In Re the Lincoln Memorial Singers

1.  I can’t be sure w/o talking to the Park Police, but I think the regulation violated by those singing students was 36 C.F.R. § 7.96(g)(2), which states that “Demonstrations and special events may be held only pursuant to a permit issued in accordance with the provisions of this section….”  Per 36 C.F.R. § 7.96(g)(1),

(i) The term “demonstrations” includes demonstrations, picketing, speechmaking, marching, holding vigils or religious services and all other like forms of conduct which involve the communication or expression of views or grievances, engaged in by one or more persons, the conduct of which has the effect, intent or propensity to draw a crowd or onlookers. This term does not include casual park use by visitors or tourists which does not have an intent or propensity to attract a crowd or onlookers.

(ii) The term “special events” includes sports events, pageants, celebrations, historical reenactments, regattas, entertainments, exhibitions, parades, fairs, festivals and similar events (including such events presented by the National Park Service), which are not demonstrations under paragraph (g)(1)(i) of this section, and which are engaged in by one or more persons, the conduct of which has the effect, intent or propensity to draw a crowd or onlookers. This term also does not include casual park use by visitors or tourists which does not have an intent or propensity to attract a crowd or onlookers. [emphasis added]

Meanwhile, 36 C.F.R. § 7.96(g)(3)(ii) prohibits issuance of permits for demonstrations or special events at the Lincoln Memorial:

(ii) Other park areas. No permits may be issued authorizing demonstrations or special events in the following other park areas:

….

(B) The Lincoln Memorial, which means that portion of the park area which is on the same level or above the base of the large marble columns surrounding the structure, and the single series of marble stairs immediately adjacent to and below that level, except for the official annual commemorative Lincoln birthday ceremony.

The regulation also provides this helpful map, in case the above is unclear:

Since ISTM any of the bolded excerpts of § 7.96(g)(1) would cover the students’ performance of the National Anthem, said performance could rightly be deemed a “demonstration” or “special event” for the purposes of the regulation.  As noted in Oberwetter v. Hillard (discussed below), the combination of the permit requirement in § 7.96(g)(2) and the permit prohibition of § 7.96(g)(3)(ii)(B) effectively prohibits all “demonstrations” & “special events” at the Lincoln Memorial (besides the official commemoration of Lincoln’s birthday).  Based on that Fox News video to which Gary Fouse linked, it appears the students’ singing occurred on the Memorial’s front steps – i.e., within the area marked “Restricted” in the above map, and described as the “Lincoln Memorial” in the regulations.  Thus, it appears the police were right to consider the students’ activity a “demonstration” which was in violation of the above regulation.

2.  As for the First Amendment, ISTM the relevant precedent is Oberwetter v. Hillard, No. C 09-0588-JDB (D.D.C. Jan. 25, 2010), which concluded:

A prohibition on expressive activities in a nonpublic forum does not violate the First Amendment if it is viewpoint neutral and is “reasonable in light of the use to which the forum is dedicated.” Grace, 461 U.S. at 178; see also Perry, 460 U.S. at 46. Here, the ban on demonstrations at the Jefferson Memorial satisfies these requirements.

Admittedly, the facts in that case are somewhat different – the incident there occurred at the Jefferson Memorial, not the Lincoln Memorial, and involved expressive dance, not singing.  However, the regulations at issue in that case were the same; and after reading portions of the opinion, it appears much of its reasoning regarding non-public fora:

[T]he physical characteristics of the Memorial’s interior indicate that it is a nonpublic forum. It is physically distinguishable from the surrounding parkland: an individual must affirmatively decide to visit the interior of the Jefferson Memorial. The visitor must step off of a path, ascend forty steps, and traverse a portico — passing a sign requesting “Quiet Respect” — before entering the Memorial’s interior. Unlike the sidewalks at issue in Grace and Henderson, the pedestrian is inevitably aware that in moving from the parkland to the interior of the Memorial he or she “ha[s] entered some special type of enclave.” Grace 461 U.S. at 180.  A pedestrian simply does not “happen” upon the interior of the Memorial.

Furthermore, the Jefferson Memorial has the specialized purpose of publicizing one of the nation’s founders — supporters and critics alike may visit the Memorial to contemplate Jefferson’s place in history. This purpose marks the Memorial as unique, and hence unlike quintessential examples of public fora — streets, parks, and sidewalks, all “necessary conduit[s] in the daily affairs of a locality’s citizens, but also . . . place[s] where people may enjoy the open air or the company of friends and neighbors in a relaxed environment.”  Heffron v. Int’l Soc. for Krishna Consciousness, Inc., 452 U.S. 640, 651 (1981). Indeed, the National Park Service has closed the interior of the Jefferson Memorial to a wide range of expressive conduct, thereby indicating that it is “public property which [is] not by tradition or designation a forum for public communication.” Perry, 460 U.S. at 46; see also Marlin v. Dist. of Columbia Bd. of Election & Ethics, 236 F.3d 716, 719 (D.C. Cir. 2001) (interior of polling place a nonpublic forum because of “longstanding limitations on polling place speech”).  (Slip op. at 15-16) (footnote omitted)

…governmental interests:

[T]he purpose of the Memorial is to publicize Thomas Jefferson’s legacy, so that critics and supporters alike may contemplate his place in history. The Park Service prohibits all demonstrations in the interior of the Jefferson Memorial, in order to maintain an “an atmosphere of calm, tranquility, and reverence,” 41 Fed. Reg. at 12880, and thereby fulfill this purpose. The D.C. Circuit has recognized these interests as legitimate goals of speech regulation at our national memorials. Prohibiting demonstrations is a reasonable means of ensuring a tranquil and contemplative mood at the Jefferson Memorial. The Court can imagine that permitting the public to engage in expressive dancing — and various other forms of demonstration — could interfere with such an environment. That such conduct may result in a crowd or onlookers is but one example of how the conduct could undermine “an atmosphere of calm, tranquility, and reverence,” a result that need not be tolerated before it is prevented.

The Court recognizes that the regulation’s definition of “demonstration” may encompass conduct potentially not contemplated by the Park Service — for example, a history professor giving a lecture in the Memorial. But whether the regulation produces some silly results does not determine the outcome here. The mere fact “[t]hat narrower regulations might be as effective or more so . . . does not invalidate the means the [Park Service] has chosen. Regulation of a non-public forum, unlike that of a public forum, need not be ‘narrowly drawn to achieve its end.'” Accordingly, the Court cannot, and will not, substitute its own vision of the best regulation to achieve the Park Service’s interest, given that section 7.96 is reasonable as drafted. (Slip Op. at 17-19) (citations omitted).

…and content neutrality:

The regulation is viewpoint neutral because its prohibition of “demonstrations” does not favor certain ideas over others. See Boos v. Barry, 485 U.S. 312, 319 (1988). The Park Service has not, in precluding the array of expressive activities that have an “the effect, intent or propensity to draw a crowd or onlookers,” 36 C.F.R. § 7.96(g)(1)(i), denied “access to a speaker solely to suppress the point of view he espouses on an otherwise includible subject,” Cornelius, 473 U.S. at 806. Indeed, the regulations do not limit the message of speech at all; rather they exclude all demonstrative activities that reasonably could interfere with the “atmosphere of calm, tranquility, and reverence” at the Memorial. (Slip Op. at 19) (footnote omitted).

…would seem to be equally applicable to the singing students’ scenario, provided the students’ action was indeed a “demonstration” or “special event” (as I argue above).  I believe this case is currently on appeal; it’ll be interesting to see what the D.C. Circuit makes of it.

3.  Personally, I’m glad the aforementioned regulations are in place.  I’ve visited the Lincoln Memorial several times, and I rather enjoy the “atmosphere of calm, tranquility, and reverence” said regulations seek to preserve.  Sort of a secular version of church services (or at least the silent portions thereof).  As I noted earlier, had I been at the Memorial when these students decided to start singing, it’s even money whether I would’ve found their actions amusing – or immensely annoying.

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