UNITED STATES OF AMERICA, PLAINTIFF CRIMINAL NO.: 99-75 ME V. CRIMINAL NO.: 99-76 ME STEPHEN SEDLACKO, ET AL CRIMINAL NO.: 99-77 ME DEFENDANTS
1/ 195 F. 3d 538, 1999 U.S. App. LEXIS 29343, 1999 WL 1011865.
2/ 64 Fed. Reg.48,959.
3/ Since regulations are comparatively easy to amend this is a common tactic; constitutional lawyers refer to this as the "moving target" problem. A civil challenge to a regulation is often defeated by such a tactic. In the criminal arena due process limits its effectiveness but, where the citation is dismissed, mootness often prevents the court from reviewing the challenged regulations fully. The Government uses this tactic to effectively prevent the courts from a comprehensive review of a regulatory scheme. Flawed regulations are thus permitted to stand for years, with the agency making only grudging and piecemeal accommodations to constitutional requirements.
4/ Linick, pg.4.
5/ 195 F. 3d 538, 1999 U.S. App. LEXIS 29343, 1999 WL 1011865.
6/ For example, Government's brief at pages 3, 4 and 21.
7/ Final Rule, at 45,263.
8/ These reports are attached to this brief
9/ Memorandum Opinion, filed April 14, 1989 in U.S. v. The Rainbow Family, et al., U.S. District Court, E.D. of Texas, No: L-88-68-CA., pg. 26.Attached in relevant part.
applicants may proceed directly to court. To support this assertion the Government cites to an agency determination, In Re Epley 10/ , dealing with §251.86(a) 11/. However, this is not the principal argument advanced by the Defendants and the Government's advocacy is showing. The argument advanced by the Defendant's, on page 42 of their brief, was that a permit issued with terms and conditions an applicant believes to be overly restrictive is devoid of prompt judicial review. In such a circumstance the applicant becomes a holder. Appeals by permit signatories and holders are governed by subsection (b) not subsection (a) of §251.86. Subsection (b) requires permit signatories and holders to endure interminable administrative appeals before court review is available. Epley is based on subsection (a) and is not relevant to the argument.
10/ No.: 97-04-12-06-0, (May, 1997).
11/ 36 C.F.R
12/ Government's brief, page 38, footnote 17.
13/ Footnote 17, page 38, Government's brief.
Only the following may participate in the appeals process provided under this subpart: (a) An applicant who, in response to a prospectus or written solicitation or other notice by the Forest Service, files a formal written request for a…[permit]. (emphasis added)
14/ Pages 38-39.
15/ Government's brief, pg. 38.
16/ Government's brief, pgs. 18-19.
17/ See cases collected in § III B, below.
Moreover, the use of Forest Service land is regulated by a plethora of laws, rules and regulations that prohibit what individuals may do on this land. Quite apart from any permit, conduct deleterious to Forest Service land is already proscribed and can be readily enforced upon individual violators. 18/ Arguing that a signature is necessary on a permit to occupy a Forest Service campsite in order to give the permit legal effect is analogous to arguing that a federal prisoner must sign the sentencing order in order to occupy his cell. In both instances the power of the order or permit arises from the inherent power of the issuing authority.
18/ The listing of statutes and regulations governing the use Forest Service land covers three pages in the opinion attached, pgs.45-48. See: Memorandum Opinion, filed June 1,1988 in U.S. v. The Rainbow Family, et al., U.S. District Court, E.D. of Texas, No: L-88-68-CA. Attached in relevant part.
19/ Government Exhibit 6, pg. 2.
F. The New and Improved Definition of Group Use: "Happy Talk"
20/ Compare 36 C.F.R. § 251.54(e) and 251.54(h)(viii).
21/ Government's brief, pg. 23.
22/ See § III B for a fuller discussion of this issue.
II. The Defendants May Maintain Their Facial Challenge to the Permit Requirements Even Though that Challenge Principally Addresses the Undefined Liability Conditions Which the Government May Attach to Issued Permits on a Case-by-Case Basis.
precisely the remedy which the United States Supreme Court has repeatedly applied to unconstrained prior restraints upon expression in an unbroken line of cases spanning well over half a century. See, e.g., Lovell v. City of Griffin, 303 U.S. 444 (1938); Thornhill v. Alabama, 310 U.S. 88 (1940); Freedman v. Maryland, 380 U.S. 51 (1965); Suttlesworth v. City of Birmingham, 394 U.S. 147 (1969); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975); City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750 (1988); FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990); Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992). For the reasons which follow, it is also the appropriate remedy here. 23/
23/ In stressing the unique nature of facial challenges under the First Amendment, the Government repeatedly confuses and conflates two conceptually distinct forms of facial review. The first, upon which the Defendants rely here, was developed specifically to evaluate prior restraints upon expression. See Lovell, at 451-52. The facial character of this prior restraint review manifests itself primarily in the special rule that one need not apply for an expression-related license, where the licensor's discretion is insufficiently fettered, before challenging the entire permit scheme. Suttlesworth, at 151; Freedman, at 56. This rule recognizes that unfettered discretion in the licensing official will always poses an unacceptable danger the suppression of ideas, either from self-censorship or from the difficulty in evaluating a censor's decision on judicial review. Lakewood, at 755-59. A distinct form of facial challenge sometimes applies quite apart from this recognition: on occasion a rule imposing no permit requirement at all will sweep within its blanket prohibition so much protected expression that it will be invalidated on its face. Board of Airport Commissioners of Los Angeles v. Jews for Jesus, 482 U.S. 569, 574 (1987). The facial character of this "overbredth" challenge is reflected in the special rule that one whose conduct might have been validly prohibited by a narrower rule may nevertheless challenge the "overbroad" regulation because its very existence inhibits the expression of many who will prefer to steer wide of the sweeping prohibition. Members of the Los Angeles City Council v. Taxpayers for Vincent, 466 U.S. 789, 796-99 (1984). The "third party standing element" inherent in this facial over-breadth review has, indeed, caused concern, and the Supreme Court has thus limited facial overbreadth challenges to situations where the overbreadth "is not only real, but substantial as well . . .." Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973). Some cases have presented both types of facial challenges, Thornhill, at 97-98, and the two types may well be related in some sense, see, e.g., L. Tribe, American Constitutional Law 1058-61 (2nd ed. 1988)(referring to some prior restraint review as procedural overbreadth), but the reticence over facial overbreadth review has never extended to prior restraint cases.
officer from altogether ignoring a valid and complete permit
application for several days, allowing the requested permit to
be granted by operation of law, thereafter beginning an investigation
and concluding that the permit should never have been issued,
and then revoking the permit at some indefinite time after the
application was originally submitted. Cf. FW/PBS, Inc. v. City
of Dallas, 493 U.S. 215, 227-29, 238 (1990)(invalidating license
requirement for expression because legis-lation did not expressly
limit the time allowed for required municipal inspections). The
Government naturally protests that its officials would never do
such a thing, but its appeal to official good faith "is
the very presumption that the doctrine forbidding unbridled discretion
disallows." City of Lakewood v. Plain Dealer Publishing
Co., 486 U.S. 750, 770 (1988). Beyond this, the Government
raises form over substance in arguing that the challenged regulations
are immune from facial attack merely because the permit must initially
issue unless denied within 48 hours. Such an issuance is altogether
meaningless if it is nothing more than conditional issuance pending
a longer, sustained investigation determined to find some reason
to disallow the expression for which the application was submitted.
While the Government might understandably hope that this regulatory
stratagem will shield its permit requirements from the established
facial review, it cannot do so. In the end, the Government's permit
scheme provides for an essentially temporary issuance, subject
always to later revocation at any time for any reason warranting
denial within a specified time period. 24/ For all practical
purposes, the express revocation provision thus eviscerates the
constitutionally required "specified, brief period,"
Freedman v. Maryland, 380 U.S. 51, 59 (1965), and opens
the challenged licensing scheme to all of
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24/ This Court need not hold that every revocation provision contained in a regulation requiring prior permis-sion for expression is subject to a facial challenge in advance of an application, approval, and actual revocation of a permit. Cf. Entertainment Concepts, Inc., III v. Maciejewski, 631 F.2d 497,505-506 (7th Cir. 1980)(sustaining challenge to revocation procedures in advance of approval necessary for expression). It need only recognize that revocation provisions, such as those at issue here, which plainly undo the protections which the Constitution requires for the application process leave the permit scheme, as a whole, as insufficiently fettered as it would have been had those protections been left out entirely.
the potential evils which warrant facial review of prior restraints upon expression, Lakewood at 755-69. 25/
25/ Lakewood was a closely decided case with two Justices not participating. That case nevertheless produced an opinion of the Court, Lakewood at 752, which is entitled to full precedential value here. Moreover, the principal concern of the three dissenting justices in that case has no application on this record. The Lakewood dissent stressed that nothing established that a newspaper company had any right to place newsracks on the public sidewalk in the first place, and asserted that facial challenges should be restricted to prior restrains upon forms of expression which the government "could not prohibit altogether." Id. at 777, 786 (White, J., dissenting). Whatever the lasting merits of that proposition, the Government's concession that National Forest lands are a public forum for the types of expression and religious exercise in which the Defendants and others engage places this case among those in which even the Lakewood dissenters would have considered a facial challenge. Lakewood at 777 (". . . parks are traditional public fora; leaf-letting, pamphletting, and speaking in such places may be regulated, but they may not be entirely forbidden").
26/ Shuttlesworth remains a classic example of prior restraint invalidation.
safety, or welfare] reasons," Id. at 770, the Court concluded that unless the constitutionally required constraints applied to the permit conditions as well as the issuance decision, "the guarantee against censorship" would be rendered "little more than a high-sounding ideal," Id. at 769-70. For this reason, the Lakewood Court upheld the facial challenge: "We hold those portions of the Lakewood ordinance giving the mayor unfettered discretion to deny a permit application and unbounded authority to condition the permit on any additional terms he deems 'necessary and reasonable,' to be unconstitutional."
Id. at 772 (emphasis added). In so doing, the Court
made no distinction whatsoever between the facial review accorded
the denial provision and that appropriate for the provisions authorizing
the attachment of conditions to issued permits. It was thus no
surprise when the Court subsequently invoked standard facial prior
restraint review to invalidate an expression-related licensing
requirement solely because of the licensor's unfettered discretion
in imposing an important condition on a parade permit: the payment
of a permit fee. 27/ While the sliding-scale permit fee
at issue was particularly problematic - because it introduced
"heckler's veto" considerations - the Forsyth County
opinion makes it clear that the unfettered discretion concerning
this permit condition was alone sufficient to invalidate the prior
restraint. Id. at 134 (addressing "hecklers veto" only
after concluding that "[t]he First Amendment prohibits
the vesting of such unbridled discretion in a government official").
Thus both Lakewood and Forsyth County stand as recent,
settled counter-examples to the Government's argument that authorized
conditions which can be attached to permits required for expression
are beyond facial challenge.
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27/ It is quite clear that the Court evaluated the "fee" at issue in Forsyth County as a permit fee rather than an application fee. Though the fee had to be paid in advance of the permitted expression, Id. at 126, the facts giving rise to the dispute made it plain that the fee was not required upon submission of the initial application and that it was not designed merely to defray the costs of processing the application. Indeed, the challenged ordinance expressly imposed the fee, on a per diem basis, on the actual use of the permit rather than on the application process itself. Id. at 126-27. Although the licensor in that case had apparently restricted the assessed fee to the costs processing the application, Id. at 127, the Court recognized that it was designed to defray the costs to the county of the permit's actual use. Id. at 126, 131 n.9, 133, 133 n. 10. Furthermore, the authorized fee adjustment, which became central to Supreme Court's disposition of the case, was necessarily made sometime after the application review process began.
28/ While the case began as a challenge to the denial of an event permit because of excessive noise at past Rock Against Racism concerts in Central Park, that dispute was settled when the City issued the requested permit. Id. at 785. As noted in the text, the case resumed over a much different matter. Id. at 787.
29/ Ward did not hold that Rock Against Racism could not maintain a facial challenge, it held that its "facial challenge fail[ed] on its merits." Id. at 794.
30/ In so holding, the Court carefully noted that if the use of the City's sound equipment and technician "had a substantial deleterious effect on the ability of bandshell performers to achieve the quality of sound they desired," Rock Against Racism's challenge "would have considerable force." Id. at 801.
31/ Just as a flat, nonadjustable $1000.00 permit fee would have posed a much more difficult question than the discretionary fee at issue in Forsyth County, compare Stonewall Union v. City of Columbus, 931 F.2d 1130 (6th Cir. 1991), with Fernandes v. Limmer, 663 U.S. 619 (5th Cir. 1981), the constitutional questions presented by a blanket group liability regulation would be considerably more difficult than those presented here.
than on other favored forest users merely by subtly manipulating
the "group" liability conditions on the permits they
issue to different users. This is precisely the sort of
danger against which facial prior restraint review is directed,
32/ and it is precisely why the Defendants may indeed maintain
the facial challenge here.
III. The First Amendment Prohibits the Enforcement of the Challenged Permit Regulations Against the Expressive and Religious Gatherings Which the Defendants Attend.
33/ The Government's curious claim here that the "group" liability which it seeks to impose through the challenged permit signature requirement is not "vicarious," is at best a purely semantic one. The law generally recognizes respondeat superior liability as vicarious, see 57B Am. Jur. 446 (1989), and that doctrine makes a master liable whether it is an individual, corporation, partnership, or unincorporated association.
applicable to all and narrowly tailored to its legitimate concerns. The Government's "group" responsibility scheme challenged here, however, suffers from at least two flaws which so seriously aggravate its chilling effect on expressive association that they are alone fatal. The first is that, on the face of the regulations and even now, the scope of that responsibility remains almost completely undefined. The scheme thus presents the same risk to expression posed by all vaguely defined laws regulating expression. Smith v. Goguen, 415 U.S. 566, 573 (1974). Second, because the "group" responsibility arises from the signature on a particular permit, the Government's scheme allows the collective responsibility to be imposed in a way which can vary from case to case. Thus the chilling effect - already a serious constitutional concern - is exacerbated by the flexibility inherent in liability scheme's current vagueness and in the fact that it is to be imposed case by case.
34/ So does its example of purely individual liability. Is the Government suggesting that all cases of criminal or quasi-criminal culpability will be restricted to purely personal liability of the actual actors? Or does the Government contemplate situations where minor law-breaking, though unsanctioned by a group, could be so widespread that a group or its leaders could be cited? Could the organizers of a rock concert held under a permit in a National Forest, for instance, ever be held liable for littering, partial nudity, or marijuana use on the part of many of the audience members?
drum and dance. Virtually all of them do so in environmentally
sound ways, but if some number of gatherers form a drum circle
in an environmentally sensitive area would the Government revoke
the permit as to everyone else? If so, how many individual violators
would it take to convert the matter to one involving liability
of the "group"? Perhaps most importantly, the Government's
single "group" liability example is one in which the
collective sanction is mere suspension or revocation of the permit
itself. Yet absolutely nothing, not even the Government's brief
before this Court, limits the collective sanction to permit revocation.
For instance, the Government has said nothing - either in its
regulations, in its practice under them, or in its submission
to this Court - about such matters as potential collective responsibility
for clean up costs. 35/ The limitation of its group liability
example to a permit revocation sanction allows the Government
to avoid difficult liability questions left unsettled by its regulations.
It also allows the Government to ignore the fact that, where a
group lacks common assets, "group" liability will inevitably
collapse into just the sort of vicarious individual liability
which the Government purports to eschew. Yet given the constitutional
demand for "precision of regulation" in this sensitive
area, the Government cannot ignore these questions or leave them
for another case and another day.
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35/ To be sure, the Defendants and those with whom they gather ordinarily restore the land to its pristine condition, but there have been occasions where hostile Forest Service Officials have interfered with the completion of their clean-up efforts, and the Government has apparently incurred some restoration costs.
B. Because the Challenged Regulations Are Substantially More Burdensome Than Necessary to Achieve Any Legitimate Governmental Objective, They Are Invalid Time, Place, and Manner Restrictions Upon The Defendants' Expression and Religious Exercise.
36/ The Government's effort to avoid prior restraint scrutiny on the ground that the challenged regulations can also apply to others is unavailing. In the first place, it has offered no information on how common non-expressive non-commercial group uses are in the National Forests. The Department's clear effort to satisfy prior restraint concerns, though ultimately incomplete, indicates its own understanding that applications for expressive uses will predominate. In any event, the challenged regulations have "a close enough nexus to expression, or to conduct commonly associated with expression, to pose a real and substantial threat of the identified censorship risks." City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 759 (1988); see also Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 62-67 (1989)(generally applicable procedure must comply with First Amendment prior restraint test when used to restrain expression in advance of dissemination).
C. The Challenged Signature Requirement is Properly Subject to Strict Scrutiny Because it is Targeted at the Defendants and Those with Whom They Gather.
historically used in connection with the Gatherings which the Defendants attend. Just as the asserted desire to avoid controversy raised a concern about content discrimination which warranted further analysis in Cornelius, Id. at 812-13, so here the Government's unusual permit signature requirement seems sufficiently likely to have been targeted at the Defendants and their fellow gatherers.
Respectfully submitted,
______________________________
John Paul Garhart, Esquire
PA ID No: 19753
Witold W. Walczak, Esquire
American Civil Liberties Foundation
Robert A. Sambroak, Jr., Esquire
PA ID No: 33500
Attorneys for the Defendants
UNITED STATES OF AMERICA, PLAINTIFF CRIMINAL NO.: 99-75 ME V. CRIMINAL NO.: 99-76 ME STEPHEN SEDLACKO, ET AL CRIMINAL NO.: 99-77 ME DEFENDANTS
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John J. Trucilla, Esq. (by Mail)
Assistant United States Attorney
United States Attorney's Office
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Erie, PA 16507Bruce A. Antkowiak, Esq. (by Mail)
One Northgate Square
Greensburg, PA 15601
John Paul Garhart, Esq.
Pa. I.D. 19753
1001 State Street,14th Floor
Erie, Pennsylvania 16501