the National Mall and Memorial Parks, issued just last year, recognizes that these areas are the “National Stage of Public Expression,” which “serves as the premier national civic space for public gatherings including First Amendment activities . . . . It is at National Mall and Memorial Parks that the constitutional rights of speech and peaceful assembly find their fullest expression . . . .” National Park Service, Foundation Document: National Mall and Memorial Parks at 17 (August 2017) (boldface in original) (available at
But the amendments now proposed harken back to the era in which the courts had to be called upon to protect the right to dissent in the nation’s capital. As detailed by the October 8, 2018 ACLU letter-formatted comment, many of the proposed amendments would be unconstitutional if adopted. In addition, several of the proposed rule changes would violate court orders that were issued in ACLU-DC cases cited above and that remain in effect. At the same time, the Federal Register notice suggests that NPS is open to considering regulatory changes that could enhance the exercise of First Amendment rights in a few respects, and I would welcome such changes. ACLU-DC and the National ACLU have submitted their comments on the proposed rule in the October 8, 2018 letter-formatted comment from ACLU (available at https://www.aclu.org/letter/aclu-public-comment-opposing-trump-administration-proposal-restrict-protest-rights-washington ).
1. NPS fails to explain its proposal to eliminate the dichotomy between “demonstrations” and “special events,” and therefore violates the Administrative Procedure Act’s requirement of reasoned rulemaking.
Moreover, if the proposal is designed to treat activities such as singing and dancing, and the use of costumes and props, in the context of a demonstration as less-than-fully-protected by the First Amendment, it would be unconstitutional.
2. NPS should amend the general rule that groups of up to 25 persons may demonstrate without a permit to provide that groups of up to 60 persons — the approximate capacity of the tourist or school buses that regularly unload on NPS lands without issue — may demonstrate without a permit. NPS should also increase the size of demonstrations that can be accommodated without permits in designated areas (such as McPherson Square and Franklin Park) because their capacity is greater than the current rules allow, and experience has shown that larger groups can be accommodated without a permit. And NPS should add additional areas (such as Dupont Circle and Farragut Square) to the list of designated areas where large demonstrations can take place without a permit.
Most importantly, The stealthy proposal to close 80% of the White House sidewalk cannot go forward because it is not even mentioned in the Federal Register discussion. Even if it had been discussed, the closure would violate the court order in A Quaker Action Group v. Kleppe, Civ. No. 688-69 (D.D.C. Nov. 21, 1975), which remains binding on NPS. The proposal is also inconsistent with the ongoing project to replace the White House fence with a new, significantly taller fence with special anti-climbing features that was specifically designed to allow the public continued access to this “quintessential First Amendment site” while meeting “contemporary security standards.”
Oppose, Overrule and Deny the Proposed rule regarding demonstrations and special events in the National Capital Region, 83 Fed. Reg. 40460 (Aug. 15, 2018) Regulation Identifier No. 1024-AE45
It's a shame that symbols of a nation have apparently been hijacked to include a handful of draconian limitations to the historically broad free speech and assembly provisions granted to those seeking to protest in the public eye in Washington DC. These changes are, across the board, poorly supported.
The existing uncontroversial rule should be maintained rather than using it as a Trojan Horse for the administration's continuing suppression of their vocal and activated opposition. The well has now been poisoned, and this entire rule should be blocked.
To preempt & decapitate November 3rd pre-election rallies etc., music, drum circles, dances of all types, and other forms of free speech and media attractions for reportage are all limited and criminalized under the proposed rule and its consequences should it become enforceable, if it is enforced, then should it be ignored/protested/etc.