UNITED STATES OF AMERICA, PLAINTIFF CRIMINAL NO.: 99-75 ME V. CRIMINAL NO.: 99-76 ME STEPHEN SEDLACKO, ET AL CRIMINAL NO.: 99-77 ME DEFENDANTS
"The following are prohibited:
(k) Use or occupancy of National Forest System land or facilities without special use authorization when such authorization is required."
three circumstances: (1) Authorization is needed if required by an Order entered pursuant to section 261.50, which states that an NFS official can close or restrict use in a described area by general order. This section is not applicable to the present case; (2) Authorization for non-commercial use is required under special circumstances set forth in Section 261.70 which allows for regulations for fire control, disease prevention, protection of roads and trails, and other public safety type circumstances, again, not applicable here; (3) Section 251.50(c)(3) is the circumstance applicable here. A permit for "non-commercial group uses" as defined in Section 251.51 is required. Such "group use" is defined as "an activity conducted on National Forest System lands that involves a group of 75 or more people, either as participants or spectators".
notice of actions on behalf of the group, specific information about the nature and duration of the group use, and "the name of the person or persons 21 years of age or older who will sign a special use authorization of behalf of the applicant".
A. Under 36 C.F.R. §261.10(K) Only The Group, Not Individuals, Is Liable To Citation.
3/ No citation should be necessary to make this obvious point.
4/ In United States v. Johnson, 159 F. 3d. 892 (4th Cir., 1998), the Fourth Circuit had declined an invitation to decide a mens rea element of the offense, giving further threat to the vast potential application of this regulation. The Johnson Court did not, however, consider the argument made here.
B. The Application Of 36 C.F.R. §261.10(K) To Individuals Would Be Unconstitutional Under City Of Chicago V. Morales.
"It is imperative that an individual's decision to remain in a public place of his choice is as much a part of his liberty as freedom of movement inside frontiers". Id. at 1858.
C. The Forest Service Regulations Are Unconstitutionally Vague And Overbroad.
1. "Group Use," As Defined By 36 C.F.R. § 251.51, Is Both Vague And Overbroad.
§251.51 defines "Group Use" as: "an activity conducted on National Forest System lands that involves a group of 75 or more people, either as participants or spectators." The regulation subjects to criminal prosecution the innocent actions of mere spectators. The regulation is sweeping in its breath. It purports to criminalizes, for example: (1) the actions of an elderly couple stopping their car along the roadside, however briefly, to gawk at the gathering; (2) the actions of news reporters in attendance to report on the gathering; (3) even a spectator viewing the gathering at a considerable distance through binoculars. Criminalizing the behavior of spectators is unbounded by any limitations of time or distance. The regulation sweeps such innocent behavior within its ambit for the convenience of Forest Service personnel who are thereby unburdened from making any investigation establishing a spectator's connection with the group. This is exactly the type of regulation that the Supreme Court found unconstitutional in City of Chicago v. Morales, supra. Regulations cannot simply forbid being in a public place. Robinson v. California, 370 U. S. 660 (1962). Nor vest such unfettered discretion in public officials. City of Lakewood v. Plain Dealer, 486 U. S. 750 (1988); Naturalist Society v. Fillyaw, 858 F. Supp. 1559 (SD Fla. 1994).
"There's glory for you!" I don't know what you mean by "glory"," Alice said. "I meant, "There's a nice knock-down argument for you!" "But "glory" doesn't mean a nice knock-down argument", Alice objected. "When I use a word," Humpty Dumpty said in a rather scornful tone, "it means just what I choose it to mean,--neither more nor less." Through the Looking-Glass, Ch 5, Lewis Carroll.
2. The Permit Process Contained In 36 C.F.R. § 251.54 (e)(2)(E) and §251.54(h)(viii) Is Overbroad.
group. Nor would self-designation by an individual, with a
wink and a nod to the regulations, be advisable since every statement
to a federal employee in an official matter is subject to prosecution,
and imprisonment for up to five years, if untrue. 18 USC §1001.
The permit application introduced at trial by the Government carries
just such an explicit warning. Government Exhibit 6, pg. 2.
Aside from its irrelevancy, under the statutory scheme, the issue of whether the Defendants' were leaders or organizers glosses over distinctions in the multiple meanings of the term "leader." A leader may be one who merely leads or guides or one who is in charge or command. American Heritage College Dictionary, third ed. 1993, Houghton Mifflin Co. A leader who merely leads or guides does so by the consent of, but without authority over, those who voluntarily and perhaps temporarily choose to follow. A leader who is in charge or command, such as an employer or military officer, has authority over those under his charge or command. A leader in charge or command almost always has coercive power over those required to follow; such coercive power may take the form of execution, imprisonment, fine, discharge or expulsion from the organization. Nothing in the evidence establishes that any of the Defendants' were leaders "in charge or command" sufficient to give them the inherent authority to apply for a permit on behalf of the group and bind the group members to the permits terms and conditions .
5/ The Defendants contend that the Forest Service winks and nods at this requirement when it suits the agency. Materials concerning sham permits were offered at the trial and excluded by the Court as irrelevant. Should the Court, after reading this Memorandum, find such material relevant the Defendants are prepare to prove this fact.
6/ For one individual's view of what it means to be a "Rainbow" and the matter of leadership, see: "Take Us to Your Leader!" by Stephen Wing. Gov. Ex. 7, pages 10-15. App. A, attached.
don its regulatory straightjacket as a precondition to gathering on public lands. This is not constitutionally permissible. By excluding those mistrustful of authority, by excluding those unwilling to join a group, by excluding those unwilling to surrender their individual autonomy to the group, the Forest Service regulations impermissibly infringe on the rights of individual speech, assembly and association protected by the First Amendment.
perceives to be leaders, organizers or otherwise disfavored. Third, through the vehicle of "regulatory regimentation" it affords the Forest Service an opportunity to "bend, fold, spindle and mutilate" the individuality of those who attend the Rainbow Gathering by requiring the individuals to fall into formation, shape up and act like a proper organization - all as the Forest Service deems a proper organization should be and act. The Founding Fathers decision to grant First Amendment rights of speech, assembly, association, and worship to individuals is a rather untidy result, untidiness the Forest Service does not wish to deal with . No legitimate goal of the Forest Service is furthered by the signature requirement; every concern of the Government can easily be accommodated with a permit system not including the signature requirement . The Agency's insistence on this "designated" signature, of questionable efficacy, is but a bureaucratic demand by the sovereign's "liege lord" for a symbolic act of fealty from the sovereign's lesser subjects.
8/ The report of Mike Lowry, Incident Commander, for a 1997 Rainbow Gathering recommends: " [I]t's time to recognize the legitimate use of the National Forests for large gatherings and redeem our responsibilities '" Defendants' Exhibit D, page 3.
3. The Signature Requirement Contained In The Forest Service Non-Commercial Group Use Permit Process, 36 C.F.R. §251.54 (h) (viii), Is Designed To Impose Upon The "Group" (and ultimately the Signer) Certain Liabilities Which Would Not Otherwise Exist, 36 C.F.R. §251.56(d) And §251.56(d)(2). The Chilling Effect Of Imposing Group Liability In A First Amendment Context Renders The Permit Scheme Unconstitutional.
9/ Support for this assertion is found in Defendants' Exhibit D, page 6.
10/ The quoted phrase appears, verbatim, numerous times throughout the Department of Agriculture's response to comments in the final rulemaking. 60 Fed. Reg. 45258-95. Yet nowhere is there any indication of just what the Department might mean by "actions of its members as a whole" or even of how the Department believes that group "members" can be identified in situations such as a musical concert, cf. Ward v. Rock Against Racism, 491 U.S. 781 (1989), where an audience gathers to hear a performance without joining any organization and without voluntarily submitting to the discipline of any private central leadership which would not otherwise exercise any legal authority over those in the audience. The Defendants gather with others under circumstances which do not involve the submission by gatherers to any central authority. Whether the Government wants to admit it or not, imposing "group liability" under such circumstances amounts to nothing more than holding some individuals responsible for the actions or omissions of other individuals.
It is not appropriate or necessary for each member of a group to sign a "special use" authorization. It is also not appropriate or necessary for one member or a few members of a group to assume personal responsibility for the actions of other group members. Individual group members are personally responsi-ble for their own actions. A person who signs a "special use" authorization for a non-commercial group use acts as an agent for the group but does not assume personal responsibility for the group's actions.
However, it is appropriate and necessary to ensure that a group will be responsible for the actions of its members as a whole that relate to the use and occupancy of the National Forest System lands by requiring a person or persons to sign a "special use" authorization as an agent or representative of the group. Requiring that a person or persons sign the "special use" authoriza-tion on behalf of the group will not weaken the group's solidarity; on the contrary, this require-ment can serve to enhance the group's solidarity by ensuring that the group will take responsibility for its actions. By signing a "special use" authorization on behalf of the group, the agent or representative gives the authorization legal effect and subjects the group to the authorization's terms and conditions.
60 Fed. Reg. 45274. The Government cannot and does not now disclaim this purpose as a principal motivation for the challenged signature requirement.
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.
West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642 (1943). Citizens, and other individuals for that matter, remain free to decide for themselves when a "group's solidarity" is worth enhancing and, if so, just how to attempt to do that. Even more importantly, it is also worth noting that the quoted opinion is astonishingly naive concerning the effects of vicarious liability relationships within expressive associations or assemblies. This naiveté is quite remarkable - not to say disappointing - in light of the fact that asserted vicarious responsibilities within expressive associations and assemblies have expressly concerned the United States Supreme Court for over 60 years. See, e.g., NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982); DeJonge v. State of Oregon, 299 U.S. 353 (1937). Indeed, it is quite significant that, while the final rulemaking analysis gleefully and repeatedly recites the constitutional test for time, place, and manner regulation of expression and religious exercise, e.g. Fed. Reg. 45259-60, and while it often asserts the legitimacy and substanTiality of some of the interests which it offers in support of the final rule, e.g. Id. at 45262, it pays no attention whatsoever to the restrictions which the First Amendment imposes upon the assertion of vicarious liabilities within expressive associations or assemblies. Anyone familiar with the full scope of our contemporary First Amendment jurisprudence is left with the inescapable conclusion that the Department simply missed an important constitutional issue in its final rulemaking analysis.
11/ Throughout this analysis, and generally throughout this brief, the term "association" is used in its more abstract sense of a banding together of individuals rather than in its more concrete sense of an identifiable entity created by individuals and then deliberately endowed with a legal existence of its own. In the sense used here, and indeed in the cited cases as well, a card game, a meeting, a political rally, or a parade are each examples of an expressive association. See, e.g., Hurley v. Irish-American Gay Group of Boston, 515 U.S. 557 (1995). So too, in this same sense, are the Defendants' gatherings. Thus as used here, the term "association" is generally inter-changeable with "assembly" as that term is used in the cases and in the First Amendment.
constitutional protection merely because some members of the group may have participated in conduct or advocated doctrine that itself is not protected," "[c]ivil liability may not be imposed merely because an individual belonged to a group, some members of which committed acts of violence"); DeJonge v. State of Oregon, 299 U.S. 353, 365 (1937)("peaceable assembly for lawful discussion cannot be made a crime. The holding of meetings for peaceful political action cannot be proscribed. Those who assist in the conduct of such meetings cannot be branded as criminals on that score"); see also Stromberg v. State of California, 283 U.S. 359 (1931)(invalidating individual's conviction for waving red flag). It was for this very reason that the Supreme Court eventually invalidated applications of the criminal syndicalism laws which made it unlawful to join any organization which advocated the forcible overthrow of governments, DeJonge at 365-66, and it was this principle which also came to protect teachers, Shelton v. Tucker, 364 U.S. 479, 485-87 (1960), labor organizers, see, e.g., Hague v. C.I.O., 307 U.S. 496, 512 (1939), and even early civil rights workers from the taint of their "communist" associations, Herndon v. Lowry, 301 U.S. 242, 259-61 (1937). The First Amendment thus requires that, in the context of expressive associations and assemblies, any individual responsibility must be genuinely personal to the individual and not vicariously derived from an association or from other individuals who participate in the same group. Any other result would surely chill virtually all expressive association and assembly out of existence.
An individual associating with others, especially for political purposes, can never be entirely sure of the complete agenda which other individuals bring to their common association, and he or she cannot be held responsible if others eventually sway a political meeting in directions which he or she has never endorsed, cf. Whitney v. State of California, 274 U.S. 355, 375 (1927)(Brandeis, J., joined by Holmes, J. concurring in opinion vindicated in Brandenburg v. State of Ohio, 395 U.S. 444, 447 (1969)) (arguing Ms. Whitney could not be convicted for participating in meetings which adopted militant platform over her active opposition).
for the frolics of its members. Political and religious associations are no more capable than individuals of assessing the complete agenda of each person who offers support for their cause.
course of nearly 40 dense pages of analysis in the Federal Register) that it had any idea of what it was doing, it decided to impose, by a peculiar requirement that an agent or representative sign the "special use" authorization itself, some sort of unexplained blanket liability upon a user "group" for the unspecified actions of its "members."
12/ Since the Government has not even attempted in this case to outright prohibit the use of National Forest lands by "groups," such as those composed of the religious pilgrims or the concert audience referenced in the text, which do not have "members" or "representatives" in any legally meaningful sense, this Court need not decide whether it has the constitutional power to do so. Consideration of the examples suggested here, in light of the First Amendment analysis in Ward indicates, however, that the Government could not do so. Especially in the context of a prior restraint, the Government cannot accomplish here by indirection what it could not do directly.
A. The First Amendment Prohibits The Enforcement Of The Government's Non-Commercial Group Use Regulations Against The Expressive And Religious Gatherings.
expression and religious exercise. Cf. Cornelius v. NAACP Legal Defense and Education Fund, 473 U.S. 788, 800 (1985); Perry Education Association v. Perry Local Educators' Association, 460 U.S. 37, 45-46 (1983). 13/ For these reasons, this Court must review the portions of the Forest Service administrative regulations challenged here under the heightened scrutiny required by the First Amendment. City of Los Angeles v. Preferred Communications, Inc., 476 U.S. 488, 496 (1986) ("[w]here a law is subjected to a colorable First Amendment challenge, the rule of rationality which will sustain legislation against other constitutional challenges typically does not have the same controlling force.")
13/ "Wherever the title of street and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for the purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens." Hague v. C.I.O., 307 U.S. 496, 515 (1939)(Roberts, J, joined by Black, J., lead opinion). The Government offered no reason, in its final rulemaking, suggesting that the National Forests are any less a traditional public forum for expression and religious exercise than the public park to which Justice Roberts long ago referred.
(I) The Challenged Regulations Cannot Stand As Time, Place, And Manner Restrictions On Expression Because The Authorization Signature Require-ment Is Substantially More Burdensome Than Necessary To Achieve Any Legitimate Governmental Objective.
its time, place, and manner regulation "are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way"); Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 777 (1986)(citing City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), as a case where government properly bore burden of justifying time, place, and manner regulation); Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 n. 5,(1984)("it is common to place the burden upon the government to justify impingements on First Amendment interests"). 14/
14/ Given the Government's own admission in its Trial Brief, pg. 4, that intermediate First Amend-ment time, place, and manner scrutiny is appropriate in this case, the Defendants have discharged their threshold burden to establishing "that the First Amendment even applies." Id.
Rather, the requirement of narrow tailoring is satisfied "so long as the . . . regulation promotes a substantial government interest that would be achieved less effectively absent the regulation. United States v. Albertini, 472 U.S. 675, 689, 105 S.Ct. 2897, 2906, 86 L.Ed.2d 536 (1985); see also Clark v. Community for Creative Non-Violence, supra, 468 U.S. at 297, 104 S.Ct. at 3071. To be sure, this standard does not mean that a time, place, or manner regulation may burden substantially more speech than is necessary to further the government's legitimate interests. Government may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals. See Frisby v. Schultz, 487 U.S. at 485, 108 S.Ct. at 2502 ("A complete ban can be narrowly tailored but only if each activity within the proscription's scope is an appropriately targeted evil"). So long as the means chosen are not substantially broader than necessary to achieve the government's interest, however, the regulation will not be invalid simply because the government's interest could be adequately served by some less-speech-restrictive alternative.
Id. at 799-800 (1988)(footnote omitted). 15/ Thus while the Government is not required to adopt the least restrictive time, place, and manner regulation imaginable, it is not free to adopt an unduly broad or burdensome regulation in the guise of a time, place, and manner regulation. Even where the Govern-ment can establish that its regulation is actually aimed merely at the time, place, and manner of expression or religious exercise, its regulation will fail the "narrowly tailored" requirement if the ________________________________
15/ The Supreme Court's formulation that "the requirement of narrow tailoring is satisfied so long as the . . . regulation promotes a substantial government interest that would be achieved less effectively absent the regulation," Ward at 799 (internal quotation marks omitted), certainly does not mean that the government may seriously restrict or burden expression in order to make its enforcement of other laws easier. That Court long ago rejected, for instance, a law which prohibited leafleting in order to prevent littering. Schnieder v. State, 308 U.S. 147 (1939). Given the prohibition's substantial impact upon expression, the First Amendment required that the state be left with the admittedly more difficult requirement of enforcing the littering laws on an individualized basis. Id. at 163.
Government has rejected or overlooked alternatives which fully serve its significant interests while imposing substantially less burden upon expression or religious exercise. 16/
16/ The specific outcome in Ward is not to the contrary. In that case, the United States Supreme Court accepted the challenged requirement as narrowly tailored only because of the trial court's finding that the control over music volume by a city designee did not meaningfully interfere with or burden the challengers' musical expression. Id. at 801-802. "If the city's regulatory scheme had a substantial deleterious effect on the ability of bandshell performers to achieve the quality of sound they desired, respondent's concerns would have considerable force." Id. at 801 (emphasis added). The Defendants here alleged that the requirement that an agent or representative of the group sign the "special use" authorization itself is substantially more burdensome of their expression and religious exercise than obvious alternatives available to the Government.
17/ The Government may also have a related interest in the challenged signature requirement: it might hope that the signature of a prominent gatherer on the authorization will help its officials to encourage other gatherers to abide by written restrictions contained in the authorization which the Government could not otherwise enforce directly against gatherers. But this interest in imposing ad hoc regulations upon expressive associations and assemblies and in essentially compelling a signer to express agreement with those regulations raises both prior restraint and strict scrutiny. This potential interest is thus addressed infra.
the Government can assert, that warrants any kind of signature requirement at all is the interest in preventing fraud in connection with a request to use National Forest land. But this interest can be fully served, indeed better served, by requiring that an individual requesting such use sign a statement, in his or her individual capacity attesting to the truth of any information provided in connection with an application for such use. 18/ Cf. Buckley v. American Constitutional Law Foundation, Inc., 67 U.S. Law Week 4043 (January 12, 1999)(rejecting, as unduly burdensome, government's preferred method for guarding against potential fraud).
18/ The fact that the current regulations do not require that application for a "special use" authorization for a non-commercial group use be signed by anyone at all, 36 C.F.R. § 251.54(e)(1) and (e)(2)(E), indicate just how poorly the Government thought through its legitimate interests.
19/ This Court should avoid a determination that the
challenged regulations offer ample alternate avenues for expression
merely because they do not purport to regulate expression which
occurs outside of National Forests. Other things being equal,
speakers and worshippers have their choice of forum, and it has
long been recognized that expression at one location cannot be
limited simply because other locations remain available. Schnieder
v. State, 308 U.S. 147 (1939). Given the Forest Service's and
the United States vast land holdings there are few other venues
in which 20,000 or more people may gather.
(II) The Challenged Regulations Impose An Unconstitutional Prior Restraint Upon Expression Because, In A Number Of Subtle Ways, They Leave Forest Service Officials With Impermissibly Broad Substantive And Procedural Discretion In Determining Whether To Permit Expression.
(1) The Forest Service regulation permitting the authorizing officer to attach unspecified terms and conditions to the permit to "otherwise protect the public interest." This reserves unbounded discretion to government officials and impermissibly infringes on First Amendment guarantees. 36 C.F.R. §251.56 (a)(2)(vii). (This provision alone is sufficient to void the permitting scheme). City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 759 (1988); Naturalist Society v. Fillyaw, 858 F. Supp. 1559 (SD Fla. 1994).
(2) The Forest Service regulations governing the granting of a permit with terms and conditions the applicant believes to be overly restrictive are devoid of prompt and meaningful judicial review. The permit applicant is required to navigate the labyrinth of the administrative appeals process before being entitled to judicial review. 36 C.F.R. §251.80 through §251.102, especially §251.101 (requiring exhaustion of administrative remedies).
(3) The Forest Service regulations permitting revocation of a non-commercial use permit, even after it has been granted, for any reason it could have been denied initially. 36 C.F.R. §251.60(a)(1) (A). While the regulations acknowledge the right to judicial review upon revocation of a non-commercial use permit, no provision is made for maintaining the status quo during the review process. Further, the burden of seeking court review is placed on the applicant not the agency, as is required. 36 C.F.R. §251.60. The efficacy of judicial review to a large assembly in the forest is subject to doubt.