WASHINGTON — President-elect Donald Trump will face his critics at his inauguration this week — large protests are planned across Washington, DC — but not to the extent that some demonstrators were hoping for.
A federal appeals court ruled on Tuesday that the National Park Service could reserve space along the inauguration parade route for the Presidential Inaugural Committee, rejecting First Amendment objections from protesters planning anti-Trump demonstrations.
Federal regulations allow the National Park Service to set aside a portion of Freedom Plaza — a prime spot along Pennsylvania Avenue to see, or protest, the parade — for the inaugural committee to set up bleachers for ticketed seating. On Tuesday, a three-judge panel of the US Court of Appeals for the DC Circuit found that this was a "content-neutral" restriction on the use of public space divorced from the opinions or speech of whoever else wanted to use it.
ANSWER (Act Now to Stop War and End Racism) Coalition sued the government to challenge the regulations, arguing that the set-aside for the inaugural committee favored one type of speech — that of the president-elect's supporters — over others.
"There is no evidence in the record that the regulation was adopted because of any disagreement with ANSWER’s — or any demonstrators’ — message, nor any evidence of desire generally to suppress dissent or otherwise discriminate with regard to content," Judge Cornelia Pillard wrote for the unanimous panel.
The appeals court compared the set-aside for bleachers with areas reserved for portable toilets, reporters, and individuals with disabilities.
Every four years, the National Park Service reserves space downtown for the Presidential Inaugural Committee. Other groups can file requests for permits to use those spaces on Jan. 20, but the National Park Service won't grant them unless the inaugural committee releases its hold.
When the latest case was argued in the DC Circuit on Nov. 14, ANSWER was still waiting for the inaugural committee to decide what space it needed. ANSWER now has permits to demonstrate in the western part of Freedom Plaza and along a section of Pennsylvania Avenue near the Trump International Hotel, in addition to other locations downtown.
The DC Circuit's decision on Tuesday wasn't limited to the specifics of ANSWER's permit requests, however, and would apply to how the National Park Service handles future inaugurations.
The court found that the regulation allowing the National Park Service to set aside space for the inaugural committee doesn't mention speech; the rules won't stop someone with a ticket to sit in the bleachers from speaking out against Trump, for instance. The restrictions affect a protester as much as any member of the public without a ticket who wants access to the bleacher area for a better view, Pillard wrote.
The restriction is "content-neutral," the court held, which means that the government is subject to less intense scrutiny under the First Amendment than if it were content-based — for example, a rule that specifically banned anti-government protests.
The restriction was "narrowly tailored" to achieve the government's interest in helping the congressionally authorized Presidential Inaugural Committee plan the day's events, the court found.
"Part of organizing the Inauguration is providing seating for spectators; the Inaugural Committee’s regulatory priority allows just that," Pillard wrote.
The court found that the regulation leaves plenty of space available for the public, even if it doesn't include ANSWER's preferred location to protest. Pillard noted that the park service reserved 13% of the parade route along Pennsylvania Avenue for the inaugural committee and left 70% of the route open to the public.
Mara Verheyden-Hilliard of the Partnership for Civil Justice Fund, who argued for ANSWER in the DC Circuit, told BuzzFeed News that the decision allowed for the "privatization" of public space, noting that the Presidential Inaugural Committee for Trump's inauguration had raised tens of millions of dollars. She said the committee was granting access to the Freedom Plaza bleachers to politically approved Trump supporters, not the general public.
A spokesman for the US attorney's office in Washington, which argued for the National Park Service, declined to comment. The National Park Service released a statement praising the "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," the National Park Service said.
DC Circuit judges Sri Srinivasan and Patricia Millett also heard the case.
Updated with comment from the National Park Service.