Appeals Court Backs Park Service Ban On Sale Of POW/MIA T-Shirts

Appeals Court Backs Park Service Ban On Sale Of POW/MIA T-Shirts
Scruggs wins another battle against POW/MIA activists who have declared the war not over yet

By Ted Sampley
June/July/August 1997

Jan Scruggs, president of the Vietnam Veteran's Memorial Fund (VVMF), won a crucial battle June 6 in his campaign against POW/MIA and veteran's activists who sell T-shirts near the Lincoln and Vietnam Veteran Memorials in Washington, when the U.S. Court of Appeals for the District of Columbia affirmed the right of the Park Service to ban the sale of T-shirts on the Mall.

Scruggs, who has spent years pressuring the Park Service to take action against the POW/MIA vigils set up by demonstrators near the memorial, called the activists "nothing more than commercial vendors," saying the decision by the Court of Appeals was most welcome. "The court saw it perfectly clear, as visitors have seen it for a decade, that it was time for these sales to end." Scruggs, a Vietnam veteran and founder of VVMF, began his campaign in early 1993 after POW/MIA activists stopped paying his Memorial Fund royalties on the T-shirts they were selling near the Vietnam Veterans Memorial. He had already stated publicly that the POW/MIA issue was a "non-issue" and that the time had come for the United States to stop spending money on what he said was a "lost cause." He reasoned that the POW/MIA vigils were making "unfounded" accusations about communist Vietnam still holding U.S. servicemen as prisoners of war and that those accusations being made near the Wall were hindering his efforts of "reconciliation and healing."

In 1995, after Scruggs had written numerous letters to the Park Service complaining that the vigils were "an ugly presence" and destroying the "integrity" and "heritage" of Washington's memorials, the Park Service joined Scruggs' crusade to drive the POW/MIA activists from the Mall.

Realizing that the POW/MIA demonstrations were protected by the First Amendment, the Park Service drafted regulations outlawing T-shirt sales on federal parks--the primary source of income for the nonprofit organizations operating the vigils.

Park Service officials explained to the press that T-shirt sales by demonstrators were banned to discourage what it described as a "flea-market atmosphere" that had grown up around the Vietnam Veterans Memorial and along the Mall.

In July 1994, after a 60 day public comment period on the Park Service's proposed T-shirt regulation, the Park Service said the response from the public was "about even" in its comments "for and against."

The Stars & Stripes reported September 4, 1994, that hundreds of the letters supporting the Park Service's ban were found to be fakes. Someone had signed and mailed computer generated letters using the names and addresses of people who did not give permission for their names to be used. Most of the names affixed to the approximately 1,300 fraudulent letters were either those of slipholders at Park Service owned marinas operated by Guest Services, Inc. (a government approved commercial vendor) and temporary or past employees of Guest Services. Commercial vendors such as Guest Services operate gift shops, marinas and food courts all over the Mall and have complained vehemently in writing to the National Park Service that the veterans vigils were competing with their government approved T-shirts sales.

After the Park Service was forced to remove the fraudulent letters from consideration, the count dramatically changed to approximately 3,035 in favor of T-shirt sales and 774 against. Of the 774 against, 241 were form letters and petitions signed by Guest Services employees.

Rick Robbins, assistant solicitor for the Park Service's Washington region, said in the Washington Post June 7 that the court's decision is "a winner for the American public and the park visitors who have a right to a park free of commercial intrusion."

The Last Firebase Veterans Archives Project has maintained a 24-hour POW/MIA vigil since 1986, financing the vigil through the sale of POW/MIA message-bearing T-shirts. When the Park Service banned T-shirt sales, seven activist groups, including The Last Firebase, sued the Park Service on First Amendment grounds.

In court, the activists argued that they financed the operation of their groups with money made selling T-shirts and that those sales were critical to the continuation of their demonstrations.

In September 1995, U.S. District Judge Stanley Sporkin sided with the activists, declaring that the sale of "expressive T-shirts" was protected under the First Amendment of the Constitution. The judge, however, left in place the general ban on T-shirt sales with the exception of those who had sued, pending an appeal by the Park Service.

The June 6 ruling upheld the Park Service's ban. Under the regulations, demonstrators are restricted to sell only items which are in less demand such as bumper stickers, books and pamphlets.

Judge Laurence H. Silberman, writing for the unanimous three-judge panel, said demonstrators are free to give their T-shirts away. "We do not deny that the sale of a T-shirt is expressive, but it is only the expression inherent in the transmission of the T-shirt from the seller to the buyer -- and not the fact that the seller raises money thereby -- which warrants constitutional protection."

Donna Long, longtime POW/MIA activist and spokesperson for The Last Firebase said, "This whole T-shirt ban has nothing to do with the Park Service trying to protect the public from commercial intrusion. The Mall is loaded with Park Service approved vendors who sell beer, ice cream, popcorn, film, trinkets and, believe it or not, POW/MIA T-shirts. The ban is really about government bureaucrats and some of their lackeys who want the POW/MIA vigils removed."

Long said, while pointing to the POW/MIA flag flying over The Last Firebase, "Those people can't stand the sight of the POW/MIA flag that flies continuously over The Last Firebase. They want the POW/MIA issue out of sight, out of mind and off their conscience so they can satisfy their friends in corporate America who want to do business in communist Vietnam."

Presidents Reagan, Bush and Clinton had all promised they would never normalize trade or diplomatic relations with Vietnam until Hanoi had given a satisfactory accounting for the servicemen still missing as a result of the Vietnam War. But the Clinton administration, despite the loud protests by groups like The Last Firebase, betrayed that promise and normalized trade and diplomatic relations with Vietnam.

There will be no immediate change in the scene at the Lincoln Memorial and the Vietnam Veterans Memorial, where the POW/MIA demonstrators hold their vigils. Their attorney, David M. Liberman, of Los Angeles, said there is an automatic 45-day window before the ruling takes effect. In addition, he said he expects his clients to seek a full review by the Court of Appeals, which could delay any changes for some time.

"This decision has done a lot of damage to the specific type of speech at issue and the broader important issue of fund-raising," he said. "This is an extremely dangerous decision. Fund-raising is critical to demonstrations. Without the right to raise funds to pay for the cost of the demonstration, what value is the right to have them?"

Arthur Spitzer, attorney for the Washington office of the American Civil Liberties Union, said he was disappointed in the ruling. He had argued in a friend-of-the-court brief that the Park Service should regulate how, where and when T-shirts are sold but not ban their sale outright.

"They didn't deal with any of the issues we tried to raise, but we can raise those arguments again in other cases," he said, noting that the appeals court decision left that option open in a footnote.

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