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March 14, 2000


The opinion of the court was delivered by: Richard W. Roberts, District Judge.


This suit involves a statutory and constitutional challenge to the creation and enforcement of a regulation governing expressive activity in the area immediately around the United States Capitol. The parties have cross-moved for summary judgment with respect to the validity of the regulation. Because I find that the regulation is reasonably related to the purpose of the enabling statute, but is not narrowly tailored to further a significant governmental interest, the parties' cross-motions for summary judgment will be granted in part and denied in part. I also will issue a declaratory judgment invalidating the offending regulatory language on its face as contrary to the First Amendment and permanently enjoin its enforcement.


A. Factual Background

Plaintiff began his leafleting activity on Arts Advocacy Day at the foot of the Senate steps on the East Front of the Capitol. (Id. at ¶ 5.) He also held a placard which read "Stop Arresting Artists." (Defs.' Stmnt. of Material Facts as to Which There is No Genuine Issue ("Defs.' Stmnt.") at ¶ 6.) While leafleting, plaintiff was approached by Capitol Police officers who indicated that leafleting was not permitted where the plaintiff was located and that he should move to the grassy area across the East Front Plaza where leafleting was permitted. (Lederman Decl. at ¶ 6.) East Front Plaza is a large paved area immediately beyond the base of the House, Senate, and Center steps on the east side of the Capitol. Plaintiff, however, did not move to the grassy area on the other side of East Front Plaza because he believed that he could not reach his intended audience from there given the light pedestrian traffic on the lawn. (Id. at ¶ 6.) The officer then directed plaintiff to the base of the House steps on the East Front. (Id. at ¶ 7; Defs.' Stmnt. at ¶ 6.) Plaintiff waited there and after a few minutes began to pass out leaflets. (Defs.' Stmnt. at ¶ 6.)
As the plaintiff continued to leaflet in front of the House steps, he was approached by Lieutenant Lawrence Louthery and Officer Charles McQuay of the Capitol Police, both of whom are defendants in this action. (Id. at ¶ 7; Lederman Decl. at ¶ 8.) Lieutenant Louthery told the plaintiff that he had to move to one of the designated areas on the Capitol grounds where leafleting was permitted, the closest of which was on the lawn approximately thirty yards away. (Lederman Decl. at ¶ 8.) Plaintiff refused to move, citing his constitutional right to leaflet where he was. (Id.)
Lieutenant Louthery explained to the plaintiff that he was violating the law and would be arrested if he continued to pass out leaflets at that location. (Id. at ¶ 9.) Plaintiff again refused to move and continued leafleting. (Id.) Approximately fifteen minutes later, Officer McQuay gave the plaintiff a citation for demonstrating without a permit. (Defs.' Stmnt. at ¶ 10.) Lieutenant Louthery reiterated to the plaintiff that he would be arrested if he continued to leaflet without moving to one of the designated areas. (Id.)
A moment later, a man wearing an "Arts Advocate" button walked by the plaintiff and asked him what he was handing out. (Lederman Decl. at ¶ 10.) Plaintiff told the man that the police would arrest him if he handed out any more leaflets, but that the man could take a leaflet from the stack in plaintiff's hand. (Id.) The man did so, at which point plaintiff was placed under arrest by Officer McQuay at Lieutenant Louthery's direction. (Id.)

B. The Capitol Grounds Regulations

The Capitol Police Board (the "Police Board") has authority over "the regulation and movement of all vehicular and other traffic . . . within the United States Capitol Grounds; and said Board is authorized and empowered to make and enforce all necessary regulations therefor. . . ." 40 U.S.C. § 212b(a) (1994). Pursuant to this authority, the Police Board promulgated the Capitol Grounds Regulations which, among other things, regulate "demonstration activity" on the Capitol Grounds. The Capitol Grounds Regulations define "demonstration activity" as:

[P]arading, picketing, speechmaking, holding vigils, sit-ins, or other expressive conduct that conveys a message supporting or opposing a point of view or has the intent, effect, or propensity to attract a crowd or onlookers, but does not include merely wearing Tee shirts, buttons, or other similar articles of apparel that convey a message.

XIX Capitol Grounds Regulations § 158(a).

While the Capitol Grounds Regulations purport to permit groups of under 20 individuals to engage in demonstration activity on the Capitol Grounds without a permit, see id. at § 158(b)(3), a 1995 amendment makes the area immediately around the Capitol virtually off-limits to all demonstration activity. Amendment II, as it is known, provides in relevant part:

Demonstration activity is permitted on Capitol Grounds, subject to this provision and applicable law, as indicated on the map entitled "United States Capitol Grounds Demonstration Areas Map," dated September 15, 1995, and approved by the Capitol Police Board. The map identifies those areas of Capitol Grounds wherein demonstration activities are permitted and those wherein demonstration activities are prohibited.

The map referenced in Amendment II, and attached to this Opinion as an appendix, indicates that the no-demonstration zone extends completely around the Capitol and encompasses all of the sidewalks immediately adjacent to it.*fn2 Plaintiff has taken measurements, which are undisputed for the purpose of the pending motions, estimating that the no-demonstration zone extends approximately 250 feet from the foot of the House and Senate steps. (Decl. of Fritz Mulhauser, Attach. to Pl's Reply Supp. Prelim Inj., at ¶ 4.) Demonstration activity is, however, allowed on the East Front Center steps so long as the demonstrator has first obtained a permit. See XIX Capitol Grounds Regulations § 158(b)(1). Thus, section 158 as amended imposes a total ban on demonstration activity within the 250 foot perimeter of the Capitol Building, except for such activity on the East Front Center steps where a permit is required. There is no dispute that plaintiff was arrested within the no-demonstration zone.

C. Procedural History

Plaintiff has filed this action seeking injunctive and declaratory relief that would enable him to leaflet and engage in other demonstration activity within the no-demonstration zone at this year's Arts Advocacy Day without fear of arrest. In Count I of his complaint, plaintiff contends that section 158 as amended is unconstitutional under the First Amendment both on its face and as applied. In Count II, plaintiff alleges that the amended regulation is not a valid exercise of the Capitol Police Board's rulemaking authority. The remainder of plaintiff's complaint charges that his 1997 arrest and imprisonment as a result of his demonstration activity was a violation of his constitutional rights for which he is entitled to compensatory damages, plus costs and reasonable attorney's fees.

Plaintiff originally moved for a preliminary injunction, but has since stipulated that his motion should be treated as one for summary judgment with respect to Counts I and II. The federal defendants have in turn moved to dismiss, or in the alternative, for summary judgment on Counts I and II. The D.C. defendants have moved to dismiss, or in the alternative, for summary judgment with respect to the entire ...

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