A New National Park Service Proposal Could Restrict Protest in Washington, D.C.

The proposed changes could put a fee on protesting in the nation's capitol.
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Participants take part in the March for Our Lives rally in Washington, D.C., on March 24th, 2018.

Participants take part in the March for Our Lives rally in Washington, D.C., on March 24th, 2018.

The National Park Service is considering new restrictions on demonstrations in front of the White House in Washington, D.C., including proposals to charge fees and limit spontaneous protest. The NPS argues these changes prioritize a form of protest that "protects and preserves the cultural and historic integrity of these areas," the Hill reports—but civil rights groups fear otherwise.

Michael Heaney, a political scientist at the University of Michigan and an expert on protest and social movements, says these changes would curtail the symbolic value of D.C.'s parks, where people can go to "speak to the highest levels of government." The changes could also have a real effect on who can protest and where, possibly even forcing demonstrations out into the streets. "If you put restrictions on [these parks], effectively what you're doing is pushing people away from peaceful protest and toward a more confrontational form of expression," Heaney says. "People will still express themselves, it's just a matter of where."

The comment period for most of these changes ends Monday, although the Park Service will continue to evaluate the question of fees. In the meantime, the American Civil Liberties Union, along with other civil rights organizations, are urging the NPS to reconsider the most controversial of these proposals.

Pacific Standard spoke to Arthur Spitzer, legal co-director of the ACLU of D.C., to learn what these restrictions could mean for protests in the nation's capitol.

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What would this change mean, practically, for protesters seeking to organize in D.C.?

The proposal has a lot of parts. The one that's received the most attention so far, and would have the most impact, is the proposal to charge fees, which the Park Service is calling "cost recovery for demonstration permits." Unlike most of the other changes they're proposing, that one is at an earlier stage. If they imposed these fees, and if they were substantial and didn't have an exception for people who couldn't afford to pay, that could have an enormous impact on the ability of ordinary people to come to D.C. and demonstrate on their public property, in front of the White House and in front of Congress and on the [National] Mall. All these properties are very important places for people to be able to come and demonstrate, because the clause of the First Amendment guarantees the right of the people to peaceably assemble and to petition the government for a redress of grievances.

If you want to petition the federal government, this is the primary place to do it and has been for more than a century. More than 20 million people come to the Mall every year; the vast majority of them are tourists, and the Park Service is not thinking about charging them for the cost of picking up their coffee cups and taking care of the grass. It seems to us that people who come to exercise their constitutional rights shouldn't be charged any more than tourists should.

Would a waiver make a difference?

In our our view, the idea that there might be a waiver for people who can't afford the fee is really not a very workable alternative. How could the Park Service really know who can afford the fees and who can't? Many demonstrations involve large coalitions of groups. Some of the people in those groups may have a decent budget; some may have a more or less zero budget.

What else is included in the proposal?

Another aspect is the proposal to close 80 percent of the White House sidewalk, in front of the main entrance. That's been a primary place for people to bring their messages and their concerns for more than 100 years. In the past, the government has imposed some limits on demonstrations there for security reasons. Now, with no apparent justification at all, they're planning to close 20 feet of that sidewalk. They haven't even tried to explain it.

A third thing is how they treat spontaneous demonstrations. Spontaneous demonstrations are very important; people have a right to respond to developing news right away. We've seen that, for example, with the demonstrations that erupted when the travel ban was first signed, or when the family separation crisis hit. It's much easier now than it used to be for the message to get out on social media: "Demonstration at the White House tomorrow morning." The government has to deal with that. What they're saying is you're not allowed to have any kinds of structures connected to any demonstration where you don't apply for a permit at least 48 hours in advance. You can have a three-foot-tall stand, big enough for one person to stand on. That's certainly not enough for crowd of hundreds of thousands of people.

How would this affect permit applications for demonstrations?

Under the current system, when [the NPS] gets an application for a demonstration, it is "deemed granted" within 24 hours if they haven't rejected it. They continue to ask questions of you and think about your demonstration, and don't really tell you until sometime shortly before the event what permit you have. There does need to be some flexibility, but people need to know a couple months in advance that they've got their permit nailed down. In general, I should say, the Park Service's history, in this respect, over the last 20 years or so, has been pretty good. They have viewed their job as helping organizers of demonstrations to facilitate their events.

If this proposal were to go through, what kind of changes would you expect to see in the city itself?

The thing that could make the biggest difference would be charging the fee. We probably wouldn't object if they said, "We're going to have a new $25 application fee with each permit"—OK, that's two movie tickets, most demonstrations could afford that. If we're talking about thousands of dollars, that certainly could have an effect. Closing the White House sidewalk might not reduce size or number of protesters, but could push them further away.

The ACLU went through a similar process suing over NPS rule changes in the '60s. How have things changed since then—or not?

We've had to sue the Park Service several times over various attempts to cut back on demonstrations in Washington. These proposals were unexpected because, for the last 20 years or so, things have been pretty stable. Basically, the regulations have been the same, and the Park Service has learned to live with them, and demonstration organizations have learned to live with them. Why somebody saw a need for these major revisions, I'm not sure. I hope the Park Service will take our comments seriously and won't go forward with issuing exactly the same regulations they've proposed. If they do, I'm sure there will be more than one lawsuit.

This interview has been edited for length and clarity.

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