The opinion of the court was delivered by: FULLAM
Plaintiffs, a group of otherwise unrelated organizations which, for convenience, may loosely be termed anti-war protest groups and civil rights groups, together with various individuals involved in those organizations, claim that their constitutional rights have been and are likely to continue to be violated by the defendants in connection with the ongoing observance of the 200th anniversary of the United States Constitution. The defendants include We the People 200, Inc., an organization which is the vehicle for providing the many public ceremonies commemorating the bicentennial of the Constitution; the National Park Service, which has responsibility for the various public parks and historic shrines which are the logical locations for many of these celebratory events; the City of Philadelphia and various Philadelphia police officers; the agent-in-charge of the local office of the Federal Bureau of Investigation; and individual personnel of the National Park Service.
Of immediate concern is plaintiffs' motion for a preliminary injunction. An evidentiary hearing on that application was held on July 8, 1987, followed by oral argument on July 9. Because of the imminence of certain additional bicentennial ceremonies to which the requested injunctive relief would be applicable, it is necessary to reach a prompt decision. As a result, this Memorandum will necessarily be somewhat abbreviated.
I. ACCESS TO BICENTENNIAL FESTIVITIES
On May 25, 1987, as part of the Memorial Day weekend aspect of the bicentennial celebration, Vice-President Bush and other dignitaries were scheduled to appear on a program to be conducted out of doors, immediately in front of Independence Hall in Philadelphia. Plaintiff Pledge of Resistance organized a march and demonstration which was planned to occur at about the same time. The participants in the Pledge demonstration intended to march to the area of Independence Mall where an official "soap box" had been established by We the People 200, Inc. to remind us of our First Amendment heritage. The marchers also brought along three or four soap boxes of their own, which they planned to utilize for the expression of their views at locations around the perimeter of the mall.
At this point, a bit of geography is in order. Independence Hall is located on the south side of Chestnut Street. Immediately across Chestnut Street to the north, Independence Mall extends one full block to Market Street. At the northern end, near the Market Street side, is located the building housing the Liberty Bell. Farther to the north, across Market Street, is the "Lewis Quadrangle," in which is situated, among other things, a temporary pavilion associated with the bicentennial celebration.
The May 25 events organized by We the People 200, Inc. included speeches by the Vice-President and others from a raised platform immediately in front of Independence Hall. Chairs for VIP attendees were located in Chestnut Street and at the south end of Independence Mall.
Up until May 24, the official soap box had been located immediately adjacent to the building housing the Liberty Bell. On the evening of May 24, or in the morning of May 25, the soap box was relocated to a position on the north side of Market Street. From the defendants' perspective, this move was designed to reduce congestion in the walkways adjacent to the Liberty Bell, and served to place the soap box near an attractive fountain and gardens. From the plaintiffs' perspective, the move was designed to ensure that the Pledge demonstrators would be using a soap box which was located immediately adjacent to a temporary restroom, out of the sight and hearing of persons attending the Vice-President's speech.
The route of march which had been worked out between the Pledge demonstrators and the Philadelphia Police Department would have taken the marchers (about 285 in number) on a circuitous route down 4th Street, west on Spruce Street to 7th, up 7th to Market, and then east to the area of the Liberty Bell Pavilion. Actually, because certain streets which the police thought had been blocked off were not, the police accompanied the marchers west on Spruce Street to 5th, up 5th to Walnut, west on Walnut to 7th, and then along the originally planned route. And, apparently, some of the marchers split off and proceeded north on 5th Street to Market.
Be that all as it may, when the Pledge demonstrators approached the northern end of Independence Mall (at 6th and Market and 5th and Market, respectively), police barricades were hurriedly relocated so as to preclude them from gaining access to any part of the mall south of Market Street. They were permitted to use the soap box to the north, and to place their own soap boxes at various locations across 5th Street from the northern end of the mall. All who inquired were told that no organized protest or other demonstration would be permitted within Independence Mall itself, and that no person carrying a sign or leaflets could pass the barricades. Although some were told that they could enter into the mall area if they left their signs and leaflets behind, in point of fact quite a few persons associated with the Pledge demonstration were denied access to the mall area even without their signs and leaflets; and various persons not even associated with the Pledge group were refused permission to pass the barricades because they were wearing badges, buttons, T-shirt insignia, or other forms of communication. Indeed, at least one person was refused access to the mall festivities merely for wearing a black armband. At the same time, however, anyone who wore a We the People 200 button, or carried a We the People penant or flag, was free to enter and attend the mall ceremonies.
The justification now advanced on behalf of the federal defendants for enforcing these restrictions is that We the People 200, Inc. had been granted a permit to hold a demonstration in Independence Mall, whereas the Pledge group had not. To the argument that We the People 200, Inc. could not reasonably have been, and was not in fact, granted exclusive access to the entire area of Independence Mall, the federal defendants respond by asserting that, under regulations of the National Park Service, leafletting, sign-carrying and other demonstrations may be conducted on park property only if a permit for such activity has been issued, and these plaintiffs never applied for such a permit.
Plaintiffs argue, with some justification, that everyone knew in advance what they were planning, the Philadelphia Police Department approved it, and nobody ever told them they needed to apply for a permit. Whatever the force of that argument, I need not rest a decision on that ground. The evidence clearly establishes two important facts: (1) Park Service officers are authorized to, and in fact regularly do, consider and grant oral permission for leafletting and sign-carrying on an ad hoc, on-the-spot, basis; and (2) persons carrying non-controversial signs, emblems, banners, and insignia were admitted to the mall without restriction. On this record, it is very clear that the failure of the Park Service officers to treat plaintiffs' oral inquiries as a request for a permit, on the same basis as other persons and groups, was casually related to the nature of the message plaintiffs sought to convey. Obviously, the defendant Park Service personnel sought to prevent ...