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).
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.
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).
(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
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.
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.
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.").
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.
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.
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.
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.
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
( ) 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