The opinion of the court was delivered by: HAROLD H. GREENE
This is an action for an injunction brought by the International Society of Krishna Consciousness
and one of its members (Krishnas) to permit certain activities on the Mall in Washington, D.C., notwithstanding regulations issued by the National Park Service.
The government's defense of the regulations, while couched in varying terminology, in essence presents but a single rationale -- that the Mall should be protected from the disruptive activities sought to be engaged in by the Krishnas. Thus, the government contends (1) that the parks should be preserved in an attractive and intact condition, readily available to the people who wish to enjoy them; (2) that the aesthetic aspects of the Mall and other Park Service property in the Washington area would be undermined by the Krishnas' solicitation; and (3) that visitors to the Mall and other parks must be protected from being harassed or bothered. Memorandum in Support of Motion to Dismiss at 12-26. In short, the Park Service considers solicitation by the Krishnas a nuisance that would be a blight on the beautiful park property and might be resented by visitors to the Air and Space Museum and its environs, as well as to other parks in the National Capital area.
As will be seen below, none of these purposes presents a valid basis for the denial of the requested activities of the Krishnas. As our Court of Appeals stated,
the use of parks for public assembly and airing of opinions is historic in our democratic society and one of its cardinal values. Public assembly for First Amendment purposes is surely a 'park use' as any tourist or recreational activity.
A Quaker Action Group v. Morton, 170 U.S. App. D.C. 124, 516 F.2d 717, 724 (D.C. Cir. 1975). Similarly, the "public expression of ideas may not be prohibited merely because the ideas themselves are offensive to some of their hearers." Street v. New York, 394 U.S. 576, 592, 22 L. Ed. 2d 572, 89 S. Ct. 1354 (1969); see also, NAACP v. Claiborne Hardware Co., 458 U.S. 886, 910, 73 L. Ed. 2d 1215, 102 S. Ct. 3409 (1982).
It does not detract in any way from the magnificent Air and Space Museum and the beautiful, largely pristine parks in Washington to conclude that, as between the values they embody, and the protection of the First Amendment to the Constitution, the latter cannot validly be relegated by government to second place. Indeed, it is clear that the blunt Park Service prohibition is in violation of settled law.
There is no question but that the Mall area in Washington across from the Air and Space Museum is a public forum for protected speech. See generally, Women Strike for Peace v. Hickel, 137 U.S. App. D.C. 29, 420 F.2d 597 (D.C. Cir. 1969). In fact, it is difficult to imagine an area more clearly established as a public forum than the Mall area in the Nation's Capital. It is also clear -- and the government does not seriously contest
-- that plaintiffs' activities are sufficiently communicative to be protected by the First Amendment. That, of course, does not end the inquiry, for it is also established that the government may, in appropriate circumstances, place reasonable restrictions on the time, place or manner of protected speech, as long as alternative means of communication are left open. Ward v. Rock Against Racism, 491 U.S. 781, 105 L. Ed. 2d 661, 109 S. Ct. 2746 (1989); Heffron v. International Society of Krishna Consciousness, Inc., 452 U.S. 640, 647, 69 L. Ed. 2d 298, 101 S. Ct. 2559 (1981); CCNV v. Kerrigan, 275 U.S. App. D.C. 163, 865 F.2d 382, 387 (D.C. Cir. 1989).
As noted, regulations issued by the Park Service absolutely prohibit "soliciting or demanding gifts, money, goods or services." 36 C.F.R. § 7.96(h) (1991). Another regulation allows the sale or distribution of newspapers, leaflets, and pamphlets, 36 C.F.R. § 7.96(j) (1991), and, by a Park Service "enforcement guideline," that of bumper stickers buttons, posters, and T-shirts displaying messages directly related to a particular cause and activity. However, the guideline does not permit the sale or distribution, inter alia, of jewelry, records, and tapes. This case thus involves the issues (1) whether the ban on solicitations violates the First ...