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A.N.S.W.E.R. Coalition v. Basham

United States Court of Appeals, District of Columbia Circuit

January 17, 2017

A.N.S.W.E.R. Coalition (Act Now to Stop War and End Racism), Appellant
v.
W. Ralph Basham, In official capacity as Director, U.S. Secret Service and Sally Jewell, Secretary, United States Department of the Interior, Appellees Graylan Scott Hagler, Pastor, Plymouth Congregational Church, et al., Appellees

          Argued November 14, 2016

         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.

          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, 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 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 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 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 ...


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