Baugh

Opinion by Judge SCHROEDER; Concurrence by Judge SILVERMAN.

Pamela Baugh and other members of a group called Religious Witness with Homeless People (“RWHP”) appeal their convictions for demonstrating without a permit on National Park property, in violation of 36 C.F.R. § 2.51 (a). At the time of their arrest, the defendants were protesting the Park Service’s plan to demolish the Wherry housing in the Presidio in San Francisco instead of using the units to house the homeless.

The defendants challenge the constitutional validity of the permit regulation and its implementing rules both facially and as applied to their protest. We do not reach the facial challenge, for we hold that the Park Service’s application of the regulation to the defendants violated the defendants’ First Amendment rights.

Facts and Procedural History

The demonstration for which the government arrested the defendants occurred on March 9, 1997. This was not the first time RWHP had protested the planned destruction of the housing that it wanted used to house the homeless. In past protests by the organization at the Presidio, after marching through the Wherry housing area, some RWHP members had trespassed into…

concurring:

On March 9, 1997, the defendants set out to get arrested at the Presidio to generate publicity for their cause. They admit that. They could have obtained the requisite permit if they would have agreed to comply with the permit. They admit that, too. They could have demonstrated in the First Amendment area of the Presi-dio without any permit whatsoever. That, also, is admitted. The problem is that if the defendants had agreed to comply with the permit or to hold their demonstration in the First Amendment area, they wouldn’t have gotten themselves arrested, which is what they wanted to accomplish to begin with. It is in the context of this contrived, intentionally provoked controversy that the defendants attack both the facial constitutionality of 36 C.F.R. § 2.51 (a) and the constitutionality of that section as applied.

Although I agree with the result reached by the majority, I write separately to express some sympathy for the situation faced by the officers of the Park Service in this case. Contrary to the main opinion’s dramatic overstatement, the Park Service officers did not prohibit the defendants from engaging in “any expressive activity in the Presidio” on the…