Whenever the Government decides to implement any regulation of expression or religious exercise by means of a system, which requires that the speaker or worshipper obtain official approval in advance of the expression or religious exercise, the Government must demonstrate that its regula-tory scheme satisfies the very rigorous constitutional scrutiny applied to prior restraints. While prior restraints upon expression are not invalid per se, Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 n. 10 (1963), they all come before the courts bearing a "heavy presumption against [their] consti-tu-tional validity." Id. at 70; Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 558 (1975).

The presumption against prior restraints is heavier - and the degree of protection broader - than against limits on expression imposed by criminal penalties. Behind the distinction is a theory deeply etched in our law: a free society prefers to punish the few who abuse rights of speech after they break the law [rather] than to throttle them and all others beforehand. Id. at 559 (emphasis in original).

Beyond this, it is well settled that any system requiring a license, permit, or similar official authorization in advance of expression, religious exercise, or "conduct commonly associated with expression" carries a serious danger of censorship. City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 759 (1988). Whenever a licensing official has the authority to permit or deny expression or religious exercise in advance on a case-by-case basis, the law recognizes the danger that that official may base the licensing decision on an official or even a personal distaste for the message to be conveyed or the religion to be practiced. Forsyth County v. Nationalist Movement, 505 U.S.


123, 130, (1992). Furthermore, the law recognizes two additional constitutional difficulties presented by a system of prior restraint. First, the very possibility of close, unfettered pre-expression administrative review may chill the willingness of some potential speakers or worshippers even to apply for official permission. Lakewood at 757-58. Second, even if a willing applicant submits an application and even if the licensing official unconstitutionally denies that application because of official or personal distaste for the content of the expression or religious exercise, it will generally be quite difficult to identify such surreptitious censorship unless a reviewing court can measure the reasons for the licensor's decision against established criteria for issuance or denial of the permit in question. Id. at 758.

For these reasons, whenever a government decides to further its substantial or compelling concerns by requiring an advance license for expression, religious worship, or conduct commonly associated with either, the licensing scheme must contain "narrow, objective, and definite" substantive standards to constrain licensing discretion. Nationalist Movement at 131; Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150-51 (1969). The courts cannot simply rely upon the good faith of the government officials involved to avoid unconstitutional censorship, Lakewood at 770; the objective standards narrowly constraining the licensor's authority "must be made explicit by textual incorporation, binding judicial or administrative construction, or well-established practice." Ibid.


Just as the First Amendment requires that all constitutionally valid prior restraint systems be fettered by objective standards to minimize the risk of improper censorship by official denial of a permit necessary for expression or religious exercise, so too must they contain strict procedural standards to insure that a licensing official cannot accomplish by inaction what he or she could not constitutionally accomplish by an actual decision of a license application. Accordingly, in order to rebut the "heavy presumption" that its prior restraint upon expression or religious exercise is unconstitutional, the government must show that the licensor bears the burden of justifying any administrative denial of a permit and that the prior restraint system provides, "by statute or authoritative judicial construction that the [licensor] will, within a specified brief period, either issue a license or go to court to restrain" the planned expression or religious exercise. Freedman v. State of Maryland, 380 U.S. 51, 58-59 (1965); see also Riley v. National Federation of the Blind, 487 U.S. 781, 802 (1988).

It is well-settled that, in the absence of the foregoing substantive and procedural constraints, a prior restraint scheme poses such a serious threat of unconstitutional censorship that it is invalid on its face. It makes little difference whether a facial challenge to a prior restraint system is permitted because every application of the permit requirement poses an unacceptable risk of impermissible censorship or because the unfettered official substantive or procedural discretion will deter some parties from even applying for a permit and, thus, result in some unnecessary self-censorship, compare Members of the City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 797-98 (1984), with Id. at 798-800. For either reason, it has long been established that "a person faced with such an


unconstitutional licensing law may ignore it and engage with impunity in the exercise of the right of free expression for which the law purports to require a license." Shuttlesworth v. City of Birmingham, 394 U.S. 147, 151 (1969)(footnote and citations omitted); see also City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 755-62 (1988); Thornhill v. State of Alabama, 310 U.S. 88, 97 (1940). Thus, where a prior restraint upon expres-sion or religious exercise is involved, "one has standing to challenge a statute on the grounds that it delegates overly broad licensing discretion to an administrative office, whether or not his conduct could be proscribed by a properly drawn statute, and whether or not he applied for a license." Freedman v. State of Maryland, 380 U.S. 51, 56 (1965).

The Government's requirement that each non-commercial group use apply for, receive, and sign a special use authorization before using National Forest lands cannot survive as a prior restraint upon the Defendants' expression and religious exercise on that land. As detailed supra, a requirement for advance official permission for expression and religious exercise can be enforced only if the discretion of the licensor is fettered by "narrow, objective, and definite" substantive standards, Nationalist Movement at 131; Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150-51 (1969), and strict procedural standards, Riley v. National Federation of the Blind, 487 U.S. 781, 802 (1988); Freedman v. State of Maryland, 380 U.S. 51, 58-59 (1965), governing the issuance or denial of an application for such permission. City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750


(1988). Since another court has previously advised the Government of these requirements, see United States v. Rainbow Family, 695 F. Supp. 294, 314 (E.D. Texas 1988), the Government has, in many particulars, circumscribed its official's discretion as the constitution requires. 20/ Again, however, the Government's irresistible urge to impose a "blanket" group liability upon any set of more than 74 individuals using National Forest land for a common purpose led it to run seriously afoul of settled constitutional requirements.

20/ There are some respects in which the Government's efforts turned out to be more apparent than real. Recognizing the constitutional requirement of prompt administrative action on applications for advance permission for expression or religious worship, for instance, the Government now requires its administrators to evaluate such an application within 48 hours of its submission. 36 C.F.R. § 251.54(f)(5). Indeed, the current regula-tions effectively provide that an authorization is automatically granted unless the authorized officer denies the application within the allotted time. Ibid. This indeed appears to guarantee prompt administrative processing. The Government, however, then subtly undoes these apparent guarantees by providing that, even if an administrator affirmatively grants an authorization within the allotted period, he or she may later revoke it for any reason which would have permitted denial in the first place. 36 C.F.R. §§ 251.54(f)(5), 251.60(a)(1)(A) (for any reason it could have been denied initially). The constitutional prior restraint requirements are not designed to promote administrative gamesmanship. There is simply no point to a requirement that an official grant an authorization within 48 hours if he or she can then spend the following days or weeks searching for a reason - which could not be found within the allotted time - to deny an authorization. Indeed, revocation of an already issued authorization would pose additional very substantial logistical, safety, and other issues in the context of the large, remote gatherings, which the Defendants attend.

In a similar vein, the Government recognizes the constitutional requirement that any decision of its administrators be subject to prompt judicial review. It has thus expressly provided that a denial of an application for a "special use" authorization for a non-commercial group use is a final administrative action, subject to judicial review - if the applicant takes the Government to court. But that provision falls short of the clear constitutional requirement that regulations provide, expressly or by "authoritative judicial construction that the [licensor] will, within a specified brief period, either issue a license or go to court to restrain" the planned expression or religious exercise. Freedman v. State of Maryland, 380 U.S. 51, 58-59 (1965)(emphasis added). The requirement that the Government bear the burden of initiating judicial review of any adverse administrative action is an important one, see Riley v. National Federation of the Blind, 487 U.S. 781, 802 (1988), because it ensures that one wishing to speak or worship will not simply be discouraged by an improper administrative denial and simply take his or her expression or worship elsewhere or try another time. Freedman at 59. This result would deprive many of the benefits of a gathering which would have otherwise occurred at a time and place making it possible for them to attend. Although there are circumstances under which the First Amendment does not require the licensor to bear the burden of initiating court action, FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 229 (1990), this is not one of them. Absent the challenged regulations, the gatherings of the type, which the Defendants attend, occur several times and in several National Forests each year. For this reason, the dangers, which led the Supreme Court to articulate this requirement, are fully present here. The frequency of the gatherings, and the attendant danger that one might be abandoned in the face of an adverse administrative ruling does require that the Government bear the burden of going forward to court, just as in Freedman.


There is little point in closely fettering administrative discretion in processing an application for advance official permission for expression or religious worship if the issuing official retains the unbridled discretion to place whatever restrictions, conditions, or burdens he or she chooses into the permit itself. 36 C.F.R. § 251.56 (a)(2)(vii) contains just such unfettered discretion in allowing the Forest Service to impose unspecified terms and conditions into a permit to "otherwise protect the public interest." In the ordinary case, where a parade, meeting, or similar permit merely authorizes the requested expression or worship at a particular time and place, specifies conditions and limitations imposed as a result of existing law, and simply reminds the holder that those in attendance will be subject to all other existing statutes, regulations, and requirements, the specific content of the permit itself is unlikely to pose any additional danger of the type inherent in any system of prior restraint. Here, however, by the Government's own admission, the special use authorization is intended to accomplish a very different purpose. The final rulemaking analysis repeatedly states, though it never even begins to explain, that the agent's signature "gives the authorization legal effect." E.g. 60 Fed. Reg. 45274. This may well be true of the issuing official's signature, but it simply cannot be true of the user's agent's signature unless the authorization is designed to impose upon the using group some requirements, conditions, and obligations which the Government could not enforce against anyone


absent the group's acquiescence. This Court need not reach the issue of whether and when the Government can insist on such additional requirements, conditions, and obligations, and it need not decide whether the Government can ever impose wholly new obligation as part of an official authorization to speak or worship. In this case, it suffices to invalidate the current regulations as prior restraints that the Government has expressly announced its intentions and deliberately designed its special use authorizations to impose an unspecified "group" liability, which would not otherwise exist, 21/ on expressive or religious associations and assemblies. Quite apart from the "precision of regulation" which is always required in connection with imposing vicarious liabilities within expressive associa-tions and assemblies, cf. NAACP v. Claiborne Hardware Co., 458 U.S. 886, 916 (1982), the First Amendment requires that prior restraints be fettered in all of their particulars which pose a danger of arbitrary official censorship. The current regulations may envision some sort of "group" liability but they do not directly impose it. Instead, they leave each issuing official free to prescribe the conditions and extent of liability on a case-by-case basis in each authorization, even as previous speakers and worshippers come back for additional authorizations for additional gatherings. This is precisely the danger of a prior restraint system. City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 759-60 (1988)(invalidating annual re-licensing of newspapers' news racks by mayor). It is precisely why all such systems are presumptively unconstitutional. Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 558 (1975).


21/ If the Government could enforce all of the conditions in the authorization without anyone's further consent, as it can all existing laws which apply in the National Forests, then there is simply no need for any user's signature on the authorization and no sense in which any such signature is necessary to give the authorization legal effect. And given the recognized burden imposed upon expressive association by the imposition of vicarious liability even for nonexpressive acts, NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982), the Government's limitation of the permit conditions to nonexpressive matters does not save the regulations from the Defendants' challenge.


(III) The Authorization Signature Requirement Is Properly Subject To Strict Constitutional Scrutiny Because It Is Targeted At The Defendants And Those With Whom They Gather.

The challenged regulation is deliberately aimed at a particular set of speakers and worshippers, the Defendants among them, who have a long history of exercising their constitutional rights on National Forest lands. Where the Government has targeted expression or religious worship because of its message or because of the identity of the speakers or worshippers, its regulations and actions are subject to the "most exacting scrutiny" when reviewed by the courts. Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622, 642 (1994). "Regulations which permit the Government to discriminate on the basis of the content of the message cannot be tolerated under the First Amendment." Simon & Schuster, Inc. v. Members of the New York State Crime Victims' Board, 502 U.S. 105, 116 (1991); see also Carey v. Brown, 447 U.S. 455 (1980)(invalidating residential picketing statute which permitted labor picketing but prohibited picketing on all other subjects); Police Department of the City of Chicago v. Mosley, 408 U.S. 92 (1972)(invalidating school picketing statute for same reason). "In the realm of private speech or expression, government may not favor one speaker over another." Rosenberger v. Rector & Visitors of the University of Virginia, 515 U.S. 819, 828 (1995); see also


Neimoko v. State of Maryland, 340 U.S. 268, 272 (1951)(invalidating permit refusal where "[t]he conclusion is inescap-able that the use of the park was denied because of the City Council's dislike for or disagreement with the [Jehovah's] Witnesses or their views.").

Ordinarily, the Government's motivation is judged to be content-based or content-neutral on the face of the challenged regulation itself, see Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622, 642 (1994), citing Frisby v. Schultz, 487 U.S. 474, 481 (1988), but cases are legion where the courts are required to look behind the mere words of the challenged regulation or government action, see, e.g., Turner at 645-46, citing United States v. Eichman, 496 U.S. 310, 315 (1990)("[a]lthough the Flag Protection Act contains no explicit content-based limitation on the scope of prohibited conduct, it is nevertheless clear that the Government's asserted interest is related to the suppression of free expression"); Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 534 (1993) ("Official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality. The Free Exercise Clause protects against governmental hostility which is masked, as well as overt"); see also L. Tribe, American Constitutional Law §12-5 (2nd ed. 1988). Occasionally, the government itself benefits from this more searching inquiry. See City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986)(upholding ordinance which expressly singled out theaters for differentially restrictive zoning regulation on account of the content of the films shown; government's purpose was to combat nonexpression-related "secondary effects" of such theaters); Young v. American Mini-Theatres, Inc., 427 U.S. 50 (1976)(same). More often,


however, courts invalidate an otherwise permissible government action because a challenger has shown that it was motivated by distaste for a speaker's message. E.g. Givhan v. Western Line Consolidated School District, 439 U.S. 410 (1979); Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274 (1977); Perry v. Sindermann, 408 U.S. 593 (1972); Pickering v. Board of Education, 391 U.S. 563 (1968). 22/ In any event, full evaluation of a claim of content-based discrimination does require careful factual evaluation of any claim that the government has acted because of a dislike of a message, speaker, or worshipper. Cornelius v. NAACP Legal Defense and Education Fund, 473 U.S. 788, 800 (1985)(remanding for further consideration of official motivation even when challenged action appeared content-neutral on its face); see also Arcara v. Cloud Books, Inc., 478 U.S. 697, 708 (1986)(O'Connor, J., joined by Stevens, J., concurring and necessary to majority)(facially neutral government action as pretext for content discrimination warrants strict scrutiny); Wayte v. United States, 470 U.S. 598 (1985)(challenge to selective enforcement of criminal law in retalia-tion for expression); Yick Wo v. Hopkins, 118 U.S. 356 (1886) (inferring racially discriminatory intent from pattern of licensing under facially neutral licensing ordinance).

22/ In all of these cases, the Supreme Court remanded for detailed factual findings concerning the First Amendment retaliation claims advanced. The Court thus reversed dismissals entered below as inappropriately sensitive to the factual issues surrounding such claims.


Thus, whenever it can be shown that the government has acted because of its distaste for a particular message, speaker, or worshipper, the First Amendment requires the application of the "most exacting scrutiny" on judicial review. This "most exacting scrutiny" is also required whenever the government requires an individual to say something he or she would prefer not to say, Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622, 642 (1994); Riley v. National Federation of the Blind, 487 U.S. 781, 798 (1988); West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642 (1943), or to personally associate with expression from which the individual would prefer to distance him- or herself, Abood v. Detroit Board of Education, 431 U.S. 209 (1977)(collective bargaining unit member cannot be compelled to finance union expression on matter unrelated to contract negotiation and enforcement); Wooley v. Maynard, 430 U.S. 705 (1977)(reversing a conviction for taping over "Live Free or Die" on license plate affixed to individual's own automobile). In any case, under this "most exacting scrutiny" a court will invalidate a challenged governmental regulation or action unless the government shows that it "is necessary to serve a compelling [government] interest and [that it] is narrowly drawn to achieve that end," Simon & Schuster, Inc. v. Members of the New York State Crime Victims' Board, 502 U.S. 105, 118 (1991), and that no less expression-restrictive alternative is available to the government, Shelton v. Tucker, 364 U.S. 479, 488 (1960); 4 R Rotunda and J. Nowak, Treatise on Constitutional Law: Substance and Procedure §§ 20.10 (2nd ed. 1992).


Even if the challenged administrative regulations could pass muster under time, place, and manner scrutiny, they must nevertheless fall here because they are subject to a judicial scrutiny which is nearly always fatal. The First Amendment requires that this Court apply strict scrutiny to the challenged regulations if the Government promulgated them as a result of distaste for a particular viewpoint, speaker, or worshipper. Even where the Government offers justifications for challenged actions which appear reason-able and neutral on their face, a careful factual inquiry, essentially precluding the trial court's dismissal, is required where the challenger alleges that the Government's action was motivated by such an unconstitutional purpose. Cornelius v. NAACP Legal Defense and Education Fund, 473 U.S. 788, 800 (1985)(remanding for further considera-tion of official motivation even when challenged action appeared content-neutral on its face).

The Government's own final rulemaking analysis reflects the history of tension between the Government and those who gather on National Forest lands. 60 Fed. Reg. 45259-89 (repeatedly mentioning 23/ the "Rainbow Family of Living Light" beginning on second page of lengthy analysis). These circumstances alone suffice to warrant the careful factual inquiry required in Cornelius. 24/ But here there is an additional telling detail. The Government's peculiar requirement that an "agent of the group" sign a special use authorization could not have been more "narrowly tailored" to discourage and prevent gatherings of the type attended by the

23/ The Defendants believe the recitation in the Federal Register of Rainbow interaction with the Forest Service is sometimes false and self-serving, but the specifics of this dispute are not relevant herein.

24/ It bears recalling in this connection that when another court inquired into the relationship between the Forest Service and "Rainbow" gatherers, it found sufficient unsettling facts that it took the extraordinary step of directing another government agency to fulfill the Forest Service's obliga-tions to oversee sanitation practices at a "Rainbow" gathering within its jurisdiction. United States v. Rainbow Family, 695F. Supp. 314, 330 (E.D. Texas)(calling on the United States Public Health Service as a "neutral agency" to supervise sanitation at the gathering).


Defendants, and the Government was plainly well aware of this fact. E.g. 60 Fed. Reg. 54274. Yet the Government did not choose to implement a more traditional permit system, which does not require that the user sign the permit itself. Instead, it pressed forward with its effort to get what it calls the "Rainbow Family" to take collective responsibility for something. Whether this effort was motivated by mere paternalism or by an urge for retaliation arising from the gatherers' long history of exercising and asserting their First Amendment rights, the Government's action, and the language which supports it, 60 Fed. Reg. 45259-89, leaves the unmistakable impression that the peculiar signature requirement challenged here was targeted at the "Rainbow" gatherers. The First Amendment simply does not permit the Government to promulgate a regulation which it knows will not trouble the Boy Scouts when they want to camp in the woods but which is deliberately designed to antagonize particular speakers or worshippers, such as the Defendants, to the point of chilling their interest in the National Forest altogether.

Upon strict scrutiny, of course, the challenged regulations must fail. Even if all of the Government's asserted legitimate interests actually supported the challenged signature requirement and even if they could all be deemed "compelling," there are numerous less speech-restrictive alternatives, which are plainly available to the Government. The Government has successfully regulated Rainbow gatherings in the past by promulgating "operating plans"


which govern the appropriate details of each gathering. These "operating plans" provide but one of many less restrictive alternate regulations which will adequately serve all of the Government's legitimate interests 25/ while putting an end to the campaign on the part of some in the Forest Service directed at driving the Defendants and their fellow gathers out of the National Forests.

25/ Just as there is an available nonconstitutional ground of decision in the construction of the definition of "group use," see supra., so too is a potential avenue for avoiding a constitutional decision provided by a procedural feature of the challenged regulation. The regulations require that, if an authorization is denied for any reason permitted by the rule, 36 C.F.R. § 251.54(h)(2), the licensing official shall offer an alterna-tive, if available, which will permit the group use to proceed, 36 C.F.R. § 251.54(h)(2). Since one of the reasons for denial is the failure of a group representative to sign the authorization, 36 C.F.R. § 251.54(h)(viii), and since the operating plans provide a time-tested alternative to the authorizations, this Court could well construe the challenged regulations to require that the Government offer an operating plan as an alternative to a signed authoriza-tion at least where, as here, the users of National Forest land do not form a cohesive enough group to have a representative who can be authorized to sign the authorization. Presently 36 C.F.R. §251.54(h)(2) does not allow any exception to the signature requirement.




WHEREFORE, this Honorable Court is respectfully requested to enter a Judgment of Acquittal as to all Defendants for the reasons that (1) under 36 C.F.R. § 261.10(K) only the group, not individuals, is subject to citation or (2) the Forest Services non-commercial group use permit regulations are unconstitutional.

Respectfully submitted,


Bruce A. Antkowiak, Esquire
PA ID No: 25506
John Paul Garhart, Esquire 26/
PA ID No: 19753
Witold W. Walczak, Esquire
American Civil Liberties Foundation
Robert A. Sambroak, Jr., Esquire
PA ID No: 33500
Attorneys for the Defendants


26/ Attorney Garhart wishes to acknowledge the substantial contributions to this brief by Reed Lee, Esq. of Chicago, IL. and Brian Michaels, Esq. of Eugene, OR. Both have contributed freely of their time, counsel and prior research on the First Amendment. Attorney Garhart has borrowed liberally, frequently verbatim, from their previous work product. Nevertheless, any shortcomings in this Brief are the responsibility of its current authors alone.





		       PLAINTIFF	             CRIMINAL NO.: 99-75 ME

	     V.	                        CRIMINAL NO.: 99-76 ME




I hereby certify that on the day of November 1999, I served a true and correct Copy of the foregoing Memorandum of Law in Support of Judgment of Acquittal on the following individual(s) in the following manner:

( ) by First Class U.S. Mail, postage prepaid;
( ) by Hand Delivery;
( ) by Fax Transmission to 814. - ;
( ) by e-mail.

John J. Trucilla, Esq.
Assistant United States Attorney
United States Attorney's Office
100 State Street, Suite 302
Erie, PA 16507

John Paul Garhart, Esq.
Pa. I.D. 19753
1001 State Street,14thFloor
Erie, Pennsylvania 16501