The National Park Service is considering new rules that would significantly limit protests in the nation's capital. With the end of the public comments period on Monday, now the NPS is tasked with determining how to move forward with its policies. Here’s what the the agency must consider:
First, lets be clear what’s at stake here. Free speech is the core of our democratic values. Protest, with its public engagement, is a critical element.
What would these regulations actually do? Here are just three of the worst aspects:
The NPS wants demonstrators to get government permission to have their protests by requiring permits ahead of time. This is clearly contrary to the protections offered by the First Amendment. Free speech does not need additional permission.
Additionally, NPS is considering making demonstrators pay for these permits as well as other fees that they decide to tack on.
Finally, the park service has also proposed to close off most of the White House sidewalk to protests, drastically limiting a key forum for public expression.
In typical regulatory fashion, that last provision to close most of the sidewalk wasn’t given an explanation in the regulatory prologue where agencies justify and describe the changes under consideration. Instead it was added at the end, without explanation.
The proposed changes, first introduced in August, would also conflate special events, like concerts and weddings, and protests, which means that demonstrators would have a harder time getting permits.
Public comments and substantial outcry, however, have flooded NPS with plenty of discussion on just why closing the sidewalk would be dangerous and undemocratic.
As the Niskanen Center, a left-leaning libertarian think tank, points out in their open letter to NPS that the parks in Washington D.C., were intended as a forum for democracy. The NPS’s own publication, Foundation Document: National Mall and Memorial Parks, for example, explains that the National Mall and nearby memorial parks were meant to be “an ideal stage for national expressions or remembrance, observance and First Amendment Rights.”
Moreover, that document describes the resource and values of the parks as:
“Stage of Democracy. National Mall and Memorial Parks contains the nation’s foremost public spaces and the primary settings for First Amendment activities, presidential inaugurations, civic engagement, and national celebrations. Citizens from throughout the country and around the world come here to participate in American democracy, celebrate freedom, and experience our nation’s history and culture.”
The proposed changes would significantly impact expressive activity in the nation's capital, the intent of the public spaces, and the public exercise of democracy as protected in the Constitution. Finally, if NPS does decide to go through with their proposed changes, Congress must be prepared to stand up for free speech and constitutional principles and ensure we remain committed to a marketplace of ideas, especially at the president's doorstep.
In short, NPS has lots to think about before it comes out with its final changes. The agency would do well to put serious thought into what exactly democracy and free speech mean.