WILLIAM P. CLARK, SECRETARY OF THE INTERIOR, ET AL., PETITIONERS V.
COMMUNITY FOR CREATIVE NON-VIOLENCE, ET AL.

   No. 82-1998

   In the Supreme Court of the United States

   October Term, 1983

   On Writ of Certiorari to the United States Court of Appeals for the
District of Columbia Circuit

   Brief for the Petitioners

                       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
   Introduction and summary of argument
   Argument:
      I. No significant First Amendment values are served by
          giving respondents the right to use the Memorial area
          parks as sleeping quarters
          A. The act of sleeping has such limited
             communicative power that it should be accorded
             little or no First Amendment protection
          B. The court of appeals' overinclusive approach to
             what constitutes "symbolic speech" is analytically
             flawed and contradicts this Court's cases
      II. The ban on camping in the Memorial parks serves a
          significant public interest and does not threaten First
          Amendment values
          A. Under this Court's balancing test the "no
             camping" regulation is amply justified as a
             content-neutral measure narrowly tailored to
             serve an important public purpose unrelated
             to the suppression of free expression
          B. The court of appeals failed properly to
             evaluate the government interest in preventing
             camping in the Memorial area parks
   Conclusion
   Appendix

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1a-87a) is reported
at 703 F.2d 586.  The opinion and order of the district court (Pet.
App. 90a-112a) are not reported.

                             JURISDICTION

   The judgment of the court of appeals (Pet. App. 88a-89a) was
entered on March 9, 1983.  The petition for a writ of certiorari was
filed on June 7, 1983, and was granted on October 3, 1983.  The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

           CONSTITUTIONAL AND REGULATORY PROVISIONS INVOLVED

   The First Amendment and the relevant regulations are set forth in
the Appendix, infra.

                          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. This case involves a clash between the interests of the
government in regulating for the benefit of the general public the
uses of the National Memorial-core area parks -- specifically,
Lafayette Park and the Mall -- and the asserted First Amendment
interests of persons wishing to use these parks for sleeping
accommodations in order to demonstrate the plight of the homeless.

   The National Memorial-core parks are set in the heart of
Washington, D.C.  They were included in the original plan drawn up for
the capital by Major Pierre L'Enfant.  The Mall creates a matchless
vista stretching from the rear of the Capitol on the east to the
Lincoln Memorial on the west, and includes the Washington Monument and
a series of reflecting pools.  /1/ Lafayette Park is a square of
approximately seven acres located across the street from the White
House.  /2/ It was originally included in the "President's Park" (the
White House grounds);  President Jefferson decided, however, to set
aside this area as a separate park for the use of residents and
visitors to Washington.  In 1824 it was named Lafayette Park in honor
of Major General Marquis de Lafayette, hero of the American
Revolution.  The park contains five statues honoring heroes of the
early days of the Republic, and "functions as a formal garden park of
meticulous landscaping with flowers, trees, fountains, walks and
benches * * *." National Park Service, U.S. Dep't of Interior,
Resource Management Plan for President's Park 4.3 (1983).  In addition
to the physical splendor of these parks, in the nearly 200 years since
the L'Enfant Plan was designed both Lafayette Park and the Mall have
taken on a rich historical and symbolic significance.  They are
visited by millions who seek to find enjoyment and inspiration in
their beauty, their serenity, and their evocation of our country's
past.

   The Memorial-core area parks are administered today as part of the
network of national parks.  Since 1893, the Interior Department,
through the National Park Service, has been charged with
responsibility for management and maintenance of all national parks.
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, 1a-1.

   Pursuant to this authority, the Secretary of the Interior has
adopted a variety of rules and regulations governing the use of the
Memorial-core area parks.  From the inception of the modern regulation
of these areas, it seemed obvious that it would be completely contrary
to the purposes of these splendid and unique parks to allow people to
camp in them;  consequently, sleeping or camping with intent to remain
more than four hours has been prohibited.  See 36 C.F.R. 3.4(i)
(1939);  36 C.F.R. 50.25(k).  /3/ In 1941, regulations were issued
governing the holding of public assemblies, speeches, and the public
expression of views in the park areas.  The regulations allowed these
activities to take place in most park areas upon the issuance of a
permit, but in certain areas -- including Lafayette Park -- "public
gatherings and the making of speeches" were prohibited on the ground
that "the particular purpose to which the area is devoted makes its
use for public gatherings contrary to the comfort, convenience and
interest of the general public." 36 C.F.R. 3.7(n)-(q) (1943).  In the
1968 revision of the regulations, Lafayette Park was deleted from the
list of areas in which demonstrations could not be held.  See 36
C.F.R. 50.19(c).

   The regulations now in effect permit camping in the national parks
only in campgrounds designated for that purpose by the Superintendent
of Public Parks.  36 C.F.R. 50.27(a).  No such campgrounds are -- or
ever 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." Ibid.  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.

   The current regulations also authorize holding demonstrations for
the expression of views or grievances 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).  /4/

   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 (J.A.
9-15).  In particular, CCNV requested permission to erect 60 symbolic
tents, lay down bedding, and have approximately 150 participants sleep
at the campsite as part of its demonstration (Pet. App. 92a-93a).  /5/
CCNV explained in its application materials that, "absent a
survival-related reason for being in Lafayette Park -- something such
as a meal or the chance to sleep in relative warmth -- they (the
homeless) * * * would not come" and that "(w)ithout the incentive of
sleeping space or a hot meal, the homeless would not come to the site"
(J.A. 14;  Pet. App. 45a n.10, 69a, 93a).  The National Park Service
granted the permit on a seven-day, renewable basis but denied CCNV
permission to lay down bedding 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) (J.A. 16-17).

   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
enforcement of these regulations, arguing that they were vague,
overbroad, unequally enforced, and violative of 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 (Pet. App. 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 102
(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 (Pet. App.
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 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" (Pet. App. 2a).  /6/ This disposition was supported by
a plurality opinion, joined in whole by two judges and in part by
three other 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 violated
respondents' First Amendment rights.

   The plurality opinion of Judge Mikva (joined by Judge Wald) found
that, in the context of this demonstration, sleeping in symbolic tents
would be a communicative act and hence protected by the First
Amendment.  Seeking to eschew "wooden categorizations" (Pet. App.
13a), Judge Mikva explained that "the sleeping proposed by CCNV is
carefully designed to, and in fact will, express the demonstrators'
message that homeless persons have nowhere else to go" (id. at 14a),
and that "(i)n the present case, within the context of a large
demonstration with tents, placards and verbal explanations, the
communicative context is sufficiently clear that the participant's
sleeping cannot be arbitrarily ruled out of the arena of expressive
conduct" (id. at 15a (footnotes omitted)).  In any event, even apart
from "the peculiarly expressive nature of sleeping," stated Judge
Mikva, CCNV's "proposed 'presence' is intended to be expressive" and,
consequently, "CCNV's twenty-four hour presence is entitled to the
same first amendment protection as a vigil" (id. at 17a).

   On the other hand, continued Judge Mikva (id. at 18a) footnote
omitted)):

      we reject CCNV's contention that sleeping in its demonstration
      is uniquely deserving of first amendment protection because it
      directly embodies the group's message that homeless people have
      no place else to sleep.  Under CCNV's distinction, a group with
      a "no-place-to-sleep" message (such as the homelessness of
      refugees) could express it by deliberately sleeping, but a group
      with a different message (such as opposition to the nuclear arms
      race) could not sleep.  Such a distinction is impermissible * *
      *.

   Purporting to apply the analysis set forth by this Court in United
States v. O'Brien, supra, Judge Mikva then turned to the question
whether the government's interests in enforcing the regulations "are
furthered by prohibiting expressive sleeping by all individuals or
groups similarly situated to CCNV" (Pet. App. 22a).  He concluded that
"there are no incremental savings of park resources" to be gained by
prohibiting sleep (id. at 22a-23a).  Judge Mikva stated 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 daytime demonstrators" (id. at 25a).  He concluded that the
government's interests would not be sufficiently furthered "by keeping
these putative protestors" from sleeping (id. at 28a).

   As to the future, Judge Mikva's opinion concluded (Pet. App.
29a-30a (footnote omitted)):

         Finally, the Park Service cannot mechanically apply its
      regulations to requests from groups seeking to exercise first
      amendment rights through sleeping.  Although the government can
      and must retain a "content-neutral" obliviousness to the kind of
      message which a particular group seeks to express through
      sleeping, the Park Service cannot be oblivious to the
      implications of the first amendment -- or the attendant
      complications.  Each distinction and each line the Park Service
      draws in such applications must bear close scrutiny to ensure
      that symmetry of management does not crowd out first amendment
      claims.

         We doubt that this will be the last occasion that this court
      will have to undertake the difficult reconciliation of first
      amendment activities with the necessity for order and management
      in the Mall and Lafayette Park.  In a pluralistic society
      boasting of its free expression, we can expect no less.

   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" (Pet. App. 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 argued that it
was not impermissible for the government to distinguish between sleep
where a "message is intended" and sleep that is merely facilitative
(id. at 36a).  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).  Among
the alternatives mentioned by Judge Edwards as less restrictive than a
"total ban" on sleeping were rules limiting the number who may sleep,
first-come-first-served rules, and -- "perhaps" -- rules preventing a
person from sleeping "beyond a specified, successive number of hours
or days" (ibid.).

   Judge Ginsburg concurred only in the judgment (Pet. App. 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' interests 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 (Pet. App. 49a-77a).
 Although expressing considerable doubt on the issue (id. at 56a-60a),
Judge Wilkey assumed that respondents' sleeping activity could
constitute a form of communication 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
restrictions 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 71a-77a) because "(a)ny 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.

                 INTRODUCTION AND SUMMARY OF ARGUMENT

   The Memorial-core area parks -- as the name itself implies --
constitute a unique national resource.  Established as part of the
celebrated original design to create a noble capital city, they are a
memorial to our nation's past and an evocation of our aspirations for
beauty and community.  They constitute a "core" -- a heartland.  They
belong to us all.  They are visited by millions, who come to wander
and stroll, to play or job, to stand in awe at the Washington Monument
or in reverence at the Vietnam Memorial.

   Just because these areas have a special place in the national
consciousness and because they have such resonance, they also
constitute a fitting and powerful forum for political expression and
political protest.  When Marian Anderson was excluded from
Constitution Hall because her skin was black, what more moving place
could there be for her great concert than the Lincoln Memorial?  When
hundreds of thousands came to protest against the war in Vietnam, it
seemed fitting and natural that the march should proceed along the
Mall.

   The parks are, in sum, a special national treasure, subject to many
different sorts of uses.  That is why the question of what powers the
government has to regulate them is, inevitably, a grave issue of
public law.  The Secretary of the Interior is under a special mandate
from Congress to manage the competing uses of these parks and to
maintain them so as to fulfill their manifold purposes.  It is a task
that requires both sensitivity and common sense;  it raises some
questions of genuine difficulty.  But from the beginning of this
regulatory enterprise, every Secretary of the Interior has, without
any difficulty, concurred in one starting place:  nobody should be
allowed to live in these parks.  The Memorial-core area parks are not
suitable for camping.  They are too small, too fragile, too crowded
and too sacred to be taken over as anyone's living quarters;  nobody
may sleep over in Lafayette Park or the Mall.

   It is in the face of this longstanding and unanimously maintained
rule that respondents sought permission from the National Park Service
to conduct a demonstration in Lafayette Park and the Mall to protest
the plight of the homeless.  The demonstration was to last the entire
winter, and respondents proposed to establish campsites where 150
demonstrators would sleep in some 60 tents for the three-month period
of the demonstration.  The National Park Service pointed out that the
proposal plainly violated the regulations prohibiting camping --
defined as "the use of the park land for living accommodation
purposes." Indeed, it is difficult to imagine a proposal more at odds
with the regulatory prohibition:  the demonstrators desired to live in
Lafayette Park and the Mall for three months precisely in order to
demonstrate that they have no other place to live.  Consequently, the
demonstration permit issued by the Park Service expressly prohibited
respondents from using the parks as a place to sleep.  The Park
Service did, in accordance with the regulations -- and in what was an
attempt to accommodate First Amendment values as sensitively as
possible -- grant a renewable seven-day license to respondents to
demonstrate on a 24-hour basis and to erect "symbolic" campsites.

   On these facts, a narrow majority of the court of appeals, in a
remarkable disarray of divergent opinions, held that the regulations
may not be enforced against respondents because to do so would violate
their First Amendment right to freedom of speech.

   Our central submission is simple:  the First Amendment does not
give respondents the right to use Lafayette Park and the Mall as
sleeping quarters.  In fact, until this case, we would have thought
that simple common sense would make that an unchallengable assertion.
And if one then proceeds to review the various factors that are
relevant to the question whether government regulation is or is not
valid under the First Amendment, common sense is resoundingly
confirmed:  the First Amendment does not guarantee respondents the
right to sleep in the Memorial-core area parks.

   A. No important First Amendment values are served by the activity
respondents wished to engage in and the government sought to regulate.
 We urge the Court to rule that respondents' proposal to be allowed to
sleep in the Memorial-core parks does not qualify as "symbolic speech"
protected by the First Amendment.  /7/ Further, even if sleeping is an
activity that is thought somehow to implicate the First Amendment, we
ask the Court to recognize that the claim for constitutional
protection is weak and weighs lightly in any constitutional balancing.

   (1) The sleep-in respondents proposed for themselves does not
constitute "speech" -- in the everyday sense of oral or written
communication -- at all.  Whatever might be thought about Judge
Scalia's attempt in this case (see Pet. App. 78a-87a) to demonstrate
that the First Amendment does not provide full protection to conduct,
only speech, surely the language of the amendment at least suggests
that its core concern is for such verbal communication.  We start,
then, with the undisputable fact that what the government wished to
prohibit in this case lies at the outer margins, rather than the
center, of First Amendment concerns.

   (2) But the point is broader than the simple one that what
respondents proposed to do was not, in a literal sense, speech at all.
 For we do not dispute the proposition that conduct, as well as words,
can communicate -- that acts can be powerful carriers of ideas.  But
not all conduct, not all acts, carry identical expressive power.  And,
on that continuum, sleep ranks very low.  Few acts are less expressive
in and of themselves than sleep.  It is obvious to all that the wearer
of a black armband or one who displays a flag with a peace symbol on
it intends to communicate opinions and ideas.  /8/ But nobody would
normally suppose that a person asleep at night is, by that act,
proposing to convey a message.  People sleep at night because they are
sleepy and need sleep.  For sleep to become the conveyor of a message,
an elaborate array of further extraneous instruction and explanation
is needed.

   The point is, of course, relevant to the sleep-in proposed by
respondents.  The fact of 150 people being asleep at night in tents in
Lafayette Park communicates, by itself, no ideas at all -- just that
these people are sleepy.  The activity does not possess intrinsic
expressive power.  To convert sleep into what the court of appeals
denominated as "expressive sleep," a great deal of elaborate and
extrinsic explanation (illuminated placards?  recorded messages
broadcast on a loudspeaker?) would be required so that passerbys would
understand that the sleepers were sleeping in order to make a point.

   In sum, even conceding the somewhat farfetched notion that sleep
can, on occasion, be an activity that conveys a message, it is a
remarkably unpowerful method of communication.  Accordingly, a ban on
sleeping in the park does not interfere with activity that is an
important form of First Amendment activity;  it does not materially
impoverish the repertoire of means for the communication of ideas and
opinions.

   (3) The fact that sleep is not expressive unless a great deal of
other surrounding and explanatory "speech" activity takes place
symptomizes another relevant matter:  forbidding sleep only trivially
constrained the ability of these demonstrators to make their point.
The permit respondents obtained left them a huge space for the
exercise of First Amendment rights.  They were free to come and stay
on a continuous 24-hour basis, to march, and sing and make speeches.
They could tell all who would listen that they were there to
demonstrate that they had no home;  the only thing they could not do
was to add that they were "sleeping" there (rather than just "being"
there) because they had nowhere else to sleep.  The incremental value
-- the additional power -- that would be imparted to their message by
the fact that they could actually sleep in the park seems trivial.

   (4) Finally, the fact that sleep is activity all of us constantly
engage in for nonexpressive purposes, and is virtually never engaged
in for expressive purposes, creates another problem if First Amendment
protection is to be accorded.  How are we to distinguish between
expressive and nonexpressive sleep?  The person who wears the black
armband or displays the flag can be assumed to be sincere when he
claims that he wishes to express some message;  there is no
nonexpressive reason to wear a black armband or display a flag and no
reason to pretend to be doing it for an expressive purpose.  But in
the case of conduct such as sleep, some people may claim that they
want to camp in the Mall for expressive purposes when in fact they
just want to camp in the Mall -- and there is no way to tell one group
from the other without inquiring into the sincerity of the person
claiming First Amendment protection.  But allowing that very inquiry
to be made by a licensing authority is itself threatening to First
Amendment values.  On the other hand, the alternative -- to allow
anyone to camp in Lafayette Park who simply claims to wish to engage
in expressive camping -- is equally unpalatable.  The dilemma
illuminates the difficulties we get into if we artificialize our
conception of what constitutes "expressive" conduct by extending it to
quotidian activities and ordinary bodily functions that everyone
engages in every day for nonexpressive purposes.  In fact, a reading
of the various opinions supporting the judgment below provides a
painful lesson in these difficulties:  none of the opinions even
begins to succeed in telling us how the Park Service is to distinguish
"expressive" from "non-expressive" sleep.

   In sum:  on every relevant scale, respondents' desire to sleep in
Lafayette Park and the Mall can only marginally further the purposes
of the First Amendment in protecting the people's right to communicate
opinions and ideas;  no important First Amendment values are
implicated by a general prohibition on sleeping in these parks.

   B. The bar on using the Memorial-core parks as sleeping quarters
serves important public interests and is well adapted and narrowly
tailored to serve those interests while safeguarding First Amendment
concerns.  Under the tests laid down by this Court in its cases
passing on the validity of "time, place and manner" restrictions (see
United States v. Grace, No. 81-1863 (Apr. 20, 1983)), as well as under
the standard posited by United States v. O'Brien, 391 U.S. 367 (1968),
the "no camping" regulation is valid on its face and as applied.

   (1) The rule that nobody is allowed to use Lafayette Park and the
Mall as sleeping quarters seems so obviously sensible that it appears
patronizing to provide elaborate explanation.  Even assuming that
every one of those demonstrators would scrupulously comply with the
associated rules (no fires, no cooking, no digging of latrines, etc.),
it is evident that to allow 150 demonstrators to live in these crowded
areas for three months would create a significant strain on their
resources and on the resources of the services charged with their
maintenance and safekeeping.  Indeed, respondents' proposal that they
be permitted to sleep in these parks for the winter months seems to us
to constitute a gross over-reaching, an attempt to monopolize these
unique places that are visited by millions of Americans and used by
them for a multitude of different purposes.

   (2) Even more important, the threat to the preservation of the
beauty and serenity of these parks created by the decision of the
court of appeals cannot be limited to these demonstrators and their
demonstration.  Under that decision, it is difficult to see how the
Park Service can -- without engaging in content-based inquiries
prohibited by the First Amendment -- resist any claim asserting First
Amendment protection for using Lafayette Park and the Mall to sleep
in.  The point is explicitly highlighted by Judge Mikva's statement
(Pet. App. 18a) that not only the homeless, but all who have a
grievance against the government (such as "opposition to the nuclear
arms race") have a constitutional right to sleep in Lafayette Park and
the Mall.  And Judge Edwards' (supposedly reassuring) suggestion (Pet.
App. 39a) -- that the Constitution may perhaps permit the government
to institute a first-come first-served system and impose time limits
-- vividly (if inadvertently) conveys the nature of the threat:
Lafayette Park and the Mall will have been converted into camping
grounds devoted to the project of "expressive sleeping" by all comers
who wish or pretend to wish to engage in that activity.

   (3) The public interest the government seeks to protect in this
case -- the preservation of these unique parks so as to fulfill their
special and manifold purposes -- has nothing to do with the
suppression of communication;  it is not designed to restrict speech.
The National Park Service was not here engaged in suppressing
supposedly dangerous or disruptive ideas (prohibition on black
armbands) /9/ or promoting orthodox ones (punishing those who efface
patriotic slogans on license plates).  /10/ The regulations are wholly
content-neutral;  indeed -- unlike regulations dealing with
loudspeakers and handbilling /11/ -- they have almost no foreseeable
effect on free expression at all.  The government is, simply, trying
to assert the modest notion that Lafayette Park and the Mall are not
suitable for camping.

   (4) The government's prohibition in this case is well-adapted and
narrowly tailored to the end of preserving these parks for their
unique and multifarious uses.  The prohibition on sleep-overs in the
Memorial-core parks is flat and uniform, not susceptible to arbitrary
application and -- as found by the district court (Pet. App. 96a-99a,
106a-108a) -- evenhandedly applied in fact.  /12/ On the other hand,
the regulations go far to accommodate First Amendment interests;  in
fact, they go well beyond the line that, in our opinion, the First
Amendment commands.  There were no "time or place" restrictions placed
on respondents at all:  they were expressly permitted to set up a
24-hour vigil and were even permitted to erect "symbolic campsites."
Thus, the prohibition against sleep in no way narrowed respondents'
potential audience or substantially inhibited the force of their
message.

   (5) It is true, without doubt, that allowing the demonstrators to
sleep in Lafayette Park and the Mall would have made it more
convenient for them to demonstrate and, perhaps, attracted some
demonstrators who would otherwise stay away (or go away short of three
months).  But the First Amendment does not require the public to
furnish demonstrators with facilities and support services designed to
maximize the effectiveness of their protest.  /13/

   In sum:  on every relevant scale, the public interest is well
served -- and First Amendment values hospitably accommodated -- by the
regulations at issue in this case, which do no more than give
recognition to the fact that Lafayette Park and the Mall are not
suitable for use as campgrounds.

                               ARGUMENT

 I. NO SIGNIFICANT FIRST AMENDMENT VALUES ARE SERVED BY GIVING
RESPONDENTS THE RIGHT TO USE THE MEMORIAL AREA PARKS AS SLEEPING
QUARTERS

 A. The Act Of Sleeping Has Such Limited Communicative Power That It
Should Be Accorded Little Or No First Amendment Protection

   The cornerstone of respondents' challenge to enforcement of the "no
camping" regulation is that sleeping in Lafayette Park and on the Mall
as part of their winter-long demonstration constitutes a form of
"symbolic speech" that should be treated for First Amendment purposes
as indistinguishable from conventional verbal (oral and written)
communication.  We submit, on the other hand, that respondents'
project of sleeping in these parks does not seriously implicate the
First Amendment's purpose to protect the people's right to
communicate.

   1. This Court's cases show that activities such as sleep, which
have minimal expressive content, should be presumed not to qualify as
"symbolic speech" for purposes of the First Amendment.  The
fundamental issue in this case is whether the First Amendment's
guarantee of "freedom of speech" gives the respondents a
constitutional right to sleep in Lafayette Park and the Mall.  /14/
This Court has recognized that the purpose of the First Amendment is
to protect the people's right to communicate -- to express thoughts
and ideas and emotions -- and that, consequently, non-verbal activity
("conduct") that is significantly communicative may deserve First
Amendment protection as "symbolic speech." See, e.g., Tinker v. Des
Moines School District, 393 U.S. 503 (1969) (black armband).  But the
Court has firmly 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 Spence v.
Washington, 418 U.S. 405, 409 (1974);  Cohen v. California, 403 U.S.
15, 18 (1971);  Tinker v. Des Moines School District, 393 U.S. at 515
(White, J., concurring).  If respondents' proposed sleep-in does not
constitute "speech" as discussed in O'Brien, their challenge to the
"no camping" regulation must fail.  It is obvious that the First
Amendment is not violated by a content-neutral regulation that serves
valid public interests unrelated to expression and that has no
incidental impact on "speech."

   a. The Court has not had occasion to draw a definitive line
separating conduct that should be considered "symbolic speech" from
other conduct.  /15/ Nor does this case require the Court to create a
comprehensive formulation.  Wherever the line between protected and
unprotected activity ultimately is drawn, it seems apparent that -- if
the Court's statement in O'Brien is to be meaningful at all --
respondents' proposal to use the Memorial-core area parks as a place
to sleep during the winter should not qualify as "speech" to be
protected by the First Amendment.

   The central point is that respondents' claim for First Amendment
protection differs fundamentally from claims that have been given
serious consideration by this Court in other "symbolic speech" cases.
See Spence v. Washington, supra (affixing peace symbol to flag);
Tinker v. Des Moines School District, supra (black armband);  United
States v. O'Brien, supra (draft card burning);  Brown v. Louisiana,
383 U.S. 131 (1966) (sit-in in segregated library);  Stromberg v.
California, 283 U.S. 359 (1931) (flying red flag).  Each of those
cases involved conduct that was inherently expressive;  there was no
reason to engage in the conduct other than the desire to communicate,
and there was no doubt that the activity conveyed a powerful message
understandable to those who observed.  This is vividly shown by the
fact that in each case the conduct constituted the complete
demonstration;  there was no need, in order to communicate the ideas,
to use words to explain the conduct.  The reciprocal truth recognized
in these cases was, of course, that -- with the exception of O'Brien
(where the challenged statute was upheld) -- it was the purpose of the
challenged legislative or regulatory action to restrict or regulate
the expression of ideas.  See Spence v. Washington, 418 U.S. at 414
n.8;  Tinker v. Des Moines School District, 393 U.S. at 508-510;
Brown v. Louisiana, 383 U.S. at 142;  Stromberg v. California, 283
U.S. at 361, 369;  see generally Pet. App. 84a (opinion of Scalia,
J.).

   The activity involved in this case is quite different.  The fact of
150 demonstrators sleeping in tents in Lafayette Park or the Mall,
standing by itself, communicates no ideas, no opinions, no emotions --
only the fact that people are asleep.  It is not like 150
demonstrators with flags or armbands.  It is not even like 150
demonstrators standing at night in a vigil with candles lit -- a
demonstration obviously designed to express some sort of protest or
feeling or aspiration (even if it is hard, without an explanation, to
know what is its particular concern).  Sleeping is a singularly
inexpressive activity -- it communicates primarily the bodily need to
sleep.  /16/ It is virtually never engaged in to convey a message or
make a point, and it will not be understood as conveying a message or
making a point without elaborate extrinsic explanation.  In fact, even
if an observer understood from other indications that this was a
demonstration site, he would most likely conclude simply that
respondents were camping at the site for convenience, not that the act
of sleeping was itself designed to convey a message.  /17/ That is why
respondents could not rely on sleep alone to constitute their
demonstration;  the sleep was to be part of an elaborate program
designed to explain their message verbally (see Pet. App. 16a-17a).

   What we have here, then, is a proposed method of communication that
is singularly unpowerful:  without inherent expressive potential,
requiring elaborate verbal explanation to convey any message at all.
And the reciprocal truth is that a prohibition on this activity will
have only a marginal impact on respondents' ability to convey a
message and only a marginal impact on the means to be used for
conveying it.  For respondents are not forced to engage in verbal
explanations instead of sleeping;  they would have to explain anyway,
even if allowed to sleep.

   b. The plurality below obscures the weakness of the speech interest
involved in this case by concluding that respondents' sleeping
satisfies a "test" for First Amendment protection that it finds in
Spence v. Washington, supra (Pet. App. 14a-15a;  see also id. at
34a-35a (opinion of Edwards, J.)).  No such test exists.  In Spence
the Court held that it violates the First Amendment to punish a person
for displaying a flag with a peace symbol attached -- that this was a
"case of prosecution for the expression of an idea through activity."
418 U.S. at 411.  The Court stressed that flags are a traditional
"form of symbolism" recognized by all -- a "'shortcut from mind to
mind'" (id. at 410, quoting Board of Education v. Barnette, 319 U.S.
624, 632 (1943)).  It noted that the peace symbol, too, is just that
-- a symbol known to all, just like the black armband that, in Tinker,
"conveyed an unmistakable message" (418 U.S. at 410).  The Court went
on to state that the context of Spence's action in May 1970 -- at the
time of the invasion of Cambodia and the tragedy at Kent State -- also
made the fact that he was conveying a message, as well as the content
of the message, unmistakable (ibid.).  In summarizing this part of its
opinion, the Court concluded that "(a)n intent to convey a
particularized message was present, and in the surrounding
circumstances the likelihood was great that the message would be
understood by those who viewed it" (id. at 410-411).

   Respondents, like the plurality below, abstract this last statement
and convert it, out of context, into a "test" for the "symbolic
speech" inquiry (see Br. in Opp. 20).  But this statement was not
designed to be a "test" at all, and a fortiori not to be a complete
one.  Spence rested substantially on Spence's use of symbols with
obvious and powerful communicative meanings.  See 418 U.S. at 410.  It
is a giant step from this to the conduct involved here -- conduct that
has no recognized communicative content and that is constantly engaged
in by every human on earth -- but virtually never for any
communicative purpose at all.  /18/

   In fact, this is one of the few cases where conduct alleged to be
communicative cannot even satisfy respondents' own "test" for what is
"symbolic speech." Respondents may have intended to convey a
particular message through their sleep-in;  but "the likelihood * * *
that the message would be understood by those who viewed it" can
hardly be characterized as "great" (418 U.S. at 411).  This fact was
implicitly recognized by respondents, who planned to use placards and
speeches to explain the significance of their conduct, and by the
plurality, which clearly recognized that these explanations would be
necessary to the understanding of respondents' message (see Pet. App.
15a).  /19/

   c. The weakness of the speech interest at stake in this case is
also demonstrated by the fact that the prohibition imposed by the
government has only a trivial impact on respondents' ability to
communicate their message.  The National Park Service has permitted
respondents to demonstrate at the times and in the places requested;
nothing the government has done in any way limits their audience.
Respondents can speak and march and sing and pray;  they can stand in
silent vigil or broadcast to the world in order to convey the message
of homelessness.  They can even spend the night;  what they cannot do
is to go into their tents and spend the night actually sleeping --
because that would be using the park as a place to live.  It is this
gap, and this alone, that leads to the claim that the Constitution has
been violated, on the asserted (but surely dubious) basis that the
message would be more effective if respondents were permitted actually
to go to sleep in their tents.  /20/

   d. To summarize:  our submission is that the concept of "symbolic
speech" should be reserved for forms of "conduct" that can contribute
meaningfully to the expressive communication of ideas, opinions and
emotions;  and that that concept should not be promiscuously expanded
to ordinary bodily activities such as sleeping -- activities that
every human being engages in every day of life without intending
thereby to convey a message.  /21/ The First Amendment places special
value on our right to communicate, to express what we think.  The
notion of a First Amendment right to engage in "expressive sleep" --
the constitutional right conjured up by the court of appeals in this
case -- trivializes the First Amendment, because it can contribute
only in a trivial way to the possibilities of human communication.

   2. Even if not categorically ruled out as a variety of "symbolic
speech," sleeping constitutes activity at the margins of First
Amendment concerns;  since its weight in the balance is light, its
regulation is valid if reasonable.  Even if this Court is unwilling to
adopt a categorical presumption that sleeping is not conduct protected
by the First Amendment as "symbolic speech," the considerations
advanced above -- showing that sleeping is a singularly unimportant
form of First Amendment activity -- are not irrelevant.  The weakness
of the First Amendment claim in this case means that, in any
balancing, the weight to be accorded to the (so-called) "speech"
interest is slight and is more easily counterbalanced than in cases
where First Amendment values are substantially in play.  This Court's
decisions make it clear that, in balancing First Amendment values
against the government interest in regulation, the extent to which
First Amendment values are actually implicated is highly relevant, so
that the degree of First Amendment protection may differ depending on
the nature of the affected speech and on the form of expression
involved.  See, e.g., Metromedia, Inc. v. City of San Diego, 453 U.S.
490, 501 & n.8 (1981) (plurality opinion);  id. at 527-528 (opinion of
Brennan, J.);  id. at 557 (Burger, C.J., dissenting);  Elrod v. Burns,
427 U.S. 347, 363 n.17 (1976) (opinion of Brennan, J.);  Southeastern
Promotions, Ltd. v. Conrad, 420 U.S. 546, 557 (1975) ("Each medium of
expression, of course, must be assessed for First Amendment purposes
by standards suited to it.");  Cox Broadcasting Co. v. Cohn, 420 U.S.
469, 495 (1975);  Cohen v. California, 403 U.S. 15, 18 (1971).  What
this means, in effect, is that the marginal First Amendment values
involved in this case can be fully protected without subjecting the
government's regulatory enterprise to the sort of exacting scrutiny
that is conventionally called for when the government regulates truly
communicative activity.

   In part II of this brief, we show that in fact the public interest
in enforcing the National Park Service's ban on sleeping in Lafayette
Park and the Mall is substantial.  But first we explain why the court
of appeals' approach to the question whether "speech" was involved in
this case at all (and, if so, what sort of speech interest was
involved) is fundamentally flawed.

 B. The Court Of Appeals' Overinclusive Approach To What Constitutes
"Symbolic Speech" Is Analytically Flawed And Contradicts This Court's
Cases

   The opinions in the court of appeals struggle mightily -- but, we
submit, unsuccessfully -- to show that what is at stake here -- the
right of respondents to spend three months camping in Lafayette Park
and the Mall -- constitutes a significant speech interest within the
meaning of the Constitution.

   In analyzing the question whether -- and what sort of -- "speech"
interest is involved in this case, the court of appeals was led to
overinclusiveness by at least four significant errors in its analysis.

   1. As we have already demonstrated (see pages 23-24, supra), the
court was led to an unduly broad definition of protected speech by its
mistaken adoption (see Pet. App. 15a), as a wooden "test," of a
standard derived from one sentence taken out of context from the
opinion in Spence v. Washington, supra.

   2. The court of appeals went further astray in applying this
overinclusive "test." Having quoted the Court's statement in Spence,
the plurality made no inquiry into the question whether there is a
"great likelihood" that respondents' plan to sleep in the parks would
in fact be readily perceived as communicative.  Rather, the plurality
immediately jumped to the conclusion that "(i)n the present case,
within the context of a large demonstration with tents, placards, and
verbal explanations, the communicative context is sufficiently clear
that the participant's sleeping cannot be arbitrarily ruled out of the
arena of expressive conduct" (Pet. App. 15a (footnotes omitted;
emphasis supplied)).

   It is apparent that this approach sweeps all before it:  conduct
can be excluded from the category of "expressive conduct" only if it
is permissible to rule it out "arbitrarily." But what conduct is that?
 And is it not the case that literally any conduct, when explained
with "placards and verbal explanations," can, on this approach, be
rendered sufficiently "communicative"?

   This Court made it unmistakably clear in O'Brien that not all
conduct may be labeled "speech" simply because the actor intends
thereby to convey a message.  The court of appeals (Pet. App. 13a)
paid lip service to this injunction, but deprived it of all meaningful
content in concluding that the First Amendment protects as "speech"
all conduct which, when explained by placards and verbal explanations,
is sufficiently understandable to resist being "arbitrarily" excluded
from the "arena of expressive conduct."

   3. The court of appeals does not stop here.  Judge Mikva's opinion
further expands the concept of speech by eliminating the requirement
that the conduct in question have any inherent communicative value at
all (Pet. App. 17a):

         We add, moreover, that even were we not to focus on the
      Peculiarly expressive nature of sleeping, first amendment
      scrutiny would still be implicated.  This conclusion stems from
      the fact that the protestors' purpose, whether asleep or awake,
      is to maintain 'a symbolic (24-hour) presence * * *.' * * *Given
      this undeniable intent * * * it is clear that CCNV's proposed
      'presence' is intended to be expressive regardless of whether
      the demonstrators sit down, lie down, or even sleep during the
      course of the demonstration.  Thus, whatever the particular form
      of the protestors' presence at night, their presence itself
      implicates the first amendment.

   Apparently, then, protestors who wish to demonstrate around the
clock have a constitutionally protected right to engage in any
activity necessary to enable them to stay around the clock, regardless
of whether the activity itself conveys a message.  See also Pet. App.
47a (opinion of Ginsburg, J.).  /22/ And the plurality makes it
explicit that camping in the park is a constitutional right no matter
what the purpose of the demonstration (e.g., to protest the nuclear
arms race), so long as the protestors deem an around-the-clock
presence to be important (and therefore "expressive") (id. at 18a).
But this principle cannot, of course, be limited to sleeping.  Under
it a right to cook and serve food -- for example -- must plainly be
classified as a First Amendment right so long as it bears a
"functional relationship" (id. at 47a (opinion of Ginsburg, J.)) to
the demonstrators' around-the-clock expressive presence.

   4. The court of appeals made one other fundamental error.  Having
once found that, in the circumstances, respondents' proposed camping
constituted "speech" within the coverage of the First Amendment, the
court immediately brought into play the doctrines providing for highly
rigorous scrutiny of governmental regulation of speech -- just as if
the government had, here, prohibited respondents from making ordinary
speeches and passing out leaflets in the park (cf. Pet. App. 45a
(opinion of Ginsburg, J.) (voicing misgivings about treating sleeping
as the equivalent of ordinary speech)).  Having found that respondents
have a toe-hold on the "speech" side of the scale, the court went on
to evaluate the "government interest" side of the scale as if all
speech interests had an identical weight, without inquiring into the
seriousness of the constraints on communication created by the ban on
sleeping.

   Ignoring the strength of the speech interest involved is surely a
peculiar way of engaging in what the court of appeals correctly termed
a balancing of First Amendment freedoms against the government's
interest in regulation.  See Pet. App. 19a;  see generally L. Tribe,
American Constitutional Law 581-582, 683 (1978);  Metromedia, Inc. v.
City of San Diego, 453 U.S. at 502 (plurality opinion);  Linmark
Associates, Inc. v. Willingboro, 431 U.S. 85, 91 (1977);  Konigsberg
v. State Bar, 366 U.S. 36, 50-51 (1961).  One cannot balance without
assessing the weights on both sides of the scales.  Particularly if
"speech" is to be defined on the undiscriminating basis adopted by the
court of appeals, so as to include virtually every sort of conduct, it
is critically important that distinctions between different forms of
speech -- carrying vastly different First Amendment weights -- be kept
in mind in evaluating whether a sufficient countervailing interest has
been shown to justify regulation.

   In conclusion, we submit that this is not a difficult case.  No
important First Amendment values are served by inventing a
constitutional right for respondents to sleep in Lafayette Park and
the Mall;  the fact that respondents may not sleep there is not a
significant intrusion into the free marketplace of ideas.  Even if
respondents' sleep-in triggers some First Amendment scrutiny, the
substantial public interest in the "no camping" regulation -- to which
we now turn -- clearly justifies enforcing it.

 II. THE BAN ON CAMPING IN THE MEMORIAL PARKS SERVES A SIGNIFICANT
PUBLIC INTEREST AND DOES NOT THREATEN FIRST AMENDMENT VALUES

 A. Under This Court's Balancing Test The "No Camping" Regulation Is
Amply Justified As A Content-Neutral Measure Narrowly Tailored To
Serve An Important Public Purpose Unrelated To The Suppression Of Free
Expression

   Perhaps the most important aspect of the "no camping" regulation is
not what the regulation does, but what it does not do.  This Court has
stated that "above all else, the First Amendment means that government
has no power to restrict expression because of its message, its ideas,
its subject matter or its content." Police Dep't of Chicago v. Mosley,
408 U.S. 92, 95 (1972).  See also Carey v. Brown, 447 U.S. 455, 470
(1980).  The regulation at issue here is in no way directed at
expression.  /23/ It must, therefore, be common ground that the
regulation is not subject to the strictest form of First Amendment
scrutiny;  it need not be supported by a "compelling state interest."
See, e.g., First Nat'l Bank v. Bellotti, 435 U.S. 765, 786 (1978).
Rather, the challenge to the regulation -- based on its alleged
incidental intrusion into rights of free expression -- must be
evaluated by balancing the government interest served by enforcing the
regulation against the speech interest allegedly infringed.  See
generally L. Tribe, American Constitutional Law, 580-584, 682-684
(1978);  Ely, Flag Desecration:  A Case Study in the Roles of
Categorization and Balancing in First Amendment Analysis, 88 Harv. L.
Rev. 1482, 1484, 1488-1490 (1975).

   Two lines of cases suggest an appropriate framework for conducting
this balancing inquiry.  Lafayette Park and the Mall are concededly
"public forums" appropriate for use for the public communication of
ideas.  The limits on the government's power to regulate expression in
a public forum are well established.  The government "may enforce
reasonable time, place, and manner regulations as long as the
restrictions 'are content-neutral, are narrowly tailored to serve a
significant government interest, and leave open ample alternative
channels of communication.'" United States v. Grace, No. 81-1863 (Apr.
20, 1983), slip op. 5 (quoting Perry Education Ass'n v. Perry Local
Educator's Ass'n, No. 81-896 (Feb. 23, 1983), slip op. 7-8).  /24/
This doctrinal framework is appropriate here because the "no camping"
regulation -- if it has any impact on expression -- clearly regulates
only its manner.  Pursuant to the regulations, respondents have been
issued a permit entitling them to demonstrate in the parks.  But the
manner in which they may demonstrate is restricted -- they are not
permitted to express their message by using their demonstration site
as sleeping quarters.

   The court of appeals looked to a different line of authority in
considering the validity of the regulation.  It applied the test set
forth in United States v. O'Brien, supra.  O'Brien involved the
prosecution of a person for publicly burning his draft card on the
courthouse steps, thus violating a federal statute prohibiting the
knowing destruction of draft cards.  Assuming arguendo that O'Brien's
conduct was protected "speech," the Court stated (391 U.S. at 377):

      (W)e think it clear that the 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.

   The Court held that this test was met and affirmed O'Brien's
conviction, emphasizing that "both the governmental interest and the
operation of the (statute) are limited to the noncommunicative aspect
of O'Brien's conduct" (id. at 381-382).  /25/

   We believe that the language quoted from Grace and O'Brien
indicates a convergence toward a single framework for inquiry.  Both
cases insist, first, that the regulation not constitute censorship --
that it be content-neutral (Grace) or not have as its purpose the
suppression of free expression (O'Brien).  Second, both cases ask
whether the public interest served by the regulation is "important or
substantial" (O'Brien) or "significant" (Grace).  Third, both cases
require that the government regulation be well adapted so as to
"further" the relevant government interest, and that regulation not
intrude with unnecessary breadth into the arena of free expression.
Grace puts the point by stating that the regulation must be "narrowly
tailored" to serve the government interest, and then adds the
congruent injunction that alternative channels of communication must
be left open.  O'Brien states the "narrowness" requirement by
insisting that the restriction on speech may not be "greater than is
essential" to serve the government's interest.  /26/

   We turn now to a detailed analysis of this case within this
framework, an analysis that demonstrates that under this Court's cases
the ban on camping in the Memorial-core parks is constitutional.

   1. The regulation is a content-neutral nondiscriminatory
prohibition wholly unrelated to the suppression of expression.  No
elaborate demonstration is needed of the undisputed point that the
government's age-old policy against overnight camping in Lafayette
Park and the Mall has nothing to do with censorship and is in no way
animated by the purpose of suppressing free expression.  The
government has not decided here that some or all ideas are dangerous,
or that some ideas are better than others.  Indeed, it requires
considerable ingenuity to figure out how the government's regulation
has in any way intruded on free expression;  the more natural reaction
would be to say that respondents' demonstration was accorded a
remarkably generous welcome.  Respondents were given permission to
demonstrate around the clock in a small and fragile area revered by
Americans and belonging to all, at the center of the symbolic heart of
the city and the country.  Their audience would be exactly the
audience they themselves chose to have.  All that has happened is that
respondents were not allowed to use their demonstration site as
sleeping quarters.  /27/

   Nor does the structure of this regulation invite content-based or
discriminatory enforcement:  the ban on sleeping in the park is flat
and absolute, leaving no room for discretionary judgments about the
supposed dangers of particular communications.  Cf. Shuttlesworth v.
City of Birmingham, 394 U.S. 147, 153 (1969);  Kunz v. New York, 340
U.S. 290, 293-294 (1951);  Cantwell v. Connecticut, 310 U.S. 296,
304-307 (1940).  /28/

   2. The regulation serves an important government interest -- the
preservation of the parks for multifarious uses.  Lafayette Park and
the Mall -- integral parts of the Memorial-core -- constitute a
special national resource.  The National Park Service discharges an
important mission in administering these parks and regulating their
use for the benefit of the general public.  As is explained in detail
in the policy statement accompanying the 1982 revision of the "no
camping" regulations (47 Fed. Reg. 24299, 24301-24302), these
particular regulations are an essential part of the overall regulatory
scheme to preserve park resources for the enjoyment of all.

   In the judgment of the National Park Service, the Memorial Core
area parks are "an especially unsuitable location for camping
activities" (47 Fed. Reg. 24302 (1982)).  These are small urban parks,
visited by millions yet meticulously landscaped, unable to accommodate
long stays.  The use of these parks as campgrounds would be "basically
incompatible" with their important natural functions.  See Schad v.
Borough of Mount Ephraim, 452 U.S. 61, 75 (1981) (quoting Grayned v.
City of Rockford, 408 U.S. 104, 116-117 (1972)).  As described in the
relevant policy statement, "(c)amping could cause significant damage
to park resources, create serious sanitation problems, and seriously
tax law enforcement resources." 47 Fed. Reg. 24302 (1982).

   In addition, allocating park lands to individuals for use as living
quarters excludes others.  The Memorial-core parks are small.  They
are used by multitudes, both residents and visitors, /29/ who come to
see and stroll and play and pray.  Some of these seek not noise and
conflict but serenity and inspiration.  The rights of all must be
accommodated.  In these circumstances, the notion that a portion of
Lafayette Park and the Mall should become living space for respondents
for the three winter months seems completely out of proportion, and
would -- as the Park Service has determined -- deprive "other park
visitors * * * of use of this nationally significant space." 47 Fed.
Reg. 24302 (1982).

   Further, it must be remembered that the government interest
involved in this case is not limited to these respondents and their
demonstration.  If respondents have a constitutional right to engage
in "expressive sleep," so do others.  And, as a reading of the
opinions in the court of appeals shows, the question of how to
distinguish between "expressive" and "non-expressive" sleep is not
easily answered.  In fact, as Judge Wilkey demonstrates (Pet. App.
71a-77a), there is no way for the National Park Service to draw a line
that would permit "sleeping demonstrations" without leaving it
effectively powerless to prevent anyone from using Lafayette Park and
the Mall as sleeping quarters.

   It is a fundamental principle under the First Amendment the
government should not use content as a basis for regulating speech or
expression.  See, e.g., Police Dep't of Chicago v. Mosley, 408 U.S. at
95;  Niemotko v. Maryland, 340 U.S. 268, 271 (1951).  Many
demonstrators -- indeed, many casual visitors to Washington -- may
have an interest in camping on the Mall.  /30/ It is a simple matter
for anyone to assert a facially valid First Amendment claim to sleep
there, one that would plainly satisfy the plurality's test for
constitutional protection.  /31/ The National Park Service would be
forced to grant permits to these individuals to sleep in the park
unless it is to investigate the permit requests to determine whether
the First Amendment claim is sincere.  Such an inquiry -- in addition
to being beyond the scope of the Service's proper function -- would
seriously threaten First Amendment values.  It would require the
government to assess the motivations of demonstrators and to make
judgments about the plausibility of the connection between the
proposed camping activity and the message sought to be conveyed.  /32/
It is, consequently, clear that the government interest involved in
this case cannot be limited to the protection of the parks from the
effects of the demonstration proposed by these respondents.  Rather,
the question is whether there is a significant public interest
associated with preventing Lafayette Park and the Mall from being
converted into places available for use as around-the-clock
campgrounds by all comers who wish to use them for living
accommodations for their convenience or pleasure and who present a
facially valid claim to be allowed to engage in "expressive sleep."
Our submission is that the answer must be "yes";  that to allow this
to happen would be tragic;  and that the notion that the Constitution
requires it to happen is absurd.

   3. The regulation is well adapted to serve the relevant government
interests and is narrowly tailored to be no wider than necessary;  the
regulation leaves ample scope for free expression.  It is the use of
the parks as living quarters that the Secretary of the Interior has
identified as threatening the preservation of park resources.  The
regulation is narrowly focused to that end.  "Camping" is defined as
"the use of park land for living accommodation purposes." 36 C.F.R.
50.27(a).  The inclusion of sleep as one of the acts associated with
use of the park as a living accommodation -- the portion of the
regulation attacked by respondents -- is surely appropriate.  Sleeping
outdoors is a central constituent of camping -- it's what it's all
about.  What converts an outing or a hike or a picnic into camping is
the project of living outdoors;  living outdoors means to sleep there.
 A definition of camping that failed to include sleeping would be
bizarre.  /33/

   The inclusion of sleep in the definition of camping directly serves
the public interest in protecting park resources.  It makes it more
difficult to maintain a continuous presence in the park, to occupy it
around the clock.  The parks are not closed at night, and the
regulations (and the permit issued here) interpose no bar to an
around-the-clock demonstration.  As Judge Wilkey explains (Pet. App.
67a n.49, 74a-75a), there is a significant quantitative difference, in
terms of the threat to park resources, between permitting a wakeful
vigil and permitting demonstrators to use the park as a place to
sleep.  Both involve a continuous, around-the-clock presence in the
park;  but once sleeping is allowed, the number of persons who can
stay for 24 hours is greatly increased, with a corresponding increase
in the wear and tear on park resources.

   As we have already shown, the regulation as written and applied is
scrupulously restricted to interfere minimally (if at all) with
respondents' right to propagate a message.  See pages 24-25, 34-35,
supra.  Respondents have been permitted to maintain a 24-hour
presence.  They have been permitted to erect "symbolic" campsites so
that they can demonstrate that the point of their protest is
homelessness.  Their right to communicate by real First Amendment
activities -- word and song, speech and writing -- is inviolate.
Under the circumstances the asserted infringement on their ability to
communicate their message seems more theoretical than real.

   Finally, as has also been previously shown (pages 36-38, supra),
and as is fully elaborated in Judge Wilkey's dissent (Pet. App.
71a-77a), the "no camping" regulation cannot be criticized as
overbroad because it fails to provide an exception for "expressive"
sleeping.  The short answer to such criticism is that any such
exception would either wholly swallow the rule, or would inevitably
engulf the Park Service -- and the courts -- in generating and
applying content-oriented lines for distinguishing between expressive
and nonexpressive sleep.

   We conclude, therefore, that -- whether the O'Brien formulation or
the standard "time, place, and manner" test is used -- the flat ban on
camping in the Memorial parks is valid.  /34/

 B. The Court Of Appeals Failed Properly To Evaluate The Government
Interest In Preventing Camping In The Memorial Area Parks

   The court of appeals majority was not persuaded that, as applied in
this case, the "no camping" regulation sufficiently and narrowly
serves a significant public interest.  But in reaching that conclusion
the three principal opinions supporting the judgment below
mischaracterize and distort the nature of the government interest at
stake here.  Each of those opinions placed heavy emphasis on the fact
that the government has not prohibited respondents from holding their
demonstration, from maintaining a 24-hour presence in the parks, from
erecting symbolic campsites, and even from lying down and taking
catnaps in these symbolic tents.  But instead of commending the
government for the narrowness of the resulting prohibition, the
opinions turn the permissive features of the regulations against the
government.  Judge Mikva focuses on the "incremental" harm to the
parks that can be caused by these specific demonstrators (who have
received a permit to demonstrate around the clock and to erect tents)
if they also engage in the "incremental" act of falling asleep in
their tents.  He concludes that no serious additional mischief will be
caused by sleeping (Pet. App. 21a-24a).  Judge Ginsburg complains that
"it is not a rational rule of order to forbid sleeping while
permitting tenting, lying down, and maintaining a twenty-four hour
presence," and concludes that the lines drawn by the National Park
Service are not sufficiently "sensible, coherent, and sensitive to the
speech interest involved" (id. at 48a).  Judge Edwards takes a
different tack.  His question is whether there are alternative, less
restrictive, means available to achieve the purpose of the "total ban
against sleeping" -- a ban that, Judge Edwards asserts, counts as a
"total prohibition on the exercise of a constitutional right" (id. at
38a).  He concludes that less restrictive alternatives are available
that would adequately serve the relevant government interests (id. at
39a).

   We believe that the methods of analysis used in these opinions are
flawed and ignore the relevant commands of this Court's cases.

   1. The court of appeals misunderstood the point of the government's
regulations and therefore mischaracterized the government interest
involved in this case.  The government in this case seeks to prevent
persons from camping -- that is, using the parks as living quarters.
It is that use that is considered most threatening to the proper
utilization and preservation of these spaces.  The regulations
consequently do not forbid many activities that are not constituents
of camping -- activities such as strolling, sunbathing, and lying
down.  In fact the regulations do not prohibit sleeping as such --
they prohibit sleeping in the context of using the park as a place to
live.  (That is why catnapping is not prohibited.) /35/

   The court of appeals never addressed the question whether it is
"important" (Judge Mikva) or "sensible" (Judge Ginsburg) to forbid the
use of Lafayette Park and the Mall as a living accommodation, and
whether it is possible and meaningful to do that without denying
respondents the right to sleep overnight in their tents.  Instead, it
disaggregated the government's prohibition and examined in isolation
the one specific constituent of that activity -- sleeping -- that
respondents sought to include in their demonstration.  This distorted
its analysis and enabled it to invalidate the regulation by a
technique of "divide and conquer." Obviously, the "incremental" harm
caused by one narrow element necessary to carry on a complicated
activity can be easily minimized even though the activity as such is
significantly harmful.  The question still remains whether forbidding
the activity is or is not important.  What the government seeks to
prevent here is the monopolization of and strain on park resources
that results from the continuous and intense use that we call
"camping" or "living" in a place -- a use that cannot occur without
sleeping.  It is simply irrelevant to the validity of that aim that
sleep -- as such -- is not a "harmful" activity, /36/ or that
forbidden sleep is not significantly different -- in the abstract --
from permitted wakeful lying down or catnapping.

   2. The importance of the government's "no camping" regulation is
not diminished by the fact that the government has been sensitive to
First Amendment interests in its generous treatment of respondents'
proposed demonstration.  The question that remains -- if, in
principle, there is a substantial government interest in preventing
persons from "living" in Lafayette Park and the Mall -- is whether the
Constitution demands that that rule be abandoned in the case of
demonstrators who have been given permission to stay around the clock
and to erect symbolic tents.  The court of appeals' conclusion that
the regulation is invalid because the government has gone to these
lengths to accommodate First Amendment values seems peculiarly
perverse:  it tells the government to be as stringent as possible in
dealing with demonstrations, permitting only what the Constitution
inexorably commands.  It is made doubly perverse by the fact that the
permitted activities that the court of appeals found so significant
have been permitted in part on account of requirements imposed by
prior decisions of that very court.  /37/ In effect what the court of
appeals has done here is to hold (in Case 1) that the law requires the
government to permit demonstrations around the clock and the erection
of symbolic tents, and then to hold (in Case 2) that sleeping must be
permitted because a 24-hour presence and tenting are allowed -- on the
ground that the "incremental" harm caused by the "incremental" act of
sleeping is not great (Judge Mikva) or that the line between tenting
and sleeping is not "sensible" (Judge Ginsburg).  It is this technique
that Judge Wilkey correctly characterized as one that "nickel(s) and
dime(s) (the) regulation to death" (Pet. App. 64a).

   Even more important, the court of appeals' analytical technique is
not a sound way to create rules of constitutional law.  The question
in this case is whether the Constitution gives respondents the right
to use the Memorial-core parks as sleeping quarters.  The fact that
the government has -- rightly or wrongly -- chosen to allow 24-hour
vigils and "symbolic" campsites should not distort the correct
disposition of that question.  Permissions and concessions granted by
government officials should not be converted into baseline touchstones
for constitutional adjudication.  /38/

   In fact, of course, the government has never in any way conceded or
assumed that the provisions of the regulations allowing
around-the-clock demonstrations and the erection of symbolic campsites
are required by the Constitution.  The regulations are framed as they
are because the government, in an attempt to be hospitable to First
Amendment values, determined to accede without further litigation to
the requirements imposed in previous circuit cases.  Their rulings
should not be deemed to provide the constitutional starting point for
the decision of this case.

   3. The court of appeals' plurality also misconceived the nature of
the government's interest in enforcing the "no camping" regulation by
focusing entirely on these particular demonstrators.  The plurality in
this case further narrowed its focus in evaluating the nature and
weight of the public interest behind the "no camping" regulation by
reducing the issue to that presented by these specific demonstrators
and their particular demonstration.  Its ultimate holding was that the
government's interest would not be sufficiently furthered "by keeping
these putative protestors from sleeping" (Pet. App. 28 (emphasis
added)).  But in Heffron v. International Society for Krishna
Consciousness, Inc., 452 U.S. 640, 652 (1981), this Court explained
that the justification for a regulation of general applicability
cannot be assessed by inquiring into the effect of granting an
exemption from the regulatory prohibition to one group.  Any
regulation can be made to seem unnecessary if the inquiry is focused
only on the government interest in not making an exception in the
particular case at hand.  See, e.g., United States Postal Service v.
Council of Greenburgh Civic Associations, 453 U.S. 114, 135 (1981)
(Brennan, J., concurring).  The plurality acknowledged this in theory
(see Pet. App. 22a), but it evaded meaningful compliance with the rule
by adopting an artificial definition of the relevant "general"
category.  /39/

   We submit that this analysis is unsound.  The National Park Service
is under a duty to promulgate general regulations for the preservation
of park resources.  Surely it must be free to act with the generality
of cases in mind without thereby rendering the regulation vulnerable
in every individual situation in which a compelling need for the
particular restriction cannot be shown.  See, e.g., United States
Postal Service v. Council of Greenburgh Civic Associations, 453 U.S.
at 132-133.  Otherwise, challenges to the regulations would lead to
chaos and arbitrary treatment, rather than uniformity, fairness, and
ease of administration.  Since the regulating agency must draw lines,
the court's inquiry must focus on whether those lines, drawn for the
generality of cases, are reasonably (and narrowly) tailored to serve
the relevant government interest.  That standard is satisfied here.
The government has a strong interest in preventing all comers from
camping in Lafayette Park and the Mall by using them as living
quarters.  It makes no sense to forbid camping without forbidding its
central necessary constituent:  sleeping overnight in tents.  No
intelligible exception can be carved out for "expressive" camping, and
no special exception can or should be made for these particular
demonstrators.

   4. The court of appeals misapplied O'Brien when it concluded that
less restrictive alternatives are available.  A further flaw in the
court of appeals' approach to this case resulted from its
misunderstanding of this Court's statement in O'Brien that an
incidental restriction on First Amendment freedom may be "no greater
than is essential to the furtherance of that (governmental) interest"
(391 U.S. at 377).  Both the plurality and Judge Edwards read this as
authorizing the courts to make a wholly independent de novo assessment
whether there exists a means "less restrictive" than the regulation to
further the government's objective (Pet. App. 23a, 39a).  Both
opinions conclude from this that the regulation must fall if the court
can conceive of a somewhat different regulatory scheme that may be
protective of the parks even if respondents are permitted to sleep
there.  The plurality suggests that patrolling the campsites closely
to prevent cooking and making fires (id. at 23a-24a), revoking the
demonstration permit if "participants engage in non-sleep 'camping'
activities" (id. at 26a n.32), and limiting "the number of tents, the
size of tents or campsites, and the number of persons allowed to
sleep" (id. at 27a (footnotes omitted)) constitute less restrictive
alternatives.  Judge Edwards also lists these as alternatives, and
adds that the Park Service may "perhaps prevent any individual from
sleeping in the parks beyond a specified, successive number of hours
or days" (id. at 39a).

   Our submission is that O'Brien does not comtemplate this kind of ad
hoc regulatory supervision over the details of an administrative
scheme.  In fact this Court has warned that "(t)he logic of * * *
elaborate less-restrictive-alternative arguments could raise
insuperable barriers to the exercise of virtually all (regulatory)
powers" (United States v. Martinez-Fuerte, 428 U.S. 543, 557 n.12
(1976)), since "(a) judge would be unimaginative indeed if he could
not come up with something a little less 'drastic' or a little less
'restrictive' in almost any situation" (Illinois Elections Board v.
Socialist Workers Party, 440 U.S. 173, 188 (1979) (Blackmun, J.,
concurring)).  /40/

   Whatever scrutiny may be appropriate when the government seeks to
regulate or limit expression, it is clear that in cases like this one
(and O'Brien) -- where the challenged regulation is "unrelated to the
suppression of free expression" (United States v. O'Brien, 391 U.S. at
377) -- government regulation should not be vulnerable to the
free-floating judicial revision exemplified in the approach of the
court of appeals.  /41/ It is the Secretary of the Interior, and not
the court of appeals, that has been entrusted with the responsibility
to formulate the regulations designed to safeguard the Memorial parks
for their multifarious uses.  Every Secretary seized of the question
has concurred that it is sensible to bar all camping in these parks.
The suggestion that the purposes of that bar would be adequately
served by the "close patrol" of camping sites and the initiation of
permit-revocation procedures if illegal cooking is discovered seems to
us mistaken;  /42/ but in any event, the matter is one for prudential
judgment, not constitutional adjudication.  /43/

   In sum, the regulatory prohibition against camping in Lafayette
Park and the Mall is a reasonable and narrowly tailored measure
designed to preserve these unique and beautiful places.  There is no
adequate substitute for this general and eminently sensible
prohibition.  And since the regulation creates no serious threat to
First Amendment values, there should be no constitutional impediment
to its enforcement.

                              CONCLUSION

   The judgment of the court of appeals should be reversed.

   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

   DECEMBER 1983

   /1/ A thorough history of the Mall is contained in National Park
Service, U.S. Dep't of Interior, History of the Mall (G. Olszewski
1970).

   /2/ See National Park Service, U.S. Dep't of Interior, Historic
Research Series No. 1, Lafayette Park at vii (G. Olszewski 1964).

   /3/ In United States v. Abney, 534 F.2d 984 (D.C. Cir. 1976), the
court of appeals held that this regulation could not constitutionally
be applied to prevent a demonstrator from holding an around-the-clock
vigil in the park because the regulation (by containing a proviso
permitting the conduct in question "upon proper authorization of the
Superintendent") gave the park superintendent unfettered enforcement
discretion.

   /4/ These regulations were revised effective June 4, 1982.  See 47
Fed. Reg. 24299-24306.  The revisions, in particular the explicit
statement that the use of an area for living accommodation purposes
constitutes "camping" regardless of the intent of the participants,
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.

   /5/ CCNV had held a similar demonstration on a much 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.  That demonstration consisted of setting
up and sleeping in nine tents in Lafayette Park.  See CCNV I, 670 F.2d
at 1215.

   /6/ 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).

   /7/ See United States v. O'Brien, 391 U.S. 367, 376 (1968).

   /8/ See Tinker v. Des Moines School District, 393 U.S. 503 (1969);
Spence v. Washington, 418 U.S. 405 (1974).

   /9/ See Tinker v. Des Moines School District, supra.

   /10/ See Wooley v. Maynard, 430 U.S. 705 (1977).

   /11/ See Kovacs v. Cooper, 336 U.S. 77 (1949);  Schneider v. State,
308 U.S. 147 (1939).

   /12/ Cf. Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969).

   /13/ See Heffron v. International Society for Krishna
Consciousness, Inc., 452 U.S. 640, 647 (1981).

   /14/ Twelve years ago, in a litigation also involving the "right"
to use the Memorial-core area parks as sleeping quarters, this Court
apparently recognized that this issue does not present a substantial
question:  a neutral regulation against the use of the park for a
living accommodation may be enforced without violating the First
Amendment even if demonstrators wish to sleep as part of their
demonstration.

   In 1971, the United States District Court for the District of
Columbia issued an injunction prohibiting the Vietnam Veterans Against
the War from, inter alia, campig overnight on the Mall as part of a
proposed demonstration.  A Quaker Action Group v. Morton, C.A. No.
688-69 (D.D.C. Apr. 16, 1973).  (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).) 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 of the current regulation.  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, without
dissent, 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,
402 U.S. 926 (1971).

   /15/ Judge Scalia's dissent below (Pet. App. 78a-87a) suggests that
full First Amendment protection, which entails a strong degree of
protection against abridgment of expression even when it is
incidentally caused by neutral government regulations directed at
furthering interests unrelated to the regulation of expression, should
be extended only to traditional forms of speech, such as spoken or
written communications.  He suggests that other forms of expressive
conduct are protected only against government regulation that is
directed at suppressing expression (id. at 78a-79a).  Along similar
lines, a noted constitutional law commentator has written that the
distinction between "expression" and "action" is critical to First
Amendment analysis and that "symbolic speech" cases must be analyzed
in terms of whether the conduct is predominantly "expression" or
"action." See T. Emerson, The System of Freedom of Expression 17-18,
79-88, 718 (1970).  This distinction has been criticized as rigid and
unworkable by other commentators.  See, e.g., Ely, Flag Desecration:
A Case Study in the Roles of Categorization and Balancing in First
Amendment Analysis, 88 Harv. L. Rev. 1482, 1494-1495 (1975).  Even
those commentators who are critical of this distinction, however, seem
to recognize that not all action is protected by the First Amendment.
See, e.g., Henkin, The Supreme Court, 1967 Term -- Foreword:  On
Drawing Lines, 82 Harv. L. Rev. 63, 80 (1968).

   /16/ We put to one side, as not involved in this case, situations
where one engages in an activity that is illegal or forbidden in order
to demonstrate the invalidity or immorality of the prohibition.  That
is the "problem" of civil disobedience;  the expressive nature of the
conduct in that case comes from the fact that it is prohibited, and it
is irrelevant whether the activity is otherwise expressive.  Cf.
United States v. O'Brien, supra;  Brown v. Louisiana, supra.
Obviously, the simple act of sitting in the forward seats of a bus is
powerfully expressive, if an unjust and invalid law tells you not to
do so because your skin is black.  But no problem of this sort is
involved here.  There is no claim that respondents were seeking to
protest against an unjust regulatory prohibition, and that they sought
to arouse observers to that injustice.  Thus, the legal and moral
issues raised by the problem of civil disobedience need not concern
the Court here.

   /17/ Professor Henkin, who argues strongly for an inclusive
definition of "symbolic speech," seems to contemplate that the
relevant conduct should be capable of becoming a "common
comprehensible form of expression." Henkin, The Supreme Court, 1967
Term -- Foreword:  On Drawing Lines, 82 Harv. L. Rev. 63, 80 (1968).
Sleeping obviously does not meet this standard.

   /18/ The formulation mistakenly characterized by respondents as the
"Spence test" has been criticized by several commentators on the
ground that it is so overinclusive.  Actions such as assassination of
political figures and the bombing of government buildings by groups
who admit responsibility can fairly be characterized as intended to
convey a message that is readily perceived by the public.  See, e.g.,
L. Tribe, American Constitutional Law 586 n.6 (1978);  Ely, supra, at
1495 n.53.

   /19/ See Note, Symbolic Conduct, 68 Colum. L. Rev. 1091, 1117
(1968) ("the necessity for an accompanying statement may serve to
negate the communicative significance of the conduct").

   /20/ Even if this implausible assertion were true, it does not
describe a substantial "speech" interest;  it is black letter law that
the First Amendment does not give one an absolute right to deliver a
message in the precise manner claimed by the demonstrator to be most
effective.  See, e.g., Heffron v. International Society for Krishna
Consciousness, Inc., 452 U.S. 640, 647 (1981);  Adderley v. Florida,
385 U.S. 39, 47-48 (1966).

   /21/ We urge the Court to adopt a presumptive rule that sleeping is
not sufficiently communicative to qualify for First Amendment
protection, in order to leave the door open to the (largely
theoretical) possibility that there may exist some contexts in which
an activity such as sleeping can convey a message with sufficient
expressive power to be readily understood.  A regulation designed to
suppress that expression would be subject to First Amendment scrutiny
even if, on its face, it affected only common activity not ordinarily
classified as speech;  First Amendment values are always implicated
when the government seeks to suppress or regulate communication.  But
all that is far afield from this case:  the sight of respondents
sleeping in their tents cannot be said to communicate anything at all
to the passerby who is not also independently and elaborately briefed
by ordinary verbal means about the intended message, and there can be
no serious suggestion that the "no camping" regulation is directed in
any way at expression.

   /22/ Chief Judge Robinson and Judge Wright disassociated themselves
from this aspect of the plurality opinion.  See Pet. App. 31a.

   /23/ The fact that the interest underlying the regulation is
unrelated to expression is alone sufficient to distinguish this case
from Spence v. Washington, supra, where the Court expressly found that
the only conceivable justification for the statutory restriction was
to regulate expression.  418 U.S. at 414 n.8;  see also Consolidated
Edison Co. v. Public Service Commission, 447 U.S. 530, 541 n.10
(1980).

   /24/ See also United States Postal Service v. Council of Greenburgh
Civic Associations, 453 U.S. 114, 132 (1981);  id. at 136 (Brennan,
J., concurring in the judgment);  Heffron v. International Society for
Krishna Consciousness, Inc., 452 U.S. at 647-648;  Consolidated Edison
Co. v. Public Service Commission, 447 U.S. at 535-536;  Grayned v.
City of Rockford, 408 U.S. 104, 115-119 (1972).

   /25/ The Court explained that "the continuing availability to each
registrant of his Selective Service certificates substantially
furthers the smooth and proper functioning of the system that Congress
has established to raise armies" (id. at 381), and that a law
prohibiting the destruction of draft cards "specifically protects this
substantial government interest" (ibid.).

   /26/ We do not believe that the O'Brien "no greater than is
essential" test requires the government to do more than to demonstrate
that the regulation is "narrowly tailored" to serve a significant
government interest.  This is shown by the way in which the Court
applied that test in O'Brien itself when it upheld the challenged
statute as an "appropriately narrow means of protecting" the
government interest in maintaining the availability of draft cards
(391 U.S. at 382).  In a later case the Court has paraphrased the
O'Brien test in terms indistinguishable from the "time, place, and
manner" formulation, stating that "the regulation must be narrowly
drawn to avoid unnecessary intrusion on freedom of expression." Schad
v. Borough of Mount Ephraim, 452 U.S. 61, 69 n.7 (1981) (emphasis
added).  Indeed, the Court apparently has classified O'Brien as
indistinguishable from other "time, place, and manner" cases.  See
Virginia State Board of Pharmacy v. Virginia Citizens Consumer
Council, Inc., 425 U.S. 748, 771 (1976).  Because it applies only to
enactments that are "unrelated to the suppression of free expression"
(391 U.S. at 377), it makes no sense for the O'Brien test to
incorporate an extremely strict degree of scrutiny.  See generally
Consolidated Edison Co. v. Public Service Commission, 447 U.S. at 540
n.9;  Ely, supra, at 1484-1485;  L. Tribe, American Constitutional Law
685 (1978) ("relaxed scrutiny").

   /27/ We repeat -- see note 20, supra -- the point that even if the
ban on sleep reduces the effectiveness of respondents' message (a
dubious proposition), no violation of the First Amendment occurs;  the
Amendment does not guarantee an individual the right to engage in what
he considers to be the most effective way to communicate.  See, e.g.,
Heffron v. Society for Krishna International Consciousness, Inc., 452
U.S. at 647.

   /28/ The district court unequivocally rejected the suggestion that
the regulation has been enforced in a discriminatory fashion (Pet.
App. 106a-108a), and none of the judges on the court of appeals took
issue with that portion of its holding.

   /29/ It has been estimated that, by 1985, 29 million people will
visit the Mall annually.  History of the Mall, supra, at 98.

   /30/ The plurality states that not many people are interested in
camping on the Mall in the dead of winter (Pet. App. 24a).  But the
decision in this case must obviously be more than a winter's tale;  a
constitutional right to sleep in the park can hardly be limited to
cold times.

   /31/ The plurality states that demonstrators wishing to use the
parks as sleeping quarters "should be held to no higher standard than
the advancement of a plausible contention that their conduct is
intended to, and in the context of their demonstration likely will,
express a message" (Pet. App. 16a).  Given the plurality's conclusion
that sleeping can be treated as expressing a message because it
facilitates the demonstrators' "presence" at the demonstration site,
it will be a rare demonstrator who is unable to meet this standard.
Even if it is required that the sleeping itself be expressive (see
Pet. App. 31a (opinion of Robinson, C.J. and Wright, J.)), it would
not be difficult for campers to concoct a facially valid First
Amendment justification.  As Judge Wilkey notes (Pet. App. 74a-77a),
groups might propose to camp on the Mall to protest the high cost of
hotel accommodations in Washington or to dramatize the absurdity of
the court of appeals' decision in this case.  Applications for permits
to engage in camping for these reasons would meet the court of
appeals' standard and presumably would have to be granted by the
National Park Service.  Respondents' characterization of these First
Amendment claims as "frivolous" (see Pet. App. 74a) provides no
solution.  That is a judgment on which reasonable persons may differ;
some persons might well characterize in the same terms respondents'
own claimed First Amendment right to sleep.  Cf. Pet. App. 78a, 87a
(opinion of Scalia, J.).  The point is that it is not the National
Park Service's business, nor should it be, to examine the content of
proposed demonstrations and to assess whether they are "frivolous."

   /32/ The plurality casually states that "(i)t would seem an
entirely permissible distinction to permit sleeping that is expressive
as part of a twenty-four hour vigil, but not to permit sleeping that
is a mere convenience to daytime demonstrators" (Pet. App. 25a).  How
the National Park Service is actually supposed to draw this
distinction on the basis of permit applications is left to the
imagination.

   /33/ It should be noted that the regulation does not prohibit sleep
as such;  it focuses only on sleep that manifests a purpose to use the
park land for living accommodation purposes.  Napping that occurs
outside of this context is not prohibited.  See 47 Fed. Reg. 24301
(1982).

   /34/ The point can be put in the precise language of O'Brien:  "(B)
ecause of the Government's substantial interest in * * * (prohibiting
use of the parks for living accommodation purposes), because (a ban on
camping) is an appropriately narrow means of protecting this interest
and condemns only the independent noncommunicative impact of conduct
within its reach, and because the noncommunicative impact of
(respondents' proposal to live in the park) frustrate(s) the
Government's interest, a sufficient governmental interest has been
shown to justify (the regulation)." See 391 U.S. at 382.

   /35/ The question whether it is "important" or "sensible" to
prohibit sleeping (in the abstract) while allowing catnapping (in the
abstract) is, consequently, an irrelevant and artificial question.
The National Park Service has concluded that using the park as living
quarters -- including, in that context, sleeping -- is more
threatening to and less appropriate for Lafayette Park and the Mall
than the taking of an occasional casual snooze.  This seems like an
eminently sensible judgment;  and it is unaffected by the fact that
sleeping and catnapping seem alike in the abstract and that in any one
case the additional "harm" to the park from allowing the snoozer to
spend the night asleep seems small.

   /36/ In fact, the court of appeals is wrong even in the context of
its own analysis.  Not many people are up to the austerities of
all-night vigils.  But allowing people to sleep overnight in tents
will multiply their numbers and will allow each one to stay longer.
Obviously this will create new and heavy pressures on the resources of
Lafayette Park and the Mall.  (The court of appeals' plurality stated
that "allowing an all-night presence by wakeful protestors would seem
to tax sanitation facilities, law enforcement personnel, and the park
resource itself to a greater extent than would allowing those same
protestors simply to sleep" (Pet. App. 23a).  This evidently assumes
that giving permission to sleep will have no effect on the number of
persons using the park around the clock and no effect on how long such
a person will remain there.) From the viewpoint of the proper use of
these parks, it makes no sense whatever to promulgate a rule that
camping is prohibited in Lafayette Park and then to provide -- as the
court of appeals in effect did -- that camping is nevertheless
permitted as long as the campers promise to cook elsewhere.

   In fact, the "divide and conquer" tactics inherent in the court of
appeals' "incremental" analysis portends ill also for the remaining
elements of the Park Service's regulations.  If respondents have a
constitutional right to sleep in the park, they can surely make the
same claim next year for the right to cook and store their possessions
there (a case of "expressive" cooking and storing to demonstrate that
they have no home in which to cook and store their possessions).  And
the court of appeals is unlikely to find that a substantial
"incremental" governmental interest is served by preventing
demonstrators (who are, by hypothesis, spending the nights exercising
their constitutional right to sleep in Lafayette Park) from cooking
there and from storing their things in their (no longer) "symbolic"
tents.

   /37/ The regulations authorize the use of temporary structures such
as symbolic tents in line with the decision in Women Strike for Peace
v. Morton, 472 F.2d 1273 (D.C. Cir. 1972), and a settlement of
litigation in that case.  36 C.F.R. 50.19(e)(8).  By the same token,
respondents were permitted to remain in the park without time
restrictions as part of their demonstration in part because of the
court of appeals' prior recognition of a First Amendment right to
conduct an around-the-clock vigil.  See 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).

   /38/ Nor will it do to conclude that it is not "sensible, coherent,
and sensitive" to draw a distinction between tenting and sleeping
(Pet. App. 48a (opinion of Ginsburg, J.)).  No provision of the
Constitution gives the courts a general reviewing power to invalidate
regulations because a judge feels they are based on distinctions that
are not sufficiently "sensible, coherent, and sensitive."

   /39/ The plurality never made a meaningful attempt to analyze the
category of persons who would be entitled to sleep in the park as a
result of its ruling.  Instead it stated that the government's
interest in enforcing the regulation is to be assessed in terms of its
impact on "all individuals or groups similarly situated to
(respondents)," defined as "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
been allowed to erect temporary symbolic structures" (Pet. App. 22a).
The plurality justified this artificial (and essentially circular)
focus on the basis of the dubious assertion that "(t)he interests of
people who do not possess a permit are simply not at issue in this
case" (ibid.).  It is clear that the plurality assumed that the
relevant category was very small.

   /40/ On the analysis adopted by the court of appeals, the
conviction in O'Brien itself would surely have been reversed, for the
smooth functioning of the draft could have been assured by more
systematic government record-keeping without prohibiting the
expressive activity of burning draft cards.  See Ely, supra, at
1487-1488.

   /41/ As we have already suggested (see note 26, supra), we read the
fourth prong of the O'Brien test as the equivalent of one aspect of
the familiar "time, place, and manner" test -- that government
regulations that incidentally impinge on speech must be "narrowly
tailored" to accomplish their intended purpose.  The government may
not use an elephant to swat a fly.  But the O'Brien test was not
intended to give the courts the power to decide that a fifteen inch
flyswatter must be used rather than a sixteen inch one because it is
"less restrictive." The question for the court is whether the
government has adopted a regulatory scheme that fairly and
substantially matches ends and means, not whether the court can
conjure up a set of detailed regulations that, in the court's opinion,
are a shade more liberal than the government's.

   /42/ In adopting the existing regulation, the National Park Service
found that "(e)xperience with administering the court's decision (in
CCNV I) allowing sleeping has revealed that sleeping activity by
demonstrators expands to include other aspects of living
accommodations such as the storage of personal belongings and the
performance of necessary functions which have converted the sleeping
area into actual campsites." 47 Fed. Reg. 24301 (1982).

   There is no reason to be confident that respondents' demonstration
will be an exception.  When respondents conducted their similar, much
smaller, "model" demonstration in the winter of 1981-1982, their
"expressive sleep" (Pet. App. 26a) not surprisingly spilled over into
other camping activities specifically proscribed by the regulations.
The district court found that the respondents hung blankets over trees
in Lafayette Park and consumed food and stored personal belongings at
the demonstration site (Pet. App. 96a).

   /43/ Indeed, one wonders why Judges Mikva and Edwards assumed so
easily that rules limiting the numbers of tents and tenters and the
duration of their demonstrations would be less restrictive than a rule
prohibiting sleeping.  (Compare Pet. App. 47a-48a & n.14 (opinion of
Ginsburg, J.), referring to these suggestions as imposing controls
"tighter than those now in effect.") Under the methodology of the
court of appeals, a regulation limiting the number of demonstrators
(50?) or the length of an around-the-clock demonstration (one week?)
would certainly be vulnerable to a "least restrictive alternative"
attack.

                               APPENDIX

   APPENDIX MATERIAL IS NOT AVAILABLE ON JURIS