National Mall Redesign Could Seriously Restrict Free Speech

The National Park Service (NPS) is planning to redesign the heavily trafficked National Mall -- the sprawling open area between the Lincoln Memorial and the Capitol that has become America's iconographic site of popular protest. It is where Martin Luther King Jr. delivered his immortal "I Have a Dream" speech, where protests against everything from the Vietnam War and Iraq War have been launched, where locals and visitors alike lunch, jog and sightsee, and, in 2007, where Al Gore kicked off one of Live Earth's concerts.

In short, it is the premier destination for Americans from all walks of life to gather, relax, orate and bask in their collective freedoms.

But that might be coming to an end, as some organizations see it. Critics of the redesign including the ANSWER Coalition, Impeach Bush, Partnership for Civil Justice and more are complaining that the National Park Service's proposed redesign, still in its formative phase, is a subtle attempt to restrict that time-honored ability to congregate and complain.

For their part, they're suspicious of the National Park Service's recent partnership with the private foundation Trust for the National Mall to secure funding for the redesign, and they're not too happy about how current NPS Director Mary Bomar and the one she replaced, Fran P. Mainella, have connections to a Bush administration that is not exactly enthusiastic about either protest or the public trust.

And it isn't much of a stretch to figure out what the National Park Service thinks of that theory. "That is a complete red herring," explained William Line, communications officer for the National Park Service for the last six years and one-time journalist for ABC and NBC News. "It is completely and wrongly mischaracterizing what is going on to say that the national park service is limiting speech. The national park service reveres the First Amendment as much as any other American, and any statement by whatever groups to the contrary is patently false. I think they are interested in stirring up controversy."

Line and the National Park Service he serves, for their part, claim to harbor no such sinister plans. NPS, which was created in 1916 by Congress through the National Park Service Organic Act to "promote and regulate the use of the federal areas known as national parks, monuments and reservations," is currently considering four alternatives, including "doing nothing at all." In fact, according to Line, only one proposal suggests moving protests or gatherings be moved to a specially sanctioned area.

"The typical place where the marches and demonstrations take place is the eastern end," he added. "One alternative explores the possibility of an area on the eastern end, referred to as the Capitol reflecting pool, be made into a park service area."

But Partnership for Civil Justice has an alternative explanation. as one would expect in a battle this pitched. It is a conflict that promises to become more heated in coming weeks. The redesign's public comment period expired on Feb. 15, and plans have been turned over to everyone from cultural and environmental resource specialists to Bomar, who makes the final decision and, as Line reminds me, "serves at the pleasure of the president."

"They have issued proposals," countered Partnership for Civil Justice co-founder and attorney Mara Verheyden-Hilliard, "which include restrictions on protest activities, including the erection of stages because they might temporarily block the pristine view between the Washington Monument and the Capitol; mandatory 'rest' periods for the grass where the Mall would be off-limits; and, most significantly, the creation of a space where protesters would be expected and likely directed to gather near the Capitol. This is to be a stage-managed view of protests to turn the powerful opposition of the people coming together in mass assembly into a prettified outdoor lobbying group."

That's quite a laundry list of complaints, although Line is quick to point out -- again and again to the point that it became a numbing mantra during my various phone conversations with him -- that "nothing has been adopted, finalized or set in stone."

Further, he argued, the creation of the protest-approved space Verheyden-Hilliard mentions is, "in essence, in the same area," Line continued: "The suggestion is that we pave over the reflecting pool, which was built in the mid 1970s. And the assumption that the National Park Service wouldn't allow spillover onto different areas of the eastern end of the Mall is false."

But a national park is an expansive area. More importantly, it is a public area, and that means allowing the public to use it without reasonable restriction, if one is following the letter of the law as far as the National Park Service Organic Act is concerned. But while the National Park Service's official site chooses to highlight the Act's "fundamental purpose" -- "to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment for the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations" -- it glosses over the fact that the Act also dictates that the secretary of the interior can do everything from open up the parks to loggers to kill whatever animal it desires to "conserve the scenery or the natural or historic objects in any such park, monument, or reservation." That's a lot of latitude, and a lot of power over the public, should the secretary of the interior choose to use it.

And he has, in this case. In November 2007, current Secretary Dirk Kempthorne, a man who holds the record for protecting fewer species in his tenure than any secretary of the interior in American history, staged a press conference to officially launch the Trust for the National Mall with National Park Service Deputy Director Lindi Harvey, National Mall and Memorial Parks Superintendent Peggy O'Dell and Trust Chairman Chip Akridge. The purpose of the partnership, as Line's February 2007 media advisory explained, was to help raise private-sector funds needed to revitalize 'America's Front Yard,'" as the Mall is called, for the purpose of conservation.

Further, the advisory explained, the "Mall was included in the initial list of certified eligible projects of President Bush's National Park Centennial Initiative, which calls for $1 billion over 10 years to strengthen basic park operations and a challenge from President Bush to create a public-private funding vehicle of up to $2 billion for new projects and programs with the goal of a $100 million public-private match each year for 10 years." The trust, in other words, was created with the express approval of both the president and his secretary of the interior. Yet the trust's board of directors, who were included as attendees on the press release, were not named and have yet to be publicly divulged, at the time of this writing, on the trust's official site.

When I asked Line why this information was not included, he gave me what could only be described as a nonchalant answer. "There is not a requirement that the board of directors has to be established in order for the National Park Service to secure funding," he explained. "The reason why the board of directors isn't listed is because it isn't assembled yet. In any case, the money is given to the trust with a clear understanding that it will go to beautification of the National Mall."

When I asked where I could view a document stating as much, including an equally clear definition of what "beautification" entails, Line told me that he didn't have it in front of him and that it was not viewable on the site. When I told him that such nondisclosures, for whatever reasons, could be viewed by opponents of the redesign as a deliberate suppression of relevant information and details, he was nonplussed.

"It's an oversight," he added. "There is absolutely no intentional or malicious withholding of information." Unfortunately, he's not going to have such an easy time convincing redesign skeptics of that. Starting with Verheyden-Hilliard, and ending with every group worried that the Bush administration, which has set the bar impossibly high for presidencies refusing to disclose information in the public interest, has set its sights on further free-speech restrictions as its last term comes to a close. And when it does, unless the new president chooses a new NPS director, the decision will still be Bomar's to make. And that makes the opposition nervous. "This is a Bush initiative," Verheyden-Hilliard argued, "and we can't expect that the Democrats will stop them" should they win the White House in 2008. "This is coming under the auspices of the Bush administration and in the public meeting held on Jan. 12 in D.C., representatives from the National Park Service said that the plan would be completed by January 2009."

Of course, Verheyden-Hilliard's organization isn't alone in its concerns. Partnership for Civil Justice posted an online petition defending the Mall against free-speech restrictions signed by individuals as popular as Cindy Sheehan, Ed Asner and Howard Zinn, as well as officials from Greenpeace, National Council of Arab Americans, the National Lawyers Guild, the American Indian Movement and many more. Even Michael Berg, whose son Nicholas Berg's videotaped beheading in Iraq was infamously disseminated in 2004, has signed on, as has longtime Marine veteran and agitator Ron Kovic. That's a who's who of a list, one that cannot be simply brushed away by Line's exhortations that "there is no controversy."

"The intention of the Bush administration to limit the access of demonstrators to the Washington Mall is still another attack on our constitutional rights," Zinn wrote me via email, "a truly flagrant violation of the First Amendment's protection of 'the right of the people peaceably to assemble and to petition the government for a redress of grievances.'" The decorated historian, who is currently adapting for the screen source materials from his seminal People's History of the United States>, collected in the compilation Voices of a People's History of the United States and assembled with co-author Anthony Arnove, argues that the move is a deliberate attempt by the president to oppress Americans on his way out the door. "I suppose there is a special urgency for the Bush administration in doing this, because the grievances against it are so numerous and profound."

Urgency may be one thing, but bureaucracies are another. And given all the eyeballs that need to scrutinize the redesign in order for it to even think about entering the execution phase, this whole flap could be nothing more than a minor tempest in a major teapot. (Or is that melting pot?) If a plan is indeed brought to Bomar before the Bush administration leaves office, and she chooses to engage the alternative that the National Coalition to Save Our Mall calls the "protest plaza," putting the plan into action is far from a given. As anyone who has tried to get anything in Washington done might explain, things just don't move that fast.

But that's not to say that they can't, or won't, especially if the Democrats take power in 2008 and elect to do nothing about what Partnership for Civil Justice derogatorily refers to as the "protest pit." With bipartisan apathy and nondisclosures growing by the day, those who turn up at the Mall to realize Martin Luther King Jr.'s dream might find that they've entered a nightmare of dystopian proportions, dressed up as efforts at "beautification." And when they wake up from that nightmare, the White House, to say nothing of the National Park Service, might not have what it takes to hold them back anyway.

"The ability of Americans to come together in vibrant and, at times, militant protest has been the basis for all progressive change in the United States," added Verheyden-Hilliard, "and that will never be obsolete."