The U.S. Court of Appeals for the District of Columbia has examined "First Amendment camping" and has concluded that sleeping is speech. Herewith the story of another subtraction from reasonableness regarding the First Amendment.
The Community for Creative Non-Violence tries to help poor persons, often by means of theatrical behavior. In December, it received permission from the National Park Service to dramatize the plight of homeless persons by building two tent cities, one on the Mall and another in Lafayette Park opposite the White House. It is, alas, the law that these beautiful spaces can be cluttered with such symbols of protest.
But Park Service regulations prohibit camping on those spots. Unexceptionable, you say? Not so fast. What constitutes camping? The Park Service said: sleeping in tents does. But, said CCNV, sleep we must, if we are to protest around the clock (which CCNV had Park Service permission to do), and if we are to attract homeless demonstrators and maximize media impact.
Now the court says the Park Service could not ban sleeping because CCNV was not camping for living accommodations and was "sleeping with intent"--a scrumptious concept. That is, CCNV intended to make a political point, so this expressive sleeping could not be denied constitutional protections accorded speech.
But, you ask, even if it is not speech? Even if the government has a legitimate interest in prohibiting camping in such places? Yes, says the court, because this First Amendment camping is "imbued" with elements of communication.
One member of the majority, who should be sentenced to re-read "Bleak House," says CCNV's protestors used their bodies "with an articulateness even Dickens could not match." And in perhaps the oddest sentence in the history of jurisprudence, a member of the majority says that "the nighttime enjoyment of Lafayette Park and the Mall by non-demonstrators would probably be enhanced if the 150 CCNV demonstrators were asleep."
A member of the majority approvingly quotes a writer who says, "There is nothing intrinsically sacred about wagging the tongue or wielding a pen; there is nothing intrinsically more sacred about words than other symbols." That judge should consider, as the authors of the First Amendment did, that speech, unlike "expression," is a uniquely human capacity connected to rationality and hence to the capacity for self-government.
The Constitution protects speech for a purpose --to facilitate republican government. Hence some kinds of speech (such as pornography and incitements to racial hatred) do not contribute to that purpose and do not deserve maximum protection. Neither does expressive conduct, especially when such conduct is resorted to even though real speech is perfectly possible.
Dissenting judges emphasize that the First Amendment does not guarantee a right to the most convenient or effective time, place and manner of speech. And Judge Atonin Scalia (joined by two colleagues) sensibly insists that sleep can never be speech for First Amendment purposes.
The libertarian position is that the amendment "means exactly what it says" (that freedom of speech cannot be circumscribed--a meaning the Supreme Court has never found in the amendment), but that the authors of the amendment did not say what they meant. The authors meant "expression," including expressive conduct, when they wrote "speech." 4 But the authors meant speech and not all forms of expression. Otherwise, as Scalia notes, it would not have been necessary to make the additional mention in the amendment of freedom of the press and assembly.
The First Amendment's protection of speech invalidates laws that abridge freedom of speech --communication with words--even though the laws have other purposes. (Government cannot fight litter by banning leafleting.) Scalia would count marching and picketing as conduct that qualifies as speech. But, he says, other conduct cannot be given protection equivalent to that given speech without disregarding the Constitution's purposes and straining the legal system's capacity for sensible accommodations. In the interest of decorum in special places, government should be able to ban camping, regardless of the campers' motivations.
A member of the majority approvingly cites a Supreme Court warning that the variety of conduct that can be labeled speech is not "limitless." But the court offers no limiting criteria. It says that sleeping was an especially felicitous method of making CCNV's point about homelessness, and for that reason deserved First Amendment protection. But as a member of the minority warns, this sort of decision requires courts to make judgments more appropriate for Andy Warhol.
Chief Justice Warren Burger has blocked the appeals court order. Therefore, pending further Supreme Court action, the Park Service regulations stand, and CCNV cannot sleep. Now CCNV has taken down its tents because it says empty tents communicate the message that there are no homeless in Washington. Stay tuned.