The government has available to it a number of possible narrowly tailored means to fulfill the public interest within the constraints of the First Amendment. The Parks Service does regulate the placement and numbers of commercial vendors on the Mall, and it could so regulate the placement and/or number of T-Shirt vendors in a way that is narrowly tailored and leaves open ample alternative means for groups to enjoy the guarantees of the First Amendment. In regulating this activity, the government must appropriately balance the First Amendment interests of groups like the plaintiffs with the public interest in preventing discordant commercialism so that all can enjoy these magnificent park lands.
The Court is not unaware that T-Shirts have been criticized as "cheap, cheesy and commercial". But the message bearing T-Shirt is also a tribute to the creative spirit of poorly funded but inventive activists of every political persuasion who have discovered the expressive power and appeal of making an item of clothing serve also as a means of communication. We must not forget that the First Amendment protects the ability of speakers to get their message across even when the majority might find the message or the means by which it is spread objectionable. Cf. Cohen v. California, 403 U.S. 15, 29 L. Ed. 2d 284, 91 S. Ct. 1780 (1971).
VI. The Government's Other Asserted Justifications for the Ban.
The government claims that its interest in crime prevention -- eliminating the temptation to rob vendors and preventing the occasional fights among vendors competing for prime locations -- justifies the sales ban. The First Amendment requires that the government protect those engaged in First Amendment activity rather than banning the activity as a means to protect the "speaker." See, e.g, Christian Knights of the Ku Klux Klan Invisible Empire Inc. v. District of Columbia, 751 F. Supp. 218 (D.D.C. 1990), aff'd, 297 U.S. App. D.C. 312, 972 F.2d 365 (D.C. Cir. 1992) (government's duty is to protect persons exercising First Amendment rights, not to forbid them from demonstrating as a means to protect them). Even if there have been a few instances of vendors engaging in spirited disputes among themselves, that would not justify the sales regulation any more than instances of anti-competitive behavior in the newspaper business would justify a ban on the sale of newspapers. See Turner Broadcasting System, Inc. v. FCC, 114 S. Ct. at 2479 ("If the government wants to avoid littering, it may ban littering, but it may not ban all leafletting. . . . 'Broad prophylactic rules in the area of free expression are suspect.'") (O'Connor, J., concurring in part, dissenting in part) Here, the government must enforce its laws against robbery and assault rather than banning activities within the scope of the First Amendment.
The government has a significant interest in protecting unimpeded views of the monuments on the Mall. See White House Vigil v. Clark, 746 F.2d 1518, 1522 (D.C. Cir. 1984) This interest must be discharged without unduly affecting the First Amendment rights of citizens. Government imposed restrictions on speech may "eliminate no more than the exact source of the evil it seeks to remedy." Frisby v. Schultz, 487 U.S. 474, 485, 101 L. Ed. 2d 420, 108 S. Ct. 2495 (1988). By banning the sales of T-Shirts outright throughout the entire Mall, the government has employed a cleaver where a scalpel would suffice. There are many parts of the Mall where the presence of vendors would not interfere with the sight lines to the monuments and a visitor's ability to photograph our magnificent monuments without vendors in the photo. Because the regulation eliminates far more than the activity that impairs the view of the monuments, the government cannot justify the regulation on these grounds. See Iskcon, 93-5301 at 11-12 (Government interest in preventing "ills associated with runaway solicitation" does not justify sweeping ban on in-person solicitation throughout the Mall.)
The Government contends that its regulation is necessary to reduce "increasing pedestrian congestion." The government has not provided an adequate record to demonstrate the precise nature of the congestion, or, if such a problem exists, that the sale of T-shirts is a significant cause of the congestion sufficient to warrant the outright ban of such activity. The burden is on the government to demonstrate the significance of its interest, and that its regulations are narrowly tailored to serve that interest. See, e.g, United States v. Doe, 968 F.2d at 88. In this case, the government has failed to meet its burden; it has simply "posited the existence of [a] disease sought to be cured." Quincy Cable TV, Inc. v. FCC, 248 U.S. App. D.C. 1, 768 F.2d 1434, 1455 (D.C. Cir. 1985). But the government must do more than that. At a minimum, the record must pinpoint the site(s) of the pedestrian congestion, how substantial it is, how it compares to the congestion caused by other activities, such as the myriad of softball games that crowd the Mall in the summer, and what alternatives outside of an outright ban on sales were considered to address the problem.
This Court must grant significant deference to the judgment of the Parks Service on the best way to discharge its important obligations. See White House Vigil v. Clark, 746 F.2d at 1529. The government must develop an adequate record to justify its action. In the First Amendment context deference does not mean that the Court abdicates its role to form "an independent judgment of the facts." Turner Broadcasting, 114 S. Ct. at 2471.
Even Congress, which is entitled to the highest degree of deference, see id., must justify First Amendment restrictions under intermediate scrutiny. Id. at 2471-72 (Congress must draw reasonable inferences "based on substantial evidence.") Where, as here, the government simply states there is a problem with pedestrian traffic, and puts little more in the record to support its claim, it has not met its burden of justifying the regulation. See id.
It is undisputed that the government has a significant interest in managing the National Capital parklands to prevent the destruction or deterioration of trees, shrubs and grass. See Clark, 468 U.S. at 296 (The government has a "substantial interest in maintaining the parks in the heart of our Capital in an attractive and intact condition.") Although the government explained that damage to the grounds has occurred, AR at E, it has not set forth the extent of the damage. Nor has it distinguished between the damage to the Parkland caused by use of certain areas as softball diamonds,
with that caused by vendors selling T-shirts.
While the First Amendment does not prohibit the government from regulating the sale of message-bearing T-shirts on National Parklands, an outright ban on such sales does violate the First Amendment.
For the reasons set forth above, summary judgment will be granted for the plaintiffs. An appropriate order accompanies this opinion.
United States District Court
The Court having ruled in the accompanying opinion that Defendants' enactment of a total ban on the sale of message-bearing T-shirts is a violation of the First Amendment, it is hereby
ORDERED that the regulation (36 C.F.R. § 7.96 (k) (2)) is declared invalid as it applies to message-bearing T-Shirts. Because Defendants may regulate the appropriate time, place and manner in which message-bearing T-shirts may be sold, the Court will allow the Defendants a reasonable period of time to issue temporary regulations, pending the adoption of a new permanent regulation, and
IT IS FURTHER ORDERED that the status quo will remain in effect pending the adoption of the temporary regulation, and
IT IS FURTHER ORDERED that pending further Government action, to the extent that additional relief is needed by either the Plaintiffs or by the Defendants, the Court will entertain appropriate requests.
United States District Court