January 18, 2017
A federal appeals court on Tuesday shot down protesters’ challenge of regulations that allow Donald Trump’s Presidential Inauguration Committee first dibs on the location of bleachers reserved for ticket holders at Friday’s inaugural parade.
As a result of the ruling by the U.S. Court of Appeals for the D.C. Circuit, the inauguration committee can keep set-aside bleacher seats in place at Freedom Plaza and in front of the Trump International Hotel — prominent locations along the parade route where protesters had sought to demonstrate.
The decision is a blow to antiwar group Answer Coalition, which has challenged the National Park Services’ allocation of prime space along Pennsylvania Avenue to inaugural committees since 2005.
The group has argued that the reservation of swaths of Pennsylvania Avenue for the inaugural committee favors the incoming administration over the public, and marginalizes and unfairly excludes dissent by preventing public access to what would otherwise be prime demonstration space.
The court disagreed, finding that the regulations exclude the Answer Coalition “not because it seeks [to] demonstrate, nor due to the content of the message Answer wishes to communicate, but to ensure some premium space for ‘ticketed bleachers viewing and access areas’ as part of the event package reserved for the Inaugural Committee.”
“The Park Service’s provision for the Inaugural Committee to construct its bleachers, even as 70 percent of the Inaugural route remains available for demonstration permits, is no more content based than the unchallenged provisions reserving areas for portable toilets, media stands, or viewing areas for individuals with disabilities,” Judge Cornelia Pillard wrote in the 30-page ruling for the three-judge panel.
Judges Patricia Millett and Sri Srinivasan joined Judge Pillard in the opinion, which upheld a ruling by U.S. District Judge Paul Friedman.
Carl Messineo, legal director of the Partnership for Civil Justice Fund, which represented the Answer Coalition, was disappointed in the ruling, saying it “affirms a discriminatory access” to public space.
Rather than allowing the space to be open to the public, the ruling will allow the Trump administration to charge a fee for ticketed access to the seats, meaning to gain access to that set-aside space a person would have to monetarily support the president-elect and be vetted by the committee, he said.
“The court’s ruling treats these spaces as if it’s spectator space for a Beyonce concert,” Mr. Messineo said. “I don’t think anyone can look at that space on Inauguration Day and not recognize this is government speech.”
The Answer Coalition has been granted a permit to protest at another site along the route — the Navy Memorial at Pennsylvania Avenue and Seventh Street NW.
A National Park Service spokesman issued a statement calling the ruling “a solid opinion.”
“The Court recognized that the NPS policies reasonably balance the priority need for the Presidential Inaugural Committee along very limited parts of the parade route with the First Amendment rights of demonstrators to assemble and be heard, and the right of the public to participate in the inaugural events,” said spokesman Mike Litterst.
Protesters sought access to demonstrate at Freedom Plaza on Inauguration Day, citing its symbolism and historical significance and its physical attributes, which provide a rare open and elevated flat space along Pennsylvania Avenue.
But the D.C. Circuit panel found that the protesters were unable to distinguish Freedom Plaza from other historically significant areas, like the White House sidewalk and Lafayette Park, where the inaugural committee also is given priority preference for bleachers.
The Partnership for Civil Justice Fund contends that the court erred in deciding that those who obtain seats in the ticketed bleachers represent “neutral spectators.”
“The government is removing from neutral public access key parkland and locations along the route for the exclusive use of a private partisan fundraising entity which is allowed to screen and decide who may be allowed in, issuing tickets to those who are vetted donors and supporters,” the group said in a statement.
Judge Pillard wrote that while the First Amendment requires “that any reasonable, content-neutral regulation limiting expression along the parade route leave ample space available for peaceful demonstrations,” it does not “support Answer’s claim of a right to displace spectator bleachers with its own demonstration at Freedom Plaza.”
While all legal options remain on the table for a future appeal, Mr. Messineo said the focus now for the group is hammering out the final logistics for the permitted protest.
With an inauguration every four years, it seems likely protesters will launch another legal challenge in the future. If they do, the court declined to give any future guidance on how much of the allocation of public space to the government for the inaugural committee would be deemed reasonable.
“We simply hold that this regulation is content neutral, reasonable, and provides ample alternative channels for communication,” the ruling states.