Warren E. Burger: Now we will hear arguments this morning in Clark against Community for Creative Non-Violence. Mr. Bator.
Paul M. Bator: Mr. Chief Justice, and may it please the Court: This case involves the use and the regulation of Lafayette Park and the Mall. I need hardly belabor the point, therefore, that this case is about places that are very, very special, places that mean something to every American and that really do belong to every American. They are places that are intensely used for all kinds of activities. They are very grand and beautiful, and thousands come in a spirit of awe and reverence. But it's also the case that thousands come just to jog and to picnic and to play softball. These places are also much used, and fittingly used, for political demonstrations. They are intensely used for that purpose. The Park Service statistics indicate that somewhere between 900 and 1,000 permits are sought a year for special events and demonstrations in the memorial core area. So that on any given day there will be an average of three or so demonstrations going on. The case is fundamentally about what sorts of parks these are to be. The specific question in the case is whether the National Park Service has the authority to enforce a flat general rule that provides that nobody may spend the night camping in Lafayette Park and the Mall. You may not use these places as overnight sleeping accommodations. Respondents are here arguing that the Constitution gives them the constitutional right to use these places as overnight sleeping accommodations. They say that the use of these parks overnight for sleep is speech within the meaning of the First Amendment. The regulation involved in the case is not in terms directed at speech. It does not on its face even have the effect of limiting expression. The regulation simply prohibits camping, and camping is defined in the common sense way of use of the parks for living accommodation purposes, including the constituent activity of sleeping overnight in tents. Now, Respondents asked for a permit to conduct a demonstration in Lafayette Park and the Mall. It's common ground that the purpose of the demonstration was sincere, important and serious, to demonstrate the tragic plight of homeless people. To do this, the Respondents sought a permit to erect 60 tents in Lafayette Park and the Mall, and there would be 150 people demonstrating there for a period of three months, during which the 150 people would be spending the nights asleep in tents in Lafayette Park and the Mall. The Park Service granted the Respondents a wide-ranging permit to demonstrate. Nobody tried to prevent the Respondents from exercising their right to speak, to assemble, to petition the Government for a redress of grievances. Respondents were told they could come to Lafayette Park, they could speak in every normal sense of that term as freely as they wished, they could maintain a continuous round-the-clock presence, maintain an all-night vigil. They could assemble and parade and leaflet. They could use symbols and signs. They could even erect symbolic structures and tents in order to convey the message of homelessness. But they were also told that they may not use the park overnight to sleep, and this lawsuit tests the validity of that application of the regulations. The Government is here because the Court of Appeals of the District of Columbia held in a six to five ruling that the First Amendment guarantee of freedom of speech applies to the sleeping activity proposed by the demonstrators.
Sandra Day O'Connor: May I ask a couple of preliminary questions, Mr. Bator. The Respondents indicate that other demonstrators have been given permits by the Park Service to sleep overnight in the park. Is there any question about the validity of that statement?
Paul M. Bator: Your Honor, the district court found explicitly, on the basis of a record that I think substantially supports that finding, that there has been no discrimination in the application of this demonstration; that in fact the Park Service has across the board tried conscientiously to enforce the regulation against sleeping. It is the case that for a period of three months, under a previous judgment of the Court of Appeals of the District of Columbia, that court held that the regulations in fact permit certain kinds of sleeping. The Government then proceeded forthwith to amend the regulations.
Sandra Day O'Connor: And the amendment of the regulations was designed to prevent sleeping overnight in the parks?
Paul M. Bator: It was designed to prevent camping and sleeping as a constituent of that camping.
Lewis F. Powell, Jr.: Mr. Bator, has there ever been a complete ban on demonstrating in Lafayette Park?
Paul M. Bator: There had been a ban, I believe, back... I don't know when the date--
Lewis F. Powell, Jr.: Many, many years ago?
Paul M. Bator: --Many years ago, there was a complete rule against any demonstration in Lafayette Park.
Lewis F. Powell, Jr.: Would it be the Government's position that that would be perfectly valid?
Paul M. Bator: Your Honor, it's not this case, and in the case of Lafayette Park I think our position would be that it would be valid, but we luckily do not need to argue that position.
Lewis F. Powell, Jr.: Why do you draw a distinction between sleeping all night and demonstrating all night?
Paul M. Bator: The composition of the Park Service regulations on that is to maintain a bright line between the round-the-clock vigil and the camping, sleeping activity, and I think that that is responsive to the notion that the round-the-clock vigil is--
Thurgood Marshall: You mean that there's a bright line between sleeping and not sleeping?
Paul M. Bator: --The bright line is between the round-the-clock--
Thurgood Marshall: How do you tell when somebody's sleeping and when they're not sleeping? I know people that sleep with their eyes wide open.
Paul M. Bator: --Your Honor, the--
Thurgood Marshall: I mean, I was worried about that bright line.
Paul M. Bator: --The bright line is between two sorts of activities. I think, Your Honor, if you were told... if I were told that I'm allowed to go into that park and maintain a round-the-clock vigil, but I'm not allowed to use the park as sleeping quarters overnight, I think I would understand that rule. It is really directed at two different sorts of activities.
William J. Brennan, Jr.: But precisely how do they carry on the round-the-clock vigil between midnight and so on?
Paul M. Bator: How?
William J. Brennan, Jr.: How do they do it?
Paul M. Bator: People do maintain round-the-clock vigils in these parks.
William J. Brennan, Jr.: How? What do they do?
Paul M. Bator: They stand, they sing, they carry candles. There are many... the round-the-clock vigil, as the Court of Appeals of the District of Columbia has indicated, is a fairly well recognized and understandable and important sort of symbolic activity.
Byron R. White: Well, you could also sit in a chair or lie down, as long as you're not sleeping, is that it?
Paul M. Bator: Yes, sir.
William J. Brennan, Jr.: So you can enter a tent and lie down and lie there all night--
Paul M. Bator: Yes, sir.
William J. Brennan, Jr.: --as long as you don't sleep?
Paul M. Bator: Yes, sir.
William J. Brennan, Jr.: And you're all right.
Paul M. Bator: Yes, sir. Now, I'd like to say why that line is in fact a very important line. The problem of the Park Service is not... that is, once a given demonstrator is already there and he's allowed to go into the tent and lie down, you say, what difference does it make if he's actually allowed to go to sleep? But that does not mean, Your Honor, that it makes no difference to the parks whether the rule is that you can sleep there overnight as part of camping activity on the one hand or whether you're allowed to stand a round-the-clock vigil and if you want in connection with that to pretend that you are asleep.
William J. Brennan, Jr.: Well, may he sleep during the day? Does the rule bar him from sleeping during the day?
Paul M. Bator: The rule bars sleeping only if it is a constituent of the use of the park for living accommodation purposes. That is, the purpose of the regulation is basically to prevent the kind of continuous and intense use that is associated with actually coming in and occupying a place as a place to live in. And we think that's an intelligible line, and we think it makes a difference, Justice Brennan, because the fact is that the problem of feined sleep and pretending to sleep simply has not surfaced as a problem in the management of these parks. The problem of the parks is to try to save them from the kind of intense occupation that is associated with a general rule that you can come in and camp overnight.
Warren E. Burger: Is that partly related to the proposition that the park is there for the use of everyone, including hundreds of thousands of tourists that come to Washington--
Paul M. Bator: Yes, sir.
Warren E. Burger: --want to take pictures, walk around the flowers?
Paul M. Bator: It has historically been the position of the Park Service that these places simply are not suited for camping because they are so intensely used by so many people for so many different purposes. So that that problem of continuous occupation on the part of demonstrators would create a severe strain on the park and on the resources of the services.
Thurgood Marshall: Mr. Bator, I have trouble. When they are camping there and not sleeping, aren't they interrupting all this, other people? Two people can't be in the same spot at the same time.
Paul M. Bator: Right.
Thurgood Marshall: You did give them a permit to set up tents and to crawl in those tents. Well, that deprives these people from walking around and looking at the flowers, doesn't it?
Paul M. Bator: Yes, sir. It is not--
Thurgood Marshall: You agreed to that. You also agreed that if anybody goes to sleep on a bench, you don't lock him up, do you, for sleeping?
Paul M. Bator: --No, sir.
Thurgood Marshall: If he just happened to fall off?
Paul M. Bator: The finding of the Park Service here, Your Honor, Justice Marshall, is that the threat to the parks comes from a regime in which people generally are told that they can stay for a long time and sleep there. The practice of people catnapping or feigning--
Thurgood Marshall: But they didn't bar that. They said you can stay there for that "long time", providing you don't sleep. Isn't that what the rule is?
Paul M. Bator: --The judgment of the Park Service is that if you have a rule that you have to maintain an all-night vigil, that is not likely to threaten the park in a serious way. That is, the question here is how many people are going to come, how long are they going to stay.
William H. Rehnquist: Mr. Bator, does any part of the Park Service's liberality in the regulations accommodating demonstrators stem from previous decisions of the Court of Appeals for the District of Columbia?
Paul M. Bator: To some extent, yes. The Court of Appeals did hold here that an all-night wakeful vigil is an important First Amendment activity. Similarly, the Court of Appeals did have decisions about the erection of these symbolic tents. To some extent, the Government has been living under a regime of cases which do govern us quite closely and quite severely.
William H. Rehnquist: Not cases from this Court?
Paul M. Bator: Not cases from this Court. In fact, the only case from this Court, Your Honor, is the case from 1972, which seemed to hold, although it was not a case decided on the basis of argument and briefing, but in connection with a stay application, but that did install an injunction, reinstall an injunction which prohibited camping overnight in Lafayette Park and the Mall. That was the Morton case, decided by this Court in 1972. I want to come back to this issue, which I think is important because it has concerned so many judges, which is this issue: You've allowed them so much; why not this little bit extra? We think, Your Honors, that that asks the question from the wrong perspective. That is, retrospectively, once someone is there, of course it may not make such a difference. But the question is, what system of rules will threaten the parks? How many of these demonstrations will there be and how continuously will they last? That is why we think it's really the general perspective and the general rule which says it does not endanger the parks and it serves important First Amendment purposes to allow people to maintain an all-night vigil, an around-the-clock vigil, because that can serve as a powerful communicative activity; but actually going in those tents and going to sleep does not involve, we think, powerful communicative activity and, if allowed, creates a general regime that is threatening to the parks. We feel that one of the most fundamental issues in this case is sort of the institutional issue of whether you have a general flat rule to be applied across the board to all comers or whether you have to really do a case by case review in each case whether the particular proposal to sleep in the park has an important communicative or First Amendment aspect and therefore--
Byron R. White: Are there some... are there any cases out of this Court... perhaps you've answered in answering Justice Rehnquist, but are there any cases out of this Court that would prevent the Park Service from saying that no tents or sleeping materials will be allowed in the park?
Paul M. Bator: --We believe, Your Honor, that there are no cases that would squarely prevent that. I think that the Court would have to examine the particular circumstances. But our position--
Byron R. White: I take it that if the regulation were amended to provide that, that you would be in conflict with the Court of Appeals--
Paul M. Bator: --Right.
Byron R. White: --judgments?
Paul M. Bator: Yes, sir, right. But as far as we know, we would not be in conflict in any direct way with any of the rules of this Court.
Byron R. White: Well, I take it that, since you say that the question is being asked from the wrong direction, I take it that part of your submission is that you could prevent any sleeping materials in the park?
Paul M. Bator: We believe so, Your Honor.
Byron R. White: Including tents?
Paul M. Bator: The Government, we believe, has tried to be, to take a position that does treat generously of the business of demonstration.
Byron R. White: It goes farther than you think the Constitution requires?
Paul M. Bator: I believe we have gone farther than the Constitution requires. I believe we have gone beyond the minimum. And we do think that it is terribly important to be able to do this on the basis of flat rules.
Warren E. Burger: Under the present regulations, could a person put up a tent, let's say a pup tent that's probably 25 square feet more or less, and leave it there for an indefinite period, under the existing regulations?
Paul M. Bator: No, Your Honor, you would have to have a permit for that.
Warren E. Burger: No, I mean with a permit, with a permit.
Paul M. Bator: The permits would not allow you to do that indefinitely.
Warren E. Burger: How long? Is there a time?
Paul M. Bator: I don't believe the regulation itself contains a time limit. But usually... I think for instance, what happened in this case is that a seven-day renewable permit was given. It would depend very much on whether competing applications were received.
Warren E. Burger: If you have 50 pup tents, small pup tents in Lafayette Park for seven days, especially at this time of year, would you say that would interfere with use of the park by other people, visitors, tourists?
Paul M. Bator: Yes, sir, and I doubt very much whether all 60... the 60 here were divided between Lafayette Park and the Mall, and this was proposed for December to March, so that the specific judgment that this was a reasonable demonstration involved that set of circumstances.
John Paul Stevens: Mr. Bator, may I ask this question about the general rule, assuming... you say you want to look at the general rule. Supposing the general rule would prevent demonstrations such as the veterans march of many years ago or Resurrection City or some massive demonstration in the city of Washington for a very, very important cause. And it couldn't... that kind of aggregation of people couldn't be assembled unless they allowed some kind of camping or sleeping activity. Would the regulation withstand a First Amendment challenge in that kind of situation?
Paul M. Bator: Yes, Your Honor, the Government does feel that it is important and not fundamentally restrictive of the First Amendment to say that one thing cannot go on here at all ever, and that's to move in and sleep overnight. The fact is that--
John Paul Stevens: So that demonstrations of the kind I've described could really be prohibited?
Paul M. Bator: --Your Honor, I don't think there is any indication that very large demonstrations cannot go on in Lafayette Park and particularly the Mall without people being allowed to camp there. There are camp grounds around Washington. It is the case, for instance, that for the Vietnam veterans demonstration last year provisions were made for camping out in Greenbelt Park. I do not believe it is the history of the city that you absolutely have to allow people to camp overnight on the Mall. I think that the traditional position of the Government has been that that place is wholly unsuited for camping. I'd like to turn to another problem with the contrary view here, which is the question, if you ever permit it when do you permit it? One of the very important concerns of the Government here is that if this regulation can't be applied on an across the board basis we get into a very difficult, case by case review of the question whether the particular demonstration does or does not include as an important expressive feature the business of sleeping at night in Lafayette Park and the Mall. And we believe that that inevitably turns basically into content-oriented licensing. That is, if you adopt the rule that in certain cases an exception has to be made, that really is the regime that the Respondents ask for here. They agree that the regulation is valid on its face. They agree that usually people can be prevented from camping on the park. But they say that exceptions must be made. Exceptions for whom? Well, there's the rub. They say exceptions for us, for other people similarly situated. But in all the history of this case nobody has been able to come up with an understandable rule that says when sleeping in the park is or is not an important speech activity. And it seems quite plain to the Government that therefore what this comes to is case by case licensing by the agency, and eventually by the court. And it's licensing that will be uncomfortably content-oriented. I mean, this case is really an ironic illustration, Your Honor, of the fact. In this case, the Respondents and the Government are engaged in a detailed disputation before this Court on whether sleeping is or is not important for conveying the message of homelessness.
Warren E. Burger: Would you think it would violate the First Amendment if there was a regulation particularly applying to Lafayette Park that no one, no one, could be in that park after midnight until 8:00 o'clock in the morning?
Paul M. Bator: No, Your Honor. I think that the Government would take the position that that would be a perfectly valid regulation. There are many city parks of that size and that uniqueness that are in fact closed at night, that are closed at dusk. We have not, the Government has not adopted that, but I think the Constitution would permit it. I think the Constitution ought to give the Government some latitude in regulating these parks, as long as the rule does not substantially infringe on freedom of expression. And really, Your Honor, I guess it's important that I come back and remind myself and remind the Court: This regulation does not substantially narrow the range of expressive activities that can go on. It does not seriously prevent the demonstrators here from conveying their message, from speaking.
Thurgood Marshall: If I understand it, the demonstrators want to get over the proposition that there are many people who have no place to sleep. Now, how can you do that without sleeping?
Paul M. Bator: Your Honor, we don't think the physical activity of sleeping is important itself in--
Thurgood Marshall: Have you ever tried to live without it?
Paul M. Bator: --I beg your pardon, Justice Marshall?
Thurgood Marshall: Have you ever tried to live without sleeping?
Paul M. Bator: No, sir.
Thurgood Marshall: Have you ever had to sleep on a grating?
Paul M. Bator: No, sir.
Thurgood Marshall: Well, these people want you and others to understand that.
Paul M. Bator: I understand that, Justice Marshall, and we respect--
Thurgood Marshall: All you have to do is to look out the window of your office and you'll see it every night.
Paul M. Bator: --I understand that, Justice Marshall. And the Government respects and I respect in every way the sincerity and the importance of the message that is attempting to be conveyed. But there is a problem, which is that if you have a rule not to curb expression, but to prevent certain kinds of conduct, there is a problem about saying that whenever somebody says that the best way to convey a message is to act it out by engaging in that conduct that that automatically constitutes speech. I think that defacing the portrait of a President is a very powerful and expressive way of conveying the message of contempt for the President. Is it speech within the meaning of the First Amendment? Respondents will say it's a silly question because countervailing governmental interests will prevent, will justify a prohibition of destroying presidential portraits. But the Government feels it has the right to persist in the question: When you prevent destruction of the presidential portrait, is it speech that is being suppressed? There is a problem here about dissolving the distinction between conduct on the one hand and speech on the other, that I think that this Court was sensitive to in the O'Brien case. Your Honor, Justice Marshall, we feel that saying to these demonstrators, you can come to Lafayette Park, you can stay a week, you can take turns in shifts, you can speak, you can petition, you can leaflet, you can parade, you can hold up symbols and signs as much as you want, you can do every expressive activity short of actually moving in and living here, that that really does give generous scope for expressive activity. And we vigorously say that the Government's position that camping is not allowed in these parks does not entail a callous disregard of the message that is being conveyed.
Sandra Day O'Connor: Well, indeed, under the regulation you can pretend to sleep.
Paul M. Bator: Yes, Your Honor. I just keep hoping that will not make the case seem trivial, because we feel that the fact that pretend sleep is allowed, which is not a problem for the management of the park, is really somewhat irrelevant to the case.
William H. Rehnquist: Well, if it tends to seem trivial, I think the Government has nobody but itself to blame for having gone to such lengths in allowing these things.
Paul M. Bator: Your Honor, the regulations don't say people may pretend to sleep. The Government simply has not dealt with this problem because it's a non-problem. What the regulations say is that you may demonstrate and in connection with demonstrations you may erect symbolic tents, and that's what we were told we had to do in one of the Court of Appeals cases. And really, the problem of people then coming in and pretending to be asleep has not... the Government has created a program for that activity. It just is a non-problem.
Byron R. White: You didn't come up here from those previous judgments, did you?
Paul M. Bator: No, sir.
Byron R. White: So you are stewing in your own juice in some way. [Laughter]
Paul M. Bator: No.
John Paul Stevens: May I ask one other question--
Paul M. Bator: Could I just say one thing to that? We are perhaps stewing in our own juice, but we're stewing in it perhaps because I think it has been the position here of the Government to try to be as receptive as possible in a reasonable way to what are important First Amendment activities. Somehow, I guess we feel we're being cudgeled on account of that and that we shouldn't be.
John Paul Stevens: --I just wanted to clarify one thing I'm not sure of. Is there a regulation that prohibits sleeping unrelated to permits and so forth? So that if some of these people, not as part of a permitted activity, just went out and slept on a bench or something, could they do that?
Paul M. Bator: Your Honor, the demonstration regulations and the camping regulations do not speak about the problem, if you will, of people sleeping on the bench. Now, there are probably provisions in the District of Columbia Code about--
John Paul Stevens: But no park district regulations, and we're talking about an area subject to the jurisdiction of the park district?
Paul M. Bator: --As far as I know. I'm a little uncertain, but none of the regulations that we're aware of speak to speech as such.
John Paul Stevens: I wasn't aware of any either. Thank you. Nothing speaks to a noontime nap, I take it?
Paul M. Bator: No, sir. I'd like to reserve the rest of my time.
Warren E. Burger: Mr. Neuborne.
Burt Neuborne: Mr. Chief Justice and may it please the Court: The briefs and oral argument of the Deputy Solicitor General illustrate with his characteristic clarity the narrowness of the dispute that separates the demonstrators and the Park Service in this case, both on the facts and the law. Factually, the Park Service agrees that the demonstrators seeking to dramatize the plight of the homeless may erect symbolic tents, that up to 50 persons in a quadrant of Lafayette Park and up to 100 persons in a small section of the Mall may maintain a 24-hour presence in and about the tents, and may assume feigned postures of sleep in connection with the tents. The demonstrators for their part agree and recognize that they may be there for seven days, not three months, seven days, subject to a renewable permit if there are conflicting uses or some other reason why they should not stay.
Warren E. Burger: If they did not, if the Park Service did not renew after seven days, must they have the burden to show that it's because other people want to use it or can they just cut them off in seven days?
Burt Neuborne: Well, one reason why they could cut them off would be that other people wanted to use it. But if there were also, for example, a danger to the park, if there were a problem with the grass or a problem with maintenance or a problem with the usage, for example, by tourists. If indeed the general use of the park were jeopardized by remaining beyond the seven day permit, the park department or the Park Service--
William H. Rehnquist: What if they just decided, seven days is enough for any one demonstration?
Burt Neuborne: --That's an issue that would be a troublesome one. It's not this case. In all candor--
William H. Rehnquist: Why would it be troublesome?
Burt Neuborne: --In all candor, Your Honor, Justice Rehnquist, the position of the demonstrators at that point would be that the Government would be obliged to demonstrate a reason, some justification for why it was necessary to cut the demonstration short. If in fact that reason were present--
William H. Rehnquist: Well, what case would you rely on for that proposition?
Burt Neuborne: --I would rely on the general notions of the First Amendment, that where expressive activity is at stake the Government ought to demonstrate some need before it cuts it off.
William H. Rehnquist: I don't think that's necessarily true when the Government's dealing with its own property, is it?
Burt Neuborne: The property of the Government... the suggestion that the parks are the property of the Government is an extraordinary statement. The parks are the property of the people, Justice Rehnquist.
William H. Rehnquist: Well, who do you think title to the parks is in, Mr. Neuborne?
Burt Neuborne: Title to the parks from time immemorial, as this Court said in Haig versus CIO, rests in the people.
William H. Rehnquist: I don't think it said--
Burt Neuborne: Who engage in First Amendment activity.
William H. Rehnquist: --I don't think the Court said that title rested in the people. What if the Park Service, in conjunction with let's say the Secret Service and various other people, said that for security reasons all areas within 1,000 feet or however many feet it takes to get up to the Hay-Adams and the width of Lafayette Park, that that would be closed from midnight until 8:00 o'clock in the morning?
Burt Neuborne: If that were factually justified, if indeed a factual basis could be justified--
Warren E. Burger: Well, it could be justified. The justification is just what I postulated, that for for security reasons the park must be cleared by midnight and no person is allowed in until 8:00 o'clock in the morning.
Burt Neuborne: --Well, Your Honor, I think that would be facially valid, Chief Justice Burger. The only limitation would be that if the regulation were promulgated for the purpose of suppressing First Amendment activity or if the regulation were promulgated in the absence of a genuine need and if on review the Government were not able to demonstrate a need, then the regulation would be subject to attack. But assuming that the regulation is promulgated in good faith and assuming that there is a factual basis for it, yes, a security-based regulation would be valid. No one suggest that there is an obligation to take risks with the security of people in the park or with the security of the President of the United States or with the security of any other Government official. If indeed a factual basis is laid for the need for regulations, the regulations are valid. Indeed, that's what this case is all about: the degree to which the Government is obliged to justify its regulation of First Amendment activity by coming forward and demonstrating a factual need for the regulation. There is no question but that these demonstrators, and indeed the vast bulk of people engaged in First Amendment activity, would not wish to engage in activity and would not wish to urge a rule that would create a genuine risk to a significant social interest.
Warren E. Burger: What did you say is the number of tents that could be put up in Lafayette Park?
Burt Neuborne: The precise numbers for this demonstration were, as I understand it, 20 tents in a quadrant of Lafayette Park and 40 tents on the Mall. The numbers of the tents, of course, are not writ in stone. If the Park Service felt that there were too many tents and that were the problem, of course one could discuss the degree to which the park is to be used.
Warren E. Burger: What about a regulation that no tents, no tents at all, would be allowed?
Burt Neuborne: That raises the troublesome question of the Court of Appeals decisions. I think it is accurate to describe those decisions as not having reached the substantive question of whether there is a First Amendment right to erect structures in a park. All the District of Columbia held, and I take it the reason why the Government did not appeal those cases, is that the Park Service was obliged to apply a nondiscriminatory rule with respect to structures, and if it allowed some groups to erect structures then it had to allow all groups to erect structures; that it couldn't pick and choose on the basis of content. And since the parks department and the Government wishes to allow certain groups to continue to engage in that type of activity, they were obliged to apply a nondiscriminatory rule. There is no case that I know in the District of Columbia that requires a substantive regulation. It is an equal access rule that is applicable in the courts of the District of Columbia. Now, if that issue--
Lewis F. Powell, Jr.: Mr. Neuborne--
Burt Neuborne: --Yes, sir.
Lewis F. Powell, Jr.: --may I just put a hypothetical. Let's assume a small group wanted to hold a convention in Washington and they decided that the hotel rates here were too high and so they applied for a permit to bring their tents and sleeping bags and stay in Lafayette Park for the duration of the convention. That I take it would be, if you win this case, would be a permit the Government would have to grant?
Burt Neuborne: I hope not, sir, no.
Lewis F. Powell, Jr.: Sir?
Burt Neuborne: I hope not, sir. I do not believe that to be so. In fact, the most plausible interest the Government has put forward is precisely that. They have suggested that if the homeless demonstrators are permitted to sleep as part of expressing their message, it would be impossible to set up a series of rules that will distinguish between them and the conventioneers who are coming to town. I think there are three reasons why that ad horrendum argument doesn't work. The first one is just the general notion that undifferentiated fear of future abuse is not a basis for suppressing First Amendment activity. But passing--
Lewis F. Powell, Jr.: What?
Burt Neuborne: --Undifferentiated fear of future abusive attempts to use the parks. There is no empirical basis for the fear that large numbers of people wish to sleep in the District of Columbia parks in the dead of winter to express a point.
Lewis F. Powell, Jr.: But if this particular convention was composed of people of very limited or negligible means, wouldn't they have similar objectives to your clients, that they just couldn't afford any of the hotels in Washington?
Burt Neuborne: Well, for one thing, there are camp grounds around the Washington area.
Lewis F. Powell, Jr.: Your people could have gone there also, couldn't they?
Burt Neuborne: Yes. But if it was their purpose to camp, then the camp grounds would be the place for them. If it was their purpose to express a message really at the center of the nation's consciousness... and I commend the Solicitor General--
Lewis F. Powell, Jr.: A message that hotel rates are too high is not a First Amendment expression?
Burt Neuborne: --It is, Your Honor. But the nexus between the demonstrators' activities, the need of a particular group to have a form of expression... the only form of expression open to the Respondents in this case, the homeless men, is to attempt to re-enact in a highly public place, in the dead of winter, in a dramatic and poignant way the plight of what it means to be homeless, of what it means to be without shelter every night. The close, extremely close nexus between that degree of message and the concept of sleep renders that group very different than other people who would come into the park and say, I wish to sleep, first because it's convenient for me to do so, and secondly because I have some sham reason why I wish to express an idea by the use of sleep. No one suggests that the Park Service would be obliged to ignore the good faith or the bona fides of someone who came and argued about setting up a tent.
Lewis F. Powell, Jr.: You underestimate the resourcefulness of lawyers. I should think a good many suits would be brought in light of what you just said.
Burt Neuborne: Well, I hope that wouldn't be so. If it were so, the Government might then have a different case, if in fact the Government demonstrated that it was unable to administer this system. After all the Federal Communications Commission administers a very troublesome and difficult statute, makes sophisticated choices about access to limited resources, does so in a non-content-based way by making judgments about the good faith and need of particular demonstrators. The Selective Service System makes very difficult judgments about the good faith of persons claiming conscientious objector status. Unemployment compensation boards across the United States determine the good faith of religious objections in cases flowing from Sherbert versus Verner. People asserting an exemption from public school attendance, from a whole host of otherwise applicable and valid rules, assert religious or First Amendment objections, and those objections are passed upon for sincerity.
Warren E. Burger: Are the campers here allowed to have a fire?
Burt Neuborne: No, sir.
Warren E. Burger: What if a group came, to extend Justice Powell's illustration, and said that they noticed that the Washington Post had within the last week announced or indicated that prices of restaurants were prohibitive in Washington, too high, and that they then want to assert their view in opposition to and to demonstrate the plight of ordinary people who can't afford to pay $25 or $30 for dinner or $7 for a breakfast, and so they want to have a fire to cook their own breakfast and lunch?
Burt Neuborne: Well, Your Honor--
Warren E. Burger: That's demonstrating a point, isn't it?
Burt Neuborne: --Yes, it is, and it is an attempt to reenact a particular plight, and so the hypothetical is well taken. If a single person wished to do that a single time, in a way that did not substantially interfere with the use of the park... I would assume that the building of fires and the breaking of earth might well intrinsically interfere with the use of the park and could be prohibited. But if that were not so and if the purpose of the particular enterprise were to express a point, well then I think they probably could do it. The problem, the problem with this particular case and the point that the Government so aptly makes is that the reason that this is important to the demonstrators... I think it's a perfectly valid question for both the Court to ask and for the Government to ask is that, if we're willing to be so liberal, if the Government is willing to be so liberal and allow the 24-hour presence, and allow the tents, and allow the feigned sleep, why is it that the demonstrators feel so strongly about the need to sleep? Why isn't feigned sleep enough? And I think that goes to two particular questions, two particular issues. First, the question of what it is the demonstrators are attempting to express? They're attempting to express the central fact of homelessness, a fact which is, quite frankly, beyond the collective consciousness of most of us... the notion that there is no shelter, no shelter at all, and that every night individuals, human beings in this country, go without decent shelter; and that the central fact of that is the fact that they must find a place to sleep.
Warren E. Burger: For First Amendment analysis, is that any different from camping in the park, in Justice Powell's illustration, as a protest against the high rates of hotels, and having fires to cook meals to protest against the high cost of restaurants in Washington?
Burt Neuborne: Yes, sir, I think there is a distinction.
Warren E. Burger: How is it distinguishable?
Burt Neuborne: I think the distinction is... the distinction lies at two points. First it lies in the nature of the people making the demonstration, in the nature of the people involved in the demonstration. In both Justice Powell's hypothetical--
Warren E. Burger: My hypothesis, you must accept it assuming that the people who are doing what I suggest are just as sincere and just as hard-pressed as your people are. What is the difference for First Amendment analysis?
Burt Neuborne: --Well, in that case the question might well be, are there alternative mechanisms to make the point, and how closely is the activity connected with the expression that the demonstrators are attempting to carry out? Here you have a group of people, the homeless men, who lack any other mechanism for getting their point across. In fact... and forgive me for stating it in these terms... what this case is not about, and what unfortunately neither you nor I nor anyone else appears to be able to do anything about, is whether or not homeless people will sleep in the parks. Homeless people will be in Lafayette Park, they'll be on the Mall, they'll be in the parks of virtually every city in the nation. The truth is we are prepared to tolerate their presence sleeping in those parks.
Thurgood Marshall: Approximately how many people pass by the mall between the hours of 12:00 midnight and 6:00 in the morning?
Burt Neuborne: I would assume, Justice Marshall, very few. I myself have not been there. But that goes back to the reason why sleep is so important for this particular demonstration. The purpose of the demonstration is to attempt to jolt complacent people into recognizing what it means to be homeless, and the most effective way, indeed probably the only effective way, since all of us have excellent defense mechanisms that turn homelessness into a verbal abstraction and that keep homeless people invisible, the only effective way to make that point is to reenact in a highly public place at the center of the nation's consciousness... and that's what these parks are... the light of what it means to be a homeless person. And the notion of people sleeping in the midst of winter without adequate shelter, without amenities, without food, without the storage of belongings, without any of the accoutrements of camping, solely to make that point is the significance of this particular demonstration. And the reason why these rules are so important and the reason why they are so different is that no society has attempted to reach out to the disadvantaged the way this society has, to provide them with a mechanism for entering into the public debate. The First Amendment, were it confined solely to verbal activity, were it confined solely to the classic means of expression, would be a means of communication that was open to the comfortable and the highly educated. And what is extraordinary about our law and what allows us to defend it against criticisms that the First Amendment is really a repressive technique is that this Court in two lines of opinions has recognized first that non-verbal expressive activity is worthy of First Amendment protection, and secondly... and this is a very important point, Justice Rehnquist, in answer to your first question... that the free public spaces of the nation, the parks and the sidewalks, are legitimate places for the exercise of First Amendment activity. And when you put together those two lines of cases, the notion that you can engage in non-verbal expression and the notion that you can do so in the free public spaces of the nation, you have put together a mechanism that allows every segment of American society to speak.
William H. Rehnquist: Will you stop a minute so I can ask you a question?
Burt Neuborne: Of course.
William H. Rehnquist: Good. If the parks are scheduled for other activities... softball games, soccer games, that sort of thing... do you think that the First Amendment claims can simply override those activities?
Burt Neuborne: Absolutely not. I think that there is an imperative of shared use, and I think if the Government comes forward with legitimate reasons why a particular area or a particular use of the park is to be used by someone else, they have an absolute right to regulate how the park is used in particular settings. This particular demonstration is scheduled for seven days in the midst of winter, in one quadrant of Lafayette Park and a small part of the Mall. If the National Park Service were to say to us that someone else wants to use it and they asked for it first, or if they were to say to us that your use of the park genuinely interferes with other people's enjoyment, I think we would not persist for a moment.
William H. Rehnquist: What if the Government were to say that Lafayette Park is a very small place and as a result we're not going to allow any demonstrations. It interferes with too many tourists. They like to see the park just as kind of like a green pleasant place. They don't like the hassle of demonstrations. If you want to demonstrate, you can go to the Mall, where you're equally visible, and we're just not going to have Lafayette Park used for demonstrations. Is there anything wrong with that?
Burt Neuborne: I think there are areas of the park, for example the areas near the Washington Monument, the area surrounding the Lincoln Memorial, which have traditionally been recognized as places of serenity and contemplation. And were the Park Service to designate Lafayette Park as such an area of serenity and contemplation, I think it would be a serious mistake, because that has come to be a traditional place of the exchange of ideas. It is the closest thing we have to Hyde Park in London. But were the Park Service to do that and were there to be sufficient alternative places to express oneself, I would have no objection to that. I hope that you don't believe that the argument here is an argument for absolute use of parks whenever a First Amendment person wishes to do so. It is simply this: that when communicative activity is to take place in a park, if the Government is to suppress it the obligation is on them to come forward with a reason, with a genuine need to do so. And we believe on the facts of this case they have simply failed to come forward with their reason. There might be other cases, but not--
Sandra Day O'Connor: Well, is it really so unreasonable, though, to say that in a tiny fragile park like Lafayette Park that you can't camp out? You can do all these other things, but you can't camp out. Is that really unreasonable?
Burt Neuborne: --Were there a showing that the camping out, Justice O'Connor, that the sleeping in some way incrementally interfered with the park... you see, the problem is of course, on the facts of this case the act of sleep, the act of actually remaining there, which is quite important to the demonstrators as a communicative mechanism, the act of remaining there to sleep through the night in no way increases the intensity of the park use. So that the problem is, on the facts of this case the Government simply hasn't made its showing. There may be other cases. There may be other situations where a particular--
John Paul Stevens: Mr. Neuborne, I wonder if that's consistent with the record. It seems to me there are two ways to look at this case. One is that the only thing that's at stake is whether they lie there and pretend they're asleep or actually sleep, and you have roughly the same number of people as otherwise. Or alternatively... and this is what I understand the facts to be... it may be that unless they're allowed to sleep they really won't come, a significant number of people will not be there. And that's what your application said. So the difference as I understand it is not just this hairline between feigned sleeping and real sleeping. It's the difference between what the Government would call camping and you would call demonstrating and just not having it, having no such activity.
Burt Neuborne: --Well, first, Justice Stevens, we have agreed and I think the Government recognizes that there is complete agreement on the maximum number. We're talking about a maximum number of 50 people.
John Paul Stevens: I understand, but your own application says that the maximum number will never be there unless they can sleep. So that you can really look at the case as the sleeping is a function that must be performed in order to let the demonstration be successful, sort of like saying you've got to be able to camp somewhere if you're going to have a Resurrection City... a functional need in order to have an overall demonstration, which is quite different from the thing you've both been arguing about, namely that you're assuming everybody's out there pretending their asleep when we know that's not true; they are not going to be there unless they can sleep.
Burt Neuborne: I agree, Your Honor, Justice Stevens, that were the sleep here solely facilitative, were it simply a mechanism to make it easier to conduct the demonstration, while that is a non-constitutional factor that the Park Service might take into account, it is certainly not constitutionally obliged to do so. And that is not the basis on which we argue here.
John Paul Stevens: I realize it's not the basis on which you argue, but it's what you said in your application.
Burt Neuborne: But there is a linkage between that statement and the communicative elements as well, and that is a recognition... and this is a biological recognition... of what it means to be a homeless person and on the street all day. It would be dishonest for us to represent to the Park Service that we could go along with a requirement to feign sleep and have homeless people at the demonstration, because as a biological fact, once the homeless lie down they're going to fall asleep. By definition, they have nowhere else to go to take a catnap. That is, that is one of the principal stumbling blocks in accepting what is a generous attempt to allow First Amendment activity in the park, and that is, if one suggests that one can only feign sleep, one cannot actually sleep, one then defines homeless people out of the demonstration, because it is simply physically impossible for a homeless person. Having scuffled on the streets all day trying to get food, trying to get a place to satisfy bodily needs, when finally that homeless person comes to the demonstration site and lies down, that homeless person is going to fall asleep. And it would be dishonest for us to represent to the Park Service that anything short of that will happen. And that is why if homeless people are to be permitted to speak in this demonstration, that the sleep must be permitted or else the demonstration simply cannot take place. There is, and this is of course quite anticlimactic, a non-constitutional way to review this case as well, which I hope the Court will consider. It is I think consistent with appropriate judicial approaches in this area, and that is to look closely at the regulation and ascertain whether it in fact bans the activity that the demonstrators hope to engage in. The regulation, which is set forth in the Petitioners' breach at Appendix 1A, the regulation forbids using the park as a living accommodation, and it sets up a totality of the circumstances test to determine whether or not a living accommodation is in fact being carried out. And among the various indicia is cooking, breaking the earth, storage of personal belongings, and sleeping.
William H. Rehnquist: Did you present this argument to the Court of Appeals?
Burt Neuborne: Yes, sir. Yes, we did.
William H. Rehnquist: Did any of the eleven judges agree with you?
Burt Neuborne: No, sir. They did not address the issue. But I hope that the Court will consider whether or not a non-constitutional means of resolving this issue is the appropriate one.
Byron R. White: Well, there's no question that what the people who drafted it interpret the regulation that way.
Burt Neuborne: Yes, but I think the traditional--
Byron R. White: And there's no mystery about what their interpretation is.
Burt Neuborne: --No, they made it very clear. And indeed, in all fairness, the regulation was drafted to deal with the Court of Appeals decision.
Byron R. White: And isn't the regulation subject to that construction? It might be subject to some other construction, but isn't it--
Burt Neuborne: Well, I think where there are two plausible constructions, Justice White, of a regulation... and I think it is a plausible construction to suggest that it does not bar the activity at issue here. Where there are two plausible constructions, one of which would avoid a difficult constitutional issue and one of which would force the Court to confront it, if there is a plausible construction that the Court can embrace which would avoid the constitutional issue--
Byron R. White: --You mean override the view of the agency of its own regulation?
Burt Neuborne: --It wouldn't be the first time that this Court has done so to avoid the necessity of a constitutional adjudication. To summarize--
John Paul Stevens: Before you do, let me ask you one other factual question.
Burt Neuborne: --Yes, sir.
John Paul Stevens: As I understand it, there's no fires permitted. How do these people keep warm?
Burt Neuborne: They don't keep warm, Mr. Justice Stevens. That's the problem.
John Paul Stevens: Even if they come--
Burt Neuborne: They wrap themselves, they wrap themselves in whatever, overcoats and bedding and--
John Paul Stevens: --But you don't have anything like electric heaters--
Burt Neuborne: --Oh, no. No, sir.
John Paul Stevens: --or anything like that, or blankets?
Burt Neuborne: There is no amenity whatever contemplated in connection with this demonstration. What will take place, if the Court permits it, in the dead of winter is homeless people sleeping in tents, wrapped in a blanket, wrapped in whatever overcoats they have, there voluntarily in an attempt to reach out and touch the compassion of the nation, to express in a way that no verbal communication can, and that indeed these homeless people are incapable of expressing any other way a plea for help and a plea for human compassion. That the case raises difficult issues is unquestionable. That it requires the drawing of difficult lines is--
Thurgood Marshall: Why don't you take a picture of them sleeping on the gratings, which they do all over Washington?
Burt Neuborne: --Yes, sir, I know.
Thurgood Marshall: Well, why don't you take those and use those? Wouldn't they be a demonstration?
Burt Neuborne: They would be and indeed are.
Thurgood Marshall: Well, why don't you?
Burt Neuborne: Well, there are pictures taken.
Thurgood Marshall: Well, where are they used? Where do you ever see them?
Burt Neuborne: That's one of the problems. The problem is getting--
Thurgood Marshall: Well, I mean, how are you going to... I'll bet you more people pass by the Department of Justice building than pass by the Mall.
Burt Neuborne: --Yes, sir, but I--
Thurgood Marshall: And they can see them sitting on the grating in front of the Department of Justice.
Burt Neuborne: --I think that's correct.
Thurgood Marshall: Well, why do they have to go over to the Mall to see them?
Burt Neuborne: The problem, Justice Marshall, is that they don't appear to see them. The problem is that when the homeless people are isolated and alone they are invisible, and the real issue in this case is whether there is a mechanism for them to attain some expressive conduct, a political dimension to their desperation. And short of assembling them in a public place, in a highly public area, and short of them reenacting the central plight of their life, there appears to be no other way to catch the heart of the American people, and that's what this demonstration is all about. Thank you.
Warren E. Burger: You have nothing further, Mr. Bator? 0 [Noresponse.] Thank you, gentlemen. The case is submitted.