The PCJF, which defeated Trump’s first-term effort to crush protest on federal land in D.C., condemns plan to permanently fence Lafayette Square and Pennsylvania Avenue
WASHINGTON, D.C. — The Trump administration’s proposal to erect permanent eight- to nine-foot fencing around Lafayette Square, with unilateral authority to seal the park and shut Pennsylvania Avenue at the administration’s unbridled discretion, is a transparent effort to suppress visible dissent in front of the White House in the nation’s preeminent public forum, and eliminate the American people’s right to assemble and petition their government at the seat of presidential power. This is an overt attack on participatory democracy in the United States.
The proposal, jointly crafted by the White House, the Interior Department and the Secret Service, would replace public access to Lafayette Square with fencing that officials could close whenever they assert there is a “security risk.” Such unbridled discretion and untested assertions of security claims have previously been found to be an inadequate mechanism for closing public fora to First Amendment activity.
In 2018, as the first Trump administration moved to impose a “protest tax” and close the White House sidewalk to demonstrations, PCJF Executive Director Mara Verheyden-Hilliard and Legal Director Carl Messineo warned in a Washington Post op-ed: “What’s next, closing Lafayette Square?” Eight years later, the administration has answered.
“Lafayette Park is not the president’s front yard. It belongs to the American people and is the time-honored location to petition the Executive Branch for redress of grievances. It is the single most significant site for protest of presidential policies and actions in the United States, where people have assembled to demand justice for more than a century, from the suffragists to the Civil Rights Movement to this day,” said Mara Verheyden-Hilliard, constitutional rights attorney and Executive Director of the Partnership for Civil Justice Fund. “The Trump administration is without lawful authority to summarily strip an iconic public forum of its status, gate it off from the people and turn the White House into the Trump Fortress. A permanent fence with an on/off switch controlled at the discretion of the government is not a security measure — it is an instrument for the suppression of dissent. This effort is an overt attack on participatory democracy in the United States.”
Lafayette Park is a quintessential traditional public forum. As the Supreme Court held in Hague v. Committee for Industrial Organization, 307 U.S. 496, 515 (1939), public streets and parks “have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” Decades of federal court rulings have affirmed that the First Amendment protects the right of the people to demonstrate in Lafayette Park and at the White House, precisely because of its unique proximity to the presidency. See A Quaker Action Group v. Morton, 516 F.2d 717 (D.C. Cir. 1975); United States v. Grace, 461 U.S. 171 (1983) (government cannot destroy the public forum status of streets and parks by its own declaration); A.N.S.W.E.R. Coalition v. Kempthorne, 537 F. Supp. 2d 183 (D.D.C. 2008) (enjoining NPS’s unconstitutional administration of its permitting regulations on Pennsylvania Avenue). The government cannot extinguish a traditional public forum by administrative fiat, and it cannot vest itself with unbridled discretion to close the forum to speech and assembly whenever it chooses. The Constitution does not permit the government to build the infrastructure of censorship and promise to use it responsibly.
“This administration’s own conduct shows exactly what these fences are for,” Verheyden-Hilliard said. “This is the president who had peaceful demonstrators and press gassed and beaten out of Lafayette Square in June 2020, and whose administration prosecuted a veteran for the act of protest in that very park this past year — a vindictive prosecution the PCJF defeated in federal court. No one should believe that a closure regime placed in these hands will be used for anything other than silencing opposition within sight and sound of the White House.”
Trump has tried this before, and the people defeated him
This is not the first time the Trump administration has attempted to remake public access to federal land in the nation’s capital in order to suppress protest. In 2018, the administration proposed a massive regulatory overhaul that would have crushed protest on federal land in Washington, D.C. It would have imposed steep fees and costs on demonstrations, effectively banning protests on the iconic White House sidewalk, restricting spontaneous demonstrations, banning long-term vigils, and creating waiting periods that would have made it impossible to organize demonstrations. Those rules would have affected all National Park Service land in the capital, including the National Mall, Lafayette Park, the White House Sidewalk, the Lincoln Memorial, the Ellipse, Freedom Plaza, and the sidewalks along Pennsylvania Avenue.
The Partnership for Civil Justice Fund first exposed that plan with a line-by-line legal analysis, sounded the alarm nationally, and led an organizing, education, and outreach campaign that brought together civil rights, labor, climate justice, women’s rights, LGBTQ, immigrant rights, and anti-war organizations across the country. More than 140,000 comments were submitted into the formal rule-making record. As the PCJF prepared to meet the administration head on in court to challenge the regulations as unconstitutional, the National Park Service announced it could not surmount the public and legal opposition and withdrew the proposed rules in their entirety.
The Washington Post Editorial Board called that outcome “a victory for free speech on the Mall” and a victory for democratic norms, describing the withdrawal as a full retreat by the Trump administration and crediting the Partnership for Civil Justice Fund — which first raised the alarm — and the hundreds of organizations that joined in opposition.
PCJF’s record of defending access to public space in the nation’s capital
For more than three decades, the PCJF has successfully litigated to open and defend public space for free speech in Washington, D.C., including:
- Winning a federal court ruling in A.N.S.W.E.R. Coalition v. Kempthorne declaring unconstitutional the National Park Service’s discriminatory administration of its permitting regulations along the Presidential Inaugural Parade route on Pennsylvania Avenue — where the NPS had exempted itself from its own rules to favor the president’s inaugural committee over the public — and enjoining the practice, expanding public and protest access to Pennsylvania Avenue.
- Forcing the National Park Service, under threat of litigation in January 2017, to break its permit logjam and immediately process demonstration permits for Inauguration Day protests planned by more than 30 organizations.
- Securing permitted space in Lafayette Park in 2018 for the mass anti-racist assembly counter-protesting the “Unite the Right” rally.
- Winning landmark class actions against federal and local police for mass false arrests of demonstrators in Washington, D.C., including the historic $13.25 million Pershing Park and $14 million anti-globalization mass arrest settlements and forcing systemic changes in the police handling of demonstrations.
- Successfully defended U.S. Army veteran Jay Carey this year against a vindictive prosecution by the Trump administration for burning a flag in protest in Lafayette Park itself.
The PCJF calls for the rejection of this proposal outright. No design refinement can cure a plan whose function is to wall the American people out of their own public forum. The Partnership for Civil Justice Fund and its Center for Protest Law & Litigation will defend the right of the people to assemble, speak, and petition their government at Lafayette Square and Pennsylvania Avenue.