506 F.2d 53
164 U.S.App.D.C. 391
VIETNAM VETERANS AGAINST THE WAR/WINTER SOLDIER
ORGANIZATION, a Non-for-Profit Illinois corporation, et al.
Rogers C. B. MORTON, Secretary of the Interior, et al., Appellants.
United States Court of Appeals, District of Columbia Circuit.
June 28, 1974, On Appellee's Suggestion for Rehearing En
Banc Aug. 19, 1974.
Earl J. Silbert, U.S. Atty., John A. Terry, Arnold T. Aikens and Gil Zimmerman, Asst. U.S. Atty., for appellants.
Leonard H. Becker, Washington, D.C., for appellee.
Before MacKINNON and WILKEY, Circuit Judges.
This is a case of second impression in this jurisdiction. Once before, in 1971, this court was a way station as emergency adjudication sped through the Federal Court system. Whatever necessity originally justifies it, one of the drawbacks to speedy adjudication is that it frequently leaves little but the result for later litigants and judges to follow. Some would find this quite sufficient, yet the instant action, although clearly governed by the result of the 1971 controversy, has nevertheless been vigorously reargued de novo. The purpose of publishing this opinion is to avoid such repetitious resort to the judicial process, at least on the issue twice litigated.
The appellees, Vietnam Veterans Against the War/Winter Soldiers Organization, a non-profit Illinois corporation (hereinafter VVAW), filed suit 10 May 1974 in United States District Court seeking to enjoin the Superintendent of the National Capital Parks and his superiors from withholding from them a permit to establish a 'symbolic campsite' on the Mall as part of a demonstration planned for Washington, D.C., from 1 to 4 July 1974, inclusive. After each side moved for summary judgment, oral argument was heard. On Friday, 28 June 1974, U.S. District Judge Richey, by opinion and order, granted plaintiff's motion for summary judgment, and ordered the defendant Superintendent of the National Capital Parks to permit the VVAW to encamp around the clock for the four-day period. The District Court also held that 36 C.F.R. 50.27(a) was unconstitutionally vague because it left the Superintendent with an unfettered discretion to allow nocturnal activities by favored groups, while prohibiting other activities by the less popular simply by biased construction of the undefined term 'camping.'
Since only the weekend remained before the arrival of the VVAW, the Government moved this Court for summary reversal of the District Court's order the afternoon it was entered. Because of the need for expediting the matter if the parties were to be informed of their status before the encampment was scheduled to begin, and in order to permit the parties to appeal further if they so desired, we granted that motion by brief order on Friday evening, 28 June, citing 'the authority of Morton, Secretary of the Interior v. Quaker Action Group et al., 402 U.S. 926 (91 S.Ct. 1398, 28 L.Ed.2d 665) (1971),' and the court en banc later denied plaintiff's motion of Saturday morning, 29 June, for rehearing or reconsideration en banc.
The requirements for summary reversal of a District Court order are familiar to the point of cliche, and need not be recapitulated here. Summary reversal was dictated here because the order was issued despite the unequivocal decision of the Supreme Court to the contrary in 1971, concerning the same litigants and resolving the same legal issues. However heavy the burden may be for a litigant to earn summary reversal in the normal case, the District Court's failure to defer to and follow the Supreme Court's 1971 order clearly warranted that disposition in this case.
By its order of 21 June 1971, reinstating (after a reversal by this court) District Judge Hart's injunction forbidding the VVAW from camping on the same part of the Mall, the Supreme Court accepted the finding of Judge Hart that overnight camping was not activity within the purview of the First Amendment and that the blanket ban on camping in nondesignated areas was a reasonable exercise of supervisory authority over the public parkland. We are bound by that determination. Since appellees herein seek nothing beyond that which the Supreme Court denied them in 1971, the appellant Government officials are entitled to summary judgment on remand.
This is not a case in which this court needs to balance the seminal freedom of political expression against society's proper concern for public order, personal safety, or security of property. The permit obtained by the VVAW allows its members to propound their views by assembling, speaking, pamphleteering, parading, carrying banners, and erecting whatever structures they deem necessary to effective communication of their message. They are only prohibited from cooking and camping overnight, activities whose unfettered exercise is not crucial to the survival of democracy and which are thus beyond the pale of First Amendment protection.
Even considering the issue as an original proposition, without the benefit of Judge Hart's findings and the Supreme Court's approval in 1971, all of the District Court's discussion of free speech this year fails to convince us that there is any connection between freedom of speech and what the appellees were forbidden to do by the United States Park Service regulations, camp overnight in a public part-- in contradistinction to their exercise of free speech rights by usual modes during the day, which the appellees were specifically permitted to do. Camping overnight in a public park has no more relevance to free speech than say, digging latrines in a public park, and we think the United States Park Service may regulate both.
The sensitivity of the District Court this year to the need for media coverage of the symbolic campsite as a focal point is a distortion of First Amendment values. What the litigant's press agent seeks and what the public interest requires differ widely. Although every man is entitled to make his remonstrance, no man is entitled to make such a remonstrance that it will be carried on all three television networks.
The District Court further implied that the ban on camping had been unevenly enforced. Some of the exceptions cited in its opinion, however, are clearly not examples of camping. Of all the instances in the record, only the Bonus Army encampment of 1932, Resurrection City in 1968, and the Mayday Tribe bivouac in 1971 were in any sense deviations from the literal application of section 50.27. Far from constituting an unconstitutional preference for favored groups, the Government action in those cases was merely a flexible compromise in the face of potential disruption of the public peace. Such emergency action does not create an entitlement on other groups to a similar variance from the usual prohibition. On the contrary, solicitude for the rights of every citizen to the even-handed enforcement of the law compels the maintenance of the absolute ban inviolate, subject only to discretionary exceptions in the interest of public safety.
The District Court also held 36 C.F.R. 50.27 to be unconstitutionally vague; since 'camping' is not defined, the Superintendent allegedly possesses unfettered discretion to permit favored nocturnal activities by designating them 'non-camping' and to prohibit disfavored activities by denominating them 'camping.' The District Court's 1974 determination rested upon the erroneous premise that the term 'camping' was undefinable. Judge Hart's 1971 order defined the term, and the Supreme Court by reinstating that order 'with full force and effect' bestowed its imprimatur on that definition.
While the Government brief in the District Court cited and argued the complete dispositiveness of the Supreme Court order of 21 April 1971 reinstating Judge Hart's order forbidding overnight encampment on the Mall, the District Court nowhere in its ten-page opinion mentioned the Supreme Court's decision in the 1971 case. Instead, the District Court cited the fact that these same litigants were successful in encamping on the Mall for several days. We think the relevant precedent for the District Court to have followed was the unanimous Supreme Court's decision approving Judge Hart's 1971 order, not the actions of mass demonstrators in violation of that order.
Appellants' motion for summary reversal is granted and the District Court will grant summary judgment for the appellants.
ON APPELLEE'S SUGGESTION FOR REHEARING EN BANC
Before BAZELON, Chief Judge, and ROBINSON, MacKINNON, ROBB and WILKEY, Circuit Judges.
Appellant has filed a suggestion for hearing en banc. On consideration thereof, it is
Ordered by the Court en banc that the suggestion for rehearing en banc is denied, a majority of the Circuit Judges who are in regular active service not having voted in favor of it (Rule 35, Federal Rules of Appellate Procedure).
Statement of Chief Judge BAZELON, as to why he voted to deny rehearing en banc.
I agree with the result expressed in the per curiam opinion issued by the motions panel in support of its order of June 28. However, in view of the overbroad language the motions panel employs in reaching that result, language which, to my mind, may be misunderstood as signaling a retreat from the position advanced in A Quaker Action Group v. Morton, 148 U.S.App.D.C. 346, 460 F.2d 854 (1971) and Women Strike for Peace v. Morton, 153 U.S.App.D.C. 198, 472 F.2d 1273 (1972), I am compelled to state my individual views concerning the basis of the order of June 28.
My point of departure with the Court's opinion is the assertion that camping on public property is per se a regulatable activity and can never have a connection with protected lobbying activity. I see no need to go that far in this case which has been heard in a summary manner and which has not offered us an opportunity to explore the full ramifications of the connections, if any, between camping and protected lobbying activities. While the matter is certainly not free from doubt, it is at least an open question whether in the proper case the denial of safe public facilities which could be used for camping by lobbyists might result in an impairment of First Amendment values. This impairment could occur through discriminatory denial of camping facilities to unpopular groups, by detering any lobbying in the first place or by limiting the media exposure of such lobbying to a significant degree.
I believe the case before us can be disposed of without reference to the broad assertions in the Court's opinion. The Superintendent, while denying the request for a camping permit, did grant a number of other permits which greatly facilitated the lobbying efforts by the Veterans. His exercise of discretion in the past in regard to camping on the Mall has also been to facilitate lobbying activities. There is not a scintilla of evidence in the record that the Veterans' efforts were in any respect retarded by the denial of the camping permit. It follows that the Superintendent's exercise of discretion in this case and past cases concerning camping and other nocturnal activities on the Mall indicates the sort of affirmative respect for First Amendment values required from administrators. For that reason, and that reason alone, I concur in the grant of summary reversal of the District Court's order in this matter.
I hasten to add that we might have a different case if we were confronted with a clear legislative judgment that dictates of public order and safety require a prohibition on camping. However, we are faced instead with a broad and undefined grant of power to the Superintendent. Since ad hoc decisions pursuant to that power are not, to my mind, entitled to the same respect and weight as a considered legislative or even administrative policy on camping, I am unwilling to hold in this case that judicial review of such ad hoc administrative decisions cannot in the proper case include a requirement that the administrator permit lobbying groups to use public facilities for symbolic or actual campsites. In sum, I believe that in judicial review of this sort of administrative discretion, we are authorized to take a broader view of First Amendment values than if we were faced with a considered legislative judgment.
I am also disturbed by the Court's heroic efforts in erecting the 1971 Supreme Court summary order affirming a preliminary injunction into a definitive precedent on the issues I have just discussed. It is certainly elementary jurisprudence to note that the scope of a precedent is defined by the reasons advanced in support of the decision. Here we have a precedent with absolutely no supporting reasons and, indeed, with no exact statement of the issue being decided. Thus, that order could very well be no more than a decision that the litigation should proceed through normal channels to facilitate complete judicial consideration of the issues the case presented. It could also be a holding that on the specific facts of the 1971 permit request there was no First Amendment issue. In sum, the per curiam's sweeping statements must stand or fall on their own reasoning and not that imputed by speculation to the Supreme Court.