every 24 hours. In response, defendants have filed the affidavit of George M. White, the incumbent Architect of the Capitol who was a member of the U.S. Capitol Police Board in 1976 when regulation 156 was promulgated.
According to Mr. White, the Board designed the regulation so that it could "be applied fairly to all, with as little control as possible, and so as to remove, to the maximum extent possible, the element of discretion . . . ." According to Mr. White, the regulation does not involve itself in the question of what particular props may remain, but rather promotes the goal of content neutrality by providing that all props must be removed within the prescribed period. Mr. White also stated that the 24-hour limitation and removal requirement served Congress' desire not only to remain neutral with respect to demonstrations on the Capitol Grounds, but also "to give the appearance of remaining neutral and not sponsoring any demonstration." The requirement that all props be removed daily, according to Mr. White, "break[s] the chain, even if only for a moment," thereby helping Congress maintain its position that it does not sponsor any particular demonstration or prop.
Most significant in respect to the statue in question, Mr. White's affidavit states that draftsmen of the regulation in question were cognizant of 40 U.S.C. §§ 68 and 162. These sections restrict changes in architectural or landscape features of the Capitol Grounds and specifically proscribes the placement of structures there without specific congressional approval. According to Mr. White, the draftsmen of the regulation developed the 24-hour removal requirement to, among other things, balance the congressional proscription against structures being added to the Capitol Grounds with the rights of persons or groups who sought to demonstrate. Finally, Mr. White's affidavit asserts a traffic control purpose for the regulation.
The White affidavit establishes, as the record before Judge Penn did not, that the 24-hour removal requirement serves a significant government interest in assuring that the props used by demonstrators are mobile so that they not become or appear to become permanent structures on the Capitol Grounds. The 24-hour requirement relieves the authorities of the need to make fine distinctions between what is temporary and what is permanent. By any definition, a structure which is movable, and is, in fact, moved every 24 hours, is not permanent. Thus, the 24-hour rule serves a significant government interest in providing a content neutral test of whether a prop introduced on the Capitol Grounds as part of a demonstration is a prop, or is, in fact, an impermissible structure or landscape change. If removal every 24 hours of a statue of this weight, dimension and configuration of this one is not feasible, that may well be proof that the statue is either a "structure" or a "change of landscape" requiring specific approval of Congress.
Removal of the statue every 24 hours (or its removal from the demonstration entirely if plaintiffs find removal every 24 hours too burdensome) does not foreclose plaintiffs' demonstration. Alternative means of expression on the Capitol Grounds are expressly authorized by the permit, which has so far been freely renewed. Nor have alternate means of expression on the Capitol Grounds, or in other prominent places, been in any way foreclosed. Although the burden imposed on plaintiffs' First Amendment rights by the 24-hour removal requirement is significant, and the government interest in removal of this particular statue may seem trivial, the White affidavit makes it more probable than not probable that the background, purpose, and application of the regulation in the context of the several relevant acts of Congress will establish that the 24-hour removal requirement serves Congress' interest in management of the Capitol Grounds in a way that does not generally and significantly infringe First Amendment rights.
Obviously, this conclusion does not preclude defendants from relieving plaintiffs from some or all of the 24-hour movement requirement if they, or the relevant congressional authorities, should in their discretion decide to do so. Nor does this ruling preclude the defendants from continuing to exercise their First Amendment rights by assuming the risk and the burden of complying with the regulation and the permit requirements that the demonstration be concluded and the statue removed from the Capitol Grounds every 24 hours.
As stated in Clark v. Community for Creative Non-Violence :
Symbolic expression . . . may be forbidden or regulated if the conduct itself may constitutionally be regulated, if the regulation is narrowly drawn to further a substantial governmental interest, and if the interest is unrelated to the suppression of free speech.
468 U.S. 288, 104 S. Ct. 3065, 3069, 82 L. Ed. 2d 221 (1984). Defendants will probably prevail on the merits of their contentions that the regulation is authorized by statute and that the 24-hour removal requirement is adequately tailored to serve a significant government interest while leaving plaintiffs ample alternative channels of expression. Accordingly, an accompanying order will deny plaintiffs' motion for a preliminary injunction, while maintaining the status quo until the temporary restraining order expires on its own terms.
Date: December 17, 1986
ORDER - December 17, 1986, Filed
For reasons stated in an accompanying memorandum, it is this 17th day of December, 1986, hereby
ORDERED: that plaintiffs' motion for a preliminary injunction should be, and hereby is, DENIED; and it is further
ORDERED: that the temporary restraining order shall remain in effect until the time of day on December 19, 1986, when it will expire on its own terms.