A.N.S.W.E.R. Coalition (Act Now to Stop War & End Racism) v. Basham ( 2017 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 14, 2016 Decided January 17, 2017
No. 16-5047
A.N.S.W.E.R. COALITION (ACT NOW TO STOP WAR AND END
RACISM),
APPELLANT
GRAYLAN SCOTT HAGLER, PASTOR, PLYMOUTH
CONGREGATIONAL CHURCH, ET AL.,
APPELLEES
v.
W. RALPH BASHAM, IN OFFICIAL CAPACITY AS DIRECTOR, U.S.
SECRET SERVICE AND SALLY JEWELL, SECRETARY, UNITED
STATES DEPARTMENT OF THE INTERIOR,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:05-cv-00071)
Mara Verheyden-Hilliard argued the cause for appellant.
With her on the briefs was Carl L. Messineo.
Marina Utgoff Braswell, Assistant U.S. Attorney, argued
the cause for appellee. With her on the brief was R. Craig
Lawrence, Assistant U.S. Attorney.
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Before: SRINIVASAN, MILLETT and PILLARD, Circuit
Judges.
PILLARD, Circuit Judge: On the occasion of a U.S.
Presidential Inauguration, thousands of people gather along
the sidewalks, parks, and plazas that line the Inaugural Parade
route. On January 20th, the parade travels the 1.2-mile,
sixteen-block portion of Pennsylvania Avenue in Washington,
D.C. that runs from the Capitol Building to the White
House—a stretch sometimes referred to as America’s Main
Street. The Inaugural Parade tradition dates back to April 30,
1789, when George Washington was sworn in as the nation’s
first President. See Joint Congressional Committee on
Inaugural Ceremonies, Inaugural Parade, J.A. at 1236. With
a new government forming and the public eye focused on the
event, demonstrators also turn out on Inauguration Day to
voice their dreams and demands. One of the great
accomplishments of our Constitution is its guarantee of the
people’s right to take to the streets to say what they think.
The National Park Service is responsible for managing
the open-air, traditional-public-forum spaces along the
Inaugural Parade route. A 2008 Park Service regulation
authorizes a priority permit setting aside a fraction of those
spaces for identified Presidential Inaugural Committee uses
on Inauguration Day. The priority permit allocates thirteen
per cent of the footage alongside the parade route for ticketed
spectator bleachers constructed and administered by the
Inaugural Committee. One of the designated bleacher areas is
on Freedom Plaza. Plaintiff-Appellant ANSWER (Act Now
to Stop War and End Racism) Coalition contends that
authorizing Freedom Plaza bleachers in the priority permit
violates ANSWER’s First Amendment right to instead use the
same space for a mass demonstration. Allocating that prime
spot to ticketed bleachers, ANSWER asserts,
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unconstitutionally prefers the government’s message to its
own.
The permit the Park Service regulation authorizes for the
Inaugural Committee takes priority over any conflicting
permit to demonstrate in the same space on Inauguration Day,
but the ordinary permit system remains effective along most
of the parade route. Seventy per cent of the footage
immediately adjacent to the route remains available on a first-
come, first-served basis to individuals and permitted groups.
ANSWER does not challenge the Park Service’s regulatory
prerogative, consistent with the First Amendment, to exclude
the public from some areas reserved for the Inaugural
Committee, including areas exclusively for spectator
bleachers. See Appellant Br. at 60. But ANSWER strongly
prefers to demonstrate at Freedom Plaza because it is an open,
elevated space that is easily visible from the Avenue and is
historically associated with political protest. With its
sightlines down the Avenue eastward toward the Capitol,
Freedom Plaza is also, however, a salutary location for media
staging and spectator seating. The Park Service thus included
it within the fraction of the roadway-adjacent footage that the
regulation assigns to the Inaugural Committee for such
specified uses.
The Park Service regulation authorizing the priority
permit, including the space on Freedom Plaza for the
bleachers, is not a content- or viewpoint-based speech
restriction, but a reasonable time, place, and manner
regulation of the use of a public forum. It sets aside bleacher
areas, including on Freedom Plaza, for the Inaugural
Committee’s use as part of the package the rule reserves to
the Committee as event organizer. The First Amendment
requires that any reasonable, content-neutral regulation
limiting expression along the parade route leave ample space
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available for peaceful demonstrations. The First Amendment
does not, however, support ANSWER’s claim of a right to
displace spectator bleachers with its own demonstration at
Freedom Plaza.
I. Background
ANSWER, a group that “engages in political organizing
and activism in opposition to war and racism,” sought to
engage in “expressive, free speech activities” on Freedom
Plaza during the 2013 Presidential Inauguration. Decl. of
Brian Becker ¶ 5 (Nov. 13, 2013), J.A. at 435; Suppl.
Pleading ¶ 1, A.N.S.W.E.R. Coalition v. Jewell, 153 F. Supp.
3d 395 (D.D.C. 2016) (No. 05-cv-71) (2016 A.N.S.W.E.R.).
As soon as the Park Service started accepting permit
applications to demonstrate on Inauguration Day 2013,
ANSWER filed an application to use Freedom Plaza and its
adjacent sidewalks. ANSWER’s permit application sought
permission to use the space for a multimedia demonstration,
with “[s]igns, placards, banners, stage, sound, bleachers, art
installation, props, canopies, and other facilitative materials.”
Attach. 1 to Suppl. Pleading at 2, ANSWER Application for
2013 Inauguration, J.A. at 117. The Park Service informed
ANSWER that it would be permitted to use only a 160-foot
long by 35-foot wide portion of Freedom Plaza for its
Inauguration Day demonstration because, pursuant to a 2008
amendment to the Park Service’s regulations governing areas
of the National Park system in the National Capital Region,
most of the Plaza was reserved for the priority use of the
Inaugural Committee.
The 2008 amendment created a “regulatory priority use
for limited, designated park areas for the P[residential]
I[naugural] C[ommittee], the Armed Forces Inaugural
Committee, and the Architect of the Capitol or the Joint
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Congressional Committee on Inaugural Ceremonies.” 73 Fed.
Reg. 67,739, 67,740 (Nov. 17, 2008). Referring to Freedom
Plaza by its Park Service designation as part of “Pennsylvania
Avenue, National Historic Park,” the regulation states:
In connection with Presidential Inaugural Ceremonies
the following areas are reserved for priority use as set
forth in this paragraph. . . .
(B) Portions of Pennsylvania Avenue, National
Historic Park and Sherman Park . . . for the exclusive
use of the Presidential Inaugural Committee on
Inaugural Day for:
(1) Ticketed bleachers viewing and access areas,
except that members of the public may use a
ticketed bleacher seat that has not been claimed by
the ticket holder 10 minutes before the Inaugural
Parade is scheduled to pass the bleacher’s block;
(2) Portable toilets, except that they will be
available to the public;
(3) Television and radio media and Armed Forces
Inaugural Committee parade support structures;
(4) The area in front of the John A. Wilson
Building for the District of Columbia reviewing
stand;
(5) Viewing areas designated for individuals with
disabilities, except that they will be available to any
disabled persons.
36 C.F.R. § 7.96(g)(4)(iii)(B) (2016). Maps separately
identifying the areas allocated to each of the uses authorized
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in subsections (1) through (5) accompany the regulation. See
id. § 7.96(g)(4)(iii)(E).
The regulation leaves open to the public, including
demonstrators, 70 per cent of the footage on Pennsylvania
Avenue abutting the Inaugural Parade route. Id.; 73 Fed. Reg.
at 67,741. Of the 30 per cent that is not open to the public,
the regulation designates 13 per cent for Inaugural Committee
bleachers. See id. The Inaugural Committee, which comes
into being after the presidential election and is responsible for
organizing, planning, and executing “most of the inaugural
celebration activities,” decides how tickets for bleacher seats
will be distributed. See Audrey Celeste Crane-Hirsch,
Congressional Research Service, The Presidential
Inauguration: Basic Facts and Information at 5 (Jan. 9,
2013); 73 Fed. Reg. at 67,742.
In this appeal, ANSWER challenges the regulation’s
allocation of most of Freedom Plaza to the priority permit
instead of to the public under the “generally applicable
permitting regulations, governed by a ‘first-come first-served’
system of priority.” Suppl. Pleading ¶ 14. ANSWER argues
that the Park Service’s promulgation and application of
subsection (B)(1), the portion of the priority-permit regulation
authorizing bleacher seating on Freedom Plaza, constitutes
“identity-based, viewpoint-based and/or content-based
discrimination,” in violation of the First Amendment and the
Equal Protection Clause. Id. ¶ 21; see generally Compl.,
2016 A.N.S.W.E.R., 153 F. Supp. 3d 395 (No. 05-cv-71).
ANSWER contends that the regulation authorizing spectator
bleachers on the Plaza is an unconstitutional content-based
restraint of dissent in favor of pro-government speech. Suppl.
Pleading ¶ 22; Appellant Br. at 42.
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This case presents a controversy likely to arise every four
years. ANSWER has protested both Republican and
Democratic inaugurations and has been granted a permit to
demonstrate on a portion of Freedom Plaza for the imminent
2017 Inauguration. See Decl. of Brian Becker ¶ 9, J.A. at
436; ANSWER Coalition, Permits Secured for Jan. 20 Mass
Protest at the Inauguration!, (Jan. 5, 2017),
http://www.answercoalition.org/permits_secured_for_jan_20_
mass_protest_at_the_inauguration; National Park Service,
National Mall First Amendment Permit Applications (Jan. 4,
2017), https://www.nps.gov/aboutus/foia/upload/NAMA_
InaugurationPermitRequests_01-04-17.pdf. ANSWER does
not challenge the priority permit’s allocation of space on any
day other than Inauguration Day. ANSWER seeks a
declaration that subsection (B)(1) is unconstitutional, and an
injunction barring its enforcement.
The National Park Service, on behalf of itself and its
parent agency the United States Department of the Interior,
defends the challenged subsection on two alternative grounds.
The Park Service’s second defense, which we hold
determinative here, is that the provision is a reasonable and
content-neutral time, place, and manner regulation of a public
forum. The priority permit, the Park Service asserts, is
narrowly tailored to the government’s significant interest in
conducting a public Inaugural ceremony. See Gov’t Br. at 39-
40. The Park Service also argues that any speech that occurs
in the Inaugural Committee’s bleachers would be government
speech not subject to the First Amendment’s restrictions.
Because we conclude that the challenged regulatory
subsection is a content-neutral time, place, and manner
restriction, we do not reach the government speech question.
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A. Earlier Cases Challenging Park Service
Regulations in the Nation’s Capital
Political protestors and the Park Service have been here
before. In Mahoney v. Babbitt, 105 F.3d 1452 (D.C. Cir.
1997), we enjoined a Park Service permit to President
William Jefferson Clinton’s 1997 Inaugural that displaced all
demonstrator permits along the entire Inaugural Parade route,
and that did so not only during the parade, but for several
months leading up to Inauguration Day. The Park Service in
that case lacked the regulatory support it invokes today. It
instead sought to preempt first-in-time permitted
demonstrators by issuing itself a “blocking permit” for the
“entire length of Pennsylvania Avenue sidewalks for a five-
month period.” Id. at 1458-59. The Service then
compounded the constitutional flaw of that sweeping
prohibition by stating that it would not in practice exclude all
demonstrations from the sidewalks, but only those whose
message was “inconsistent” with the government’s intended
use. See id. at 1457-59.
We held in Mahoney that the Park Service’s viewpoint-
based exclusion of disfavored demonstrators violated the First
Amendment. We took pains to dispel any suggestion that the
“government can never control the use of segments of its own
property against actual inconsistent usage by persons
attempting First Amendment expression.” Id. at 1458. The
constitutional violation there was the government’s attempt to
“suppress opposing viewpoints” by excluding only disfavored
demonstrators, and by taking the space out of general public
use for several months. Id. at 1456. We held that the
government may not “by fiat take a public forum out of the
protection of the First Amendment” and purport to completely
exclude all demonstrators as a ruse to exclude only those
“citizens whose views it fears or dislikes.” Id. at 1457, 1459.
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The Park Service’s regulatory authority has not always
been as constrained as it is today. In A Quaker Action Grp. v.
Morton, 516 F.2d 717 (D.C. Cir. 1975) (Quaker Action IV)
and Women Strike for Peace v. Morton, 472 F.2d 1273 (D.C.
Cir. 1972), for example, this Court reviewed challenges to a
Park Service regulation that required a permit for any public
gathering in National Park areas, but “excepted” events
sponsored or co-sponsored by the Park Service (“NPS
events”) and provided that events to which the Service chose
to lend its sponsorship “may preempt any such areas to the
exclusion of other public gatherings.” Quaker Action IV, 516
F.2d at 737 (App.) (citing 36 C.F.R. §§ 50.19(a)(5), (b)). The
regulation contained no “expressed standards for selection of
‘NPS events.’” Quaker Action IV, 516 F.2d at 728. We noted
that because such unconstrained discretion in the
administration of a public permitting regulation invited
discriminatory enforcement, it was “patently inconsistent with
the Constitution.” Women Strike for Peace, 472 F.2d at 1290
(opinion of Wright, J.); Quaker Action IV, 516 F.2d at 728.
In response to that litigation, the Park Service
promulgated a regulation establishing National Celebration
Events that “occur at the same time and location” every year,
46 Fed. Reg. 55,959, 55,960 (Nov. 13, 1981)—or in the case
of Inauguration Day, quadrenially, 45 Fed. Reg. 84,997,
84,997 (Dec. 24, 1980). The events continued to receive
priority use of designated areas, but the Park Service’s
discretion was constrained by the limitation of space afforded
and the specification of the events in the Federal Register. 46
Fed. Reg. at 55,960.
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B. ANSWER’s Initial Complaint, Preceding the
Challenged 2008 Regulation
ANSWER initiated this case in 2005, after President
George W. Bush’s second Inauguration, when it filed a
complaint challenging the National Park Service’s since-
further-amended regulatory approach. Since 1980, the Park
Service’s regulations have designated the White House
sidewalk and portions of Lafayette Park for the “exclusive use
of the Inaugural Committee on Inauguration Day.” 36 C.F.R.
§ 7.96(g)(4)(iii)(A); 45 Fed. Reg. at 84,997-98. When
ANSWER brought this case in 2005, all other areas
immediately adjacent to the Inaugural Parade route, including
Freedom Plaza, were open to the public for use by individuals
or groups who obtain Park Service special-event or
demonstration permits on a first-come, first-served basis. See
36 C.F.R. § 7.96(g)(4)(i) (2004). The Inaugural Committee
did not then have a regulatory priority permit to use Freedom
Plaza. Instead, on an ad hoc basis before the one-year permit
application period opened, the Park Service granted a permit
to the second Bush Inaugural Committee for “the entire length
of the Pennsylvania Avenue sidewalks (plus additional
areas).” See A.N.S.W.E.R. Coalition v. Kempthorne, 537 F.
Supp. 2d 183, 187 (D.D.C. 2008) (2008 A.N.S.W.E.R.).
ANSWER’s initial complaint included three counts. It
challenged: the Park Service’s ad hoc deviation from the
Service’s general permitting regulation in favor of the
Inaugural Committee (Count I); the ban on sign supports
(rods or sticks on which handheld signs could be held aloft)
(Count II); and the ad hoc permit’s broad exclusion of
protestors from vast portions of Pennsylvania Avenue (Count
III). See 2016 A.N.S.W.E.R., 153 F. Supp. 3d at 402. The
parties cross-moved for partial summary judgment on Count
I, and the district court ruled in ANSWER’s favor that the
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Park Service unconstitutionally failed to follow its own
generally applicable permitting regulations. See 2008
A.N.S.W.E.R., 537 F. Supp. 2d at 206. The court reasoned
that the Park Service’s departure from the regulations’
procedural requirements in order to give special treatment to
the Inaugural Committee worked “an abridgement of
communication” against other permit seekers. Id. at 199
(quoting Quaker Action IV, 516 F.2d at 727). The Park
Service did not appeal that adverse decision, but responded by
promulgating the 2008 amended regulation, including the
priority permitting provision for bleachers at Freedom Plaza
now before us.
C. ANSWER’s Supplemental Pleading Adding its
Claim Against the 2008 Rule’s Grant of Bleacher
Space to the Inaugural Committee
On December 7, 2011, ANSWER applied for a permit to
demonstrate on Freedom Plaza and its adjacent sidewalks
during the 2013 Inauguration. The Park Service then filed an
application that invoked the priority permit regulation on
behalf of the Inaugural Committee. In accordance with the
2008 regulation, the priority permit included “designated
portions of Freedom Plaza” specifically for “bleachers for
viewing during the Inaugural Parade.” Letter from Robbin
Owen, Division of Permits Management, to Brian Becker,
ANSWER Coalition National Coordinator (Jan. 4, 2012), J.A.
at 687; Inaugural Committee Permit Application for 2013
Inauguration at 4, J.A. at 598. As set forth above, the Park
Service’s regulatory priority displaced ANSWER’s first-in-
time-application for all but a fraction of Freedom Plaza 160
feet deep, with 35 feet abutting Pennsylvania Avenue.
ANSWER then supplemented its complaint to add Count IV
challenging subsection (B)(1) of the regulation as “identity-
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based, viewpoint-based and/or content-based discrimination
in violation of the First Amendment.” Suppl. Pleading ¶ 21.
The Park Service informed ANSWER that after the
Presidential election and formation of the Inaugural
Committee, some eleven months in the future, ANSWER
might discuss with that Committee whether it would be
willing to accommodate ANSWER’s planned protest on its
regulatory priority portion of Freedom Plaza. ANSWER also
could apply to demonstrate at other locations abutting the
route, including John Marshall Park, another park area on
Pennsylvania Avenue. See 36 C.F.R. § 7.96(g)(4)(iii)(E)
(Maps 1-2).
Once the election was over and the new Inaugural
Committee was formed, ANSWER diligently sought to
coordinate with the Committee regarding the possibility of
using more space on Freedom Plaza. After meeting with
ANSWER, the Inaugural Committee told ANSWER that it
intended to use its entire allocated space on Freedom Plaza.
Having failed to persuade the Committee to cede its bleacher
space at Freedom Plaza, ANSWER would have to resort to
space elsewhere along the parade route.
Several months after the 2013 Inauguration, the parties
cross-moved for summary judgment as to Counts II, III and
IV. The district court granted judgment to the Park Service.
2016 A.N.S.W.E.R., 153 F. Supp. 3d at 400-01. On Count II,
the court held that the ban on sign supports was narrowly
tailored to ensuring safety and managing pedestrian traffic at
the Inauguration, id. at 417, a decision ANSWER did not
appeal. On Counts III and IV, the court conducted a two-step
analysis. It first assumed that bleachers were authorized as an
expressive activity or venue for expression, and decided
that—like the parades and orations elsewhere in the priority-
13
permitted Inauguration areas—bleacher speech constitutes
government speech not subject to First Amendment scrutiny
for content or viewpoint. Id. at 410-13.
The district court acknowledged that, although the
government may express its own viewpoint in a public forum,
any regulatory restriction on private expression in the forum
remains subject to constitutional scrutiny. Id. at 413-14
(citing Walker v. Texas Div., Sons of Confederate Veterans,
Inc., 135 S. Ct. 2239 (2015)). The court therefore next
analyzed the regulation’s effect on demonstrators under
intermediate scrutiny, holding it narrowly tailored to the
government’s significant interest in planning and executing
the Inaugural Ceremony and Parade. Id. at 415. The court
determined that the regulation’s incidental restrictions on
speech are no greater than necessary to serve the
government’s significant interest and that it leaves sufficient
alternative channels for communication, as it designates only
a modest portion of the Inaugural Parade route for the
Inaugural Committee’s use. Id. at 415.
II. Analysis
ANSWER appeals the district court’s grant of summary
judgment on Counts III and IV in the Park Service’s favor,
pressing its challenge to the Park Service’s regulation both on
its face and as applied in the 2013 Inauguration permitting
cycle to give the Inaugural Committee’s permit priority at
Freedom Plaza. We review the district court’s grant of
summary judgment de novo. See Hodge v. Talkin, 799 F.3d
1145, 1155 (D.C. Cir. 2015).
The regulation designates areas of priority use along the
Pennsylvania Avenue sidewalk. That space, including
Freedom Plaza, is a quintessential public forum. See
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Mahoney, 105 F.3d at 1457. Its importance to public dialogue
is acute on Inauguration Day. See id. at 1458.
The constitutionality of regulation of public forums
depends first on whether the regulation is content based.
Content-based regulations are “presumptively
unconstitutional and may be justified only if the government
proves that they are narrowly tailored to serve compelling
state interests.” Reed v. Town of Gilbert, 135 S. Ct. 2218,
2226 (2015). Second, because traditional public forums are
vital places for speech, even a content-neutral public-forum
regulation is subjected to additional First Amendment
scrutiny to determine whether it is a reasonable time, place,
and manner restriction “narrowly tailored to serve a
significant governmental interest” that “leave[s] open ample
alternative channels for communication.” Ward v. Rock
Against Racism, 491 U.S. 781, 791 (1989); see also Perry
Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45
(1983).
A. The Regulation Is Not A Content-Based Speech
Restriction Subject to Strict First Amendment
Scrutiny
1. The Regulation is Facially Content Neutral. To
be subject to evaluation under the more lenient,
“intermediate” scrutiny applicable to time, place, and manner
regulations, a rule must not itself be content based, see Reed,
135 S. Ct. at 2228, and must be “justified without reference to
the content of the regulated speech,” Ward, 491 U.S. at 791.
“Government regulation of speech is content based if a law
applies to particular speech because of the topic discussed or
the idea or message expressed.” Reed, 135 S. Ct. at 2227.
Facial distinctions based on message, whether they regulate
the speech’s subject matter, function, or purpose, are content
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based and so subject to strict scrutiny. Id. Meanwhile, “laws
that confer benefits or impose burdens on speech without
reference to the ideas or views expressed are in most instances
content neutral.” Turner Broadcasting Sys., Inc. v. F.C.C.,
512 U.S. 622, 643 (1994).
The challenged regulation is content neutral on its face.
It authorizes the Inaugural Committee to construct and
administer “[t]icketed bleachers viewing and access areas,”
along with space for disabled spectators, media, toilets, and
the District of Columbia’s reviewing stand. 36 C.F.R.
§ 7.96(g)(4)(iii)(B)(1); see id. §§ 7.96(g)(4)(iii)(B)(2)-(5).
Contrary to the district court’s background assumption, the
regulatory priority granted to the Inaugural Committee by
subsection (B)(1) to provide spectator bleachers turns not on
the content of any speech, but on the desirability of providing
to the Inaugural Committee as the event organizer a limited
amount of reserved seating for ticketed spectators.
Subsection (B)(1)’s provision for bleachers at Freedom
Plaza is “not a ‘regulation of speech,’” but a “regulation of the
places where some speech may occur.” Hill v. Colorado, 530
U.S. 703, 719 (2000). The Colorado statute in Hill made it
unlawful to knowingly approach within eight feet of another
person, without consent, “for the purpose of passing a leaflet
or handbill to, displaying a sign to, or engaging in oral protest,
education, or counseling with such other person” within 100
feet of the entrance to any health care facility. Id. at 707. The
Court held the Colorado law was not viewpoint based, but
that it imposed a reasonable time, place, and manner
restriction on knowingly approaching, for specified purposes,
patients entering the clinics. Id. at 725-26. There was no
evidence in Hill that Colorado enacted its law “because of
disagreement with” the message of the regulated speech: The
regulation applied “equally to all demonstrators, regardless of
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viewpoint, and the statutory language ma[de] no reference to
the content of the speech.” Id. at 719.
The regulation at issue here is even more clearly content
neutral, because it makes no reference at all to speech, let
alone the content of speech. It simply provides for permitting
of spectator bleachers and a cluster of non-speech functions
on Freedom Plaza in service of the Inaugural celebration, and
it only indirectly regulates where demonstrations may occur
by displacing them from that spot. Any displaced speakers’
content is irrelevant: Nothing in the regulation would prohibit
a ticketholder to the Inaugural Committee’s bleacher area
from publicly endorsing ANSWER’s message. See McCullen
v. Coakley, 134 S. Ct. 2518, 2531 (2014) (regulation
excluding people from a 35-foot buffer zone outside clinics
where abortions are performed did not “draw content-based
distinctions on its face”). The record contains no evidence
that the Park Service would have pared back the scope of the
priority permit at Freedom Plaza if demonstrators with a
message more to the government’s liking had asked. Cf.
Mahoney, 105 F.3d at 1455-56; R.A.V. v. City of St. Paul, 505
U.S. 377, 391 (1992); Police Dep’t of Chicago v. Mosley, 408
U.S. 92, 95 (1972); Niemotko v. Maryland, 340 U.S. 268,
272-73 (1951). And the regulation provides a rule under
which non-ticketholders may occupy bleacher seats if they
remain unclaimed ten minutes before the Inaugural Parade is
scheduled to pass. 36 C.F.R. § 7.96(g)(4)(iii)(B)(1).
Inaugural Committees are entitled to the priority permit, on
behalf of any President-elect, no matter the views of the
Committee or President-elect. The regulation also equally
excludes anyone who might elbow into the reserved area,
regardless of whether she or he wishes to protest, show
support, or simply get a better view. Here, the regulatory
preference for “[t]icketed bleachers viewing and access areas”
draws no content distinction.
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2. The Regulation is Justified Without Reference to
the Content of Speech. The facially neutral regulation is
also “justified without reference to the content” of any
potential speaker’s alternative use of the Plaza space and was
not adopted “because of disagreement with the message” of
any anticipated expression on Inauguration Day. See Reed,
135 S. Ct. at 2227; see also United States v. O’Brien, 391
U.S. 367, 377 (1968). The inquiry into regulatory purpose
ensures that a facially neutral regulation affecting speech is
not designed to suppress content the government disfavors.
By its nature, a restriction on use of a public forum is bound
to curtail some speech. But a “regulation that serves purposes
unrelated to the content of expression is deemed neutral, even
if it has an incidental effect on some speakers or messages but
not others.” Ward, 491 U.S. at 791.
The function of the challenged provision, subsection
(B)(1), is to provide “viewing and access areas.” 36 C.F.R.
§ 7.96(g)(4)(iii)(B)(1). The governmental purpose is
unrelated to the content of expression. There is no evidence
in the record that the regulation was adopted because of any
disagreement with ANSWER’s—or any demonstrators’—
message, nor any evidence of desire generally to suppress
dissent or otherwise discriminate with regard to content. The
regulation is therefore content neutral. See Reed, 135 S. Ct. at
2227; see also O’Brien, 391 U.S. at 377.
ANSWER argues that the regulation is content based
because it restricts ANSWER demonstrating at Freedom
Plaza while favoring the incoming administration’s
supporters. See Appellant Br. at 6, 42. ANSWER’s
admittedly viewpoint-based reason for seeking access to the
Plaza does not, however, make any rule that stands in its way
content based. The regulation excludes ANSWER from
portions of Freedom Plaza not because it seeks to
18
demonstrate, nor due to the content of the message ANSWER
wishes to communicate, but to ensure some premium space
for “[t]icketed bleachers viewing and access areas” as part of
the event package reserved for the Inaugural Committee. 36
C.F.R. § 7.96(g)(4)(iii)(B)(1). The Park Service’s provision
for the Inaugural Committee to construct its bleachers, even
as 70 per cent of the Inaugural route remains available for
demonstration permits, is no more content based than the
unchallenged provisions reserving areas for portable toilets,
media stands, or viewing areas for individuals with
disabilities. See id. §§ 7.96(g)(4)(iii)(B)(2), (3), (5).
We see no record evidence suggesting that the
government intended the bleacher area to be a conduit for
communicating any content to the public, that the government
controls the content of spectator expression in the bleachers,
or that the public will perceive the government to be speaking
via the bleachers. See Appellant Br. at 36. But see 2016
A.N.S.W.E.R., 153 F. Supp. 3d at 412-13 (concluding
otherwise). The regulation makes no suggestion that the
purpose of the Freedom Plaza bleacher seating is
communicative. The bleachers are for ticketed spectators to
view the parade. The Final Rule’s only reference to control of
the bleachers’ use is that “[t]raditionally, each P[residential]
I[naugural] C[ommittee] decides how, and to whom, to
distribute P[residential] I[naugural] C[ommittee] bleacher seat
tickets.” 73 Fed. Reg. at 67,742.
ANSWER’s contrary characterization is unpersuasive. It
casts subsection (B)(1) as an impermissible content-based
effort to provide supporters of the administration an enhanced
“visible presence” on Inauguration Day to the exclusion of
ANSWER, an avowed government critic. See Appellant Br.
at 42-43. ANSWER quotes the Park Service’s counsel in the
district court contending that the Inaugural Committee “wants
19
to be able to provide a presence” for ticketholders along the
Pennsylvania Avenue sidewalks. Appellant Br. at 42 (quoting
Tr. of Mot. Hr’g at 10). ANSWER takes that comment out of
context. The Service there acknowledged that the sidewalk
adjoining the Inaugural Parade route is valuable both for
expression by demonstrating parties seeking a “visible
presence” (such as ANSWER), and for those wishing to
reserve choice viewing areas (such as the Park Service on the
Committee’s behalf). ANSWER’s desire to demonstrate at
Freedom Plaza—an undeniably expressive use—does not
render the Park Service’s intended use expressive. Cf.
O’Brien, 391 U.S. at 376.
The regulation itself is agnostic as to whether the persons
to be seated will even be supporters of, or chosen by, the
incoming president, let alone whether they will express
themselves in any particular way. Consistent with the rule,
President Obama’s 2009 Inaugural Committee, for example,
offered some of its bleacher seats at a nominal price to any
member of the public. See Gone in 60 Seconds, Politico (Jan.
10, 2009), http://www.politico.com/story/2009/01/gone-in-60-
seconds-inaugural-parade-tickets-017310 (noting publicly
available Inaugural Committee tickets for 2009 Inauguration
sold out in under one minute). And the rule itself contains a
10-minute release provision that allows any member of the
public to occupy a ticketed seat for free if the ticketholder has
not claimed it ten minutes before the parade passes. 36 C.F.R.
§ 7.96(g)(4)(iii)(B)(1); 73 Fed. Reg. at 67,741. The set-aside
of viewing areas on Freedom Plaza “open to members of the
public who have disabilities” also reflects the rule’s premise
that spectators are present to watch, rather than to engage in
some kind of loyalty performance. 73 Fed. Reg. at 67,741;
see also 36 C.F.R. § 7.96(g)(4)(iii)(B)(5); id.
§ 7.96(g)(4)(iii)(E) (Map 8). The decision by the Park
Service to grant the Inaugural Committee space to provide
20
viewing areas was neither expressly nor implicitly
conditioned on the ticketholders communicating anything on
Inauguration Day. The mere possibility that a priority permit
might be susceptible of such use does not make it a content-
based regulation of speech. Cf. Turner, 512 U.S. at 652
(“Appellants’ ability to hypothesize a content-based purpose
for [the law at issue] rests on little more than speculation and
does not cast doubt upon the content-neutral character of [the
law].”).
Content-neutral regulatory line-drawing may incidentally
burden speech without running afoul of the First Amendment.
See Ward, 491 U.S. at 791; Turner, 512 U.S. at 643. In
Regan v. Taxation with Representation of Washington, 461
U.S. 540 (1983), for instance, the Supreme Court upheld
statutory authorization for veterans’ organizations to use tax
exempt contributions for lobbying purposes while other
nonprofits lacked authority to do the same. The line drawn
between veterans’ groups and other nonprofits reflected the
country’s “long standing policy of compensating veterans for
their past contributions.” Id. at 551. The Park Service’s
priority permit for the Inaugural Committee planning a
“national celebration event” reflects a similarly well-
established policy of enabling a public ceremony to recognize
the start of a new presidential administration. See 36 C.F.R.
§ 7.96(g)(1)(iii). The Park Service’s regulation, including
subsection (B)(1) authorizing bleachers at Freedom Plaza, is
no more content based than the line drawn between veterans’
groups and other nonprofits that the Court upheld in Regan, or
the restrictions on leafletting and handbilling sustained in
Hill.
Finally, this case is easily distinguished from the content-
based enforcement scheme that we invalidated in Mahoney.
The Christian Defense Coalition sought permission in 1997
21
for its members “to stand on the sidewalk and peacefully note
their dissent” as the Inaugural Parade passed, but were told
that its members would be subject to arrest if they picketed at
any point alongside Pennsylvania Avenue. 105 F.3d at 1455-
56. The Park Service in Mahoney issued to itself a permit for
the entirety of Pennsylvania Avenue for several months, thus
displacing all permits to demonstrate anywhere along the
Inaugural Parade route. 105 F.3d at 1457-58. The
government’s putative, content-neutral justification was to
prevent demonstrators’ “physical intrusion” into the Inaugural
event. Id. at 1458. But the government’s proffered
justification was revealed to be pretextual when the Park
Service “conceded that if appellants were carrying no signs
or, indeed, if they were carrying signs favorable to the
administration whose second Inaugural was being celebrated,
their ‘physical intrusion’ would be welcomed.” Id. Here,
there is no hint of any such content-based purpose by the Park
Service to pick and choose among demonstrators based on
their messages.
ANSWER contends that the Obama Inaugural Committee
in 2012 conducted a “political vetting” to decide whether to
invite ANSWER to share some of the Plaza space included in
the Committee’s permit, and that the Committee
unconstitutionally concluded “on the basis of viewpoint that
ANSWER had ‘competing interests’ for expression along the
parade route.” Appellant Br. at 62. The First Amendment
presumptively bans political vetting as a condition of access
to a public forum, but the fleeting assertion in ANSWER’s
brief that a past Inaugural Committee engaged in “vetting”
fails for several overlapping reasons to raise an issue of fact
material to the claim ANSWER pleaded and litigated here.
First, the “vetting” contention is vague and conclusory,
resting on a single statement that unidentified members of the
Inaugural Committee asked unidentified ANSWER
22
representatives “about our goals, messaging, and how we do
outreach and organize.” Decl. of Brian Becker ¶ 33, J.A. at
443. Second, it is unclear how the “vetting” contention
relates to this case as ANSWER has framed it. The Inaugural
Committee, the putative vetter, is not a defendant; the vetting
of which ANSWER complains does not help to show the
asserted constitutional defect in the regulatory subsection
(B)(1) that ANSWER challenges; and ANSWER has no
evidence that vetting is likely to recur such that it could be
redressable by the declaratory and injunctive relief ANSWER
seeks.
We conclude that the regulation is content neutral and is
justified without reference to the content of regulated speech.
Having determined that the regulation is facially content
neutral and justified without reference to the content of
expression, we have no occasion to rely on any notion that the
regulations involve government speech of the kind described
in Pleasant Grove City v. Summum, 555 U.S. 460 (2009), and
Walker v. Texas Div., Sons of Confederate Veterans, Inc., 135
S. Ct. 2239 (2015). The public forum analysis suffices.
B. The Priority Permit for the Inaugural
Committee Is a Reasonable Time, Place, and
Manner Restriction
Because the regulation is content neutral, any incidental
effect it has on speech is subject to the intermediate scrutiny
that governs time, place, and manner restrictions. Ward, 491
U.S. at 791. To survive such scrutiny, the regulation must be
“narrowly tailored to serve a significant governmental
interest” and “leave open ample alternative channels for
communication of the information.” Id.; Henderson v. Lujan,
964 F.2d 1179, 1183 (D.C. Cir. 1992).
23
1. The Regulation Serves a Significant Governmental
Interest. The regulation is directed to the government’s
significant interest in facilitating the President-elect’s public
Inaugural ceremony. See Gov’t Br. at 39-40. The date of the
Presidential transition is mandated by the Constitution, see
U.S. Const. amend XX, § 1, and its attendant celebration is
contemplated in federal legislation, see Presidential Inaugural
Ceremonies Act, Pub. L. No. 84-986, 70 Stat. 1049, 1049 § 1
(1956), codified at 36 U.S.C. § 501(2). For its part,
ANSWER does not contest the Inauguration’s importance as a
national celebration. See Appellant Br. at 48 (“The public
Inaugural Parade is deeply rooted in the American
tradition . . . .”); 73 Fed. Reg. at 67,739. Nor does it argue
that the governmental interest in giving a committee control
over some public space to organize an open-air, public
Inaugural ceremony is insignificant. Rather, ANSWER
argues that the government cannot show that the regulation is
narrowly tailored to serve that interest. See Appellant Br. at
47.
The reason the Park Service created a priority permit
regulation is to facilitate a public “Inauguration celebration
for a newly elected President.” Gov’t Br. at 39; 73 Fed. Reg.
at 67,739 (describing Inauguration as “a national celebration
event for the benefit of all citizens”); 36 C.F.R.
§§ 7.96(g)(1)(iii), (4)(ii) (designating Inauguration as
National Celebration Event). To achieve that goal, the
regulation creates a “regulatory priority use for limited,
designated park areas for the P[residential] I[naugural]
C[ommittee], the Armed Forces Inaugural Committee, and the
Architect of the Capitol or the Joint Congressional Committee
on Inaugural Ceremonies, entities whose role in the Inaugural
has traditionally necessitated such use.” 73 Fed. Reg. at
67,740. That regulatory priority makes sense. Congress put
the Inaugural Committee “in charge of the Presidential
24
inaugural ceremony and functions and activities connected
with the ceremony.” 70 Stat. at 1049 § 1, codified at 36
U.S.C. § 501(1). To support that role, the Act allows the
Secretary of the Interior to “grant to the Inaugural Committee
a permit to use [federal land] during the inaugural period.”
Id. § 503.
The Park Service’s designation of space for reserved
seating is a reasonable component of a priority permit for a
public Inaugural celebration. Part of organizing the
Inauguration is providing seating for spectators; the Inaugural
Committee’s regulatory priority allows just that. See 36
C.F.R. § 7.96(g)(4)(iii)(B)(1); see also Inaugural Committee
Permit Application for 2013 Inauguration at 4, J.A. at 598
(“For all proposed bleacher space, we will be placing
bleachers for viewing during the Inaugural Parade on January
21st.”). The Park Service also asserts a more particular
interest in facilitating the Inaugural Committee’s fundraising
efforts by allowing it to sell bleacher tickets, see Gov’t Br. at
40-41, but we neither find record support for such an interest
nor do we believe it material to the validity of the Park
Service rule under the First Amendment.
2. The Regulation is Narrowly Tailored to the
Governmental Interest. In order to satisfy the requirement
that the regulation be narrowly tailored to the government’s
significant interest, the government must show “a close fit
between ends and means.” McCullen, 134 S. Ct. at 2534. We
must satisfy ourselves that the regulation “promotes a
substantial government interest that would be achieved less
effectively absent the regulation.” Ward, 491 U.S. at 799.
The regulation “need not be the least restrictive or least
intrusive means of serving the government’s interests,” but it
“must not ‘burden substantially more speech than is necessary
to further the government’s legitimate interests.’” McCullen,
25
134 S. Ct. at 2535 (quoting Ward, 491 U.S. at 799); see also
Ward, 491 U.S. at 797 (“[R]estrictions on the time, place, or
manner of protected speech are not invalid ‘simply because
there is some imaginable alternative that might be less
burdensome on speech.’” (quoting United States v. Albertini,
472 U.S. 675, 689 (1985)); cf. Clark v. Cmty. for Creative
Non-Violence, 468 U.S. 288, 299 (1984) (declining under a
time, place, and manner analysis to “judge how much
protection of park lands is wise and how that level of
conservation is to be attained”).
The government has cleared this hurdle. The Park
Service’s regulation sets aside 13 per cent of the parade route
along Pennsylvania Avenue for Inaugural Committee
bleachers, including the bleachers on Freedom Plaza. It
leaves open 70 per cent of the route for the public. The total
of the ticketed bleacher area under the current rule is
substantially reduced from the amount of space the bleachers
have occupied in the past. See 73 Fed. Reg. at 67,741 (noting
current regulation reduces bleacher area to 24 bleachers from
49 bleachers in 2005); id. (“[T]he final rule substantially
increases the park areas available to the public and
demonstrators.”); cf. Mahoney, 105 F.3d at 1458-59 (doubting
that Park Service permit blocking demonstrators from entire
parade route for five-month period satisfies narrow tailoring).
No doubt there are significantly more spectators who wish to
attend the Inauguration than these bleachers can
accommodate. The reservation of limited space along the
parade route for bleachers as part of the event package
afforded to the Inaugural Committee allows the Committee to
offer a moderate number of seats to ticketed spectators, while
also leaving most “front row” space along Pennsylvania
Avenue available to others, including demonstrators.
26
We are also satisfied that the governmental interest
would be “achieved less effectively absent the regulation.”
Ward, 491 U.S. at 799. ANSWER contends that the
Constitution requires that ticketed bleacher space be limited to
what the Inaugural Committee might be able to obtain in a
first-come, first-served public permit application process.
Suppl. Pleading ¶¶ 14-15, 17; Appellant Br. at 48, 58;
Appellant Reply Br. at 30. That process, however, opens
eleven months before the election of the incoming president
has even occurred, when no Inaugural planning committee
exists to submit such an application. This regulation is a
practical and reasonable response to that problem.
ANSWER’s arguments to the contrary are unavailing.
First, ANSWER argues that the government has not met its
burden because it fails to show that Inaugural ceremonies
would be cancelled absent the regulation. See Appellant Br.
at 48-49. ANSWER also argues that the regulation is not
narrowly tailored because in 2009, pursuant to a settlement
with the Park Service, ANSWER was able to use part of the
area on Freedom Plaza that the regulation allocates to the
Inaugural Committee’s bleachers and the Inaugural ceremony
still happened. Appellant Br. at 49. Otherwise valid
restrictions arising from conflicting uses need not be struck
down, however, “merely because the government has for a
time stayed its hand.” Henderson, 964 F.2d at 1183. The
narrow tailoring requirement is not a “least intrusive” or
“least restrictive” means test. Ward, 491 U.S. at 798.
Next, ANSWER argues that Freedom Plaza has unique
symbolic and historic characteristics that merit special
analysis. See Appellant Br. at 4, 40-41. There may well be
circumstances in which the Plaza’s admittedly salutary
aspects and symbolic value could be relevant to a time, place,
and manner analysis. But ANSWER cites no case in which
27
the quality of particular public-forum space means that the
First Amendment places it out of reach of any exclusive event
permit. Two reasons support the contrary conclusion. For
one, ANSWER is not necessarily entitled to its favored place
for expression. “[T]he First Amendment does not guarantee
the right to communicate one’s views at all times and places
or in any manner that may be desired.” Heffron v. Int’l Soc’y
for Krishna Consciousness, 452 U.S. 640, 647 (1981). For
instance, in White House Vigil for the ERA Comm. v. Clark,
746 F.2d 1518 (D.C. Cir. 1984), we upheld a prohibition
against protestors standing still with signs in the center
portion of the White House sidewalk, despite the plaintiff’s
contention that the center portion is “particularly
evocative . . . for symbolic protest.” Id. at 1534-38.
A second flaw is ANSWER’s failure to distinguish the
Freedom Plaza bleachers from other historically significant
areas, including the White House sidewalk and Lafayette
Park. See 36 C.F.R. § 7.96(g)(4)(iii)(A). Those areas are
similarly “controlled by the Inaugural Committee through a
reserved ticket system.” 73 Fed. Reg. at 67,741. And those
areas have historic and symbolic importance. See Quaker
Action IV, 516 F.2d at 725 (“[T]he White House sidewalk,
Lafayette Park, and the Ellipse constitute a unique situs for
the exercise of First Amendment rights.”); Women Strike for
Peace, 472 F.2d at 1287 (opinion of Wright, J.) (“There is an
unmistakable symbolic significance in demonstrating close to
the White House or on the Capitol grounds . . . .”). Aside
from alluding to “unique ceremonial and security issues”
associated with the Presidential reviewing stands, ANSWER
does not provide a principle for drawing a constitutional line
between ticketed access to Lafayette Square and ticketed
access to bleachers at Freedom Plaza. Appellant Br. at 60.
28
Finally, ANSWER asserts that Freedom Plaza has unique
physical characteristics that make it more hospitable for
public demonstrations than other available areas such as John
Marshall Park. See Appellant Br. at 41, 56. ANSWER
rejects John Marshall Park as unable to accommodate
“sizeable bleachers, stage or sound platforms.” Decl. of Brian
Becker ¶ 39, J.A. at 445. That argument cuts both ways.
Freedom Plaza also offers a particularly desirable vantage
point for spectators and media. It was thus reasonable for the
Park Service to include space on a Plaza that can
accommodate such activities within the package of areas
covered by the priority permit.
3. The Regulation Leaves Ample Alternative
Channels for Expression. To stand as a reasonable time,
place, or manner restriction, the priority permit regulation
must also leave open ample alternative channels for
communication. See Boardley v. U.S. Dept. of Interior, 615
F.3d 508, 524 (D.C. Cir. 2010). ANSWER disagrees that
demonstrators have adequate access, principally by framing
the issue as whether alternative channels remain at Freedom
Plaza itself. See Appellant Br. at 54; Appellant Reply Br. at
27-28. The relevant question here, however, as ANSWER
itself comes close to acknowledging, is whether ANSWER
retains channels for expression at the Inaugural Parade. See
Appellant Br. at 25 (“[T]he object of proper analysis is the
Pennsylvania Avenue sidewalks and parklands on
Inauguration Day . . . .”). As ANSWER described its
objections in 2005, for example, it wished to express its
opposition to “the war policies of the Bush administration,”
Compl. at 3-4, and it then anticipated that it would
demonstrate “at the next [2009] Presidential Inauguration,”
Id. ¶ 85. In 2013, ANSWER similarly sought to “engage in
expressive, free speech activities in connection with the
January 20, 2013 Presidential Inauguration and related
29
parade.” Suppl. Pleading ¶ 1. ANSWER criticizes
governmental policies, and its Inaugural demonstrations are
“directed at parade participants” including “the
Administration members and [the] President in the parade.”
Compl. ¶¶ 46, 60. ANSWER has not persuaded us that the
relevant forum here is limited to Freedom Plaza, such that
alternative channels alongside the celebration and parade that
are directly visible to its target audiences are inadequate.
The 2008 regulation is dramatically narrower than the
permit we invalidated in Mahoney. There, the Park Service
“issued itself a permit not for a limited segment of the
Pennsylvania Avenue sidewalks . . . but for the entire length
of Pennsylvania Avenue sidewalks for a five-month period.”
105 F.3d at 1458; see also 2008 A.N.S.W.E.R., 537 F. Supp.
2d at 187 (invalidating Inaugural Committee permit for the
parade route “from the National Capital Area, 3rd Street to
17th Street including sidewalks on both sides of the street”);
and see Women Strike for Peace, 472 F.2d at 1293 (opinion of
Wright, J.) (government “may not preempt the entire Ellipse
when only a partial preemption would fully vindicate its
interest”). As described above, the current regulation sets
aside 13 per cent of the Inaugural Parade route along
Pennsylvania Avenue for Inaugural Committee bleachers. 73
Fed. Reg. at 67,741. Another 17 per cent is prioritized for
other logistical purposes, including media. See Tr. of Mot.
Hr’g at 11. Seventy per cent of the portion of Pennsylvania
Avenue abutting the parade route is available for members of
the public, including groups with permits to demonstrate. 73
Fed. Reg. at 67,741. By excluding from the priority permit
“certain park areas that have been allocated to the
[Committee] in past Inaugural Parades,” the 2008 regulation
“substantially increases the park areas available to the public
and demonstrators.” 73 Fed. Reg. at 67,741. We decline to
establish where on the continuum—between Mahoney’s total
30
exclusion of protestors for several months and the current
regulation’s allocation of 70 per cent of the Parade route’s
sidewalks to the public—the government’s priority allocation
of space becomes reasonable. We simply hold that this
regulation is content neutral, reasonable, and provides ample
alternative channels for communication.
***
We accordingly affirm the district court’s grant of
summary judgment to the Park Service.
So ordered.