JAMES G. WATT, SECRETARY OF THE INTERIOR, ET AL. V. THE COMMUNITY
FOR CREATIVE NON-VIOLENCE, ET AL.

   No. 82-1998

   In the Supreme Court of the United States

   October Term, 1982

   The Solicitor General, on behalf of James G. Watt, Secretary of the
Interior, and Manus J. Fish, Regional Director of the National Capital
Region of the National Park Service, petitions for a writ of
certiorari to review the judgment of the United States Court of
Appeals for the District of Columbia Circuit in this case.

   Petition for a writ of certiorari to the United States Court of
Appeals for the District of Columbia Circuit

                       PARTIES TO THE PROCEEDING

   Manus J. Fish, Regional Director of the National Capital Region of
the National Park Service, was named as a defendant in the complaint
and is a petitioner here.  Mitch Snyder, Mary Ellen Hombs, Harold
Moss, Clarence West, Monroe Kylandezes, Fred Randall, and Mike Scott
were plaintiffs in the district court and are respondents here.

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Constitutional and regulatory provisions involved
   Statement
   Reasons for granting the petition
   Conclusion
   Appendix A
   Appendix B
   Appendix C
   Appendix D

                            OPINIONS BELOW

   The opinion of the court of appeals (App. A, infra, 1a-87a) is
reported at 703 F.2d 586.  The opinion and order of the district court
(App. D, infra, 90a-112a) are not yet reported.

                             JURISDICTION

   The judgment of the court of appeals (App. B, infra, 88a-89a) was
entered on March 9, 1983.  The jurisdiction of this Court is invoked
under 28 U.S.C. 1254(1).

           CONSTITUTIONAL AND REGULATORY PROVISIONS INVOLVED

   The First Amendment provides in pertinent part:

      Congress shall make no law * * * abridging the freedom of
      speech, or of the press, or the right of the people peaceably to
      assemble, and to petition the Government for a redress of
      grievances.

   36 C.F.R. 50.27(a) provides:

         Camping is defined as the use of park land for living
      accommodation purposes such as sleeping activities, or making
      preparations to sleep (including the laying down of bedding for
      the purpose of sleeping), or storing personal belongings, or
      making any fire, or using any tents or shelter or other
      structure or vehicle for sleeping or doing any digging or earth
      breaking or carrying on cooking activities.  The above-listed
      activities constitute camping when it reasonably appears, in
      light of all the circumstances, that the participants, in
      conducting these activities, are in fact using the area as a
      living accommodation regardless of the intent of the
      participants or the nature of any other activities in which they
      may also be engaging.  Camping is permitted only in areas
      designated by the Superintendent who may establish limitations
      of time allowed for camping in any public camping ground.  Upon
      the posting of such limitations in the campground no person
      shall camp for a period longer than that specified for the
      particular campground.

   36 C.F.R. 50.19(e)(8) provides:

         In connection with permitted demonstrations or special
      events, temporary structures, (sic) may be erected for the
      purpose of symbolizing a message or meeting logistical needs
      such as first aid facilities, lost children areas or the
      provision of shelter for electrical and other sensitive
      equipment or displays.  Temporary structures may not be used
      outside designated camping areas for living accommodation
      activities such as sleeping, or making preparations to sleep
      (including the laying down of bedding for the purpose of
      sleeping), or storing personal belongs, or making any fire, or
      doing any digging or earth breaking or carrying on cooking
      activities.  The above-listed activities constitute camping when
      it reasonably appears, in light of all the circumstances, that
      the participants, in conducting these activities, are in fact
      using the area as a living accommodation regardless of the
      intent of the participants or the nature of any other activities
      in which they may also be engaging.  Temporary structures are
      permitted to the extent described above, provided prior notice
      has been given to the Director, except that:

         (i) No structures shall be permitted on the White House
      sidewalk.

         (ii) All such temporary structures shall be erected in such a
      manner so as not to unreasonably harm park resources and shall
      be removed as soon as practicable after the conclusion of the
      permitted demonstration or special event.

         (iii) The Director may impose reasonable restrictions upon
      the temporary structures permitted, in the interest of
      protecting the park areas involved, traffic and public safety
      considerations, and other legitimate park value concerns.

         (iv) Any structures utilized in a demonstration extending in
      duration beyond the time limitations specified in paragraphs
      (e)(4)(i) and (ii) of this section must upon 24 hours notice be
      capable of being removed and the site restored or the structure
      secured in such a fashion so as to not unreasonably interfere
      with use of the park area by other permittees authorized under
      this section.

         (v) Individuals or groups of 25 persons or less demonstrating
      under the small group permit exemption of Section 50.19(b)(1)
      shall not be permitted to erect temporary structures other than
      small lecterns or speakers platforms.  This provision is not
      intended to restrict the use of portable signs or banners.

                          QUESTION PRESENTED

   Whether the National Park Service violated the First Amendment by
enforcing 36 C.F.R. 50.27(a), which restricts camping in the national
parks, to prevent respondents from sleeping in Lafayette Park and on
the Mall in connection with a demonstration of the plight of the
homeless.

                               STATEMENT

   1. Since 1893, the Interior Department, through the National Park
Service, has been charged with responsibility for management and
maintenance of all national parks.  These include the National
Memorial-core area parks in Washington, D.C., including Lafayette Park
and the Mall, which traditionally attract numerous visitors, as well
as some demonstrators.  In particular, the National Park Service is
required to

      promote and regulate the use of the * * * national parks * * *
      by such means and measures as conform to the fundamental purpose
      of said parks * * * , which purpose is to conserve the scenery
      and the natural and historic objects and the wild life therein
      and to provide for the enjoyment of the same in such manner and
      by such means as will leave them unimpaired for the enjoyment of
      future generations.

16 U.S.C. 1. The Secretary of the Interior is authorized to promulgate
rules and regulations for the use and management of these parks in
accordance with the purposes for which they were established.  16
U.S.C. 3;  16 U.S.C. (Supp. V) 1a-1.

   Pursuant to this authority, the Secretary of the Interior has
adopted a variety of rules and regulations governing the use of the
national parks, including the Memorial-core area parks.  In
particular, the Secretary has adopted a regulation prohibiting camping
in the national parks outside of designated camping areas.  No such
camping areas have been designated in the Memorial-core area.
"Camping" is defined as the "use of park land for living accommodation
purposes such as sleeping activities, or making preparations to sleep
(including the laying down of bedding for the purpose of sleeping), or
storing personal belongings, or making any fire, or using any tents or
* * * other structure * * * for sleeping or doing any digging or earth
breaking or carrying on cooking activities." 36 C.F.R. 50.27(a).  The
regulation further provides that "(t)he above listed activities
constitute camping when it reasonably appears, in light of all the
circumstances, that the participants, in conducting these activities,
are in fact using the area as a living accommodation regardless of the
intent of the participants or the nature of any other activities in
which they may also be engaging." Ibid.

   Demonstrations for the expression of views or grievances may be
held in the Memorial-core area pursuant to 36 C.F.R. 50.19.  With
minor exceptions, such demonstrations may be held only in accordance
with an official permit issued by the National Park Service.  Ibid.
The regulations recognize that temporary structures may be erected in
connection with permitted demonstrations but provide that such
structures may not be used for camping.  36 C.F.R. 50.19(e)(8).  /1/

   2. In 1982, respondent Community for Creative Non-Violence ("CCNV")
applied for a permit from the National Park Service to conduct a
demonstration in Lafayette Park and on the Mall beginning on December
21, 1982, and continuing through the last day of winter, for the
stated purpose of demonstrating the plight of the homeless.  /2/ In
particular, CCNV requested permission to erect symbolic tents, lay
down bedding, and sleep as part of its demonstration.  /3/ The
National Park Service granted the permit on a seven-day, renewable
basis but denied CCNV permission to lay down beding or sleep in the
symbolic tents, citing the camping prohibition in the pertinent
regulations, 36 C.F.R. 50.19(e)(8) and 50.27(a).  (The granting of the
permit allowing CCNV to maintain a 24-hour presence at the park and to
erect temporary structures (including "symbolic campsites") in
connection with its demonstration was based on National Park Service
regulations that attempted to comply with prior cases concerning
demonstrations in the Memorial-core park area decided by the District
of Columbia Circuit.  /4/ )

   On September 7, 1982, CCNV and the other named plaintiffs, who are
described as either individual members of CCNV or homeless
individuals, brought this suit in the United States District Court for
the District of Columbia, challenging the constitutionality of the
relevant regulations.  CCNV sought a preliminary injunction against
application of these regulations, arguing that they were vague,
overbroad, unequally enforced, and violative of the respondents' First
Amendment rights.  Both parties filed motions for summary judgment.

   The district court denied the request for an injunction and granted
summary judgment for the government, holding that the regulations were
valid both on their face and as applied (App. D, infra, 91a-112a).
The court first concluded that the act of sleeping in this context was
not "sufficiently imbued with elements of communication to fall within
the scope of the First and Fourteenth amendments.'" Id. at 102a,
quoting Spence v. Washington, 418 U.S. 405, 409 (1974).  The court
further held that under the standards set forth in United States v.
O'Brien, 391 U.S. 367 (1968), any incidental restriction on First
Amendment rights created by the regulations was justified (App. D,
infra, 104a-106a).  The court also rejected respondents' contention
that the regulations had not been fairly and uniformly enforced (id.
at 106a-108a).

   3. Respondents appealed, and a panel of the court of appeals heard
argument.  Before the panel decided the case, however, the court sua
sponte directed that it be heard en banc.  In a one sentence per
curiam decision, the en banc court, by a 6-5 vote, reversed the
district court and enjoined the government "from prohibiting sleeping
by demonstrators in tents in sites authorized for (respondents')
demonstration" (App. A, infra, 2a).  /5/ This disposition was
supported by a plurality opinion, joined in whole or in part by five
judges, and by three concurring opinions.  The splintered majority
agreed that the National Park Service's "no camping" regulations were
valid on their face.  It was also agreed that, in the circumstances of
this case, to apply them to bar sleeping as part of CCNV's
demonstration would violate the First Amendment.  There was, however,
no consensus as to why the regulations as applied were violative of
respondents' First Amendment rights.

   The plurality opinion, by Judge Mikva, found that, in the context
of this particular demonstration, sleeping in symbolic tents would be
a communicative act and hence protected by the First Amendment.  Judge
Mikva explained that sleep is expressive in the context of any
demonstration seeking to use sleep to help convey its message, and he
specifically rejected the argument that sleeping in the context of
CCNV's demonstration was "uniquely deserving" of First Amendment
protection because it directly embodied the protesters' message that
homeless people have no place to sleep (App. A, infra, 17a-18a).
Purporting to apply the analysis set forth by this Court in United
States v. O'Brien, supra, Judge Mikva found that the government's
interest in enforcing the regulations against respondents did not
justify the attendant burden on First Amendment rights (App. A, infra,
at 19a-28a).  Focusing the inquiry on demonstrators "similarly
situated" to CCNV, Judge Mikva explained that there would be no
"incremental savings of park resources" to be gained by proscribing
sleep (id. at 22a-23a).  Stating that the National Park Service was
entitled to distinguish, in applying its regulation, between "sleeping
that is expressive as part of a twenty-four hour vigil * * * (and)
sleeping that is a mere convenience to day-time demonstrators" (id. at
25a).  Judge Mikva concluded that the government's interests would not
be sufficiently furthered "by keeping these putative protestors" from
sleeping (id. at 28a;  emphasis added).

   Chief Judge Robinson and Judge Wright concurred with the caveat
that they "intimate(d) no view as to whether sleeping would implicate
the First Amendment were it not to add its own communicative value to
the demonstration" (App. A, infra, 31a).  Judge Edwards filed a
concurring opinion, disagreeing with portions of Judge Mikva's
opinion, but reaching the same result (id. at 32a-40a).  Judge Edwards
stated that, on the facts of this particular case, sleeping was
"symbolic speech" covered by the First Amendment (id. at 33a-34a).  He
concluded that under O'Brien the regulations could not
constitutionally be applied to bar CCNV's demonstration because there
are "reasonable * * * regulatory alternatives less restrictive * * *
than a total ban against sleeping (that) still would accommodate the
significant governmental interests at stake" (id. at 39a).  Judge
Ginsburg concurred only in the judgment (id. at 41a-48a).  She
characterized respondents' sleeping as "speech plus" (id. at 46a) that
was not necessarily entitled to the same protection as traditional
speech, but was sufficient "to require a genuine effort to balance the
demonstrators' interest against other (government) concerns" (id. at
47a).  Because she found it irrational to allow "tenting, lying down,
and maintaining a twenty-four hour presence" while forbidding
sleeping, Judge Ginsburg concluded that the line drawn in the
regulations was not sufficiently "sensible, coherent, and sensitive to
the speech interest involved" (id. at 48a).

   Judge Wilkey, joined by four judges, dissented (App. A, infra,
49a-77a).  Although expressing considerable doubt on the issue (id. at
56a-60a), Judge Wilkey assumed that respondents' sleeping activity
would constitute a form of speech protected by the First Amendment and
that the O'Brien analysis was therefore applicable (id. at 60a).
Examining the general government interest in preventing camping in the
Memorial-core area (see id. at 63a-66a).  Judge Wilkey concluded that
the regulation served a substantial interest in conserving park
resources and preserving the right of non-campers to enjoy the parks;
he found that this interest outweighed occasional incidental
infringement on the activities of demonstrators (id. at 66a-71a).
Judge Wilkey further stated that there was no constitutionally
permissible less restrictive alternative to the total ban on camping
(id. at 72a-77a) because "any intermediate position designed to
accommodate 'First Amendment camping' would run afoul of the
proscriptions against discretionary screening" (id. at 73a).  Judge
Scalia, joined by two judges, filed a separate dissenting opinion (id.
at 78a-87a) denying that "sleeping is or can ever be speech for First
Amendment purposes" (id. at 78a).  Because the regulations proscribe
the activities in question for reasons having nothing to do with their
communicative character, Judge Scalia concluded that they did not
implicate First Amendment concerns.

                   REASONS FOR GRANTING THE PETITION

   1. The decision below is the culmination of a series of decisions
by the District of Columbia Circuit severely limiting, in the name of
the First Amendment rights of demonstrators, the ability of the
National Park Service to administer the Memorial-core area parks for
the benefit of the general public.  See United States v. Abney, 534
F.2d 984 (1976);  A Quaker Action Group v. Morton, 516 F.2d 717
(1975);  Women Strike for Peace v. Morton, 472 F.2d 1273 (1972).
These decisions, which have increasingly diverged from established
principles of First Amendment law, have steadily eroded the power of
the National Park Service reasonably to regulate the conduct of
demonstrators in these areas.  The use of these parks by
demonstrators, of course, is a legitimate use recognized and approved
by the government (see 36 C.F.R. 50.19), but it must be subject to
reasonable manner restrictions.  As a result of these decisions, the
use of these parks -- constituting a unique national resource -- as a
forum for protesters has been elevated above the primary uses
contemplated by Congress, making it more and more difficult to
preserve them as places where the public can enjoy nature with some
serenity.  The decision below leaves the National Park Service in a
position where it cannot effectively prevent camping in these historic
urban parks and casts serious doubt on its ability to regulate other
conduct there that may be asserted to be connected with First
Amendment activity.  Judge Mikva's candid observation (App. A, infra,
29a) that "(e)ach distinction and each line" drawn by the National
Park Service in regulating sleeping in the park will be subjected to
"close scrutiny" by the court simply underscores the need for this
Court to step in and correct the D.C. Circuit's misguided course in
this area of the law.

   The practical impact of the decision below on the National Park
Service's administration of the Memorial-core area parks is
far-reaching.  Apart from requiring that it issue a permit to CCNV's
requested demonstration, the fragmented decision gives the National
Park Service no guidance on how to deal with other applications to
camp in the parks.  The three opinions of Judges Wright and Robinson,
Edwards, and Ginsburg suggest that there may be cases where the
National Park Service may ban camping in the parks even if it is
asserted to express a message, but they do not suggest any standards
to be applied in distinguishing among such permit applications and in
identifying those cases in which the First Amendment rights associated
with sleep outweigh the government's interest in preventing the use of
Lafayette Park and the Mall for camping.  /6/ On the other hand, the
opinions of Judge Mikva (App. A, infra, 18a) and Judge Wilkey (id. at
71a-77a) suggest that any attempt to draw such distinctions
necessarily would be content-based and hence violative of the First
Amendment.

   Thus, the National Park Service is left with two equally
unpalatable alternatives in passing on future applications.  It can
safely comply with the decision below by allowing anyone to camp in
the restricted park areas as long as it is alleged that the camping or
sleeping activity is part of a demonstration.  The cumulative impact
of granting all these applications, however, clearly will adversely
affect the general public's opportunity to use these parks and
severely overtax park facilities.  /7/ On the other hand, if the
National Park Service attempts to distinguish among these
applications, denials almost certainly will be the subject of
litigation and apparently will be viewed by a majority of the judges
on the court of appeals as impermissibly content-based.  In short, the
divergent viewpoints and conclusions of the 11 judges of the court of
appeals have left the National Park Service in a position where it
cannot administer its regulations in any way that is either manageable
or likely to pass constitutional muster.  Both the practical
difficulties engendered by the decision below and the important issues
raised warrant review by this Court.

   2.a. The decision below is erroneous.  First, it brushes aside an
earlier decision of this Court, rendered in connection with a previous
attempt by demonstrators to establish that camping on the Mall is
protected by the First Amendment.  Morton v. Quaker Action Group, 402
U.S. 926 (1971).  In 1971 the district court issued an injunction
prohibiting the Vietnam Veterans Against the War from, inter alia,
camping on the Mall.  The district court defined the term "overnight
camping" as "sleeping activities, or making preparations to sleep
(including the laying down of bedrolls or other bedding) * * * ,"
which corresponds to the language in the current regulation.  /8/ The
court of appeals modified that order to permit the demonstrators to
use their symbolic campsite 24 hours a day "as an incident to or as
part of their public demonstrations and gatherings, and for the
purpose of sleeping in their own equipment, such as sleeping bags, on
that portion of the Mall." A Quaker Action Group v. Morton, No.
71-1276 (D.C. Cir. Apr. 19, 1971).  The following day the Chief
Justice vacated the court of appeals' order and reinstated the
prohibitory order of the district court.  The full Court then upheld
the Chief Justice, vacated the court of appeals' order permitting
sleeping, and reinstated "with full force and effect" the injunction
of the district court.  Morton v. Quaker Action Group, supra,

   In this case the plurality brusquely dismissed this Court's order
in Quaker Action as inapposite (App. A, infra, 10a n.5) and in fact
relied on the vacated court of appeals opinion (id. at 11a).  It did
so notwithstanding the fact that in Quaker Action this Court upheld an
injunction based on a line much like the line drawn in the existing
regulations that the court of appeals here held invalid.  That ruling,
albeit rendered in a summary action (cf. Hicks v. Miranda, 422 U.S.
332, 344 (1975)), should have been deemed authoritative in this case.

   b. The decision below is contrary to well settled principles of
First Amendment jurisprudence.  It is black letter law that the First
Amendment does not accord each citizen a right to determine the most
effective way of presenting his views;  rather, the exercise of First
Amendment rights is subject to "reasonable time, place, and manner
restrictions." Heffron v. International Society for Krishna
Consciousness, Inc., 452 U.S. 640, 647 (1981).  See also, e.g.,
Grayned v. City of Rockford, 408 U.S. 104, 115 (1972).  In particular,
the Court has rejected the notion that "an apparently limitless
variety of conduct can be labeled 'speech' whenever the person
engaging in the conduct intends thereby to express an idea." United
States v. O'Brien, 391 U.S. 367, 376 (1968).  See also Tinker v. Des
Moines School District, 393 U.S. 503, 515 (1969) (White, J.,
concurring).

   The court below paid lip service to these principles, but in fact
appears to have abandoned them.  Judge Mikva's opinion holds that
respondents' intent that their "presence" be expressive, coupled with
the fact that their demonstration would take place "at the seat of our
national government," converts sleeping into expressive conduct
protected by the First amendment (App. A, infra, 17a).  This
conclusion follows in the footsteps of earlier circuit precedent that
woodenly accorded First Amendment protection to any conduct intended
to be communicative.  Judge Wright's opinion in Women Strike for Peace
v. Morton, supra, suggested that no distinction could be drawn between
speech and conduct (472 F.2d at 1282) and that the erection of any
structure designed to communicate views was entitled to First
Amendment protection (id. at 1287-1288).  In United States v. Abney,
supra, the court assumed that a protester's desire to conduct a
round-the-clock vigil was sufficient to make sleeping an expressive
activity protected by the First Amendment.

   These rulings are not supported by the "symbolic speech" decisions
of this Court.  Although this Court has used First Amendment analysis
in cases involving expressive conduct, those cases all involved
conduct that had little, if any, purpose other than expression;  and
they involved activity far closer to traditional "speech" than the act
of sleeping.  In addition, those cases involved government regulations
more directly aimed at expression.  See, e.g., Spence v. Washington,
418 U.S. 405, 410, 414 n.8 (1974);  Tinker v. Des Moines School
District, supra.  Extending these cases to cover respondent's sleeping
in the park simply contradicts the Court's oft-repeated admonition
that not all conduct intended to be expressive is "speech." See Spence
v. Washington, supra, 418 U.S. at 409.

   c. Even assuming that respondents' camping is fully protected by
the First Amendment, the court of appeals erred in holding that the
governmental interest underlying the regulation did not outweigh the
incidental infringement of First Amendment rights.  In United States
v. O'Brien, supra, the Court concluded that it did not violate the
First Amendment to prosecute a demonstrator for burning his draft card
as a protest against the Vietnam War.  The Court explained that "when
'speech' and 'nonspeech' elements are combined in the same course of
conduct, sufficiently important governmental interest in regulating
the non-speech element can justify incidental limitations on First
Amendment freedoms." 391 U.S. at 376.  Applying a four-part test, the
Court concluded that the government's interest in banning draft card
burning was sufficent to justify the ban's restriction of First
Amendment freedoms.  /9/ The government's interest in banning camping
in the Memorial-core area parks is substantial and fully sufficent
under O'Brien to justify incidental restrictions on demonstrators who
purport to camp as a way of conveying a message.  The "no camping"
regulations are a valid exercise of the Secretary's authority to
manage park resources.  The Memorial-core area parks are not designed
to handle overnight campers, and permitting camping would overtax
sanitary facilities and law enforcement personnel.  Moreover, camping
would seriously interfere with the enjoyment of the parks by numerous
other users.  See generally 47 Fed. Reg. 24302 (1982).

   The plurality attempted to minimize these concerns by stating that
the only government interest involved is that in prohibiting sleeping
"by all those who wish to engage in sleeping as part of their
demonstration and have been granted renewable permits to demonstrate
on a twenty-four hour basis on sites at which they have also been
allowed to erect temporary symbolic structures" (App. A, infra, 22a).
As Judge Wilkey explains, however (id. at 63a-66a), this approach is
unsound.  Virtually any regulation can be made to seem unnecessary if
the inquiry is focused on the government interest in not making an
exception in the particular case at hand, rather than on the general
regulation.  See Heffron v. International Society for Krishna
Consciousness, Inc., supra, 452 U.S. at 652.  /10/

   On the other hand, the "no camping" regulations represent a minimal
infringement of speech.  Respondents may effectively communicate their
message to the public at precisely the same locations, by means other
than actually sleeping.  Although they claim that the effectiveness of
their demonstration might be enhanced if they are permitted to sleep
-- either because sleeping in Lafayette Park particularly expresses
"the poignancy of their plight" (App. A, infra, 17a) or because the
establishment of a place to sleep with hot meals would attract many
persons to the demonstration (see note 3, supra) -- it is well settled
that the Constitution does not create an absoluate right to deliver a
message in the precise manner thought by the demonstrator to be
maximally effective.  See, e.g., Heffron v. International Society for
Krishna Consciousness, Inc., supra, 452 U.S. at 647;  Adderley v.
Florida, 385 U.S. 39, 47-48 (1966).

   The "no camping" regulations operate essentially as a restriction
on the manner in which respondents may conduct their demonstration.
Such a restriction is valid if it is "'content-neutral, * * * narrowly
tailored to serve a significant government interest, and leave(s) open
ample alternative channels of communication.'" United States v. Grace,
No. 81-1863 (Apr. 20, 1983), slip op. 5;  Perry Education Ass'n v.
Perry Local Educators' Ass'n, No. 81-896 (Feb. 23, 1983), slip op.
7-8.  There can be little doubt that the regulations involved here
meet this standard.  They are narrowly focused on preserving the parks
from the damage and overloading of resources that use of them for
living accommodations would engender, while still allowing
demonstrators ample opportunity to communicate their messages.
Indeed, as Judge Wilkey explains (App. A, infra, 71a-77a), a total ban
on camping is a necessity if the government is to further its
undeniable interest in generally preventing the use of the
Memorial-core area parks as campgrounds.

   In sum, the decision below, by recognizing as "speech" protected by
the First Amendment any conduct intended to be expressive and by
artificially confining the government's interest in regulation to one
particular set of facts, has emasculated the National Park Service's
ability to manage the Memorial-core area parks.  The National Park
Service will be hard-pressed to enforce its regulations at all without
running the risk of making impermissible content-based distinctions.
As a result, if the decision below is permitted to stand, a
significant aspect of the administration of these parks effectively
will be taken out of the National Park Service's hands, and the right
of the general public to peaceful enjoyment of the parks -- the
primary purpose for which Congress established them -- will be
subordinated to demonstrators who claim that conduct inconsistent with
the parks' primary purpose is nevertheless privileged because claimed
by them to be "expressive."

                              CONCLUSION

   The petition for a writ of certiorari should be granted.

   Respectfully submitted

   REX E. LEE

      Solicitor General

   J. PAUL MCGRATH

      Assistant Attorney General

   PAUL M. BATOR

      Deputy Solicitor General

   ALAN I. HOROWITZ

      Assistant to the Solicitor General

   LEONARD SCHAITMAN

   KATHERINE S. GRUENHECK

      Attorneys

   JUNE 1983

   /1/ These regulations were revised effective June 4, 1982.  See 47
Fed. Reg. 24299-24306 (1982).  The revisions were prompted by the
decision in Community for Creative Non-Violence v. Watt ("CCNV I"),
670 F.2d 1213 (D.C. Cir. 1982), which held that sleeping in tents by
demonstrators in connection with First Amendment activities did not
constitute "camping" prohibited under then-existing regulations.

   /2/ CCNV had held a similar demonstration on a smaller scale the
previous winter after the court of appeals held in CCNV I that the
National Park Service's "no camping" regulations did not extend to the
activities in which CCNV sought to engage because they were related to
First Amendment activities.

   /3/ CCNV explained in its application materials that permitting
persons "to sleep in relative warmth" as part of the demonstration or
"the incentive of * * * a hot meal" was necessary to attract
participants.  See App. A, infra, 45a n.10, 69a;  App. D, infra, 93a.

   /4/ Based on a settlement of prior litigation and D.C. Circuit
precedent, the National Park Service's regulations permit the erection
of temporary structures in connection with a demonstration, including
symbolic campsites.  See Women Strike for Peace v. Morton, 472 F.2d
1273 (D.C. Cir. 1972).  By the same token, the National Park Service
permitted a 24-hour presence at the demonstration in line with D.C.
Circuit precedent recognizing the First Amendment interest in a
round-the-clock vigil.  United States v. Abney, 534 F.2d 984 (D.C.
Cir. 1976).  See also A Quaker Action Group v. Morton, 516 F.2d 717,
734 (D.C. Cir. 1975) (striking down existing limitation on length of
demonstrations).

   /5/ On March 17, 1983, the Chief Justice ordered the mandate of the
court of appeals recalled and stayed its reissuance pending further
order of the Court.  On March 21, 1983, the full Court continued that
order in effect pending the timely filing and disposition of a
petition for a writ of certiorari (No. A-771).

   /6/ Moreover, as Judge Wilkey explains (App. A, infra, 74a-77a), it
would not be difficult for any group wishing to camp on the Mall to
advance a facially valid First Amendment justification for their
proposed activity.  See also opinion of Mikva, J., id. at 16a n.16.

   /7/ For example, there is only one sanitation facility in Lafayette
Park.

   /8/ A detailed summary of this litigation is set forth in Vietnam
Veterans Against the War v. Morton, 506 F.2d 53, 56 n.9 (D.C. Cir.
1974).

   /9/ The test set forth in O'Brien states (391 U.S. at 377):

      (A) government regulation is sufficiently justified if it is
      within the constitutional power of the Government;  if it
      furthers an important or substantial governmental interest;  if
      the governmental interest is unrelated to the suppression of
      free expression;  and if the incidental restriction on alleged
      First Amendment freedoms is no greater than is essential to the
      furtherance of that interest.

   /10/ The plurality also focuses narrowly on the interest in
preventing sleeping by demonstrators who are already permitted to
remain in symbolic tents overnight (App. A, infra, 22a-23a).  It is
important, however, to remember that the National Park Service allowed
respondents to engage in these activities because of its perception of
the First Amendment requirements of applicable circuit precedent, even
though the government does not agree that the First Amendment actually
requires it to permit such activities.  See note 4, supra.  The thrust
of the regulation is to prohibit the use of the parks for living
accommodation purposes.  That goal serves an important government
interest, and, as Judge Wilkey explains (App. A, infra, 66a-68a,
74a-75a), it is well served by the definition of camping in the
regulations.  To ignore this broader context and focus only on the
government interest in preventing a particular 24-hour demonstrator
from sleeping is to "nickel and dime (the) regulation to death" (see
id. at 65a).

   Appendix Omitted