More than 125 spectators -- many of them homeless -- packed a U.S. Court of Appeals hearing yesterday to listen to arguments over whether they have a right under the First Amendment to sleep in tents in Lafayette Park and on the Mall this winter.
The Community for Creative Non-Violence had asked the National Park Service for a permit to erect 20 tents in the park and another 40 on the Mall and to have 150 homeless persons sleep there to demonstrate their plight. CCNV officials said they planned to call the sites "Reaganville II" and "Congressional Village."
The National Park Service issued a permit allowing the tents and demonstrators to be in the parks 24 hours a day, but said demonstrators could not sleep there. That would amount to camping, lawyers for the Park Service argued, which is prohibited by Park Service regulations.
A federal judge recently upheld the ban on sleeping and CCNV appealed. In a highly unusual move, the full 11-member court agreed to hear arguments in the case without waiting for a three-judge panel, which heard the appeal last month, to issue a ruling.
At the hearing yesterday, Burt Neuborne, legal director for the American Civil Liberties Union, argued that in this case sleeping is an essential part of the demonstration and is therefore symbolic speech protected under the first amendment.
Neuborne told the judges that he was arguing on behalf of the "most powerless group in society," adding that 60 homeless persons have died in the District in the last five years and four more have died so far this year.
Neuborne said that, "fearing more would die," the group asked for a permit to have a "literal enactment of their plight to touch the conscience of the public." Sleeping, Neuborn said, was a way of expression for "people whose bodies are the only thing they have left to demonstrate with."
Assistant U.S. Attorney John Bates argued that the issue in the case is not the First Amendment, but was whether a government regulation to "preserve and protect the parks" is constitutional. Bates said CCNV had asked for permission to have demonstrators sleep in the parks only because that would "facilitate" the demonstration, not because sleeping was an integral part of the demonstration.
The regulation, although drafted after CCNV-led demonstrators slept in Lafayette Park last winter, is "neutral" and applies to all groups wishing to camp in the parks, Bates said.
Several judges said they were troubled by the Park Service's reasoning, since 150 demonstrators could stay there 24 hours a day and the tents could be erected.
"What is it about sleeping alone that puts them over the line?" U.S. Circuit Judge Abner Mikva asked Bates, noting that the tents would be there 24 hours a day.
"Well, a tent can't sleep by itself, can it?" Judge George MacKinnon interjected.
Bates said sleeping in the tents would be equivalent to camping, and that it is reasonable for federal officials to draw the line there.
Only nine of the court's 11 judges attended the two-hour hearing yesterday, but Chief Judge Spottswood W. Robinson III announced before the hearing that the two absent judges, Edward A. Tamm and Robert H. Bork, will listen to tapes of the hearing and vote in the case.