16 Dec 1999

Dear Mr. Olson:

i am sending this communicade directly to you as you have a problem in Ben Masel's case which hasn't proved thus far to be a problem in the other cases re the Rainbow Gathering Permit issue, spec. standing. i understand you have already received my first communicade of a few days ago, and hopefully you will receive a second i just sent out for circulation a short time ago. i will pull it up after i send this and try to send you the second communicade directly.

i have some definite thoughts i need to share with you - first i believe that Ben ought to pursue the appeal - my case did not go well in oral argument and i don't expect a favorable decision [not because i am wrong but because i perceive the judges didn't like me, have no idea what a Rainbow Gathering is like [their questions involved Earth First!], and don't understand the regulatory scheme and will just buy the Government's deceptions in this case re how they have been interpreting things all along. therefore, if we are going to win on the terms and conditions argument [and/or administrative appeals process argument], it is going to have to be in a different circuit than the 9th].

First, my communicade on the administrative appeals process is relevant to your argument on standing. The lengthy, actually indefinite, and extraordinarily complicated administrative appeals process precludes prompt judicial review of a F.S. decision re a term or condition [e.g. the "hold harmless" and "holder(s) shall be liable" clauses found in the proffered permits, AND ALSO THE FOREST SERVICE LINE OFFICER'S DECISION AS TO HOW LONG - THE DURATION - THE EVENT WILL BE ALLOWED. IT IS NOT JUST A TERM AND CONDITION DECISION that has to exhaust the administrative. appeals process. The duration decision - how long the Federal Government will allow citizens to exercise their first amendment freedoms and thus limit their right to exercise their first amendment freedoms - is also subject to the administrative appeals process.

Second, the administrative appeals process and lack of prompt judicial review re a term or condition and/or THE DURATION decisions take the case out of the dicta [sic] of Ward and places it squarely into FW/PBS ("Because we conclude that the city's licensing scheme lacks adequate procedural safeguards, we do not reach the issue decided by the Court of Appeals...."

"Although facial challenges to legislation are generally disfavored, they have been permitted in the First Amendment context where the licensing scheme vests unbridled discretion in the decisionmaker and where the regulation is challenged as overbroad."

"In Freedman, we determined that the following three procedural safeguards were necessary to ensure expeditious decisionmaking by the motion picture censorship board: (1)...., (2) expeditious judicial review of that decision must be available; (3)...."] and also into Forsyth County ("It is well established that, in the area of freedom of expression, an overbroad regulation may be subject to facial review and invalidation, even though its application in the case under consideration may be constitutionally unobjectionable.... This exception from general standing rules is based on an appreciation that the very existence of some broadly written laws has the potential to chill the expressive activity of others not before the Court.") If you need me to clarify or have questions about the above, please contact me by e-mail.

Thirdly, the "dicta" in Ward is not even dicta. i don't have Black's Law Dictionary in front of me but i would guess it defines dictum as "a statement of law not necessary to the central opinion of a court, but which is given some weight." i just found a Webster's Dictionary and it defines dictum as "a judicial opinion on a point other than the precise issue involved in determining a case." In Ward, the query about standing isn't even dicta - it is not an opinion but a questioning. "As a threshold matter, IT IS FAR FROM CLEAR that respondent should be permitted to bring a facial challenge to this aspect of the regulation." "..... IT IS OPEN TO QUESTION whether respondent's claim falls within the narrow class of permissible facial challenges to allegedly unconstrained grants of regulatory authority."

Mr. Olson, this is not the language of dictum. this is just raising the question and not answering it. [also note that 5 justices accepted the majority opinion, 1 justice concurred with the result without opinion, and 3 justices dissented in an opinion. thus, it is impossible to guess how any of the 5 justices would answer this open question. Perhaps a total of only 2 - 4 would answer it against standing.

Fourthly, Ward doesn't involve a licensing scheme and that is what differentiate it from Rainbow Gathering cases and the F.S. regulatory scheme. Ward involved a direct city ordinances that essentially said if you have amplified music in our parks, you have to use our [the city's equipment] and our sound person [the city's employee]. it did not involve permits or licensing. That is why the majority opinion, immediately following the above so-called [but non] dicta writes: "Cf. 486 U.S. at 787(White, J. dissenting)(arguing that facial challenges of this type are permissible only where "THE LOCAL LAW AT ISSUE REQUIRE[S] LICENSES -- not for a narrow category of expressive conduct that could be prohibited -- BUT FOR A SWEEPING RANGE OF FIRST AMENDMENT PROTECTED ACTIVITY."

The Forest Service regulatory scheme does not involve a direct ordinance or rule but rather, REQUIRES LICENSES [which an authorization and permit are - a license to do something].

Note also the majority opinion quoting this line from White's dissent and the portion "not for a narrow category of expressive conduct that could be prohibited." Mr. Olson, this is referring to expressive conduct that lawfully and constitutionally is not protected but can be prohibited, e.g. the shouting fire in a crowded theater, a bomb threat on an airplane, obscene materials, etc. what the Court is suggesting in its dicta [sic] is that "excessive sound level" attached to otherwise protected speech is not protected and can constitutionally be prohibited at the level it becomes excessive. The expression, prayer, and association people who attend Rainbow Gatherings engage in involves a sweeping range of First Amendment activities, not unprotected, constitutionally prohibited expression.

Mr. Olson, i just wrote a lot about the Magistrate Judge's analysis of Lakewood, but i lost it. He is suggesting a ridiculous result. i am tired right now so rather than trying to rewrite it now, i am going to take a break. Please e-mail me if you have any questions about what i have written thus far. i will send you a later e-mail re my thoughts about Lakewood in the near future.

i am at your disposal,