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FRIENDS OF THE VIETNAM VETERANS MEM. v. KENNEDY

October 28, 1997

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



The opinion of the court was delivered by: SPORKIN

 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. Plaintiffs are several nonprofit groups selling message-bearing T-shirts on the National Mall. For some time they have been contesting a National Park Service Regulation banning the sale of T-shirts on the National Mall. On September 12, 1995, the Court enjoined the enforcement of the regulation because this Court found that it violated the First Amendment of the Constitution. The Court of Appeals reversed. In light of the decision of the Court of Appeals, the Court finds itself unable to afford Plaintiffs the relief they seek.

 I. BACKGROUND

 For many years, numerous groups and individuals have been selling message-bearing T-shirts on the National Mall. The National Mall is a strip of national parkland situated in the center of Washington, D.C. It has been the site of some of this nation's most famous political demonstrations and speeches, including Martin Luther King, Jr.'s "I Have a Dream" speech, the Million Man March, and most recently, the Promise Keepers Assemblage. The T-shirts contain various political and religious messages, including statements to raise public awareness of POW/MIAs from the Vietnam War, protests against global warming and ozone-depletion, advocacy for statehood for Washington, D.C., arguments in support of prayer in schools, as well as numerous other slogans and messages.

 In 1995, the National Park Service, in order to reduce "discordant and excessive commercialism, as well as degraded aesthetic values," decided to ban the sale of T-shirts on the Mall and in other parks in the National Capital. 59 Fed. Reg. at 25,857 (1994). According to the National Park Service:

 
After careful consideration, the NPS has concluded that the basic problem of commercialization and attendant adverse impacts on park values is caused by T-shirt sales. It has also concluded that the problem cannot be abated by other than a ban on such sales on park land. (National Capital Regions Parks; Special Regulations, 60 Fed. Reg. at 17642 (1995)).

 The National Park Service regulation provided in pertinent part:

 
No merchandise may be sold during the conduct of special events or demonstrations except for books, newspapers, leaflets, pamphlets, buttons, and bumper stickers. 36 C.F.R. § 7.96(k)(2).

 In response to the regulation, a number of groups that sold message-bearing T-shirts on the Mall sued to enjoin the regulation as violating their First Amendment rights. On September 12, 1995, this Court enjoined enforcement of the regulation. See Friends of the Vietnam Veterans Memorial v. Kennedy, 899 F. Supp. 680 (1995). The Court analyzed the case with the test set forth in Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S. Ct. 2746, 2753, 105 L. Ed. 2d 661 (1989). Under that test, restrictions on expression in 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, ...


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