Plaza Can Be Temporarily Closed for Construction, Without Violating First Amendment

The National Park Service had announced "a temporary closure of Columbus Circle" in D.C. for "the renovation of the fountain, cleaning of the statues, plaza and turf renovations to the park site."

From Mytych v. National Park Service, decided Thursday by Judge Trevor McFadden (D.D.C.):

David Mytych helps run a volunteer nonprofit called FLARE USA{, a volunteer nonprofit organization committed to political expression and advocacy about authoritarianism, impeachment, and constitutional accountability}. For months, FLARE maintained a demonstration [in Columbus Plaza] outside Union Station in Washington, D.C., to express its views on various political issues. FLARE had a National Park Service ("NPS") permit to do so. {FLARE picked Columbus Plaza for its position as the "main pedestrian gateway between Union Station and the United States Capitol" ….} But toward the year's end, NPS told Mytych and FLARE that a construction project required the demonstration to move to a nearby park….

The First Amendment ensures "that members of the public retain strong free speech rights when they venture into public streets and parks." These areas are traditional public fora, meaning they "occupy a special position in terms of First Amendment protection because of their historic role as sites for discussion and debate." …

That said, … [c]ourts endorse [content-neutral] time, place, and manner restrictions [on speech in traditional public fora] to address a variety of significant governmental interests.

Take the government's interest in crowd control. Because "two parades cannot march on the same street simultaneously, [the] government may allow only one." The government also has an interest in traffic safety. This means demonstrators cannot, "contrary to traffic regulations, insist upon a street meeting" on a busy road at "rush hour as a form of freedom of speech or assembly." And the government has an interest in land preservation. That is why "[p]rotecting and properly managing park lands are undoubtedly significant governmental interests" that, for instance, allow permit requirements for filmmakers using those lands. All these examples involve "reasonable" regulations to meet "legitimate" aims, unrelated to the relevant activity's "message."

The same is true here. NPS reasonably limited Columbus Plaza activity for legitimate reasons, unrelated to Mytych's speech, or anyone else's. Its public closure notice from early December shows as much. There, NPS warned of "a temporary closure of Columbus Circle" for "the renovation of the fountain, cleaning of the statues, plaza and turf renovations to the park site." The notice described the closure as "necessary to provide for public health and safety, protect scenic values and cultural resources, implement management responsibilities, and avoid conflict among visitor use activities during the renovation of the park."

Nowhere in that explanation did NPS mention details about expressive activity, much less about Mytych's specifically. It referred to "demonstration activity" only to assure that "comparable" spaces would serve those needs during construction. Between its park management concerns and health and safety concerns, then, no question remains that NPS has a "legitimate" government interest in Columbus Park upkeep.

And NPS addressed those interests through reasonable, "narrowly tailored" means. Its notice indicates that NPS restricted use of Columbus Plaza no more than necessary. NPS expressly "considered" more "limited closures," yet determined that none would "suffice" to protect "public safety" based on contractors' advice.

NPS instead offered "ample alternative channels for communication." Its notice stated that "nearby park areas [would] remain open to the public." … [S]hortly after issuing notices, NPS gave FLARE a permit to demonstrate in a different park. The notice also promised that, upon "completion of the project," the park would return to use for "future permitted events."

Though Mytych hints that NPS had ulterior motives, see Compl. ¶ 44 (describing NPS's "alleged[ ]" construction plans), he supplies no facts to support this theory. Indeed, NPS appears to have started construction, and Mytych does not argue otherwise. See Nersesian Decl. ¶¶ 19, 22. Nothing else in the pleadings suggests NPS's rules have been "administered otherwise than in [a] fair and non-discriminatory manner." This means the NPS acted without offending the First Amendment….

Dimitar Georgiev and David S. Bettwy represent defendants.

Comments

[JoeFromtheBronx]

For a second, I thought this was in reference to Columbus Circle in Manhattan.

[Eugene Volokh]

Good point; I've added "in D.C." to the subtitle to clarify matters.

[Stephen Lathrop]

As always when this comes up, I insist that to conflate speech and assembly in context of TPM restrictions is a mistake. They are different rights, and ought to be governed by different legal principles.

Specifically, the means used to create speech are various, with a need to account for variables which might infringe on rights held by other speakers or listeners. The law on such questions is thus vast and complicated. Not infrequently, those questions can be answered in ways to justify TPM restrictions, for instance on the use of sound amplification at night in residential neighborhoods. Speech content of any kind will not usually be dis-served if that kind of activity is restricted. Speech content is inherently at least somewhat portable with regard to both time and place, and thus somewhat amenable to discretion with regard to times, places, and manners.

That flexibility is in no way comparable for the right of assembly. To begin with, the manner of constitutionally permissible assembly is made explicit textually: it must be, "peaceable." No other constraints are mentioned for the "manner,' of assemblies. No others should be asserted by governments.

As for times and places, they are of the essence of the right to assemble. Would-be assemblers must be at liberty to agree on a time and a place, or no assembly can be organized.

Thus, to be meaningful, the right to assembly must protect every peaceable assembly at any public venue, at any time. Otherwise, government authorities will be free to divert assemblies away from their intended audiences, and force assemblies instead into venues elsewhere and at other times comprising circumstances the would-be assemblers neither intend nor aspire to influence. Any such government action outright deprives would-be assemblers of their right.

Government authorities have so often done exactly that, for that purpose, that it has begun to seem routine and acceptable to empower government to invoke TPM restrictions with an eye to defeat would-be assemblies' potential for political influence. The Constitution delegates no such power to government.

That cannot be a correct understanding of the separate right to peaceably assemble for the purpose to create political influence—the very purpose which was certainly the point of enumerating that right of assembly explicitly in the Constitution.

[David Nieporent]

As always when this comes up, I insist that to conflate speech and assembly in context of TPM restrictions is a mistake. They are different rights, and ought to be governed by different legal principles.

And Donald Trump continues to insist that the 2020 election was stolen, and he deserves another term as a result.

Like him, all you need to do is get elected president, appoint at least 5 justices who don't believe in precedent, and then bring a case to get your way.

[JoeFromtheBronx]

Three terms as compensation seems a bit off, but that is about as reasonable as his other claims.

Robert Jackson joked that FDR deserved a third term (so his violating the two-term tradition didn't count) since the Supreme Court "stole" his first by striking down major New Deal policies.

At least, Jackson later claimed it was a joke, while some thought he was being serious.