Action Needed – Comment NOW! Catharsis On The Mall Releases Critical Comments on National Park Service Proposed Restrictions and Fees for First Amendment Activities on Public Lands

In response to recently released National Park Services proposed rules, Catharsis on the Mall has issued the following critical comments. A 60-day public comment period began on August 15, 2018, for feedback on 14 specific changes to the special regulations of demonstrations and special events in areas of the National Park System and National Capital Region, including all park areas located in Washington, DC. The proposed changes would affect areas most appropriate for promoting a political message, such as on the National Mall, Lafayette Park, and the sidewalk in front of the White House, by:

  • establishing “restricted speech zones”,
  • imposing fees on applicants of permits for First Amendment activity within these areas,
  • limiting the types of materials and structures allowable for First Amendment activities in order to preserve sightlines, grass, and contemplation,
  • enabling the NPS to classify First Amendment expression including celebration, art, music, dancing, and ceremony (sound familiar?) as commercial “special events” which are subject to many additional fees and restrictions.

This would likely have a major impact on the cost and effort to hold a free, public First Amendment-protected vigil like Catharsis on the Mall while also restricting and suppressing artistic free speech. See our full comments below.

Public Comment Period Closes October 15 at 12:00am for Regulation Identifier Number (RIN) 1024-AE45 – Special Regulations, Areas of the National Park System, National Capital Region, Special Events and Demonstrations

No. 1
Remove Several Units From the Applicability of 7.96
No Comment.

No. 2 – Page 16
Revise Definitions of “Demonstrations” and “Special Events” – How might NPS further differentiate between the demonstration element(s) and the special event element(s) of a single activity? What factors should the NPS consider when differentiating between the demonstration and special event elements of a single activity? How should the NPS regulate activities that have elements of demonstrations and special events? The NPS seeks comments on the definitions and treatment of demonstrations and special events. What additional factors should the NPS consider when determining whether an activity is a demonstration or a special event?

The National Park Service’s own Foundation Statement for the National Mall and Pennsylvania Avenue Historic Parks provides that the purpose of National Mall and Memorial Parks is to “[p]rovide opportunities for visitor contemplation, celebration, commemoration, citizen participation, recreation, and demonstration, where the full expression of the constitutional rights of speech and peaceful assembly occur. (Source: DC Circuit Court, U.S. Code, and Code of Federal Regulations.)”

Demonstrations involving multiple participants may have elements of special events, however, many special events will not have elements of First Amendment demonstrations. Thus, if an action involves any First Amendment activity whatsoever — namely, spiritual practices and/or political messages — then it must be given the full protections of First Amendment activities under the definition of a “demonstration.”

Demonstrations include vigils, speeches, music with a message, ceremonies (religious and secular), marches, visual art displays conveying a political message or demand of policy makers, ceremonial fires for spiritual, ritual, and/or political reasons. When any of these elements are present in an event, the entire event should be considered a demonstration. There are other types of demonstrations that have not yet been defined but if they fall under First Amendment activity, they must be protected.

A special event should not have any political intent; seek no social or political change or be protesting government policy, such as concerts, marketing events, weddings, sporting and leisure activities. If admission has been charged, it should be considered a special event.

Additional factors to help distinguish an event is a “demonstration”:

  • If any participants intend to exercise their First Amendment rights.
  • If any political or philosophical message being expressed, or is any spiritual, religious, or ceremonial activity is being exercised?
  • If any group is expressing a minority viewpoint that is not hate speech, extra measure should be taken protect this speech from more popular counter demonstrators

No. 3
Move the Definition of “Structure” to the Definitions Section in 7.96(g)(1)

No Comment

No. 4
Consider Changing the Number of People That Could Take Part in a Demonstration Without a Permit at Specific Locations

If the event does not involve building structures, a permit for First Amendment protected activities involving up to 2500 people in any of the NPS jurisdiction locations should not be required.

In today’s connected age, demonstrations should not be discouraged due to lack of permit as spontaneous demonstrations occur often.

Spontaneous speech by its nature does not make seeking a permit possible. The National Park Service’s own Foundation Statement for the National Mall and Pennsylvania Avenue Historic Parks, which provides that the purpose of National Mall and Memorial Parks is to “[p]rovide opportunities for visitor contemplation, celebration, commemoration, citizen participation, recreation, and demonstration, where the full expression of the constitutional rights of speech and peaceful assembly occur. (Source: DC Circuit Court, U.S. Code, and Code of Federal Regulations.)” Full expressions of free speech are often spontaneous.

This rule change should further encourage spontaneous use of free speech.

Use of mobile sound, placards, and banners should not require a permit as these are common First Amendment materials.

Requiring permits to build structures is reasonable to reserve specific plots of land for the structures, however, structures that are 8’x8’ or smaller in diameter and 10’ tall, including pop-up tents and domes due to their lightweight practical uses in various types of weather should not need a permit.

Groups of 25 or more should have the option to seek a permit in order to preserve their use of the space on a first come first serve basis.

The National Capital Region has more public safety and crowd control resources on hand than perhaps any other locality in the nation, and is more than capable of managing any event or gathering of 2500 people without advance permit notice.

No. 5
Require a Permit for the Erection of Structures During a Special Event or Demonstration Regardless of the Number of Participants

NPS should not require permits for stages that are 8’x8’x3’ or smaller.

The NPS proposed limit of using a 3’x3’x3’ platform is not safe, as speakers could easily fall off, and it is not enough space for potential multiple speakers. While we support the use of “soap boxes” for speakers, we also feel that not requiring permits for a slightly larger stage of 8’x8’x3’ is way to reduce the amount of paperwork associated with small structures. We also see 8’x8’x3’ with a ramp for wheelchair accessibility as minimum size needed for safety. As long as Turf Guidelines are obeyed there is no need for a permit. Furthermore, enforcement of turf guidelines could be made onsite by NPS staff. Mobile sound systems should not require a permit if running off of mobile power sources other than gas generators. Battery and even solar powered sound and lighting systems are quiet, clean, and renewable sources of power. In conclusion, we think certain structures, protest materials, sculptures and signage items should be exempt from requiring a permit smaller if they are 8 feet high or less.

No. 6
Consider Requiring Permit Applicants To Pay Fees To Allow the NPS To Recover Some of the Costs of Administering Permitted Activities That Contain Protected Speech

Any special fee on demonstrations is having to pay a price for free speech.

It is the government’s responsibility to protect free speech activity in public areas. Public use of NPS lands for things other than contemplation should not require a fee for use if it is a protected First Amendment activity.

NPS should see it’s mission for the National Mall to protect it as a crucial venue for political ideas and dissent to exist as the National Park Service’s own Foundation Statement for the National Mall and Pennsylvania Avenue Historic Parks, which provides that the purpose of National Mall and Memorial Parks is to “[p]rovide opportunities for visitor contemplation, celebration, commemoration, citizen participation, recreation, and demonstration, where the full expression of the constitutional rights of speech and peaceful assembly occur. (Source: DC Circuit Court, U.S. Code, and Code of Federal Regulations.)”

NPS’s role serves our government and the people by providing the opportunity to be heard providing its own Foundation Statement. NPS must protect the Mall as a commons for common use for everyone. Costs associated with grass and maintenance should be covered by taxes we all pay already. Special use costs are unfair to low income people and discourage dissent activities.

Fees for First Amendment activities will discourage First Amendment activities from taking place.

Furthermore, paying fees for free speech the benefit to the US Treasury is far less than the cost to our freedoms.

Imagine a group protesting the police being told they have to pay for the police presence for their demonstration or The Poor People’s Campaign being told to pay.

If the government is spending more than desired to support First Amendment dissent, perhaps they should reflect on what decisions and policies are generating this dissent rather than seeking compensation from those being harmed.

As demonstrated by the multitude of public comments opposed to any fees for free speech permitted activities, the relatively small amount of federal revenue represented by these fees is far outweighed by the core constitutional rights that the fees would unnecessarily prohibit. Fees on protected speech also cause a disparate negative impact on speech by those groups that lack access to capital or private funding.

No. 7
Establish Permanent Security Zones at President’s Park Where Public Access is Prohibited

When will it end?

When will the government feel safe enough from its own people?

As local Washingtonians we’ve observed our city divided by road closures and checkpoints as security “needs” have expanded into public spaces.

All Americans should strongly question and oppose the closing of the sidewalks in front of the White House which are traditionally used to allow for people to get a close-up view of the Executive Branch. Demonstrations can be safely held all the way up to the fence as long as Secret Service and NPS police can access the same areas. The presence of police ensures no one will jump the fence and if they try arresting them, it is reasonable. This is common sense. Police can mitigate fence jumpers, but denying people access to the sidewalk treat all the citizens like cattle or criminals, creates a mistrustful atmosphere.

Lafayette Park and the White House Sidewalk are crucial sounding boards for American political discourse. We fundamentally oppose any tightening of restrictions on structures for Lafayette Park or the White House Sidewalk as current rules have diminished First Amendment activities in the Park in recent years. Demonstrators should be permitted to demonstrate within reasonable proximity of the focus of the demonstrators demands. Reasonable proximity should mean within earshot and within site of the focus of the demonstration.

Proposing more restrictions and establishing “permanent security zones at President’s Park where public access is prohibited” run contrary to the National Park Service’s own Foundation Statement for the National Mall and Pennsylvania Avenue Historic Parks, (including Lafayette Park) which provides that the purpose of National Mall and Memorial Parks is to “[p]rovide opportunities for visitor contemplation, celebration, commemoration, citizen participation, recreation, and demonstration, where the full expression of the constitutional rights of speech and peaceful assembly occur. (Source: DC Circuit Court, U.S. Code, and Code of Federal Regulations.)” Establishing restricted speech zones, which include areas most desirable for promoting a political message, takes away “the full expression of the constitutional rights of speech and peaceful assembly” in these areas.

We don’t believe there should be any special rules for Lafayette Park or White House Sidewalk structures as US Secret Service and the NPS may inspect items built on sight for security enhancement without restricting structures. This includes scaffolding towers with First Amendment speech attached, large scale vigils, large scale stages and other First Amendment messaging materials such as burnable effigies, puppets, and free speech sculptures.

No. 8
Establish Additional Restricted Zones at Memorials on the National Mall Where Special Events and Demonstrations Are Not Allowed in Order To Preserve an Atmosphere of Contemplation

The First Amendment allows for the individual to determine when to use speech or to not use speech in order to express themselves. The First Amendment allows for contemplation already in these spaces as contemplation regularly occurs, which is how visitors use these spaces more often than not. Demonstrations at these spaces should not be restricted as those who are being memorialized through these monuments fundamentally valued the right to freedom of expression, whether through contemplation, demonstration, or protest. The government should not force contemplation upon its citizens for this is a paternalistic approach that the founders never intended for their federal government. The only thing this new rule would do is further restrict free speech near these monuments which hold symbolic value for some demonstrations. It is reasonable to assume that currently 99.9% of the time these spaces are used for contemplation without any encouragement from the US Government. We should be expanding freedoms for use of all of these public spaces not reducing them.

These proposed regulations, which would completely eliminate free speech in the affected zones, run contrary to the National Park Service’s own Foundation Statement for the National Mall and Pennsylvania Avenue Historic Parks, which provides that the purpose of National Mall and Memorial Parks is to “[p]rovide opportunities for visitor contemplation, celebration, commemoration, citizen participation, recreation, and demonstration, where the full expression of the constitutional rights of speech and peaceful assembly occur. (Source: DC Circuit Court, U.S. Code, and Code of Federal Regulations.)” Establishing restricted speech zones, which include areas most desirable for promoting a political message, takes away “the full expression of the constitutional rights of speech and peaceful assembly” in these areas. This is unnecessary. The visiting public expects demonstrations and events in these popular areas, and have been sharing the space with demonstrators for centuries. There is no cause for changing this foundational statement and purpose of balancing full speech rights with tourism and contemplation.

In some places, at some times, contemplation will be interrupted. That is the balance struck by the Constitution and the Foundational Statement. However, completely eliminating political demonstrations in these areas so that only contemplation can occur is out of balance.

Law enforcement is already equipped with everything it needs under the law to protect the visiting public from unruly, dangerous, or unlawful activity by demonstrators. There is simply no need to add this additional form of restriction, which radically, completely eliminates First Amendment expression in certain important political zones.

As a balance, we also oppose any effort to create designated “non-contemplative” areas, otherwise known as designated “demonstration” areas.

No. 9
Modify Regulations Explaining How the NPS Processes Permit Applications for Demonstrations and Special Events

If the NPS is unwilling to issue a permit with less than 48 hours notice, NPS decision should not mean that protected speech may not occur. Spontaneous speech by its nature does not make seeking a permit possible. The National Park Service’s own Foundation Statement for the National Mall and Pennsylvania Avenue Historic Parks, which provides that the purpose of National Mall and Memorial Parks is to “[p]rovide opportunities for visitor contemplation, celebration, commemoration, citizen participation, recreation, and demonstration, where the full expression of the constitutional rights of speech and peaceful assembly occur. (Source: DC Circuit Court, U.S. Code, and Code of Federal Regulations.)” Full expressions of free speech are often spontaneous.

No. 10
Adopt Criteria in 36 CFR Part 2 for Reviewing Permit Applications That Apply to Other NPS Areas. Remove Redundant Criteria in 7.96

No Comment.

No. 11
Establish a Maximum Permit Period of 30 Days, Plus a Reasonable Amount of Time Needed for Set Up and Take Down of Structures Before and After the Event

The NPS proposal states that by shortening the maximum length of permits from 4 months to 30 days it will increase use of the National Mall by freeing up sites for additional applicants. However, there are numerous ways around this proposed rule, including having multiple permit applications submitted at once and from multiple people in the same group. Fairly allocating large areas requested should be the goal as many requests do not need wide areas they requested and will ultimately not be used, but are being reserved for possible use by applicants seeking flexibility. Also to extend the permit as noted is more paperwork for NPS and for applicants for no benefit. Rather than arbitrarily restrict the length of permits and simultaneously limit protected speech, the NPS should consider reducing paperwork and working with applicants on the exact time frames applicants want.

Time limits on demonstrations run contrary to the National Park Service’s own Foundation Statement for the National Mall and Pennsylvania Avenue Historic Parks, which provides that the purpose of National Mall and Memorial Parks is to “[p]rovide opportunities for visitor contemplation, celebration, commemoration, citizen participation, recreation, and demonstration, where the full expression of the constitutional rights of speech and peaceful assembly occur. (Source: DC Circuit Court, U.S. Code, and Code of Federal Regulations.)” The full expression of the right to free speech may go on as long as those engaged in the demonstration deem necessary and ought to be protected.

No. 12
Identify locations where structures may not be used, and restrict the height, weight, equipment, and materials of structures when they are permitted during special events and demonstrations.

SIGNIFICANCE OF THE VIEWSHED
The historical and cultural significance of a monument or space is oftentimes the reason why these areas are chosen for free speech demonstrations, given their symbolic value.
Regulating the accessibility to these spaces by restricting the type of expression allowed in these spaces limits free speech and free speech materials.

These proposed regulations, which would completely eliminate free speech in the affected zones, run contrary to the National Park Service’s own Foundation Statement for the National Mall and Pennsylvania Avenue Historic Parks, which provides that the purpose of National Mall and Memorial Parks is to “[p]rovide opportunities for visitor contemplation, celebration, commemoration, citizen participation, recreation, and demonstration, where the full expression of the constitutional rights of speech and peaceful assembly occur. (Source: DC Circuit Court, U.S. Code, and Code of Federal Regulations.)” Establishing restricted speech zones, which include areas most desirable for promoting a political message, takes away “the full expression of the constitutional rights of speech and peaceful assembly” in these areas.

PROPOSED HEIGHT RESTRICTIONS
Up until 2015 there were no height restrictions on the National Mall, but rather specific proposals were reviewed. Traditionally the NPS has tried to accommodate First Amendment events and structures including demonstrations and special events, but in recent years we see open hostility in the form of more restrictive rules on activities. The approach of the NPS towards the National Mall is already unfairly restricting creative expression of organization due to the 45 foot height restriction for temporary structures, which run contrary to the National Park Service’s own Foundation Statement for the National Mall and Pennsylvania Avenue Historic Parks, which provides that the purpose of National Mall and Memorial Parks is to “[p]rovide opportunities for visitor contemplation, celebration, commemoration, citizen participation, recreation, and demonstration, where the full expression of the constitutional rights of speech and peaceful assembly occur. (Source: DC Circuit Court, U.S. Code, and Code of Federal Regulations.)” .

Case in point is the Catharsis on the Mall Vigil held November 2017 which sought a permit to construct a 47.5 foot tall steel figure sculpture of a woman called R-Evolution, by artist Marco Cochrane, that was meant to create awareness around violence against women, other forms of gender-based violence, and gender equality. This timely protest sculpture was originally allowed under our permit with a variance in writing with regard to the height of a few strands of hair over 45 feet. Nearly $40,000 was spent on building a specially-designed base for the sculpture to stand on a hardscape walkway near the Washington Monument in order to satisfy NPS conditions for structural integrity, safety, and protection of the National Mall.

It was approved, despite the immense weight, which a site survey determined would not damage the hardscape of the proposed location of this temporary structure. Logistics to demonstrate proceeded in good faith including hundreds of volunteer hours preparing the sculpture. At the last minute, NPS reversed their decision granting the variance, citing a “mistake”, and provided no compensation for the $40,000 or volunteer time which were wasted (the irony of update #6 above of NPS requesting compensation for activities is not lost on us!).

A Freedom of Information Act (FOIA) request regarding an unrelated environmental matter revealed communications between Secretary Zinke’s office and the wife of former Speaker of the House Newt Gingrich that showed the decision to reverse the written permission by NPS to install the temporary structure by Catharsis on the Mall was political in nature and came from the Secretary’s office.

https://www.huffingtonpost.com/entry/newt-callista-gingrich-nude-statue-national-mall_us_5ad79488e4b0e4d0715cc854

We oppose further restrictions on height and advocate for a continued case-by-case assessment of viewshed impact.

THE TURF RESOURCE AT THE NATIONAL MALL AND MEMORIAL PARKS
We are alarmed by the current turf guidelines and feel they are completely unnecessary and unfair in their current form, which run contrary to the National Park Service’s own Foundation Statement for the National Mall and Pennsylvania Avenue Historic Parks, which provides that the purpose of National Mall and Memorial Parks is to “[p]rovide opportunities for visitor contemplation, celebration, commemoration, citizen participation, recreation, and demonstration, where the full expression of the constitutional rights of speech and peaceful assembly occur. (Source: DC Circuit Court, U.S. Code, and Code of Federal Regulations.)” .

Grass is a renewable resource and is currently being treated by NPS like a wilderness area. Having such a proactive approach to protecting grass is already limiting the occurrence of the full expression of the constitutional rights of speech and peaceful assembly on the National Mall.

Currently, demonstrations and special events are required to use plastic flooring in order to promote photosynthesis while protecting grass. But this approach is extremely cost prohibitive and discourages use of the National Mall. Plastic flooring is currently required by NPS of the permit applicants to protect the turf any time there is going to be probable density of people in a space, i.e., in front of stages, high traffic areas, in front of structures and materials used for free speech.

To give an idea of the cost, Catharsis on the Mall in 2017 rented 6,000 square feet of plastic flooring costing $13,000, which was required based on the estimated number of attendees to the vigil in order to protect grass.

To buy 900 square feet of plastic flooring amounts to $5,000, in addition to the cost of storing the plastic flooring when not in use.

The National Mall is not a cemetery; cemeteries are where only contemplation takes place. It is not a wilderness area nor a protected habitat of any species threatened with extinction. Grass is not wilderness nor threatened with extinction. The National Mall is a man made space meant for the full expression of the First Amendment as provided by the National Park Service’s own Foundation Statement to “..provide opportunities for visitor contemplation, celebration, commemoration, citizen participation, recreation, and demonstration, where the full expression of the constitutional rights of speech and peaceful assembly occur. (Source: DC Circuit Court, U.S. Code, and Code of Federal Regulations.)” Indeed these regulations would threaten to make the National Mall a free speech dead zone.

A less expensive and more First Amendment-friendly alternative would be to replant potentially affected areas after demonstrations and special events with grass seed to restore the turf. The Courts and the US Constitution require the agency to impose the least restrictive means on free speech in order to accomplish its goals. NPS buys this resource in bulk, and could make grass seed available to applicants and NPS could require applicants to purchase it from the agency if damage is caused.

We do agree that there is a time and place for plastic flooring on grass, namely when vehicles are driving on the National Mall and near other Memorial Parks. We have been alarmed over multiple years when we’ve observed NPS vehicles driving all over the National Mall on grass without turf protection as outlined in the turf guidelines including Park Police, garbage trucks and maintenance vehicles. National Park staff should be subject to the same restrictions as applicants in order to set the tone that no one is exempt from these guidelines designed to protect the resources.

In summary to require plastic flooring where people are gathering is overly restrictive of the full expression of First Amendment and any damage that does occur can be mitigated with grass seed.

No. 13
Apply Existing Sign Restrictions (e.g. Supports, Dimensions) in President’s Park to Other Locations Within the National Mall and Memorial Parks and President’s Park

Lafayette

There is a tradition of using large signage on the National Mall and for expressions of free speech in public spaces. Larger signage for free speech is crucial for wide open spaces and easy for law enforcement to inspect.

This rule proposing how to minimize free speech, runs contrary to the National Park Service’s own Foundation Statement for the National Mall and Pennsylvania Avenue Historic Parks, which provides that the purpose of National Mall and Memorial Parks is to “[p]rovide opportunities for visitor contemplation, celebration, commemoration, citizen participation, recreation, and demonstration, where the full expression of the constitutional rights of speech and peaceful assembly occur. (Source: DC Circuit Court, U.S. Code, and Code of Federal Regulations.)” . Other parts of the National mall where greater forms of expression are reasonable should not be restricted if they may or may not end up moving to Lafayette Park and the White House Sidewalk. The protected expressions of free speech should have the potential to be spectacular. NPS should instead be figuring out how to provide for greater expressions of free speech.

No. 14
Minor Changes to 36 CFR 7.96

No Comment

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