NATIONAL PARK SERVICE ADMINISTRATIVE POLICIES for the Recreation Areas of the National Park System

UNITED STATES
DEPARTMENT OF THE INTERIOR
Office of the Solicitor
Washington, D.C. 20240

March 23, 1965

Memorandum

To: Secretary of the Interior
From: Solicitor
Subject: Regulations prohibiting public gatherings: 36 CFR sec. 3.22

I gave my opinion orally that it would be contrary to law to refuse to grant a permit for a public meeting in Lafayette Park in the City of Washington on Sunday afternoon, March 14, 1965. This memorandum is for the purpose of giving that opinion in writing and stating my reasons therefor.

36 CFR sec. 3.22 reads as follows:

Parades, public gatherings of any kind, and the making of speeches are prohibited in the following places because of traffic conditions, or because the particular purpose to which the area is primarily devoted makes its use for public gatherings contrary to the comfort, convenience and interest of the general public:

(a) Lafayette Park.
(b) . . .

The First Amendment of the Constitution of the United States expressly forbids legislation by Congress "abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for redress of grievances."

Any authority the Secretary of the Interior has to promulgate Regulations is by delegation from Congress. Any limitations on the power of the Congress to legislate would follow such delegation and limit the power of the Executive Branch.

The Supreme Court has recognized that governments must have police power to prevent violence and to protect the safely of persons, property, and other important public and private interests. Such police power, however, cannot justify denial to anyone of the rights guaranteed by the First Amendment merely because such denial tends to prevent the disorders feared. To hold that all speech or any speech can be suppressed or that all gatherings or any gatherings can be forbidden because speech and public gatherings might start arguments or disrupt traffic, all of which might result in someone being inconvenienced or being made uncomfortable, would make the guarantees of the Bill of Rights empty phrases without force.

The Regulation forbidding meeting in Lafayette Park in Washington has been supported on the ground that Lafayette Park is too close to the White House, and good taste requires more reverence and decorum in that place.

But the White House is the residence and office of the President of the United States, head of the Executive Branch of the Government referred to in the First Amendment. It is reasonable to suppose that the First Amendment was intended to include just such assemblies and it cannot be fairly construed to defeat their purpose by requiring them to be held out of sight and hearing of the very person to whom such petitions are directed.

A general revision of National Park Service Regulations has been underway for some time. New Regulations respecting public gatherings will eventually be submitted for your approval. Meanwhile, 36 CFR sec. 3.22 must be held to be unconstitutional. Permits must be granted—on terms substantially in accord with those included in the permits issued for the meeting last March 14th, and meeting the standards of Sec. 3.23 (a) and (b).

FRANK J. BARRY, Solicitor