By Bloomberg
October 12, 2018

Donald Trump’s presidency has inspired massive protests, with hundreds of thousands of women marching on the National Mall and scientists swarming the White House fence.

But now the Trump administration is seeking to restrict protests by effectively blocking them along the north sidewalk of the White House and making it easier for police to shut them down. A National Park Service proposal also opens the door to charging organizers for the cost of putting up barricades or re-seeding grass.

The proposed regulation could curtail demonstrations on some of Washington’s most iconic staging grounds for protests, including the National Mall where Martin Luther King Jr. delivered his “I have a dream”’ speech in 1963. It also includes Lafayette Square across from the White House and the Pennsylvania Avenue sidewalks in front of the Trump International Hotel.

The initiative dovetails with Republicans’ increasingly heated campaign rhetoric over “mob rule” and the boisterous protests against the nomination of Brett Kavanaugh to the Supreme Court. Trump has also been antagonistic toward protesters, once waxing nostalgic about how it used to be socially acceptable to assault them.

“When you think about petitioning your government for redress of grievances, this is the nation’s capital — this is where you come to do it,” said Mara Verheyden-Hilliard, executive director of the Partnership for Civil Justice Fund, which opposes the effort. “And now you have the Trump administration that is not only engaging in extreme rhetoric against demonstrators and suggesting that protests should be illegal,” but “taking concrete actions to suppress dissent and suppress free speech.”

The proposal, issued in August and open for comment through Monday, says demonstrations can impose substantial costs on the federal government. Some of the changes are designed to “preserve an atmosphere of contemplation” around the memorials, the Park Service said. Other revisions, according to the proposal, would help protect National Mall grass from being trampled and give the Park Service more time to negotiate logistics before permits would be issued for demonstrations.

‘Cost Recovery’

The Park Service is seeking “to have a genuine conversation with the public about updating a comprehensive plan to best facilitate use and enjoyment of the National Mall while preserving and protecting its monuments and memorials,” said Brent Everitt, a spokesman for the agency. “Permit fees and cost recovery considerations are just one part of that overall conversation.”

Fee requirements could make mass protests “too expensive to happen,” said Arthur Spitzer, legal director of the ACLU of the District of Columbia.

“Managing public lands for the benefit of the American people” — whether demonstrators or tourists — “is what Congress funds the National Park Service to do,” Spitzer said in a blog post. “While the Park Service may be strapped for funds, it cannot balance its budget on the backs of people seeking to exercise their constitutional rights.”

Current National Park Service rules for rallies and marches have been forged through decades of court cases, including lawsuits that successfully challenged government restrictions. The proposal would rewrite many of those rules — and, if enacted, face certain litigation.

The plan would transform the way the agency vets demonstrations as well as where they can be conducted. For instance, it could blur the lines between the Park Service’s treatment of demonstrations, which typically get more deference, and “special events,” such as festivals and the filming of movies.

Charging for Songs?

The agency is asking the public for feedback on that distinction and ways it can recover costs, such as for demonstrations that also have “special event elements” — which could include musical performances, dancing and other entertaining forms of expression. (Think Joan Baez belting out “We Shall Overcome” and Peter, Paul and Mary singing “If I Had a Hammer” at the 1963 March on Washington).

That could include the cost of Park Service personnel, police barricades and re-seeding the National Mall, Verheyden-Hilliard said. They could “pen in a demonstration and charge you for it,” she said.

Everitt, the Park Service spokesman, said the agency would explore legal questions around seeking to recover costs for First Amendment activities later, if public comments indicate that is something it should consider.

“For now, we’re simply seeking the public’s views on whether we should look at ways to recover costs associated with ensuring public safety and the protection of park resources during these increasingly frequent and complex demonstrations in and around the National Mall and President’s Park,” Everitt said.

The stretch of Pennsylvania Avenue in front of the White House is already off limits to cars. But under the proposed regulation, some 20 feet of the White House sidewalk alongside it could be closed off, leaving just a five-foot sliver of space for “pedestrian access.” It’s not clear whether demonstrations could still be allowed there.

The Park Service measure also would make it easier for authorities to revoke demonstration permits. Currently, permits can be terminated when there is a clear and present danger to the public safety, good order or health. But the proposed regulation would allow permits to be yanked for any violation of their terms and conditions.

Critics say that would create a “hair trigger” for shutting down protests, in response to an extra table or sound system — whether erected by activists involved in an event or counter protesters seeking to undermine it.

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