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FRIENDS OF THE VIETNAM MEM. v. KENNEDY

September 12, 1995

FRIENDS OF THE VIETNAM MEMORIAL, et al., Plaintiffs,
v.
ROGER G. KENNEDY, et al., Defendants.



The opinion of the court was delivered by: STANLEY SPORKIN

 The issue before this Court is whether a National Parks Service Regulation banning the sale of message bearing T-Shirts on the Mall and other parks in the National Capital area violates the First Amendment of the Constitution. Plaintiffs are a number of nonprofit groups, who engage in the sale of message-bearing T-Shirts on the National Mall.

 I. Background

 Seven groups, Friends of the Vietnam Veterans Memorial (FVVM), Gaudiya Vaishnava Society (GVS), One World One Family Now (One World), Warriors Incorporated, Open Art, Last Firebase, Americans for Freedom Always (AFFA), *fn1" have challenged the Parks Department Regulation 36 C.F.R. § 7.96(k)(2) as a violation of their rights under the First Amendment to the Constitution. *fn2" Four of the seven groups attempt to raise public awareness about POW/MIAs from the Vietnam War and use message bearing T-shirts as a way to spread their message. Other plaintiff groups, such as Open Art are protesting environmental damage such as global warming and depletion of the ozone layer.

 In pertinent part the regulation in question, 36 C.F.R. § 7.96(k) (2) reads:

 
No merchandise may be sold during the conduct of special events or demonstrations except for books, newspapers, leaflets, pamphlets, buttons, and bumper stickers.

 The primary focus of the parties has been the effect of the regulation as it applies to the sale of T-shirts on the National Mall. Indeed, in its commentary on the regulation, the National Park Service had this to say:

 The Mall runs from the grounds of the Capital to the Lincoln Memorial and is bordered by a series of major thoroughfares including Pennsylvania Avenue, Madison Drive, and Constitution Avenue to the North and Maryland Avenue, Jefferson Drive, and Independence Avenue on the South. Tourist attractions such as the Smithsonian Institute, and the National Air and Space Museum, and numerous government buildings border the Mall.

 Millions of people come to the Mall every year. It is regularly visited by sunbathers, runners, softball and touch football players, strollers and others visiting the monuments or simply coming to enjoy the park. It is the site of festivals and concerts both large and small.

 The National Mall also has a venerable history as the site of some of the largest demonstrations in this nation's history concerning important issues. Martin Luther King made his "I Have A Dream" speech before a crowd of over 100,000 on the Mall during the 1963 March on Washington. *fn3" Numerous demonstrations against the Vietnam War were held there; *fn4" more recently groups advocating for and against restrictions on abortion have gathered on the Mall.

 Although the parties focused on the Mall in their briefs and in argument, the ban on sales applies to other parks in the District of Columbia, including Dupont Circle, the Ellipse and Rock Creek Park.

 II. Analysis

 A.

 In determining whether the regulation is constitutional as applied, the Court must first determine whether plaintiffs are engaged in activities protected by the First Amendment. Although the language of the First Amendment refers to "freedom of speech," it is undisputed that the Constitution protects more than oral expression. The Supreme Court has found burning the American flag, Texas v. Johnson, 491 U.S. 397, 105 L. Ed. 2d 342, 109 S. Ct. 2533 (1989), words written on clothing, Cohen v. California, 403 U.S. 15, 29 L. Ed. 2d 284, 91 S. Ct. 1780 (1971), *fn5" and black armbands worn to protest the Vietnam War. Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 505-06, 21 L. Ed. 2d 731, 89 S. Ct. 733 (1969), to be protected by the First Amendment. The plaintiffs in this case are selling materials that convey distinct messages, such as T-Shirts that attempt to raise public concern about the plight of MIAs and POWs in Vietnam.

 B.

 In Iskcon v. Ridenour, 61 F.3d 949 (D.C. Cir. 1995), the Court of Appeals considered a challenge by the International Society of Krishna Consciousness to the validity of the Parks Service regulation as applied to solicitation and the sale of religious beads on the Mall. Judge Buckley's majority opinion and Judge Ginsberg's dissent in Iskcon set forth much of the applicable First Amendment law.

 The Mall and other parks in the Nation's Capital are public forums. See United States v. Grace, 461 U.S. 171, 177, 75 L. Ed. 2d 736, 103 S. Ct. 1702 (1983) ("Public places historically associated with the free exercise of expressive activities, such as streets, ...


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