Two provisions are of most concern. One would restrict how much of the White House sidewalk is available for protests, shrinking the available area by 80 percent. The other is categorized as a “consideration,” rather than a proposed rule change. But it’s been controversial nevertheless: The NPS is thinking about requiring people who apply for a demonstration permit to “pay fees to allow the NPS to recover some of the costs” of administration—costs historically picked up by the federal government.
It’s not clear from the proposal how exactly the fee would be assessed, but Everitt said that the idea was triggered, in part, by the rising cost of public safety. Arthur Spitzer, the legal co-director of the ACLU of DC, posited that it could include paying for cleanup, increased police presence, and other costs incurred by demonstrators.
“Millions of people, more than 20 million people, visit the Mall every year, mostly tourists, and the government is not planning to charge them for the impact of their feet on the grass or the need to pick up their Starbucks cups when they leave,” Spitzer said. “It seems to us that people who come to exercise First Amendment rights are entitled to the same accommodations.”
Everitt was quick to say that the fee consideration is only that—under consideration. “We have included that question on this document simply to seek the public’s view on whether we should look into ways to recover costs for ensuring public safety and security during increasingly frequent and more complex demonstrations in and around the National Mall,” he said.
The ACLU, however, disputes this justification: According to their calculations, demonstrations have actually gotten less frequent, not more frequent, in the last several decades. It’s special events that are increasing in number, Spitzer said—things like concerts, weddings, and athletic competitions.
“The number of applications for demonstration permits has actually decreased in recent years,” Spitzer said. According to his group, from 2001 to 2009, the average number of applications for demonstration permits was about 955. From 2010 to 2017, the average decreased by 31 percent, to 658. “Although their costs have been increasing, it’s not because there have been more and more demonstration permits being sought,” he said. Instead, it’s those special events that are driving up maintenance costs. “Demonstrations are what have a constitutional right,” Spitzer said. “You don’t have a constitutional right to have an HBO concert on the mall.”
In a follow-up call, Everitt told me that “obviously demonstrations ebb and flow,” and the ACLU is “correct that demonstration applications are holding pretty steady.” But the NPS’s “focus, of course, is that the overall number of applications is increasing, and the complexity of those applications is changing.”