JAMES G. WATT, SECRETARY OF THE INTERIOR, ET AL. V. THE COMMUNITY FOR CREATIVE NON-VIOLENCE, ET AL. No. 82-1998 In the Supreme Court of the United States October Term, 1982 The Solicitor General, on behalf of James G. Watt, Secretary of the Interior, and Manus J. Fish, Regional Director of the National Capital Region of the National Park Service, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the District of Columbia Circuit in this case. Petition for a writ of certiorari to the United States Court of Appeals for the District of Columbia Circuit PARTIES TO THE PROCEEDING Manus J. Fish, Regional Director of the National Capital Region of the National Park Service, was named as a defendant in the complaint and is a petitioner here. Mitch Snyder, Mary Ellen Hombs, Harold Moss, Clarence West, Monroe Kylandezes, Fred Randall, and Mike Scott were plaintiffs in the district court and are respondents here. TABLE OF CONTENTS Opinions below Jurisdiction Constitutional and regulatory provisions involved Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C Appendix D OPINIONS BELOW The opinion of the court of appeals (App. A, infra, 1a-87a) is reported at 703 F.2d 586. The opinion and order of the district court (App. D, infra, 90a-112a) are not yet reported. JURISDICTION The judgment of the court of appeals (App. B, infra, 88a-89a) was entered on March 9, 1983. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). CONSTITUTIONAL AND REGULATORY PROVISIONS INVOLVED The First Amendment provides in pertinent part: Congress shall make no law * * * abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. 36 C.F.R. 50.27(a) provides: Camping is defined as the use of park land for living accommodation purposes such as sleeping activities, or making preparations to sleep (including the laying down of bedding for the purpose of sleeping), or storing personal belongings, or making any fire, or using any tents or shelter or other structure or vehicle for sleeping or doing any digging or earth breaking or carrying on cooking activities. The above-listed activities constitute camping when it reasonably appears, in light of all the circumstances, that the participants, in conducting these activities, are in fact using the area as a living accommodation regardless of the intent of the participants or the nature of any other activities in which they may also be engaging. Camping is permitted only in areas designated by the Superintendent who may establish limitations of time allowed for camping in any public camping ground. Upon the posting of such limitations in the campground no person shall camp for a period longer than that specified for the particular campground. 36 C.F.R. 50.19(e)(8) provides: In connection with permitted demonstrations or special events, temporary structures, (sic) may be erected for the purpose of symbolizing a message or meeting logistical needs such as first aid facilities, lost children areas or the provision of shelter for electrical and other sensitive equipment or displays. Temporary structures may not be used outside designated camping areas for living accommodation activities such as sleeping, or making preparations to sleep (including the laying down of bedding for the purpose of sleeping), or storing personal belongs, or making any fire, or doing any digging or earth breaking or carrying on cooking activities. The above-listed activities constitute camping when it reasonably appears, in light of all the circumstances, that the participants, in conducting these activities, are in fact using the area as a living accommodation regardless of the intent of the participants or the nature of any other activities in which they may also be engaging. Temporary structures are permitted to the extent described above, provided prior notice has been given to the Director, except that: (i) No structures shall be permitted on the White House sidewalk. (ii) All such temporary structures shall be erected in such a manner so as not to unreasonably harm park resources and shall be removed as soon as practicable after the conclusion of the permitted demonstration or special event. (iii) The Director may impose reasonable restrictions upon the temporary structures permitted, in the interest of protecting the park areas involved, traffic and public safety considerations, and other legitimate park value concerns. (iv) Any structures utilized in a demonstration extending in duration beyond the time limitations specified in paragraphs (e)(4)(i) and (ii) of this section must upon 24 hours notice be capable of being removed and the site restored or the structure secured in such a fashion so as to not unreasonably interfere with use of the park area by other permittees authorized under this section. (v) Individuals or groups of 25 persons or less demonstrating under the small group permit exemption of Section 50.19(b)(1) shall not be permitted to erect temporary structures other than small lecterns or speakers platforms. This provision is not intended to restrict the use of portable signs or banners. QUESTION PRESENTED Whether the National Park Service violated the First Amendment by enforcing 36 C.F.R. 50.27(a), which restricts camping in the national parks, to prevent respondents from sleeping in Lafayette Park and on the Mall in connection with a demonstration of the plight of the homeless. STATEMENT 1. Since 1893, the Interior Department, through the National Park Service, has been charged with responsibility for management and maintenance of all national parks. These include the National Memorial-core area parks in Washington, D.C., including Lafayette Park and the Mall, which traditionally attract numerous visitors, as well as some demonstrators. In particular, the National Park Service is required to promote and regulate the use of the * * * national parks * * * by such means and measures as conform to the fundamental purpose of said parks * * * , which purpose is to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations. 16 U.S.C. 1. The Secretary of the Interior is authorized to promulgate rules and regulations for the use and management of these parks in accordance with the purposes for which they were established. 16 U.S.C. 3; 16 U.S.C. (Supp. V) 1a-1. Pursuant to this authority, the Secretary of the Interior has adopted a variety of rules and regulations governing the use of the national parks, including the Memorial-core area parks. In particular, the Secretary has adopted a regulation prohibiting camping in the national parks outside of designated camping areas. No such camping areas have been designated in the Memorial-core area. "Camping" is defined as the "use of park land for living accommodation purposes such as sleeping activities, or making preparations to sleep (including the laying down of bedding for the purpose of sleeping), or storing personal belongings, or making any fire, or using any tents or * * * other structure * * * for sleeping or doing any digging or earth breaking or carrying on cooking activities." 36 C.F.R. 50.27(a). The regulation further provides that "(t)he above listed activities constitute camping when it reasonably appears, in light of all the circumstances, that the participants, in conducting these activities, are in fact using the area as a living accommodation regardless of the intent of the participants or the nature of any other activities in which they may also be engaging." Ibid. Demonstrations for the expression of views or grievances may be held in the Memorial-core area pursuant to 36 C.F.R. 50.19. With minor exceptions, such demonstrations may be held only in accordance with an official permit issued by the National Park Service. Ibid. The regulations recognize that temporary structures may be erected in connection with permitted demonstrations but provide that such structures may not be used for camping. 36 C.F.R. 50.19(e)(8). /1/ 2. In 1982, respondent Community for Creative Non-Violence ("CCNV") applied for a permit from the National Park Service to conduct a demonstration in Lafayette Park and on the Mall beginning on December 21, 1982, and continuing through the last day of winter, for the stated purpose of demonstrating the plight of the homeless. /2/ In particular, CCNV requested permission to erect symbolic tents, lay down bedding, and sleep as part of its demonstration. /3/ The National Park Service granted the permit on a seven-day, renewable basis but denied CCNV permission to lay down beding or sleep in the symbolic tents, citing the camping prohibition in the pertinent regulations, 36 C.F.R. 50.19(e)(8) and 50.27(a). (The granting of the permit allowing CCNV to maintain a 24-hour presence at the park and to erect temporary structures (including "symbolic campsites") in connection with its demonstration was based on National Park Service regulations that attempted to comply with prior cases concerning demonstrations in the Memorial-core park area decided by the District of Columbia Circuit. /4/ ) On September 7, 1982, CCNV and the other named plaintiffs, who are described as either individual members of CCNV or homeless individuals, brought this suit in the United States District Court for the District of Columbia, challenging the constitutionality of the relevant regulations. CCNV sought a preliminary injunction against application of these regulations, arguing that they were vague, overbroad, unequally enforced, and violative of the respondents' First Amendment rights. Both parties filed motions for summary judgment. The district court denied the request for an injunction and granted summary judgment for the government, holding that the regulations were valid both on their face and as applied (App. D, infra, 91a-112a). The court first concluded that the act of sleeping in this context was not "sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth amendments.'" Id. at 102a, quoting Spence v. Washington, 418 U.S. 405, 409 (1974). The court further held that under the standards set forth in United States v. O'Brien, 391 U.S. 367 (1968), any incidental restriction on First Amendment rights created by the regulations was justified (App. D, infra, 104a-106a). The court also rejected respondents' contention that the regulations had not been fairly and uniformly enforced (id. at 106a-108a). 3. Respondents appealed, and a panel of the court of appeals heard argument. Before the panel decided the case, however, the court sua sponte directed that it be heard en banc. In a one sentence per curiam decision, the en banc court, by a 6-5 vote, reversed the district court and enjoined the government "from prohibiting sleeping by demonstrators in tents in sites authorized for (respondents') demonstration" (App. A, infra, 2a). /5/ This disposition was supported by a plurality opinion, joined in whole or in part by five judges, and by three concurring opinions. The splintered majority agreed that the National Park Service's "no camping" regulations were valid on their face. It was also agreed that, in the circumstances of this case, to apply them to bar sleeping as part of CCNV's demonstration would violate the First Amendment. There was, however, no consensus as to why the regulations as applied were violative of respondents' First Amendment rights. The plurality opinion, by Judge Mikva, found that, in the context of this particular demonstration, sleeping in symbolic tents would be a communicative act and hence protected by the First Amendment. Judge Mikva explained that sleep is expressive in the context of any demonstration seeking to use sleep to help convey its message, and he specifically rejected the argument that sleeping in the context of CCNV's demonstration was "uniquely deserving" of First Amendment protection because it directly embodied the protesters' message that homeless people have no place to sleep (App. A, infra, 17a-18a). Purporting to apply the analysis set forth by this Court in United States v. O'Brien, supra, Judge Mikva found that the government's interest in enforcing the regulations against respondents did not justify the attendant burden on First Amendment rights (App. A, infra, at 19a-28a). Focusing the inquiry on demonstrators "similarly situated" to CCNV, Judge Mikva explained that there would be no "incremental savings of park resources" to be gained by proscribing sleep (id. at 22a-23a). Stating that the National Park Service was entitled to distinguish, in applying its regulation, between "sleeping that is expressive as part of a twenty-four hour vigil * * * (and) sleeping that is a mere convenience to day-time demonstrators" (id. at 25a). Judge Mikva concluded that the government's interests would not be sufficiently furthered "by keeping these putative protestors" from sleeping (id. at 28a; emphasis added). Chief Judge Robinson and Judge Wright concurred with the caveat that they "intimate(d) no view as to whether sleeping would implicate the First Amendment were it not to add its own communicative value to the demonstration" (App. A, infra, 31a). Judge Edwards filed a concurring opinion, disagreeing with portions of Judge Mikva's opinion, but reaching the same result (id. at 32a-40a). Judge Edwards stated that, on the facts of this particular case, sleeping was "symbolic speech" covered by the First Amendment (id. at 33a-34a). He concluded that under O'Brien the regulations could not constitutionally be applied to bar CCNV's demonstration because there are "reasonable * * * regulatory alternatives less restrictive * * * than a total ban against sleeping (that) still would accommodate the significant governmental interests at stake" (id. at 39a). Judge Ginsburg concurred only in the judgment (id. at 41a-48a). She characterized respondents' sleeping as "speech plus" (id. at 46a) that was not necessarily entitled to the same protection as traditional speech, but was sufficient "to require a genuine effort to balance the demonstrators' interest against other (government) concerns" (id. at 47a). Because she found it irrational to allow "tenting, lying down, and maintaining a twenty-four hour presence" while forbidding sleeping, Judge Ginsburg concluded that the line drawn in the regulations was not sufficiently "sensible, coherent, and sensitive to the speech interest involved" (id. at 48a). Judge Wilkey, joined by four judges, dissented (App. A, infra, 49a-77a). Although expressing considerable doubt on the issue (id. at 56a-60a), Judge Wilkey assumed that respondents' sleeping activity would constitute a form of speech protected by the First Amendment and that the O'Brien analysis was therefore applicable (id. at 60a). Examining the general government interest in preventing camping in the Memorial-core area (see id. at 63a-66a). Judge Wilkey concluded that the regulation served a substantial interest in conserving park resources and preserving the right of non-campers to enjoy the parks; he found that this interest outweighed occasional incidental infringement on the activities of demonstrators (id. at 66a-71a). Judge Wilkey further stated that there was no constitutionally permissible less restrictive alternative to the total ban on camping (id. at 72a-77a) because "any intermediate position designed to accommodate 'First Amendment camping' would run afoul of the proscriptions against discretionary screening" (id. at 73a). Judge Scalia, joined by two judges, filed a separate dissenting opinion (id. at 78a-87a) denying that "sleeping is or can ever be speech for First Amendment purposes" (id. at 78a). Because the regulations proscribe the activities in question for reasons having nothing to do with their communicative character, Judge Scalia concluded that they did not implicate First Amendment concerns. REASONS FOR GRANTING THE PETITION 1. The decision below is the culmination of a series of decisions by the District of Columbia Circuit severely limiting, in the name of the First Amendment rights of demonstrators, the ability of the National Park Service to administer the Memorial-core area parks for the benefit of the general public. See United States v. Abney, 534 F.2d 984 (1976); A Quaker Action Group v. Morton, 516 F.2d 717 (1975); Women Strike for Peace v. Morton, 472 F.2d 1273 (1972). These decisions, which have increasingly diverged from established principles of First Amendment law, have steadily eroded the power of the National Park Service reasonably to regulate the conduct of demonstrators in these areas. The use of these parks by demonstrators, of course, is a legitimate use recognized and approved by the government (see 36 C.F.R. 50.19), but it must be subject to reasonable manner restrictions. As a result of these decisions, the use of these parks -- constituting a unique national resource -- as a forum for protesters has been elevated above the primary uses contemplated by Congress, making it more and more difficult to preserve them as places where the public can enjoy nature with some serenity. The decision below leaves the National Park Service in a position where it cannot effectively prevent camping in these historic urban parks and casts serious doubt on its ability to regulate other conduct there that may be asserted to be connected with First Amendment activity. Judge Mikva's candid observation (App. A, infra, 29a) that "(e)ach distinction and each line" drawn by the National Park Service in regulating sleeping in the park will be subjected to "close scrutiny" by the court simply underscores the need for this Court to step in and correct the D.C. Circuit's misguided course in this area of the law. The practical impact of the decision below on the National Park Service's administration of the Memorial-core area parks is far-reaching. Apart from requiring that it issue a permit to CCNV's requested demonstration, the fragmented decision gives the National Park Service no guidance on how to deal with other applications to camp in the parks. The three opinions of Judges Wright and Robinson, Edwards, and Ginsburg suggest that there may be cases where the National Park Service may ban camping in the parks even if it is asserted to express a message, but they do not suggest any standards to be applied in distinguishing among such permit applications and in identifying those cases in which the First Amendment rights associated with sleep outweigh the government's interest in preventing the use of Lafayette Park and the Mall for camping. /6/ On the other hand, the opinions of Judge Mikva (App. A, infra, 18a) and Judge Wilkey (id. at 71a-77a) suggest that any attempt to draw such distinctions necessarily would be content-based and hence violative of the First Amendment. Thus, the National Park Service is left with two equally unpalatable alternatives in passing on future applications. It can safely comply with the decision below by allowing anyone to camp in the restricted park areas as long as it is alleged that the camping or sleeping activity is part of a demonstration. The cumulative impact of granting all these applications, however, clearly will adversely affect the general public's opportunity to use these parks and severely overtax park facilities. /7/ On the other hand, if the National Park Service attempts to distinguish among these applications, denials almost certainly will be the subject of litigation and apparently will be viewed by a majority of the judges on the court of appeals as impermissibly content-based. In short, the divergent viewpoints and conclusions of the 11 judges of the court of appeals have left the National Park Service in a position where it cannot administer its regulations in any way that is either manageable or likely to pass constitutional muster. Both the practical difficulties engendered by the decision below and the important issues raised warrant review by this Court. 2.a. The decision below is erroneous. First, it brushes aside an earlier decision of this Court, rendered in connection with a previous attempt by demonstrators to establish that camping on the Mall is protected by the First Amendment. Morton v. Quaker Action Group, 402 U.S. 926 (1971). In 1971 the district court issued an injunction prohibiting the Vietnam Veterans Against the War from, inter alia, camping on the Mall. The district court defined the term "overnight camping" as "sleeping activities, or making preparations to sleep (including the laying down of bedrolls or other bedding) * * * ," which corresponds to the language in the current regulation. /8/ The court of appeals modified that order to permit the demonstrators to use their symbolic campsite 24 hours a day "as an incident to or as part of their public demonstrations and gatherings, and for the purpose of sleeping in their own equipment, such as sleeping bags, on that portion of the Mall." A Quaker Action Group v. Morton, No. 71-1276 (D.C. Cir. Apr. 19, 1971). The following day the Chief Justice vacated the court of appeals' order and reinstated the prohibitory order of the district court. The full Court then upheld the Chief Justice, vacated the court of appeals' order permitting sleeping, and reinstated "with full force and effect" the injunction of the district court. Morton v. Quaker Action Group, supra, In this case the plurality brusquely dismissed this Court's order in Quaker Action as inapposite (App. A, infra, 10a n.5) and in fact relied on the vacated court of appeals opinion (id. at 11a). It did so notwithstanding the fact that in Quaker Action this Court upheld an injunction based on a line much like the line drawn in the existing regulations that the court of appeals here held invalid. That ruling, albeit rendered in a summary action (cf. Hicks v. Miranda, 422 U.S. 332, 344 (1975)), should have been deemed authoritative in this case. b. The decision below is contrary to well settled principles of First Amendment jurisprudence. It is black letter law that the First Amendment does not accord each citizen a right to determine the most effective way of presenting his views; rather, the exercise of First Amendment rights is subject to "reasonable time, place, and manner restrictions." Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 647 (1981). See also, e.g., Grayned v. City of Rockford, 408 U.S. 104, 115 (1972). In particular, the Court has rejected the notion that "an apparently limitless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea." United States v. O'Brien, 391 U.S. 367, 376 (1968). See also Tinker v. Des Moines School District, 393 U.S. 503, 515 (1969) (White, J., concurring). The court below paid lip service to these principles, but in fact appears to have abandoned them. Judge Mikva's opinion holds that respondents' intent that their "presence" be expressive, coupled with the fact that their demonstration would take place "at the seat of our national government," converts sleeping into expressive conduct protected by the First amendment (App. A, infra, 17a). This conclusion follows in the footsteps of earlier circuit precedent that woodenly accorded First Amendment protection to any conduct intended to be communicative. Judge Wright's opinion in Women Strike for Peace v. Morton, supra, suggested that no distinction could be drawn between speech and conduct (472 F.2d at 1282) and that the erection of any structure designed to communicate views was entitled to First Amendment protection (id. at 1287-1288). In United States v. Abney, supra, the court assumed that a protester's desire to conduct a round-the-clock vigil was sufficient to make sleeping an expressive activity protected by the First Amendment. These rulings are not supported by the "symbolic speech" decisions of this Court. Although this Court has used First Amendment analysis in cases involving expressive conduct, those cases all involved conduct that had little, if any, purpose other than expression; and they involved activity far closer to traditional "speech" than the act of sleeping. In addition, those cases involved government regulations more directly aimed at expression. See, e.g., Spence v. Washington, 418 U.S. 405, 410, 414 n.8 (1974); Tinker v. Des Moines School District, supra. Extending these cases to cover respondent's sleeping in the park simply contradicts the Court's oft-repeated admonition that not all conduct intended to be expressive is "speech." See Spence v. Washington, supra, 418 U.S. at 409. c. Even assuming that respondents' camping is fully protected by the First Amendment, the court of appeals erred in holding that the governmental interest underlying the regulation did not outweigh the incidental infringement of First Amendment rights. In United States v. O'Brien, supra, the Court concluded that it did not violate the First Amendment to prosecute a demonstrator for burning his draft card as a protest against the Vietnam War. The Court explained that "when 'speech' and 'nonspeech' elements are combined in the same course of conduct, sufficiently important governmental interest in regulating the non-speech element can justify incidental limitations on First Amendment freedoms." 391 U.S. at 376. Applying a four-part test, the Court concluded that the government's interest in banning draft card burning was sufficent to justify the ban's restriction of First Amendment freedoms. /9/ The government's interest in banning camping in the Memorial-core area parks is substantial and fully sufficent under O'Brien to justify incidental restrictions on demonstrators who purport to camp as a way of conveying a message. The "no camping" regulations are a valid exercise of the Secretary's authority to manage park resources. The Memorial-core area parks are not designed to handle overnight campers, and permitting camping would overtax sanitary facilities and law enforcement personnel. Moreover, camping would seriously interfere with the enjoyment of the parks by numerous other users. See generally 47 Fed. Reg. 24302 (1982). The plurality attempted to minimize these concerns by stating that the only government interest involved is that in prohibiting sleeping "by all those who wish to engage in sleeping as part of their demonstration and have been granted renewable permits to demonstrate on a twenty-four hour basis on sites at which they have also been allowed to erect temporary symbolic structures" (App. A, infra, 22a). As Judge Wilkey explains, however (id. at 63a-66a), this approach is unsound. Virtually any regulation can be made to seem unnecessary if the inquiry is focused on the government interest in not making an exception in the particular case at hand, rather than on the general regulation. See Heffron v. International Society for Krishna Consciousness, Inc., supra, 452 U.S. at 652. /10/ On the other hand, the "no camping" regulations represent a minimal infringement of speech. Respondents may effectively communicate their message to the public at precisely the same locations, by means other than actually sleeping. Although they claim that the effectiveness of their demonstration might be enhanced if they are permitted to sleep -- either because sleeping in Lafayette Park particularly expresses "the poignancy of their plight" (App. A, infra, 17a) or because the establishment of a place to sleep with hot meals would attract many persons to the demonstration (see note 3, supra) -- it is well settled that the Constitution does not create an absoluate right to deliver a message in the precise manner thought by the demonstrator to be maximally effective. See, e.g., Heffron v. International Society for Krishna Consciousness, Inc., supra, 452 U.S. at 647; Adderley v. Florida, 385 U.S. 39, 47-48 (1966). The "no camping" regulations operate essentially as a restriction on the manner in which respondents may conduct their demonstration. Such a restriction is valid if it is "'content-neutral, * * * narrowly tailored to serve a significant government interest, and leave(s) open ample alternative channels of communication.'" United States v. Grace, No. 81-1863 (Apr. 20, 1983), slip op. 5; Perry Education Ass'n v. Perry Local Educators' Ass'n, No. 81-896 (Feb. 23, 1983), slip op. 7-8. There can be little doubt that the regulations involved here meet this standard. They are narrowly focused on preserving the parks from the damage and overloading of resources that use of them for living accommodations would engender, while still allowing demonstrators ample opportunity to communicate their messages. Indeed, as Judge Wilkey explains (App. A, infra, 71a-77a), a total ban on camping is a necessity if the government is to further its undeniable interest in generally preventing the use of the Memorial-core area parks as campgrounds. In sum, the decision below, by recognizing as "speech" protected by the First Amendment any conduct intended to be expressive and by artificially confining the government's interest in regulation to one particular set of facts, has emasculated the National Park Service's ability to manage the Memorial-core area parks. The National Park Service will be hard-pressed to enforce its regulations at all without running the risk of making impermissible content-based distinctions. As a result, if the decision below is permitted to stand, a significant aspect of the administration of these parks effectively will be taken out of the National Park Service's hands, and the right of the general public to peaceful enjoyment of the parks -- the primary purpose for which Congress established them -- will be subordinated to demonstrators who claim that conduct inconsistent with the parks' primary purpose is nevertheless privileged because claimed by them to be "expressive." CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted REX E. LEE Solicitor General J. PAUL MCGRATH Assistant Attorney General PAUL M. BATOR Deputy Solicitor General ALAN I. HOROWITZ Assistant to the Solicitor General LEONARD SCHAITMAN KATHERINE S. GRUENHECK Attorneys JUNE 1983 /1/ These regulations were revised effective June 4, 1982. See 47 Fed. Reg. 24299-24306 (1982). The revisions were prompted by the decision in Community for Creative Non-Violence v. Watt ("CCNV I"), 670 F.2d 1213 (D.C. Cir. 1982), which held that sleeping in tents by demonstrators in connection with First Amendment activities did not constitute "camping" prohibited under then-existing regulations. /2/ CCNV had held a similar demonstration on a smaller scale the previous winter after the court of appeals held in CCNV I that the National Park Service's "no camping" regulations did not extend to the activities in which CCNV sought to engage because they were related to First Amendment activities. /3/ CCNV explained in its application materials that permitting persons "to sleep in relative warmth" as part of the demonstration or "the incentive of * * * a hot meal" was necessary to attract participants. See App. A, infra, 45a n.10, 69a; App. D, infra, 93a. /4/ Based on a settlement of prior litigation and D.C. Circuit precedent, the National Park Service's regulations permit the erection of temporary structures in connection with a demonstration, including symbolic campsites. See Women Strike for Peace v. Morton, 472 F.2d 1273 (D.C. Cir. 1972). By the same token, the National Park Service permitted a 24-hour presence at the demonstration in line with D.C. Circuit precedent recognizing the First Amendment interest in a round-the-clock vigil. United States v. Abney, 534 F.2d 984 (D.C. Cir. 1976). See also A Quaker Action Group v. Morton, 516 F.2d 717, 734 (D.C. Cir. 1975) (striking down existing limitation on length of demonstrations). /5/ On March 17, 1983, the Chief Justice ordered the mandate of the court of appeals recalled and stayed its reissuance pending further order of the Court. On March 21, 1983, the full Court continued that order in effect pending the timely filing and disposition of a petition for a writ of certiorari (No. A-771). /6/ Moreover, as Judge Wilkey explains (App. A, infra, 74a-77a), it would not be difficult for any group wishing to camp on the Mall to advance a facially valid First Amendment justification for their proposed activity. See also opinion of Mikva, J., id. at 16a n.16. /7/ For example, there is only one sanitation facility in Lafayette Park. /8/ A detailed summary of this litigation is set forth in Vietnam Veterans Against the War v. Morton, 506 F.2d 53, 56 n.9 (D.C. Cir. 1974). /9/ The test set forth in O'Brien states (391 U.S. at 377): (A) government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. /10/ The plurality also focuses narrowly on the interest in preventing sleeping by demonstrators who are already permitted to remain in symbolic tents overnight (App. A, infra, 22a-23a). It is important, however, to remember that the National Park Service allowed respondents to engage in these activities because of its perception of the First Amendment requirements of applicable circuit precedent, even though the government does not agree that the First Amendment actually requires it to permit such activities. See note 4, supra. The thrust of the regulation is to prohibit the use of the parks for living accommodation purposes. That goal serves an important government interest, and, as Judge Wilkey explains (App. A, infra, 66a-68a, 74a-75a), it is well served by the definition of camping in the regulations. To ignore this broader context and focus only on the government interest in preventing a particular 24-hour demonstrator from sleeping is to "nickel and dime (the) regulation to death" (see id. at 65a). Appendix Omitted