JOHN H. PRATT, UNITED STATES DISTRICT JUDGE
In this action, plaintiffs, We the People, Inc., of the United States ("We the People") and Stephen B. Comley, allege that defendants, the Nuclear Regulatory Commission ("NRC") and its chairman, have violated their first amendment right to free expression by banning their display of political posters and bumper stickers at public NRC meetings. Before the Court are the parties' cross-motions for summary judgment.
We the People, a non-profit corporation organized under the laws of Massachusetts, monitors and investigates the operation of domestic nuclear power plants and the activities of the NRC. It provides the public with information concerning "the construction and operation of nuclear power plants," and apprises the NRC and other federal and state agencies of "possible safety violations in the nuclear power industry." Articles of Organization, Ex. 1, Pls. Mot. Comley, We the People's executive director, is and has been a critic of the NRC.
The essential facts are not in dispute. On September 8, 1988, the NRC held a public meeting at its Rockville, Maryland, offices. At this meeting, the NRC considered and voted on a proposed change to its emergency planning regulations. Comley attended the meeting, and sat in full view of the NRC's five Commissioners. At the direction of Victor Stello, former executive director for NRC operations, two security guards kept Comley under surveillance.
Once the meeting began, Comley displayed a poster bearing the words "Stop Chernobyl Here" and urging observers to join We the People "in order to form a more perfect Union."
The poster measured 18 inches wide and 25 inches long. In displaying it, Comley did not speak.
One of the security guards promptly banned the display. In so doing, he informed Comley that display of posters at public meetings violated a 1940s regulation. Comley was permitted to return to the meeting without displaying the poster. After resuming his seat, he displayed a large reproduction of the Constitution. The reproduction measured 13.5 inches wide and 15.5 inches long. NRC officials allowed Comley to display this reproduction for the rest of the meeting.
On October 14, 1988, Comley attended another public meeting at the NRC's Rockville offices. The subject of the meeting was the proposed restart of Pilgrim Station at Plymouth, Massachusetts. Once the meeting convened, Comley displayed the "Stop Chernobyl Here" poster, as well as "Stop Chernobyl Here" bumper stickers. In displaying these items, Comley did not speak. Security guards promptly ejected Comley from the meeting and did not permit him to return.
Comley, through counsel, protested this ejection in a letter dated November 7, 1988 to the NRC's chairman. Comley requested that the NRC identify the legal authority on which it relied to eject individuals displaying posters from its public meetings. In a letter dated November 28, 1988, NRC General Counsel William Parler, on behalf of the chairman, responded: "It is the Commission's responsibility to conduct its meetings in an orderly fashion. The displaying of signs and posters in the meeting room is disruptive not only to the Commissioners but to the other meeting participants." Letter from William C. Parler to Ernest C. Hadley (Nov. 28, 1988) at 1 [hereinafter Parler Letter], Ex. 5, Pls. Mot. Parler explained that the General Services Administration ("GSA") had promulgated regulations governing the use of public buildings and grounds. The following regulation, he alleged, prohibited Comley from "holding up signs:"
Any loitering, disorderly conduct, or other conduct on property which creates loud or unusual noise or a nuisance; which unreasonably obstructs the usual use of entrances, foyers, lobbies, corridors, offices, elevators, stairways, or parking lots; which otherwise impedes or disrupts the performance of official duties by Government employees; or which prevents the general public from obtaining the administrative services provided on the property in a timely manner, is prohibited.
41 C.F.R. § 101-20.305 (1989); see Parler Letter at 1, Ex. 5, Pls. Mot.
Several weeks after receiving this letter, on or about December 21, 1988, Comley attended a third public NRC meeting in Rockville. The meeting concerned evacuation planning for Pilgrim Station. This time, security guards required Comley to relinquish his "Stop Chernobyl Here" posters and bumper stickers before allowing him to enter the meeting room. After the meeting began, Comley, having taken a seat at the front of the room, removed his sport jacket, shirt, and tie. Underneath he wore a "Stop Chernobyl Here" tee-shirt. The tee-shirt also exhorted others to "Join We the People" and contained a reproduction of the Constitution. The NRC allowed Comley to remain in the meeting room while wearing this tee-shirt.
On or about March 29, 1989, Comley attended a public meeting of the Atomic Safety and Licensing Board ("ASLB"), a division of the NRC, in Boston, Massachusetts. The meeting concerned emergency evacuation planning for Seabrook Station in Seebrook, New Hampshire. Comley carried a small bag with him when he entered the meeting room. During a recess, a security officer named McGee approached him. McGee stated that he knew who Comley was and that he was acting on the direction of ASLB Judge Ivan Smith. McGee told Comley that he could not re-enter the meeting room with the small bag. Comley objected to the prohibition, since other members of the public had been allowed to enter the meeting room with briefcases, purses, and other such items. He also invited McGee to inspect the contents of the bag. McGee declined to inspect the contents of the bag, and Comley ultimately re-entered the meeting room without his bag.
The NRC's "A Guide to Open Meetings" ("Guide") states that, pursuant to the Government in the Sunshine Act, 5 U.S.C. § 552b(b) (1988), Commission meetings are generally open to the public. See NRC Guide, Ex. 7, Pls. Mot. The Guide also sets out the following standard "for behavior in the Commission meeting room":
Commission meetings are open for the public to observe. Members of the public are not allowed to participate in Commission deliberations unless specifically requested to participate by the Commission. . . . Disorderly conduct or other conduct, including the display of signs and posters, which creates loud or unusual noise or a nuisance, impedes or disrupts the performance of official duties by the Commission or its staff or interferes with the orderly conduct of the scheduled presentations may result in expulsion from the meeting room.