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November 24, 1999


The opinion of the court was delivered by: Sporkin, District Judge.


This matter is before the Court on Defendants' Motion to Dismiss, or in the Alternative, for Summary Judgment. Plaintiffs Augustine David Henderson and Gregory Francis Phillips challenge a National Park Service regulation limiting commercial activity on federal parkland in the National Capital Region to the sale of "books, newspapers, leaflets, pamphlets, buttons and bumper stickers." 36 C.F.R. § 7.96(k)(2). Plaintiffs protest the regulation's proscription against the sale of message-bearing t-shirts as a violation of the First and Fifth Amendments, the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq., and the Administrative Procedures Act, 5 U.S.C. § 501 et seq.

On September 12, 1995, this Court in a related case concluded that the regulation was in violation of the First Amendment and enjoined defendants from enforcing the regulation. Friends of the Vietnam Veterans Memorial v. Kennedy, 899 F. Supp. 680 (D.D.C. 1995). The defendants in that case appealed. While the appeal was pending, the parties entered into a stipulation permitting the plaintiffs in that case, along with other non-party t-shirt vendors, to continue such sales until the appeal was decided.

The Court of Appeals found the amended regulation to be constitutionally valid and reversed this Court's ruling. Friends of Vietnam Veterans Memorial v. Kennedy (Friends I), 116 F.3d 495 (D.C.Cir. 1997). Following the Court of Appeals' decision, the National Park Service issued four notices dated August 18, 1997, August 21, 1997, August 22, 1997, and September 5, 1997, apprising the public that the constitutionality of the regulation had been upheld and that the regulation would be enforced on a prospective basis.

The plaintiffs in this case had each filed their respective complaints against defendants approximately one month subsequent to the filing of the complaint in Friends. After the Court of Appeals rendered its decision, plaintiffs moved for leave to amend and supplement their complaints to add new claims under the Religious Freedom Restoration Act, the Administrative Procedures Act, and the First and Fifth Amendments. This Court granted plaintiffs' motion. Defendants moved for reconsideration of the Court's decision and for dismissal of plaintiffs' cases in light of the Court of Appeals' decision. Upon reconsideration, this Court denied plaintiffs' request for leave to amend on the basis that the amendment would be futile, in view of the Court of Appeals' far-reaching and comprehensive decision in Friends I, and granted defendants' motion to dismiss plaintiffs' cases. Friends of the Vietnam Veterans Memorial v. Kennedy, 984 F. Supp. 18 (D.D.C. 1997). In an unpublished opinion, the Court of Appeals remanded and directed this Court to consider plaintiffs' claims. Henderson v. Stanton, 172 F.3d 919 (D.C.Cir. 1998). Defendants have since withdrawn their opposition to plaintiffs' motion to amend the complaint so that the amended complaint could be filed and the case decided on the merits.


For many years, the National Mall, a tract of federal parkland situated in the heart of Washington, D.C. and surrounded by a number of this nation's most prestigious museums, has been a sightseeing mecca, a place for individuals and groups to demonstrate and protest, as well as a commercial site for vendors, both individuals and groups, engaged in the sale of a variety of items, including message-bearing t-shirts.

On May 18, 1994, the National Park Service ("NPS"), which oversees the National Mall pursuant to statutory mandate under 16 U.S.C. § 1, issued a notice of proposed rule making to amend 36 C.F.R. § 7.96(k)(2). The NPS sought to amend the regulation to restrict commercial sales made on the National Mall to "books, newspapers, leaflets, and pamphlets." National Capital Region Parks; Sales, 59 Fed.Reg. 25,855, 25,859 (1994). The NPS initiated the rule making as part of its effort to reduce the "discordant and excessive commercialism, as well as degraded aesthetic values," resulting from rampant commercial activity on the National Mall. Id. at 25,856.

The NPS issued its final regulation on April 7, 1995. The amended regulation limited commercial sales on federal parkland in Washington, DC to "books, newspapers, leaflets, pamphlets, buttons and bumper stickers." National Capital Region Parks; Special Regulations, 60 Fed. Reg. 17,639 (1995). The NPS explicitly banned t-shirt sales from the regulation because it found that "the basic problem of commercialization and attendant adverse impacts on park values is caused by T-shirt sales. [The NPS] also concluded that the problem cannot be abated by other than a ban on such sales on park land." Id. at 17,642.

Plaintiffs are evangelical Christians. Pursuant to their religious beliefs plaintiffs distribute food and other essentials to the needy in the city, and conduct ministerial outreaches through preaching, singing, teaching, and musical and dramatic performances. In addition, they present the gospel message and oversee the coordination of these and other religious activities by others.

Their religious activities also include the communication of the gospel by all available means. To do so they write, print, and distribute vast numbers of leaflets, handbills, broadsides, and pamphlets. Plaintiffs rely extensively on the sale of message-bearing t-shirts to "spread the word." Because of the expenses associated with printing t-shirts, plaintiffs are unable to distribute them free of cost.


Pursuant to Rule 56(c) of the Fed.R.Civ. P., summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."

A motion to dismiss may be granted if it appears that plaintiffs can prove no set of facts that would entitle them to relief. In re Swine Flu Immunization Prods. ...

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