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UNITED STATES v. FENNELLY

December 15, 1989

UNITED STATES OF AMERICA
v.
CAROL ANN FENNELLY



The opinion of the court was delivered by: PRATT

 JOHN H. PRATT, UNITED STATES DISTRICT JUDGE

 By Information the United States has charged that Defendant Fennelly on June 21, 1989, violated National Park Service Regulation 36 C.F.R. § 7.96(j)(2)(v) by distributing leaflets along East Executive Avenue. *fn1" Pursuant to Rule 12(b)(2), F.R.Crim.P., defendant has moved to dismiss on the ground that the regulation claimed to be violated unconstitutionally limits her First Amendment rights and is therefore void both on its face and as applied. The facts are not in dispute. The matter has been extensively briefed and heard.

 The specific regulation at issue, 36 C.F.R. § 7.96(j)(2)(v), absolutely prohibits the distribution of "newspapers, leaflets, and pamphlets" in what the regulations refer to as the "White House Park Area." That area is defined as being

 
bounded on the north by H Street, N.W.; on the south by Constitution Avenue, N.W.; on the west by 17th Street, N.W.; and on the east by 15th Street; except for Lafayette Park, the White House sidewalk (the south Pennsylvania Avenue, N.W. sidewalk between East and West Executive Avenues) and the Ellipse.

 Id.

 Regulatory Background

 It is important to trace the origin and history of the provision at issue. In 1959, the Department of the Interior, having jurisdiction over the management and maintenance of all National Parks, including what was later to be defined as the "White House Park Area," issued a comprehensive set of regulations for National Parks. See 24 Fed.Reg. 11014-22 (Dec. 30, 1959). These regulations prohibited, among other matters, the sale of any item on Park Service property without an official permit, see id. at 11017, § 3.24(c), but did not prohibit the free distribution of pamphlets or leaflets. See Defendant's Motion, Attachment 2. In fact, the subject of free leaflets and pamphlets was not mentioned. The prohibition of sales and non-prohibition of free distribution remained the law until 1976. See 36 C.F.R. § 50.24(c)(1976 ed.).

 In 1971, Judge Corcoran held that the prohibition of the sale of newspapers on Park Service property violated the First Amendment. Washington Free Community, Inc. v. Wilson, 334 F. Supp. 77 (D.D.C. 1971). Conceding that the government had a legitimate interest in "maintaining the parks as a refuge from the hustle and bustle of the city and the commercial world and as places of tranquility and repose," Judge Corcoran could not justify the regulation "in areas traditionally open to the public for the exercise of First Amendment rights." Id. at 82.

 In response, the Park Service published proposed regulations "governing the sale or distribution of newspaper [sic], leaflets, and pamphlets in park areas." 41 Fed.Reg. 14525 (April 6, 1976). For the first time there appeared the regulation at issue banning the distribution of leaflets and pamphlets in the "White House Park Area". See id. at 14526, § 50.24(c)(2)(vi). When proposed, the purpose of the new regulations was described as being "to preserve the reverential nature of certain of our national memorials *fn2" and park buildings associated with past Presidents," and to maintain "an atmosphere of calm and tranquility [which] substantially enhances the visitor's park experience in these areas." 41 Fed.Reg. 14525; see Defendant's Motion, Attachment 4. After notice and comment, the regulation was promulgated and has remained unchanged. It is now recodified at 36 C.F.R. § 7.96(j)(2)(v). See 51 Fed.Reg. 37011 (Oct. 17, 1986).

 The Positions of the Parties

 Defendant's claim is unexceptional and straightforward. East Executive Avenue is a public street, and public streets and sidewalks are traditional public fora that "time out of mind have been used for the purposes of assembly, communicating thoughts between citizens, and discussing public questions." Defendant cites many of the relevant cases, including Boos v. Barry, 485 U.S. 312, 108 S. Ct. 1157, 1162, 99 L. Ed. 2d 333 (1988) (embassy picketing), United States v. Grace, 461 U.S. 171, 75 L. Ed. 2d 736, 103 S. Ct. 1702 (1983) (expressive conduct in the area surrounding the Supreme Court Building), Jeannette Rankin Brigade v. Chief of Capitol Police, 342 F. Supp. 575, 585 (D.D.C.), aff'd, 409 U.S. 972, 34 L. Ed. 2d 236, 93 S. Ct. 311 (1972) (expressive activity on the grounds of the U.S. Capitol Building). The streets and sidewalks surrounding the White House are not only a public forum but The White House sidewalk, Lafayette Park and the Ellipse constitute a "unique situs" for activities protected by the First Amendment. White House Vigil for the ERA v. Clark, 241 U.S. App. D.C. 201, 746 F.2d 1518, 1526 (D.C.Cir. 1984); A Quaker Action Group v. Morton, 170 U.S. App. D.C. 124, 516 F.2d 717, 724-25 (D.C.Cir. 1975). It is not seriously disputed that any prohibition on a particular type of expression must be "narrowly drawn to accomplish a compelling governmental interest." United States v. Grace, 461 U.S. 171, 177, 75 L. Ed. 2d 736, 103 S. Ct. 1702 (1983). According to defendant, the regulation banning the free distribution of leaflets does not meet this test.

 Plaintiff's response, likewise is straightforward. In brief, plaintiff asserts that the right of free speech is not absolute but that "expression, whether oral or written or symbolized by conduct, is subject to reasonable time, place, or manner restrictions." Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 82 L. Ed. 2d 221, 104 S. Ct. 3065 (1984). According to plaintiff, the regulatory framework meets the constitutional standards for reasonable time, place and manner limitations because 1) the regulation is content-neutral, 2) it serves a significant government interest, 3) it has been narrowly tailored to serve that "paramount governmental interest," and 4) it leaves open ample alternative channels of communication. Heffron v. International Society for Krishna Consciousness, 452 U.S. 640, 654, 69 L. Ed. 2d 298, 101 S. Ct. 2559 (1981). The defendant agrees that ...


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