From the March on Washington to the March for Our Lives, from the women protesting for suffrage to the women protesting against President Donald Trump, the grounds of the National Mall and the White House have been an important theater for Americans exercising their First Amendment rights in full view of their government.
But a new set of rule changes proposed by the National Park Service has some Americans worried that the use of these historic venues for demonstrations could soon be severely limited. Though the changes make for pretty dry reading—federal regulations are not known for being user-friendly—the perceived threat to free speech has led to an explosion in public response. As of Friday afternoon, more than 10,000 people had submitted public comments to an online portal set up for input on the changes—nearly all of them in vocal opposition. Ahead of the comment period’s closure on Monday, the site saw a major uptick in responses, with the bulk of comments submitted between Thursday and Friday afternoon.
Brent Everitt, a spokesman for the NPS, told me it’s high time for the regulations to be updated—it’s been more than a decade since their last revision, he said, and the proposed rules will cut down on complexity. But the timing is concerning to some observers, who worry the Trump administration is behind the push for the new regulations, which will almost certainly limit the prevalence of demonstrations near 1600 Pennsylvania Avenue. There’s no public evidence that the White House is pushing for the changes.
Two provisions are of most concern. One would restrict how much of the White House sidewalk is available for protests, shrinking the available area by 80 percent. The other is categorized as a “consideration,” rather than as a proposed rule change. But it’s been controversial nevertheless: The NPS is thinking about requiring people who apply for a demonstration permit to “pay fees to allow the NPS to recover some of the costs” of administration—costs historically picked up by the federal government.
It’s not clear from the proposal how exactly the fee would be assessed, but Everitt said the idea was triggered, in part, by the rising cost of public safety. Arthur Spitzer, a legal co-director of the ACLU of D.C., posited that it could include paying for cleanup, increased police presence, and other costs incurred by demonstrators.
“Millions of people, more than 20 million people, visit the Mall every year, mostly tourists, and the government is not planning to charge them for the impact of their feet on the grass or the need to pick up their Starbucks cups when they leave,” Spitzer said. “It seems to us that people who come to exercise First Amendment rights are entitled to the same accommodations.”
Everitt was quick to say that the fee consideration is only that—under consideration. “We have included that question on this document simply to seek the public’s view on whether we should look into ways to recover costs for ensuring public safety and security during increasingly frequent and more complex demonstrations in and around the National Mall,” he said.
The ACLU, however, disputes this justification: According to its calculations, demonstrations have actually gotten less frequent, not more frequent, in the past several decades. It’s special events that are increasing in number, Spitzer said—things like concerts, weddings, and athletic competitions.
“The number of applications for demonstration permits has actually decreased in recent years,” Spitzer said. According to his group, from 2001 to 2009, the average number of applications for demonstration permits was about 955. From 2010 to 2017, the average decreased by 31 percent, to 658. “Although their costs have been increasing, it’s not because there have been more and more demonstration permits being sought,” he said. Instead, it’s those special events that are driving up maintenance costs. “Demonstrations are what have a constitutional right,” Spitzer said. “You don’t have a constitutional right to have an HBO concert on the mall.”
In a follow-up call, Everitt told me that “obviously demonstrations ebb and flow,” and the ACLU is “correct that demonstration applications are holding pretty steady.” But the NPS’s “focus, of course, is that the overall number of applications is increasing, and the complexity of those applications is changing.”
The massive influx in public comments over the past several days seems to have come from people directed by advocacy organizations, like the Women’s March, MoveOn, the Wilderness Society, and the ACLU. Many of them questioned the motivation for the potential fees. “Although the pristine quality of the national mall is an important consideration, it should not be used to limit or threaten this great American institution,” wrote one commenter. “I am concerned that the proposed rule change is a result of the precarious position the NPS has been put in by budgetary limits placed on it by Congress and by a White House that has repeatedly demonstrated ill will toward First Amendment rights,” said another. (The public comments system is anonymous; unless commenters include their name, it is not shown.)
One of the comments was from Randy Myers, who has a professional connection to the rules changes: He helped draft them before he retired in October 2016. Yet when he saw them released, “I was both surprised and disturbed by what was being proposed,” Myers told me. “I felt like I needed to be put on the record regarding my concerns so that they and the public would have a chance to consider these issues and make their own decisions.”
A former NPS lawyer who during his 28-year career with the federal government focused on First Amendment questions and litigation, Myers wasn’t involved in the provisions that have proved most controversial, he said: the parts that restrict sidewalk space in front of the White House, the consideration about imposing fees on demonstrators, limits on signage in front of the White House and in Lafayette Park, and rules banning temporary structures in certain locations.
“The changes proposed here would disrupt the delicate balance between guaranteeing the exercise of First Amendment rights and ensuring public safety,” he wrote in his 19-page comment. “Indeed, the result will be to constrain First Amendment rights significantly and in violation of established legal principles and for no legitimate reason.” If nothing else, the proposed changes could make future marches on Washington much smaller—and potentially much less effective.
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