16 Dec 1999
Dear Mr. Olson:
i am sending this communicade directly to you as you have
a problem in Ben Masel's case which hasn't proved thus far to
be a problem in the other cases re the Rainbow Gathering Permit
issue, spec. standing. i understand you have already received
my first communicade of a few days ago, and hopefully you will
receive a second i just sent out for circulation a short time
ago. i will pull it up after i send this and try to send you the
second communicade directly.
i have some definite thoughts i need to share with you
- first i believe that Ben ought to pursue the appeal - my case
did not go well in oral argument and i don't expect a favorable
decision [not because i am wrong but because i perceive the judges
didn't like me, have no idea what a Rainbow Gathering is like
[their questions involved Earth First!], and don't understand
the regulatory scheme and will just buy the Government's deceptions
in this case re how they have been interpreting things all along.
therefore, if we are going to win on the terms and conditions
argument [and/or administrative appeals process argument], it
is going to have to be in a different circuit than the 9th].
First, my communicade on the administrative appeals process
is relevant to your argument on standing. The lengthy, actually
indefinite, and extraordinarily complicated administrative appeals
process precludes prompt judicial review of a F.S. decision re
a term or condition [e.g. the "hold harmless" and "holder(s)
shall be liable" clauses found in the proffered permits,
AND ALSO THE FOREST SERVICE LINE OFFICER'S DECISION AS TO HOW
LONG - THE DURATION - THE EVENT WILL BE ALLOWED. IT IS NOT JUST
A TERM AND CONDITION DECISION that has to exhaust the administrative.
appeals process. The duration decision - how long the Federal
Government will allow citizens to exercise their first amendment
freedoms and thus limit their right to exercise their first amendment
freedoms - is also subject to the administrative appeals process.
Second, the administrative appeals process and lack of
prompt judicial review re a term or condition and/or THE DURATION
decisions take the case out of the dicta [sic] of Ward
and places it squarely into FW/PBS ("Because we conclude
that the city's licensing scheme lacks adequate procedural safeguards,
we do not reach the issue decided by the Court of Appeals...."
"Although facial challenges to legislation are generally
disfavored, they have been permitted in the First Amendment context
where the licensing scheme vests unbridled discretion in the decisionmaker
and where the regulation is challenged as overbroad."
"In Freedman, we determined that the following
three procedural safeguards were necessary to ensure expeditious
decisionmaking by the motion picture censorship board: (1)....,
(2) expeditious judicial review of that decision must be available;
(3)...."] and also into Forsyth County ("It is
well established that, in the area of freedom of expression, an
overbroad regulation may be subject to facial review and invalidation,
even though its application in the case under consideration may
be constitutionally unobjectionable.... This exception from general
standing rules is based on an appreciation that the very existence
of some broadly written laws has the potential to chill the expressive
activity of others not before the Court.") If you need me
to clarify or have questions about the above, please contact me
Thirdly, the "dicta" in Ward is not even
dicta. i don't have Black's Law Dictionary in front of me but
i would guess it defines dictum as "a statement of law not
necessary to the central opinion of a court, but which is given
some weight." i just found a Webster's Dictionary and it
defines dictum as "a judicial opinion on a point other than
the precise issue involved in determining a case." In Ward,
the query about standing isn't even dicta - it is not an opinion
but a questioning. "As a threshold matter, IT IS FAR FROM
CLEAR that respondent should be permitted to bring a facial challenge
to this aspect of the regulation." "..... IT IS OPEN
TO QUESTION whether respondent's claim falls within the narrow
class of permissible facial challenges to allegedly unconstrained
grants of regulatory authority."
Mr. Olson, this is not the language of dictum. this is
just raising the question and not answering it. [also note that
5 justices accepted the majority opinion, 1 justice concurred
with the result without opinion, and 3 justices dissented in an
opinion. thus, it is impossible to guess how any of the 5 justices
would answer this open question. Perhaps a total of only 2 - 4
would answer it against standing.
Fourthly, Ward doesn't involve a licensing scheme
and that is what differentiate it from Rainbow Gathering cases
and the F.S. regulatory scheme. Ward involved a direct city ordinances
that essentially said if you have amplified music in our parks,
you have to use our [the city's equipment] and our sound person
[the city's employee]. it did not involve permits or licensing.
That is why the majority opinion, immediately following the above
so-called [but non] dicta writes: "Cf. 486 U.S. at 787(White,
J. dissenting)(arguing that facial challenges of this type are
permissible only where "THE LOCAL LAW AT ISSUE REQUIRE[S]
LICENSES -- not for a narrow category of expressive conduct that
could be prohibited -- BUT FOR A SWEEPING RANGE OF FIRST AMENDMENT
The Forest Service regulatory scheme does not involve a
direct ordinance or rule but rather, REQUIRES LICENSES [which
an authorization and permit are - a license to do something].
Note also the majority opinion quoting this line from White's
dissent and the portion "not for a narrow category of expressive
conduct that could be prohibited." Mr. Olson, this is referring
to expressive conduct that lawfully and constitutionally is not
protected but can be prohibited, e.g. the shouting fire in a crowded
theater, a bomb threat on an airplane, obscene materials, etc.
what the Court is suggesting in its dicta [sic] is that "excessive
sound level" attached to otherwise protected speech is not
protected and can constitutionally be prohibited at the level
it becomes excessive. The expression, prayer, and association
people who attend Rainbow Gatherings engage in involves a sweeping
range of First Amendment activities, not unprotected, constitutionally
Mr. Olson, i just wrote a lot about the Magistrate Judge's
analysis of Lakewood, but i lost it. He is suggesting a
ridiculous result. i am tired right now so rather than trying
to rewrite it now, i am going to take a break. Please e-mail me
if you have any questions about what i have written thus far.
i will send you a later e-mail re my thoughts about Lakewood in
the near future.
i am at your disposal,