a public forum are valid only if they are: (1) content neutral; (2) narrowly tailored to serve a significant governmental interest; and (3) leave open ample alternative channels for communication of the information. See id. at 791, 109 S. Ct. at 2753.
The Court found that the absolute ban on the sale of T-shirts was invalid under the Rock Against Racism test on two grounds. First, the Court found that the ban did not leave open ample alternative means of communication because the T-shirts are "a unique and especially effective means of communicating the plaintiffs' point of view" and because the "sale of the T-shirt is the primary source of funds that enable these groups to continue to engage in their First Amendment activities." Friends of the Vietnam Veterans Memorial v. Kennedy, 899 F. Supp. 680, 684 (1995). Second, the Court found that the ban was not narrowly tailored to the government's interest in reducing commercialism because the Park Service allowed numerous "food vendors to roam the Mall selling ice cream and other food items" and could permit the sale of T-shirts in the areas where these food vendors were located. Id. at 686. The Court found that there were numerous ways for the Park Service to restrict the T-shirt vendors to particular areas of the Mall rather than completely banning the activity.
The Court of Appeals reversed. Plaintiffs Henderson and Phillips subsequently moved for leave to file an amended complaint, which raised several new claims, including claims under the Equal Protection Clause, the Religious Freedom Restoration Act, and the Administrative Procedure Act. The Court granted the Plaintiffs' motion for leave to file. Defendants have asked the Court to reconsider. Defendants have also moved to dismiss the cases of all Plaintiffs in light of the opinion of the Court of Appeals.
II. ANALYSIS AND DISCUSSION
The Court of Appeals' decision leaves this Court with little discretion other than to grant Defendants' motions. The Court finds that in light of the Court of Appeals' opinions in Friends of the Vietnam Veterans Memorial v. Kennedy, 325 U.S. App. D.C. 151, 116 F.3d 495, 498 (1997) and ISKCON of Potomac, Inc. v. Kennedy, 314 U.S. App. D.C. 63, 61 F.3d 949 (1995), the additional claims of Plaintiffs Henderson and Phillips will be futile. The Court of Appeals has made it abundantly clear that the Park Service's absolute ban on the sale of T-shirts passes constitutional muster under the First Amendment. The Court of Appeals afforded deference to the Park Service's judgment that a complete ban was necessary to achieve its purpose. According to the Court of Appeals, the judiciary did not have "the authority to replace the Park Service as the manager of the Nation's parks or . . . the competence to judge how much protection of parklands is wise and how that level of conservation is to be attained." Friends of the Vietnam Veterans Memorial v. Kennedy, 325 U.S. App. D.C. 151, 116 F.3d 495, 498 (1997) (quoting Clark v. Community for Creative Non-Violence, 468 U.S. 288, 299, 82 L. Ed. 2d 221, 104 S. Ct. 3065 (1984)). As a result, the Court of Appeals held that it would not consider "what the Park Service could have done" to limit its regulation so that it would be less restrictive of the Plaintiffs' speech. Id. Under this reasoning, the Park Service's regulation would clearly withstand any level of judicial scrutiny. Accordingly, this Court, after reconsidering its grant of leave for Plaintiffs to file their amended complaint, will now deny the Plaintiffs' request for leave to amend their complaint. The Court will also grant Defendants' motion to dismiss the case as to all Plaintiffs.
In its opinion in this case and its earlier opinion in ISKCON, the Court of Appeals announced that while Plaintiffs could not sell their wares on the Mall, they could give them away. This distinction between commercial and non-commercial speech has posed a significant problem for those who want to invoke this part of the Court of Appeals' decision and give away their T-shirts. At the recent hearing on Defendants' motions, Plaintiffs raised this issue and have asked the Court to define the permissive bounds of T-shirt giveaways.
In City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 123 L. Ed. 2d 99, 113 S. Ct. 1505 (1993), the Supreme Court made it clear that there is little distinction between commercial and non-commercial speech vis a vis the First Amendment. There, the Court enjoined a city ordinance banning newsracks containing commercial handbills. According to the Court, "Cincinnati's categorical ban on commercial newsracks place[s] too much importance on the distinction between commercial and noncommercial speech." Id. at 424. The Court rejected the view that commercial speech only has a low value. Id. at 418-19. "In our view, the city's argument attaches more importance to the distinction between commercial and noncommercial speech than our cases warrant and seriously underestimates the value of commercial speech." Id. at 419. Because the ban did not apply to newsracks containing newspapers, there was not a reasonable fit between the ban and the city's interests in aesthetics and safety. "Each newsrack, whether containing 'newspapers' or 'commercial handbills,' is equally unattractive." Id. at 425. The Court held that the "very basis for the regulation is the difference between ordinary newspapers and commercial speech." Id. at 429. This was a content-based distinction because the city improperly singled out commercial speech for the ban.
According to the Court of Appeals, the Discovery Network case is not controlling and under the facts in both ISKCON and the instant case, a distinction between commercial and non-commercial speech must be recognized.
Under its court validated regulations, the Park Service permits the sale of newspapers and other items on the Mall for profit but bans the sale of T-shirts because they are deemed to be "commercial."
The opinion of the Court of Appeals in Friends recognizes Plaintiffs' absolute right to give away their T-shirts on the nation's parkland. The Court of Appeals' decision in ISKCON further supports this view.
In ISKCON, the Court of Appeals upheld the Park Service regulation as applied to the sale of audio tapes and beads: "ISKCON's members may display and give the audio tapes and beads to members of the public so long as they do not try to exact a payment or request a donation in exchange for them." ISKCON, 61 F.3d at 958. In Friends, the Court of Appeals declared that "Of course, there is nothing to stop appellees from giving away their expressive T-shirts on the Mall (or selling them near the Mall)." Friends, 325 U.S. App. D.C. 151, 116 F.3d 495 at 497. The Court of Appeals also made clear that the Plaintiffs may still solicit donations on the Mall, holding that a Park Service regulation banning in-person solicitation of immediate donations was unconstitutional. ISKCON, 61 F.3d at 956.
Plaintiffs claim the Park Service is acting contrary to the Court of Appeals' decisions in not giving full force and effect to the "give away" language. The Park Service claims that the way it has been enforcing this aspect of the Court of Appeals' opinions is pursuant to its notice adopting the ban on the sale of T-shirts:
Restricted merchandise cannot be "given away" and a "donation accepted" or one item "given away" in return for the purchase of another item; such transactions amount to sales. 60 Fed. Reg. at 17648 (1995).
Despite this language, whether someone is giving away something or not is a fact-specific determination. Such a determination preferably should await a case where the issue has been appropriately raised. This should come soon since the Park Service has arrested a number of the message bearing T-shirt vendors for violating the Park Service ban even though those arrested contend they were doing nothing more than giving away their T-shirts.
While Plaintiffs would like a bright line between a "give away" and a sale, at this point, the Court is not the appropriate forum to make such a distinction. In order to avoid the admonition of the Court of Appeals that the role of the judiciary is not "to replace the Park Service as the manager of the Nation's parks," the Court will not provide an advisory opinion. The time to rule on the legality of the Park Service's regulation will come when the criminal charges against the T-shirt vendors come to trial.
This nation's citizens appreciate the importance of the Park Services' work in maintaining the beauty of the Mall area. In large part because of the attractiveness of its parklands, Washington, D.C. remains one of the most beautiful capitals in the World. That being said, the constitutional rights of this nation's citizens also require protection.
The "message bearing T-shirt people" have now been before this Court since September of 1995. It is abundantly clear that the vast majority of them are law-abiding citizens who are committed to the causes they espouse. They are not wealthy and often are just barely able to eke out an existence. Despite their lack of wealth and in many instances, their poverty-level existence, they have a right to be heard. It is hoped that the Park Service will listen to their voices in the enforcement of its regulations.
An appropriate order accompanies this opinion.
October 28, 1997
United States District Judge
This matter is before the Court on Defendants' Motion to Dismiss and Defendants' Motion for Reconsideration of Order Granting Motion for Leave to Amend and Supplement Complaint. For the reasons stated in the attached Memorandum Opinion, it is hereby
ORDERED that Defendants' Motion for Reconsideration of Order Granting Motion for Leave to Amend and Supplement Complaint be GRANTED. It is further
ORDERED that Plaintiff Henderson and Phillips' Motions for Leave to Amend and Supplement Complaint be DENIED. It is further
ORDERED that Defendants' Motion to Dismiss be GRANTED.
October 28, 1997
United States District Judge