The opinion of the court was delivered by: JACKSON
Lucy Duff and Robert Woodruff appeal pro se from their convictions by a United States magistrate of a violation of a National Park Service regulation, 36 C.F.R. § 50.19(e)(9), which prohibits individuals' wielding signs or placards while standing motionless within the mid-portion of the White House sidewalk.
Although appellants concede their knowing and willful violation of the regulation, and do not contest the fairness of their trial, they nevertheless contend that their convictions should be overturned because the regulation is unconstitutional. For the reasons set forth below, the magistrate's judgments will be affirmed.
The facts are undisputed. On October 31, 1984, at approximately 1:00 p.m., Officer John T. McClure of the U.S. Park Police observed appellants Duff and Woodruff, holding signs,
standing in the center portion of the sidewalk in front of 1600 Pennsylvania Avenue. Officer McClure testified at trial that after two or three minutes he approached the appellants, advised them that they were in violation of the regulation, and asked whether they would comply with it. Ms. Duff and Mr. Woodruff each responded negatively, and the officer accordingly placed them under arrest. Appellants neither objected to nor resisted their arrests.
Officer McClure was the only government witness. Appellants did not cross-examine or offer evidence of their own, but they did read a prepared statement as to their reasons for disobeying the regulation. They were found guilty, and each was sentenced to 30 days' imprisonment, with execution of the sentence suspended, and one year's unsupervised probation. This appeal followed.
The Court of Appeals for the D.C. Circuit has recently determined § 50.19(e)(9) to be constitutional in most of the respects appellants say it is not.
White House Vigil v. Clark, 241 U.S. App. D.C. 201, 746 F.2d 1518 (D.C. Cir.1984). This Court is, of course, obliged to follow that decision. Noting that the government had not entirely prohibited expressive activities either on the White House sidewalk in its entirety or in the "center zone,"
the court stated that the government "may adopt reasonable 'time, place and manner' restrictions on the exercise of free speech, so long as the restrictions are content-neutral, are narrowly tailored to serve a significant governmental interest, and leave open ample alternative channels of communication." 746 F.2d at 1526-27.
It then found that § 50.19(e)(9) is all of the above: content-neutral -- indeed, content-silent; "narrowly tailored" to serve the governmental interest involved, i.e., the aesthetics of the front of the executive mansion; and affecting no "alternative channel of communication" imagination can devise so long as it is not pursued in a static posture. The decision thus lays to rest, as far as this Court is concerned, most of appellants' arguments.
The circuit court did not, however, have occasion to consider in White House Vigil whether the regulation comports with the Equal Protection Clause. Appellants contend that individuals who take to the sidewalk in front of the White House to protest are likely to be people of "modest means," unable to afford more effective forms of communication. Therefore, they say, the regulation discriminates on the basis of wealth.
The Supreme Court has stated that "When government regulation discriminates among speech-related activities in a public forum, the Equal Protection Clause mandates that the legislation be finely tailored to serve substantial state interests, and the justifications offered for any distinctions it draws must be carefully scrutinized." Carey v. Brown, 447 U.S. 455, 461-62, 100 S. Ct. 2286, 2290-91, 65 L. Ed. 2d 263 (1980). See also Police Department of Chicago v. Mosley, 408 U.S. 92, 98-99, 101, 92 S. Ct. 2286, 2291-92, 2293, 33 L. Ed. 2d 212 (1972). So scrutinized, however, it is obvious that the regulation at issue here makes no distinctions at all on its face, on the basis of wealth or otherwise. And appellants suggest no reason to suppose the penurious to be generically any less ambulatory than the rest of the population and, thus, unable to keep moving while they make their statements, which is all the regulation requires of them.
In summary, as the court of appeals noted in White House Vigil :
For the foregoing reasons, therefore, the Court holds that 36 C.F.R. § 50.19(e)(9) is constitutional, and it is, this 27th day of March, 1985,
ORDERED, that the magistrate's judgments of conviction ...