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VIETNAM VETERANS AGAINST THE WAR v. MORTON

June 28, 1974

VIETNAM VETERANS AGAINST THE WAR et al., Plaintiffs,
v.
Rogers C. B. MORTON et al., Defendants


Charles R. Richey, District Judge.


The opinion of the court was delivered by: RICHEY

CHARLES R. RICHEY, District Judge.

 INTRODUCTION AND RELIEF REQUESTED

 The Plaintiffs seek injunctive and declaratory relief to enjoin the Defendants from withholding a permit to establish a symbolic campsite on the Mall as part of their proposed demonstration activities scheduled for 8 a.m. on June 30, 1974 through midnight on July 4, 1974 for approximately 1,000 people. The part of the Mall area to be used is located at the southeast corner of 4th Street N.W. and Washington Drive, N.W., in the District of Columbia.

 The Plaintiffs' application was dated March 4, 1974, and by letter dated May 1, 1974, the Director of the National Capital Parks, National Park Service (NPS), Department of the Interior, granted Plaintiffs' application, in part, permitting "public gathering activities" under 36 C.F.R. § 50.19, but also and at the same time under 36 C.F.R. § 50.27 denied Plaintiffs' request to use the Mall area for camping purposes, saying in relevant part that "camping is permitted only in areas designated by the Superintendent . . ." 36 C.F.R. § 50.27(a).

 The pleadings and record before the Court indicate that the Plaintiffs seek the particular Mall location as "an inseparable part of their First Amendment Activity" and the "undeniably dramatic impact of a veterans' encampment at the foot of the Nation's Capitol". The Plaintiffs did the same thing in April 1971 at the easterly end of the Mall, and they allege that this previous experience as well as that of others establishes the symbolic nature and significance of the proposed campsite as a demonstration activity, and "its indispensable value in focusing attention on the substantive issues the Vietnam Veterans seek to publicize."

 The Court has before it Cross-Motions for Summary Judgment as well as Plaintiffs' Motion for a Preliminary Injunction. Since there is no dispute as to a material fact, the Court finds this matter may be disposed of by a ruling on the parties' Summary Judgment Motions. After full consideration of the pleadings herein, as well as the oral argument of all counsel and the Amicus Curiae, the Court finds the Plaintiffs are entitled to maintain their "symbolic campsite" on a 24-hour basis for the four days specified in their "public gathering" permit.

 I.

 THE GOVERNMENT HAS A SPECIAL OBLIGATION TO MAINTAIN THE PUBLIC PARK AREAS IN WASHINGTON, D.C. FOR PUBLIC DISCUSSIONS IN ORDER TO SAFEGUARD THE GUARANTEED RIGHT OF PUBLIC ASSEMBLY

 Freedom of expression has a preferred position in our society. The First Amendment right of access to public places for expression of one's views, subject of course to reasonable regulations narrowly drawn to protect other competing interests, is a basic principle of our constitutional jurisprudence. E.g. Shuttlesworth v. Birmingham, 394 U.S. 147, 89 S. Ct. 935, 22 L. Ed. 2d 162 (1969); Gregory v. Chicago, 394 U.S. 111, 89 S. Ct. 946, 22 L. Ed. 2d 134 (1969); Cox v. Louisiana, 379 U.S. 536, 85 S. Ct. 453, 13 L. Ed. 2d 471 (1965); Niemotko v. Maryland, 340 U.S. 268, 71 S. Ct. 325, 95 L. Ed. 267 (1951); Hague v. C.I.O., 307 U.S. 496, 59 S. Ct. 954, 83 L. Ed. 1423 (1939). In effect, the public parks are held in trust for the public to use to assemble to communicate their thoughts to other citizens to debate public issues, and to petition their government for redress of grievances. Hague, supra, at 515, 59 S. Ct. 954.

 In this city especially, free access to the public parks, particularly those located adjacent to government buildings, is of paramount importance. This is the seat of the national government, the center of national political power. Those seeking to petition their government for the redress of their grievances must come to this city. A protest or demonstration in the Nation's Capital brings an issue into national focus, and brings the problem to the collective attention of the country's highest lawmakers.

 The Court is mindful that non-speech elements of public assembly and free expression can be legitimately regulated. However, due to the preferred position of these freedoms, the legitimacy of incidental limitations thereupon rests on whether the regulation is justified. *fn1" United States v. O'Brien, 391 U.S. 367, 88 S. Ct. 1673, 20 L. Ed. 2d 672 (1968). More specifically, if the regulation acts as a prior restraint on the First Amendment freedom by requiring a permit, again, due to the preferred position of the freedom, the regulation must be narrowly drawn with definite standards to guide the licensing authority. Shuttlesworth, supra; Cox, supra; Hague, supra.

 In light of the fact that public areas within the city are unique forums for the expression of ideas, the Court has considered the central issue in this case, namely, whether the Plaintiffs' right of access to the Mall to exercise their right of freedom of expression has been limited by a justifiable permit regulation narrowly drawn and applied to protect other competing interests. The Court ...


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