This week it is time to use the Federal Register to restore everyone's faith in the democratic process. Perhaps, given the holiday spirit, you'll even want to give yourself or your neighbor a subscription ($75 per annum), once you hear the heartwarming story of what just one group -- the Gay Activist Alliance -- using a notice in the Register, could get the powerful U.S. Army to do.
The issue was a set of revised rules to, as the Army put it, "define the standards of conduct required of all visitors to the Arlington National Cemetery." The Army's aim was to "insure that the rules prohibit conduct inconsistent with [the] cemetery's unique role as the nation's foremost shrine to the honored dead of its Armed Forces."
Enter the Federal Register. The Army, on Oct. 7 (page 66476), published its rule revision and invited anyone to send in comments or suggested changes over the next 30 days.
The flavor of the revisions -- which the Army claimed only made clearer what already were the rules -- was summed up in an Army notice that said "Arlington National Cemetery is not a public forum, that demonstrations, leafleting, and most speeches are inappropriate in any cemetery, let alone a military cemetery . . . and that the applicable Supreme Court precedents . . . permit the government to prohibit expressional activities when inappropriate in areas that are not public forums . . . ."
Those sentiments would normally bring out a raft of civil libertarians, at least to scrutinize what was being proposed. But no, there were -- according to the Army's notice of a final rule for Arlington Cemetery published in the Dec. 5 Federal Register (page 80523) -- only two responses, and they came in after the Nov. 6 deadline. Graciously, the Army nonetheless took them both to heart.
The first was from an individual in San Francisco, Calif., who asked that the old rules, which he said "adequately guarantee tranquility and decorum," be retained. The new rules, he was quoted as saying, "appeared overbroad and infringe on speech and conduct protected by the First Amendment." The Army's notice then specifically rebutted each of the writer's points, item by item.
Who then would have suspected that the Gay Activist Alliance (GAA), whose response was received four days after the deadline, would have had the success with the Army that it did? But then remember, this is America, the land of opportunity, and the Federal Register is one of the knockers.
The Army's new rules required those requesting permission to hold a memorial service at the cemetery to "give the names of all participants . . ." and "the number of persons expected to attend the service or ceremony. . . ." GAA described that provision as "onerous and impractible" and suggested the supplying of names be deleted and the number expected be replaced by "an estimate or loose approximation."
The Army compromised by requiring names only of the "key" persons participating and permitting "estimated" numbers of attendees to be given.
GAA criticized another provision that prohibited as partisan a service at the cemetery that "has as a purpose to gain publicity or engender support for any group or cause." That language, GAA wrote, would cause confusion over whether a group publicizing its own plans to attend a service would per se turn it into a partisan -- and therefore prohibited -- event.
Again, the Army agreed to some degree by adding the word "primary" to the phrase, making it read that an event would be partisan -- and thus prohibited -- if its "primary purpose is to gain publicity." That left it clear that publicity for a group's attending an event "when done in a manner appropriate to the circumstances . . . would not make a service or ceremony partisan under this rule . . . ."
Finally, GAA questioned another provision that barred a service if it was "closely related to partisan activities being conducted outside the cemetery." The Army had in mind such things as past requests for services when pro- and anti-Vietnam rallies were being held in Washington and more recently, when the American Agriculture Movement was demonstrating in town. On those occasions, requests for memorial services by those groups were turned down by the Army.
The Army held to its position but added clarifying language to make it read that a service would be prohibited if it "is closely related, both in time and location, to partisan activities or demonstrations being conducted outside the cemetery.