Clark V. Community For Creative Non-Violence

''Clark v. Community for Creative Non-Violence'', 468 U.S. 288 (1984), is a United States Supreme Court case with the National Park Service's regulation which specifically prohibited sleeping in Lafayette Park and the National Mall at issue.. The Community for Creative Non-Violence (CCNV) group had planned to hold a demonstration on the National Mall and Lafayette Park where they would erect tent cities to raise awareness of the situation of the homeless. The group obtained the correct permits for a seven-day demonstration starting on the first day of winter. The Park Service however denied the request that participants be able to sleep in the tents. The CCNV challenged this regulation on the basis that it violated their First Amendment right.

Background

The Community for Creative Non-Violence is a group based in Washington D.C., with a mission "to ensure that the rights of the homeless and poor are not infringed upon and that every person has access to life's basic essentials—food, shelter, clothing and medical care". Since 1978 the group served a Thanksgiving meal for the homeless in Washington, D.C. By November 26, 1981, the group had changed locations of the gathering and ended up in Lafayette Park near the White House. The event gained media attention as the poor were eating a warm meal with 1600 Pennsylvania Avenue in the background. In addition to the feast a few members set up ten tents in the form of a village. The group proclaimed "Welcome to Reaganville / Population growing daily / Reaganomics at work." The name references the depression-era "Hoovervilles" that were camps of the homeless. The group stated they would try and continue the protest into the winter. The Park Police stated that the Thanksgiving dinner had a legal permit but that overnight sleeping would not be tolerated. The next day, November, 26th, police removed the homeless from the area. CCNV obtained pro bono legal representation from the Institute for Public Representation, a clinic of Georgetown University Law Center. On November 30 the CCNV obtained a one-week renewable permit. This permit stated that:

The permit however did not explicitly state sleeping may occur.
On December 17, 1981, the CCNV appealed to the District Court for summary judgment for their complaint and for entry of a permanent injunction. The United States Government motioned to have the case dismissed which was subsequently denied. On December 23 the District Court for the District of Columbia ruled in favor of CCNV and stated:

The District Court stayed the judgment and injunction pending the Government's appeal to the Court of Appeals. The United States Government subsequently filed for appeal. The Appeals Court examined the National Park Service's Administrative Policy Statement that stated:

The Appeals Court felt that the appellees were clearly engaged in political protest and therefore a "symbolic campsites" and that there was no evidence suggesting that the handful of tents in Lafayette Park was intended "primarily for living accommodation."
The Opinion of the Court concluded with:

As a result of the court's decision, CCNV successfully staged its demonstration, including sleeping, for approximately seven weeks during the winter of that year. Sometime later the National Park Service revised its camping regulations for the National Capital Region. The new regulations stated:

CCNV planned to hold another demonstration the following winter and was to include 60 tents total with 20 tents in a quadrant of Lafayette Park and 40 tents on the National Mall. The CCNV filed on September 7, 1982, for a permit. The National Park Service granted a permit "to set up two symbolic campsites, one on the Mall with a maximum of one hundred participants and forty tents, and one in Lafayette Park with approximately fifty participants and twenty tents". The permit granted the ability to have a twenty-four-hour presence at the locations but did not allow the participants to sleep. The CCNV then sought a court order invalidating the permit's limitation on sleeping as an unconstitutional restriction on their freedom of expression. They argued that part of the core message the demonstrators wished to convey was that homeless people have no permanent place to sleep. The District Court for the District of Columbia ruled in favor of the National Park Service. The Court ruled that:(1) CCNV's demonstration falls within the scope of the amended anti-camping regulations; (2) sleeping, within the context of CCNV's demonstration, falls outside the scope of the first amendment; and (3) even assuming first amendment scrutiny is required, the new anti-camping regulations are constitutional as applied to CCNV's proposed sleeping activities. The group appealed to the District of Columbia Circuit Court of Appeals where their case was heard. The Appeals Court re-examined the three reasons the District Court did not grant the CCNV injunction. They agreed with the notion that the National Park Service's regulation fit the CCNV's demonstration. Concerning the claim that "CCNV's demonstration, falls outside the scope of the first amendment" the court wrote in the opinion:
In concern with the Lower Courts third assertion that the new anti-camping regulations are constitutional the Appeals Court wrote and summarized their ruling:

The ruling was subsequently challenged and taken to the Supreme Court.

Opinion of the Court

The Supreme Court issued its decision on June 29, 1984, and in a 7-2 majority vote in favor of the National Park Service, it held that the regulations did not violate the First Amendment. The Court stressed that expression is subject to reasonable time, place, and manner restrictions, also that the means of the protest went against the government's interest in maintaining the condition of the national parks. The Court felt that the protest was not being threatened altogether and that it could take place in a park where sleeping was permitted. In essence because the demonstrators could find alternative ways of voicing their message their First Amendment right was safe. The regulation in question is also considered to be content neutral meaning the regulation did not have a bias against a particular message.

Majority opinion

Justice Byron White wrote the majority opinion. He addressed the important topic of neutrality of the regulation by stating
He noted that symbolic expression is subject to reasonable time, place, and manner restrictions. Justice White also makes mention of how important the O'Brien Test was in deciding this case. The O'Brien Test being a tool of the court established in United States v. O'Brien,. that determines whether governmental regulation involving symbolic speech can be justified. The restrictions of time, place, and manner can be allowed if they are (a) narrowly tailored (b) serve a substantial governmental interest and (c) there are alternative channels to communicate the information.

Justice White also makes clear that in the view of the majority the act of sleeping holds little value in being considered an act of expression.

Concurrence

Chief Justice Warren E. Burger delivered a short concurring opinion that he begins by discussing the language of the case "could hardly be plainer in informing the public that camping in Lafayette Park was prohibited."''Clark'', 468 U.S. at 300 (Burger, C.J., concurring). He states that purported demonstration was conduct, "the actions here claimed as speech entitled to the protections of the First Amendment simply are not speech; rather, they constitute conduct." Chief Justice Burger expressed that the demonstrators actions "interferes with the rights of others to use Lafayette Park"''Clark'', 468 U.S. at 301. and could take their message somewhere else. He also called the entire hearings "frivolous proceedings" that "delay the causes of litigants who have legitimate, nonfrivolous claims."

Dissenting opinion

Justice Thurgood Marshall delivered a dissenting opinion in which he stated his opinion but also criticized the way in which the majority handled the case. Justice Marshall also felt that the majority was "either unwilling or unable to take seriously the First Amendment claims advanced by respondents".''Clark'', 468 U.S. at 301 (Marshall, J., dissenting). He took issue with the way in which the majority "misapplies the test for ascertaining whether a restraint on speech qualifies as a reasonable time, place, and manner regulation".
Justice Marshall wrote a detailed case for saying that the sleeping aspect of the demonstration, while overlooked by the majority, was a central part for the homeless cause.

Justice Marshall agreed with the O'Brien Test being applicable in this case but found fault in how it was explored. He explains that in terms of government interest "the issue is whether any substantial Government interest is served by banning sleep that is part of a political demonstration".''Clark'', 468 U.S. at 309. Justice Marshall's dissent holds a stark contrast to the majority and concurring opinions. Much of his statement makes it clear he believed the demonstrators' request to have the right to sleep was a genuine freedom of expression concern.

References

External links

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{{US1stAmendment Freedom of Speech Clause Supreme Court case law, state=collapsed

United States Supreme Court cases
United States Supreme Court cases of the Burger Court
United States Free Speech Clause case law
1984 in United States case law