Demonstrating At The Front Door Of The White House
As the intensity of the opposition to the Vietnam War increased in the mid-1960s, the White House sidewalk and Lafayette Park became the national stage for those objecting to the war. Twenty-five thousand people marched along the White House sidewalk in a demonstration of The Committee for a Sane Nuclear Policy (SANE) in November of 1965. In May of 1966, there was a totally peaceful SANE demonstration on the White House sidewalk of over 8,000 people. The all-night Moratorium demonstration in October of 1969 involved 30,000 people marching in single file, each with a lighted candle, in front of the White House; this march was without incident. During this period there were dozens and dozens of other anti-war marches in front of the White House. Virtually all were completely peaceful; only in a handful were there disruptions, violence or any arrests.
In addition, Lafayette Park was the forum for large demonstrations dealing with the Israeli-Arab conflict. In February 1968 more than 3,500 people engaged in a peaceful pro-Israel march through Lafayette Park. Earlier, in 1967 there had been concurrent demonstrations with over 30,000 Israeli supporters in Lafayette Park and 200 Arabs on the White House sidewalk. There was hostility and tension, but no arrests.
In early 1965 the Secret Service attempted to prohibit all demonstrations on the White House sidewalk and in Lafayette Park, but the Solicitor of the Interior Department declared that such a prohibition would violate the First Amendment. Then, in early 1967, this issue was brought up again. Documents we later secured from the LBJ Library in Austin indicated that the impetus, in part at least, was the political concern of the Johnson Administration about having large groups in front of the White House protesting against the Vietnam War. Television coverage of these demonstrations was a particularly dramatic and powerful, and pervasive, witness to the failures of the Administration's Vietnam policies.
There was an intense debate within the Executive Branch as to what could be done to snuff out the dramatic publicity of these demonstrations, with the front entrance of the White House as the backdrop for television pictures. Security officials proved to be willing allies. The Secret Service, the FBI, the Park Police, the White House Police, and the Metropolitan Washington Police all favored an absolute prohibition on any demonstrations in front of the White House and in Lafayette Park. On the other hand, the Attorney General, the Solicitor of the Interior Department and the Special Counsel to the President opposed a demonstration ban, but appeared to support some limitations.
The debate inside the White House focused on security concerns advanced by security officials. Ultimately, the decision limited the number of demonstrators to 100 on the White House sidewalk and 500 persons in Lafayette Square. The initial public "spin" on these limitations claimed that demonstrations of more than 500 people in Lafayette Park would incur costs of "replacing injured shrubs and other plants" from such demonstrations. This justification was offered notwithstanding our later testimony that Lafayette Park could comfortably accommodate between 40-50,000 people, and still protect the shrubs. Our expert also testified that the White House sidewalk would accommodate 4,400 to 6,500 persons including a pedestrian corridor. In addition, the limitations were justified on the grounds that large demonstrations have a "distracting effect" on motorists driving along Pennsylvania Avenue and there were also concerns for pedestrian safety during those demonstrations.
Only later did the government acknowledge that the restrictions were in fact prompted by security concerns. That the case was not about geraniums and motorists, but about the security of the White House, emerged only after litigation was initiated.
These restrictions, quite understandably, raised serious concerns among civil liberties organizations involved in protecting the free speech rights of demonstrators. Arnold & Porter was asked to become a central player in a team of civil liberties litigators challenging these regulations. The team was assembled by Ralph Temple who had been an associate at Arnold & Porter for a number of years before he left to become the chief litigator of the local ACLU.
The plaintiffs were a heterogenous lot: the Quaker Action Group and other main-line anti-war organizations, the Jews for Urban Justice, and the Action Committee on American Arab Relations. We asserted that the numerical limitations unconstitutionally limited our clients' First Amendment rights.
This litigation lasted for almost a decade. It was the subject of five Court of Appeals decisions, as the case shuttled back and forth between an obdurate District Judge who repeatedly granted summary judgment for the government based on its security concerns, and the Court of Appeals where a series of liberty-enhancing opinions by two remarkable judges, David Bazelon and Harold Leventhal, aptly balanced legitimate security concerns for the safety of the President against the need to permit citizens to express their constitutional rights to petition their government. As Judge Leventhal wrote, it is simply "not possible in a democracy for the President [to] be kept in a steel room away from the public."
This extended course of litigation tested whether the courts had the courage to evaluate, and ultimately to disagree with, the strongest judgments of the Director of the Secret Service who stated, in the most categorical terms, that rejecting the 100/500 person limitation would endanger the life and security of the President. He said that groups above those numbers "could jeopardize the ability of the available security forces to contain or control a violent group intent upon entering the White House compound." But making an independent judgment is precisely what Judges Bazelon and Leventhal did, to their credit.
The case finally came to a two-week trial in 1973. The District Court relented somewhat, imposing new limits of 750 demonstrators on the White House sidewalk and 3,000 in Lafayette Park. During the trial both Stuart Udall, President Johnson's Secretary of Interior, and Ramsey Clark, his Attorney General at the time the regulations were first promulgated, supported our case, saying that the regulations were both unnecessary and likely unconstitutional.
On appeal, Judge Leventhal said that the Court was called upon "to exercise a searching and sensitive obligation, to reconcile First Amendment values and the public interest in the security of the White House." In his decision, he sustained the new numerical limits, but said that they were only a minimum and that the Interior Department had to provide a procedure for waiver for larger demonstrations. He also upheld as a constitutional prior restraint a nondiscriminatory permit system for the use of the park area, which included a 48-hour notice of a demonstration. All in all, although our side wanted a clear decision striking down any numerical limits, even prima facie ones, and rejecting the permit system, the outcome was a major victory for First Amendment values.
This protracted litigation established a number of very significant principles.
First, these decisions confirmed that the courts must make their own evaluation of any claims of Presidential security, even if it comes from as responsible an official as the head of the Secret Service. As Judge Bazelon said, "the mere mention of the President's safety must [not be] allowed to trump any First Amendment issues." He said that the courts "must listen with the utmost respect to the conclusions of those entrusted with responsibility for safeguarding the President," but the court "must also insure ourselves that these conclusions rest upon solid facts and a realistic appraisal of the danger rather than vague fears, extrapolated beyond any foreseeable threat." Simply put, "the expertise of those entrusted with a protection of the President does not qualify them to resolve First Amendment issues, the traditional providence of the judiciary."
Second, as a general matter, the Court of Appeals sharply criticized the Park Service for its hostility to using park areas for First Amendment activity. Judge Leventhal wrote that the "use of parks for public assembly and airing of opinions is historic in our democratic society, and one of its cardinal values."
Third, the Court of Appeals concluded, more particularly, that the White House sidewalk and Lafayette Park were a special site for First Amendment activity. These restrictions were not mere "time and place" restrictions which might reasonably be imposed on demonstrators. The Court of Appeals said that one "could not ignore the unique quality of demonstrations in front of the White House from the viewpoint of First Amendment interests." There was "unique symbolism" in demonstrating there. In responding to the government's repeated proposal that large demonstrations, "which all parties agreed to were more attention getting in the public media," should be staged only on the Ellipse or the Washington Monument grounds, Judge Leventhal said "citizens seeking redress of grievances are not unreasonable if they propose to come to the front of the [White] House rather than be shunted to the back door."
Fourth, large demonstrations have their own justification under the First Amendment. We made a powerful case, including testimony from the media, that large demonstrations, particularly in front of the White House, draw more complete coverage. The court agreed, finding that larger demonstrations are a more effective communication device than small demonstrations. Thus, attempting to limit demonstrations to a piddling number necessarily impacts on the content of the message.
The Secret Service had testified that large crowds are a threat to the President. On rebuttal, we put on testimony from Jerry Bruno, a crack advance man for Presidents Kennedy and Johnson, who said that his whole mission was to create immense crowds around the President. We won this point; the Court concluded that the "President faces far fewer risks from even the largest demonstration at the White House than when he moves in a parade, or visits a baseball stadium or makes any sort of public appearance."
I should note that this interminable litigation was not without its lighter moments. I can recall receiving a call at home late one evening from Bill Ruckleshaus, then the head of the Civil Division at Justice, telling me that they had scheduled an emergency hearing before the Court of Appeals at 8:00 a.m. the next morning. He said there were two concurrent demonstrations the next day that posed a severe threat of violence.
When the hearing began the next morning, an excited Assistant U.S. Attorney leaped to his feet and almost shouted:
"Your honor. Your honor. The Arabs are here! And the Jews are coming!"
What had happened was that two smallish groups had applied for permission to demonstrate on the White House sidewalk at the same time. Golda Meir, the Prime Minister of Israel, was then a White House guest. This had all of the makings of a pitched battle - at least in the eyes of the U.S. Attorney.
Alas, all came out for the best. One group demonstrated at 11:00 and the second at 12:00. But the kicker was that the Arab group was in town protesting Meir's Palestinian policy; and the Hasidic Jewish group was also protesting against her Government's autopsy policy. False alarm. Both sides didn't like Meir's policies.
On reflection, it is worth considering how this case would have been resolved today after the Oklahoma City and World Trade bombings, when we are caught in the grip of terrorism around the world. In fact, we are currently facing similar ominous recommendations from the Secret Service in connection with closing down Pennsylvania Avenue in front of the White House. Though the challenges are even more intense, one would hope for a court with judges as dispassionate and sensitive to First Amendment freedoms as David Bazelon and Harold Leventhal to make the call.