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Court: freedom of expression doesn't mean 'freedom of sleep'

The United States Supreme Court's upholding of a government ban on sleeping in public parks may not be, in and of itself, of historic importance in the annals of First Amendment rights.

But the high tribunal's 7-to-2 decision to keep homeless people from sleeping in parks near the White House to demonstrate their plight is indicative of this court's position that excessive focus on the rights of individuals could impede the rights of the public at large.

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This emerging philosophy of a Supreme Court headed by Chief Justice Warren E. Burger contrasts sharply with the emphasis on personal civil liberties which marked the court, headed by Chief Justice Earl Warren, in the 1950s and '60s. The Burger court is now having profound impact in cases involving rights of minorities (including women and children) and rights of the accused. The court has not yet ruled - but will soon - on cases involving searches (without a warrant) of student lockers by school officials looking for drugs, and suppression of evidence in criminal prosecutions where police procedures have been found to be incorrect but made in ''good faith.''

Opposing positions in the so-called ''freedom of sleep'' case clearly illustrate the difference between conservative and liberal stances on the issue of freedom of expression.

Siding with the majority, Chief Justice Burger said the parks' case ''trivializes'' First Amendment free-speech rights and suggested it was a ''frivolous'' waste of the court's time. But Associate Justice Thurgood Marshall held it was the plight of the homeless the court needed to focus on - and that demonstrations and sleeping in public parks is indigenous to this group's constitutional rights.

Justice Marshall was joined in strong dissent by Associate Justice William J. Brennan Jr. The court's most pronounced political liberals, Messrs. Marshall and Brennan scored their colleagues for being ''unwilling or unable to take seriously the First Amendment claims'' in this case.

While the majority did not rule out ''sleep-ins'' in parks as a symbolic form of freedom of expression, they placed greater emphasis on the government's responsibility to keep park facilities in the nation's capital clean and orderly for the public good.

Justice Byron R. White, writing for the majority of the court, said the ban on sleeping as a form of camping ''narrowly focuses on the government's substantial interest in maintaining the parks in the heart of our capital in an attractive and intact condition, readily available to millions of people who wish to see and enjoy them.''

This regulation, Justice White pointed out, is in keeping with previous court rulings that the government may put ''reasonable time, place, and manner restrictions'' on various forms of expression, ''whether oral or written or symbolized by conduct.''

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In arguing the case for the government earlier this year, Interior Secretary William P. Clark emphasized that the sleeping ban was not directed at freedom of expression, nor did it lessen the ability of demonstrators to communicate their message. What was really at stake, said the Interior Department's brief, was the legitimate interest of the government in preserving park resources.

But the Community for Creative non-Violence (CCNV) - a religious group dedicated to helping the poor and homeless - challenged the government's regulation. It said sleeping outdoors in a public place (particularly in cold weather) is in itself a form of public expression and protest that is constitutionally protected by the First Amendment.

The case began in the winter of 1982-83 when CCNV received permits from the US Park Service to pitch tents in Lafayette Park across from the White House and on a nearby mall.

The Park Service, however, placed a ban on sleeping in the tents. And CCNV went to court. A federal appeals courts lifted the restriction last year. But the Supreme Court blocked that ruling from taking effect until it had a chance to review the case.

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