The opinion of the court was delivered by: HART
1. The plaintiffs are A Quaker Action Group; Action Committee on American-Arab Relations; Clergy and Laymen Concerned About Vietnam; Jews for Urban Justice and Women Strike for Peace. They are all unincorporated associations whose members, from time to time, attempt to influence the political policies of the Government of the United States. One of the principal means by which they exercise their rights guaranteed under the First Amendment to the Constitution is to demonstrate publicly in Washington, D.C., including demonstrations on the White House sidewalks, Lafayette Park, and the Ellipse. The individual plaintiffs are members and officers of the above-named associations.
2. Defendants are all officials and agents of the United States. Each is sued in his individual and his official capacities. Under the controlling statutes and regulations, defendants have exclusive control and charge over the sidewalk on the north side of the White House between East and West Executive Avenues (hereinafter referred to as the White House sidewalk), over Lafayette Park, and the Ellipse.
3. The National Park Service, Department of Interior, has administrative jurisdiction over the White House sidewalk, Lafayette Park, and the Ellipse. Prior to the issuance on August 10, 1967, of the "Jett Memorandum", numerical limitations were not imposed on the size of public gatherings on the White House sidewalk, although a permit system was in effect for the White House sidewalk.
4. Prior to August 10, 1967, the Metropolitan Police exercised the primary responsibility for supervising demonstrations on the White House sidewalk. Since that date, the Park Police and Metropolitan Police have exercised concurrent jurisdiction over this area, though the Park Police have had the primary responsibility. The Park Police have always had the primary responsibility for Lafayette Park and the Ellipse.
5. On March 23, 1965, the Solicitor of the Department of Interior wrote, then Secretary Udall, giving the Solicitor's opinion that a prohibition of demonstrations in Lafayette Park was unconstitutional. His opinion was that the First Amendment protected such assemblies and that the Department's policies cannot be interpreted to require demonstrations "to be held out of sight and hearing of the very person to whom such petitions are directed". Further, the Solicitor's opinion was that free speech cannot be suppressed nor gatherings forbidden simply because some other person might be inconvenienced or made uncomfortable or because Lafayette Park is too close to the White House and good taste requires more reverence and decorum in that place.
(a) the presumption that a public gathering would result in a breach of the peace;
(b) the activity would not be in harmony with the objectives for which the area was established;
(c) the activity would interfere with the comfort, convenience, and interest of the general public;
(d) the activity would disrupt the use of the area.
In addition, permits should be granted on a "first come-first served" basis. The "failure to obtain a permit will not in itself be cause for action leading to prosecution".
7. By 1967, the National Park Services' administrative jurisdiction over the sidewalk on the north side of the White House and over all sidewalk on the north side of the White House and over all sidewalks adjoining park grounds was recognized.
8. In the Spring and Summer of 1967, demonstrations in the front of the White House had reached a point where those concerned with the President's safety felt that steps should be taken to reduce the danger posed. On July 25, 1967, Marvin Watson sent a memorandum to the President bringing him up to date on the steps so far taken to resolve the matter as set forth in a memorandum to Marvin Watson, which read as follows:
"MEMORANDUM FOR MARVIN WATSON:
" Several meetings have been held on the subject of picketing and demonstrations in the White House area. These meetings have included representatives of the Secret Service, U.S. Park Police, White House Police, Metropolitan Police, and the Park Service of the Department of Interior.
"Subsequently, this matter has been discussed by Ramsey Clark, Frank Barry (Solicitor at Interior), Harry McPherson, and DeVier Pierson. You have received a position paper from the Secret Service, a memorandum from Charles Sither of your office, and a memorandum from DeVier Pierson.
"All parties are in agreement on the following matters:
"-- Major demonstrations involving thousands of persons -- such as those sponsored by the Spring Mobilization Committee, SANE, and other groups mentioned in the Secret Service memorandum -- cannot be tolerated and must be prohibited in the White House area. These demonstrations constitute a potential security hazard.
"-- The prohibition against picketing and demonstrations on East Executive Avenue, South Executive Avenue, West Executive Avenue, State Place, and Alexander Hamilton Place -- this being the entire boundary of the White House grounds with the exception of the Pennsylvania Avenue sidewalk -- should be continued.
"-- The current practice of permitting demonstrations or picketing on Pennsylvania Avenue sidewalk without a permit should not be continued.
"-- The regulations against blocking entrances or interfering with the use of the sidewalk by the general public should be enforced -- and with White House support.
"There is an unresolved difference on one major issue -- whether smaller demonstrations should be absolutely prohibited in this area or whether they should be regulated by a limitation on number of persons. The Secret Service and Charles Sither -- with the concurrence of all police authorities -- support an absolute prohibition. The Attorney General, Interior, McPherson and Pierson support a limitation on numbers.
"Here are the arguments for an absolute prohibition:
"-- An attempt to limit numbers would make enforcement difficult or impossible. Once you permit some demonstrators to enter the area, it will be very hard to keep others out.
"-- Demonstrations have become increasingly violent with irresponsible leadership. Even a small group often involve "lie-ins" and other repugnant activities which are not in keeping with the dignity of the White House.
"-- Nearby areas (the Washington Monument Grounds, Sylvan Theatre, etc.) are more suitable for demonstrations of any size -- the White House area and Lafayette Park should be kept clear at all times for the use of the general public.
"-- The political cost of a prohibition is exaggerated. The Capitol Grounds have been off limits without much adverse publicity. The majority of the public would support such a prohibition -- particularly with the current riots and civil disobedience.
"Those favoring a limitation on numbers proposed that picketing and demonstrations on the Pennsylvania Avenue sidewalk be limited to 100 persons and demonstrations in Lafayette Park be limited to 500 persons. They argue as follows:
"-- There is no evidence that small groups of demonstrators pose any security risk to the President. Small groups plotting to break into the White House can use the Pennsylvania Avenue sidewalk as part of the general public -- so that prohibitions against picketing and demonstrations do not alter the enforcement problem as to these groups.
"-- Requirements for a permit would discourage picketing on the Pennsylvania Avenue sidewalk -- but would still not require the arrest of every small group.
"-- A prohibition would require publication of revised regulations -- and this would encourage testing the prohibition by publicity seeking groups. This places the White House in the posture of stifling dissent each time. (Justice and Interior agree that present regulations may be administered to restrict numbers -- but not for an absolute prohibition.)
"-- A prohibition at this time would be interpreted as an admission in the face of the current riots -- that we are afraid to have even small groups in the White House area.
"The clear preference of the Secret Service is an absolute prohibition. However, they agree that a limitation on numbers and tighter enforcement would be a substantial improvement over the present situation.
"All parties agree that the action taken should be reviewed at a later date to determine if it has resulted in a satisfactory remedy to the problem.
"Whatever the decision as to smaller demonstrations, all parties recommend the following:
"1. That the Park Police have jurisdiction over the Pennsylvania Avenue sidewalk for permit purposes -- and that the Metropolitan Police have jurisdiction for general maintenance of law and order including times during which demonstrations are occurring.
"2. That the White House be consulted by the Park Service in advance of the approval or denial of a permit.
"3. That the limitation of numbers be firmly enforced.
"5. That the Secret Service be given authority to request arrests for clear violation of the regulations and that a procedure be reached for speedy White House decisions on borderline cases.
"6. That these procedures be set out by memorandum and distributed to the parties concerned so that there is a clear understanding as to the relative responsibility.
"7. Finally -- and most important -- the agreements reached on major demonstrations requiring permits on Pennsylvania Avenue, and enforcement of regulations against blocking entrances ...