WASHINGTON — There will be no tourists dotting the sprawling green grass of the Capitol lawn as Joe Biden is inaugurated as the 46th president of the United States. There will be no cheering crowds, no vendors hawking merchandise. The monuments named in honor of former presidents – Washington, Lincoln, Jefferson – will be closed.

But there will be protests – exactly two, with fewer than 100 demonstrators at each, tucked away near the National Archives and the Canadian Embassy inside a secure perimeter, along a largely vacant Pennsylvania Avenue.

After a week of back-and-forth over security concerns following the Jan. 6 breach of the U.S. Capitol by a violent pro-Trump mob, District of Columbia and federal officials reached a compromise. They say the plan allows the city’s tradition as the nation’s preeminent stage for protest and free-speech gatherings to continue.

“We are the premier First Amendment arena in the country, in the world, probably,” Jeffrey Reinbold, superintendent of the National Mall and Memorial Parks, said at a news conference Friday. “These are different times, and really different measures.”

The measures amount to a de facto “free-speech zone,” a tactic that has been used in other cities struggling to maintain order amid volatile protests and high-profile events, including political conventions. They also ensure that demonstrators, whose primary purpose is to be seen and heard – by officials, passersby, the news media – may instead be shouting into an empty street.

First Amendment experts are closely watching the unfolding scene in the city.

Although safety and free speech can coexist, legal experts said, they caution against overreach as an unprecedented portion of federal parks, major roads and access to government buildings are shut down.

“The more restrictions there are, the more troubling it is for democracy,” said Mark Tushnep, a retired Harvard University law professor and First Amendment scholar. “It may be completely understandable given security concerns or threats, but it is still a cost.”

The National Park Service had for days been trying to walk a line between shutting down the area entirely and allowing select groups to express their First Amendment rights.

The agency, which issues permits for rallies on the National Mall and other federal parks in the nation’s capital, vacillated on proposals with officials from the U.S. Secret Service, D.C. police and the office of Democratic Mayor Muriel Bowser, who has said no protest permits would be issued from the city in the coming days.

“If ever there was a time that we needed to make sure that those basic constitutional guaranteed rights were protected, it’s right now,” Park Service spokesman Mike Litterst said. “When the government is under assault, that’s especially a time you do not want to appear to be denying civil liberties or denying people their rights under the First Amendment.”

Legal experts said that given the violence of Jan. 6, the security measures in D.C. are probably justified – but they cautioned against allowing a prolonged response that extends beyond the need to secure the inauguration.

“It’s no question that closing off public spaces, even for a limited time, affects people’s ability to exercise their free-speech rights, but at the same time, the government is permitted to carry out temporary targeted closures of common areas when they have a good reason and aren’t trying to favor one viewpoint over another,” said Scott Michelman, legal director for the American Civil Liberties Union’s D.C. office. “If they close the Mall for the inauguration based on a threat, the First Amendment doesn’t prohibit that. If they close the Mall for all of 2021 because there was a threat in January, that is very likely to be overly restrictive.”

The Park Service has not issued permits for inauguration week, though officials said the agency is prepared to allow two protests, with restrictions: No more than 100 people each inside a secured perimeter that, to enter, will require participants to undergo a security screening.

They are the most restrictive requirements Litterst said he can recall being imposed on First Amendment activities in Washington.

“I cannot put into words what it’s like down there; it defies any description,” Litterst said. “I have never seen anything like this. There has never been a shutdown of the Mall like this before.”

The two possible rallies are the only potential demonstrations that remain out of a list of nearly a dozen protests that had applied for permits, including some long-term demonstrations such as David’s Tent, a religious gathering that has held vigil on the National Mall for years.

Most groups withdrew their applications after the siege at the Capitol, which led to heightened anxieties and security measures involved in the inauguration.

Both groups in consideration for permits are left-leaning organizations, one of which applied for protest clearance more than a year ago – well before it was clear who would be president the next four years.

If permits are granted, the groups will be required to gather on the north side of Pennsylvania Avenue in John Marshall Park and at the Navy Memorial.

Virtually no one will be there to witness the demonstrations, which Tushnep said can feel to activists like being “put in a box” by officials.

“The theory these days is that even though these demonstrators are, in some cases, being put quite far from the event or people they’re protesting, the method of getting your message out has changed some,” Tushnep said. “It’s no longer by shouting at people directly but rather through media, including social media, and for that it really doesn’t matter how close you are to the venue.”

The only pro-Trump group that applied for a protest permit from the Park Service appeared to be a motorcyclist-run rally dubbed, “Let America Hear Us: Roar For Trump,” which Park Service officials said has not responded to requests for more information after filing its permit request last year. The application window has closed.

“We can’t issue a permit if we haven’t had a chance to talk to you about what you’re going to do and how your group can meet the conditions we have and all that,” Litterst said.

A group of Black activists from Los Angeles leading a “March for Reparations” the day after Biden’s inauguration pushed its gathering back until the high-security zone around the National Mall is eased.

Organizer Tara Perry, with California-based group Black Pact, said the rally will proceed despite threats of violence from far-right groups and heightened anxieties among law enforcement officials around potential acts of terrorism.

“We can’t sit around and cower in fear, because it is our right as citizens to petition our federal government, and we will not allow white supremacists to intimidate us out of exercising those rights,” she said.

Perry said she expects a couple hundred people to attend the rally, though she had originally planned for several thousand.

Experts who evaluate security measures’ impact on free speech note the potential for a chilling effect: the possibility that people will decide it’s not worth it to exercise their rights in the face of restrictions or safety protocols.

But Michelman, of the ACLU, said not establishing a more robust security response after violence like the Jan. 6 storming of the Capitol – or pro-Trump rallies that devolved into roving street battles late last year – may also threaten to erode people’s freedom of expression.

“It can be just as chilling for many would-be demonstrators to know that they’re going to be met with violent counterprotesters as it would be if they were to be met with state violence,” Michelman said. “Nobody wins when insurrectionists storm the Capitol and wanton violence plays out on the streets of the nation’s capital. That’s not free speech, and that’s not conducive to anyone’s free speech.”


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