Police Department, at 3, para. 4; Letter of Isaac Fulwood, Jr., October 22, 1990, attached to Complaint.
6. The threat of violence is "truly real and . . . substantial."
7. The Metropolitan Police Department plans to have over 1,500 officers standing shoulder to shoulder on Constitution Avenue from 7th Street to 4th Street and more than 600 officers available as a rapid response group. The Park Police will deploy over 300 officers, and the Capitol Police will provide an additional 600 officers. The Metropolitan Police Department by affidavit and testimony asserts that, even with the support of the Park Police and the representation by the United States Government that it will provide whatever reasonable support is necessary to maintain control during the march, the Metropolitan Police cannot maintain reasonable control on the full route with the officers available. Park Police officials by affidavit and testimony subject to cross-examination are of the opposite opinion. They assert that this number of officers is sufficient reasonably to control any threat of violence. The United States vigorously advocates use of the full Constitution Avenue route. Consideration of intelligence information about potential violence which the Metropolitan Police Department received the evening of October 27 and presented under seal at the hearings on that date, as well as current political events, did not alter Park Police opinions as to the number of police officers needed to ensure control. Furthermore, Deputy Chief Carroll of the Metropolitan Police Department testified that the information contained under seal would not lead him to seek to cancel the permit for a march from 7th Street to the Capitol, to increase the number of officers scheduled to be available for the march from 7th Street to 3rd Street, or to otherwise materially change his plans or assessment of risk. Plaintiffs provided affidavit and testimony by Robert Klotz, an independent consultant and a nationally recognized expert in crowd control and a former Deputy Chief of the District of Columbia Metropolitan Police Department who helped manage or was responsible for police protection during demonstrations and marches from 1971 to 1980. Mr. Klotz stated that, in his opinion, the current police force is more than adequate to handle this demonstration and that the Police Department's position is "bewildering." Affidavit of Robert Klotz at 5, para. 11. The testimony of the Park Police, buttressed by the expert testimony of Klotz, was convincing. In addition, the testimony of Inspector Collins contained inconsistencies and was not as persuasive. As a result, I find that the threat of violence is not beyond reasonable control.
8. Though from time to time the District has issued permits for marches for less than the full extent of Constitution Avenue from 14th Street to 3rd Street, there is no evidence that any group who requested the longer route has ever been denied access to that route. Former Deputy Chief Klotz testified that to his knowledge the Police had never limited a route due to the number of demonstrators nor due to threats of violence. Though the police have altered routes when a counterdemonstration was expected to create a buffer zone, they have never halved a route due to a counterdemonstration. The District of Columbia, though it presented some evidence as to permits formerly granted and as to a Hispanic festival that was limited (by Park Police, not by the Metropolitan Police) from use of the area from 14th Street to 17th Street, did not present any evidence materially contradicting Klotz's testimony. There is no showing that any march has ever been attenuated due to a threat of mob violence and a conclusion by the District that the threat was beyond reasonable control.
Conclusions of Law
1. A motion for preliminary injunctive relief should be considered on the basis of (1) the likelihood of plaintiffs' success on the merits, (2) the threat of irreparable injury to plaintiffs in the absence of an injunction, (3) the possibility of substantial harm to other interested parties from a grant of injunctive relief, and (4) the interests of the general public. See, e.g., Wagner v. Taylor, 266 U.S. App. D.C. 402, 836 F.2d 566, 575 (D.C. Cir. 1987).
2. Plaintiffs have demonstrated a substantial likelihood that they will prevail on the merits on the theory that the District effectively denied them the forum necessary to communicate their "point." Plaintiffs had a permit to march from the Washington Monument to the Capitol along Constitution Avenue on September 2. They were unable to do so: Instead, in order to avoid violence threatened by protestors hostile to plaintiffs' message, the District of Columbia diverted them from their route. Now, plaintiffs have a new message -- they cannot be denied full access to a public forum merely because their ideas are opposed by those who would resort to violence. If they cannot walk the entire route previously denied to them, this message cannot be communicated. Cf. Dr. Martin Luther King, Jr., Movement, Inc. v. City of Chicago, 419 F. Supp. 667, 674-75 (N.D. Ill. 1976) (holding that in that case the alternate route suggested by authorities "had the effect of depriving plaintiffs of their First Amendment rights").
3. Plaintiffs have also shown a substantial likelihood that they will prevail on the merits on the theory that the District of Columbia's restriction upon their permit was an improper time, place, and manner restriction. Time, place, and manner restrictions must be content-neutral, narrowly tailored to serve a compelling government interest, and leave open ample alternative avenues of speech. See, e.g., Ward v. Rock Against Racism, 491 U.S. 781, 109 S. Ct. 2746, 2753, 105 L. Ed. 2d 661 (1989); Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 82 L. Ed. 2d 221, 104 S. Ct. 3065 (1984); Perry Education Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45, 74 L. Ed. 2d 794, 103 S. Ct. 948 (1983). The District of Columbia restricted the location of plaintiffs' march based upon a real and substantial threat of a hostile audience, but there was and is no showing of a credible threat that the violence will be beyond reasonable control. Because there is a strong constitutional antipathy to the so-called heckler's veto, see, e.g., Street v. New York, 394 U.S. 576, 592, 22 L. Ed. 2d 572, 89 S. Ct. 1354 (1969); see also NAACP Legal Defense & Education Fund, Inc. v. Devine, 234 U.S. App. D.C. 148, 727 F.2d 1247, 1261-62 (D.C. Cir. 1984) rev'd on other grounds sub nom. Cornelius v. NAACP Legal Defense & Education, 473 U.S. 788, 87 L. Ed. 2d 567, 105 S. Ct. 3439 (1985) and because of the apparent law of this circuit, see supra [slip op.] at 5, the District of Columbia's failure to make that showing indicates that its restriction was not based upon a compelling government interest.
4. Plaintiffs have shown a substantial likelihood that they will prevail on the merits on the theory that their First Amendment rights were abridged in violation of the Fourteenth Amendment. Traditionally the District has not significantly restricted a political demonstration based upon the threat of a hostile audience. "Selective exclusions from a public forum must be carefully scrutinized" and "tailored to serve a substantial governmental interest." Police Dep't of Chicago v. Mosley, 408 U.S. 92, 98-99, 33 L. Ed. 2d 212, 92 S. Ct. 2286 (1972) (citations omitted); see supra [slip op.] at 5. Because there is no threat of violence "beyond reasonable control," the threat of violence in this case is not materially distinguishable from other cases, including the September 2, 1990 march, in which permits were granted despite a substantial possibility of violence. As a consequence, the District's administrative decision to restrict plaintiffs' permit is not based upon any discernible standard and deprives plaintiffs of equal protection of the laws.
5. Plaintiffs have also shown a substantial likelihood that they will prevail on the theory that the District of Columbia acted upon permissible grounds. The District of Columbia restricted plaintiffs' permit because of the threat of violence from a hostile audience. There is a strong constitutional principle against the "heckler's veto." See supra [slip op.] 12. Several cases suggest that audience hostility is an impermissible ground even for a time, place, and manner limitation. See Collin v. Chicago Park Dist., 460 F.2d 746, 754 (7th Cir. 1972); Dr. Martin Luther King, Jr., Movement v. City of Chicago, 419 F. Supp. 667, 675 (N.D. Ill. 1976). The District of Columbia has not cited any cases demonstrating that the threat of audience hostility is a valid ground for a time, place, manner restriction. The weight of precedent, along with the more equivocal suggestion of the Court of Appeals, see supra [slip op.] at 5, is therefore in plaintiffs' favor.
6. The plaintiffs will suffer irreparable injury if preliminary relief is not granted. In general, violations of a First Amendment right are irreparable because such an injury cannot be fully compensated by later damages. See, e.g., Elrod v. Burns, 427 U.S. 347, 373, 49 L. Ed. 2d 547, 96 S. Ct. 2673 (1976); New York Times Co. v. United States, 403 U.S. 713, 29 L. Ed. 2d 822, 91 S. Ct. 2140 (1971); White House Vigil for the ERA Comm. v. Watt, 230 U.S. App. D.C. 291, 717 F.2d 568 (D.C. Cir. 1983); A Quaker Action Group v. Hickel, 137 U.S. App. D.C. 176, 421 F.2d 1111, 1116 (D.C. Cir. 1969); Waters v. Barry, 711 F. Supp. 1121, 1123 (D.D.C. 1989); Community for Creative Non-Violence v. Carvino, 648 F. Supp. 476, 479 (D.D.C.), rev'd on other grounds sub nom. Community for Creative Nonviolence v. Kerrigan, 275 U.S. App. D.C. 163, 865 F.2d 382 (D.C. Cir. 1989). For reasons stated in Conclusions of Law para. 2, plaintiffs will be deprived of a substantial portion of the message they seek to convey if their march is limited and forced to begin at 7th Street. Furthermore, plaintiffs assert that if they are restricted in their marching in the District of Columbia, other communities across the country will attempt to prevent plaintiffs from holding their street walks. See Declaration of Virgil L. Griffin para. 5. If other communities learn that their walks may be restricted, there are strong indications those communities will do so. See id. para. 20. Furthermore, the full route from the Washington Monument to the Capitol is the premier public forum in the nation. If the plaintiffs are denied that forum due to controllable audience hostility, they will have been denied the ability to exercise a right to speak and assemble not denied to other citizens because their message is so abhorred by many who would counter it with violence.
7. It is likely that there will be substantial injury to members of the Metropolitan Police Department and the Park Police.
8. The public's interest is in favor of granting the motion. The public will be inconvenienced by closing of the Mall and blocking of traffic. Some even may be injured as the police attempt to keep control over violent and disorderly counterdemonstrators. The overriding public interest is, however, in vindicating free speech. See, e.g., Knights of the Ku Klux Klan v. East Baton Rouge Parish School Board, 578 F.2d 1122, 1127 (5th Cir. 1971), vacated on other grounds, 454 U.S. 1075, 70 L. Ed. 2d 609, 102 S. Ct. 626 (1981). That interest is especially compelling here. The route to be walked by the plaintiffs is the premier public forum in this country, and the public has an interest in establishing that eleven blocks of Constitution Avenue can be protected at all times by the combined resources of the District of Columbia and the United States and that no mob can rule seven blocks of Constitution Avenue.
It may be that in some other places and at some other time or on some other occasion it would be reasonable to attenuate access to the full length of a traditional protest or parade route because the police protection deemed to be required was not available to contain a mob threat. It may be also that the threatened violence would be beyond the control of the District if it depended solely on its own resources. But this is the Nation's Capitol. The United States supports plaintiffs' claim that they have a constitutional right to march the full route. The United States represented in open court that it would furnish the District all of the personnel and other resources reasonably required to protect the plaintiffs on their march, to protect government property along the route, and to maintain order in this "Seat of Government." United States Constitution, Art. I, Sect. 8. The public's interest is clearly in maintaining the inviolability of the forum that the plaintiffs seek to use today. In addition, denial of plaintiffs' application for a permit to march from 14th Street to 7th Street on Constitution Avenue denies them an opportunity to "make their point," that denial is without substantial justification, and it contradicts the District of Columbia's normal practice. Therefore, plaintiffs are likely to prevail on the merits. They have also demonstrated that denial of the permit required for expression of their message would cause them irreparable injury. In light of this showing, the potential for violence is one of the costs a functioning democracy must bear.