Appeal from the Superior Court of the District of Columbia. (D-620-03). (Hon. Stephen G. Milliken, Trial Judge).
Before Schwelb and Glickman, Associate Judges, and Newman, Senior Judge.
The opinion of the court was delivered by: Newman, Senior Judge
Bloch appeals his conviction for crossing a police-line in the vicinity of the White House in violation of 24 DCMR § 2100.3 (2003) ("the police-line regulation"). He argues that the government's use of a police-line in this case prevented him from exercising his First Amendment right to expressive activity. We conclude that the prosecution failed to present competent and admissible evidence sufficient to meet the "time, place, and manner" test applicable in such cases. We reverse.
On March 17, 2003, President George W. Bush issued an ultimatum to Saddam Hussein ordering him to relinquish his power in Iraq within forty-eight hours or face war. At trial, and in this court, the prosecution contends that in response to a threat assessment and in anticipation of large numbers of demonstrators in Lafayette Park on March 19, 2003 -- the ultimatum deadline -- the United States Park Police ("USPP"), at the request of the Secret Service, closed off the 1600 block of Pennsylvania Avenue, N.W., (1) to enhance the security zone on the northern side of the White House, and (2) to create a "staging area" to give law enforcement officers room to move around to conduct logistical and crowd control operations.
The perimeter of the "staging area" was a police-line consisting of steel, interlocking fences (called "bicycle fences" because they resemble bicycle racks) that were thirty-six to forty inches in height. The "staging area" ran from 15th to 17th Streets, N.W., and from the northern curb of Pennsylvania Avenue to the White House fence, thereby blocking off the entire sidewalk and the portion of Pennsylvania Avenue directly in front of the White House. Lafayette Park, which is north of the fencing, remained open to demonstrators. Eight to fifteen USPP officers were spread out on the north side of Pennsylvania Avenue to monitor the "staging area." Only persons who were members of the White House staff or otherwise specifically authorized to be at the White House were permitted to enter the "staging area."
On March 19, 2003, a group of demonstrators entered Lafayette Park and approached the northern boundary of the "staging area." When that group stepped over the police-line and sat down inside the "staging area," USPP Officer Peter Ward ("Ward") commanded them not to do so. Shortly thereafter, Bloch and a second group of demonstrators stepped over the police-line, after having been commanded not to, sat down and began to pray. They were arrested and charged with violating the police-line regulation.
At trial, to satisfy its burden to establish the constitutional appropriateness of "time, place and manner" limitations that were imposed, the prosecution presented the testimony of Ward and his supervisor, Sergeant Dale Dawson ("Dawson"). Ward testified that due to a "threat assessment," the USPP, on recommendation of the Secret Service, established the police-line to create a "staging area" to enhance the security zone outside the White House and to enlarge the area for logistical and crowd operations in anticipation of large crowds in Lafayette Park. When the defendants objected to this testimony on the grounds of hearsay, the trial court sustained the objection "in part," ruling: "I'll take it only insofar as it informs this gentleman's behavior. In other words, that was his understanding and upon which he proceeded." Thus, the trial court admitted Ward's testimony under the "state of mind" exception to the hearsay exclusionary rule, not for "the truth of the matter asserted."*fn3 The other witness called by the prosecution was Dawson. He testified that he had been instructed to keep people from entering onto Pennsylvania Avenue to "make sure traffic could move freely and the only traffic, really on Pennsylvania Avenue since it is closed down is mostly police vehicles." Dawson acknowledged that he had no personal knowledge of who gave the orders to establish the police-line and on what basis, but that he "imagined" that it was the Chief of the USPP, to whom he had not spoken. Dawson's testimony, like that of Ward, was hearsay.*fn4 The foregoing hearsay testimony of Ward and Dawson constituted the totality of the prosecution's evidence to meet the burden imposed upon it by the First Amendment.
In rejecting Bloch's First Amendment defense, the trial judge ruled that the issue of whether the government's use of a police-line in front of the White House operated as an improper "time, place, and manner" restriction was not before the court. In so ruling, the trial judge disregarded critical parts of the proceeding before him. The defendants did appropriately raise the issue of the unconstitutional application of the regulation at trial beginning with opening statements in which they proffered that [t]he police-line prevented the accused from exercising [their] First Amendment rights in an area established as uniquely important to that expression . . . . [T]he arrest of docile, nonviolent, prayerful demonstrators in the process of exercising their First Amendment rights without possible injury to anyone around them, constitutes against expressive conduct . . . . [T]he enforcement of this police-line has served predominantly or ex--clusively to further the unconstitutional end of abridging First Amendment rights. As such, we will demonstrate that this case has no merit on practical and constitutional grounds, that our actions were orderly, reasonable, and  protected by our First Amendment rights.
The defendants likewise addressed the constitutional issue in testimony, their cross-examinations of Ward and Dawson and their closing arguments.*fn5 The trial judge, ruling that the only issue before him was whether the defendants had "adequate notice" of the "police-line"(an issue not meaningfully controverted), held there was adequate notice and found the defendants (save one) guilty.
As a general matter, 24 DCMR § 2100.3 (the police-line regulation), does not implicate First Amendment issues. See generally Virginia v. Hicks, 539 U.S. 113, 121-24 (2003) (trespass regulation not directed at speech is not subject to First Amendment overbreadth challenge). But where the First Amendment is implicated, the constitutionality of a regulation and its application must be measured by the principles and legal standards pertaining to government regulations of speech. See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989); Washington Mobilization Comm. v. Cullinane, 184 U.S. App. D.C. 215, 227, 566 F.2d 107, 119 (1977).*fn6
While the First Amendment reflects this nation's commitment to the principle that "debate on public issues should be uninhibited, robust, and wide open," New York Times v. Sullivan, 376 U.S. 254, 270 (1964) (internal citations omitted); accord Boos v. Barry, 485 U.S. 312, 318 (1988), "the government may make reasonable regulations, unrelated to the content of the message, concerning the time, place, and manner of the exercise of those liberties." Leiss v. United States, 364 A.2d 803, 807 (D.C . 1976), cert. denied, 430 U.S. 970 (1977) (internal citations omitted). See also Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984) ("[e]xpression, whether oral or written or symbolized by conduct, is subject to reasonable time, place, and manner restrictions"). The regulation of speech and communicative conduct on public property must be done "only in a narrow and reasonably necessary manner which serves significant government interests." Smith v. United States, 445 A.2d 961, 964 (D.C. 1982) (en banc) (internal citations omitted). Where the speech occurs in traditional public fora, government regulation must be narrowly tailored to serve a significant public interest and must leave open alternative means and methods of communication. Compare United States v. Grace, 461 U.S. 171, 179 (1983) (sidewalk outside the United States Supreme Court building is a public forum) with Pearson v. United States, 581 A.2d 347, 353 (D.C. 1990), cert. denied, 502 U.S. 808 (1991) (steps in front of the ...