Tony Nenninger
Professor Charles Davis
First Amendment Theory
University of Missouri at Columbia
May 30, 2001


The question of how to define a Rainbow gathering is raised by the facts and arguments presented in U.S.A. v. Nenninger, Case No. 98-03047-01-CR-S-E 1 in the United States District Court for the Western District of Missouri, appeal pending with District Judge Fernando Gaitan, Jr. from the conviction in the Court of Magistrate James C. England, as well as by several other cases around the country concerning application of a U.S. Forest Service regulation requiring a signed permit for non-commercial group uses involving 75 or more participants or spectators. This paper analyzes the fundamental definitional characteristics of a Rainbow gathering and discusses how the signature requirement of the regulation threatens to compel Rainbow gathering attendees to profess faith in a type of association that is contrary to the dictates of their individual consciences and creed in violation of the constitutional parameters of Supreme Court precedents.

Although the amorphous informality of Rainbow gatherings defies any attempts to pinpoint distinctive authoritative characteristics, in its broadest definition, a Rainbow gathering is any non-commercial peaceful assembly of informally associated individuals on public land, much akin in spirit to the proverbial Christian proclamation of love: "Wherever two or more are gathered in my name, I will be there." Commonly, Rainbow gatherings are known to expand the natural social evolution of non-coercive interpersonal friendships and informal acquaintances of varying degrees between two or more individuals to include the development of ever-changing clans of volunteers that focus on specific cooperative efforts for the common good. Assemblies of a few to several dozens of people for part of a day to several days are commonly known as local Rainbow gatherings. Assemblies of several hundred to several thousand people for several weeks are commonly known as regional Rainbow gatherings. Rainbow gatherings of various numbers and durations occur at cyclic intervals not only in communities throughout the United States, but also in many countries around the planet.

The most well known Rainbow gathering event is the annual gathering occurring some place in an undeveloped area of the United States National Forests each summer that climaxes with a morning of silent meditation for world peace by over 20,000 people on the Fourth of July. All of the months of planning, acquisition of materials, site preparation and subsequent rehabilitation, and other work necessary to provide free food, medical care, water and sanitation, information, parking, security, entertainment, and worship for thousands of people over a period of several weeks before and after the Fourth of July is provided through volunteers and donations. The phenomenal scope and integrity of community functions manifested in the absence of any authoritative group decision-making system can be glimpsed in the Rainbow Family of Living Light Mini-Manual, an informal and evolving set of guidelines for a harmonious Rainbow gathering which usually appears in an annual publication called the Rainbow Guide 2, produced with donations by self-appointed volunteers. People of incredibly diverse cultures from all over the planet reflecting a wide range of religious, political, and philosophical perspectives are able to peacefully and ecologically co-exist with each other and local ecosystems for several weeks without charging any fees and without any means to conform the behavior of participants beyond the common requirements of the law. By the very nature of Rainbow gatherings, there are no distinguishing criteria of individual membership and therefore individual participants should retain their sovereign rights and responsibilities. The question of how such a diversity of people can peacefully co-exist without any formal government raises issues detailed hereinafter that shed light on why applying the USFS signature requirement to informally affiliated persons violates the First Amendment.


There is a substantial history of litigation between Rainbow gathering attendees and the federal government over the issue of permits and also over the issue of selectively targeted road stop law enforcement check points. In 1986 two Rainbow gathering attendees were cited for criminal trespass on National Forest land and prosecuted in the U.S. District Court of Arizona. District Judge Bilby dismissed the charges and wrote in the unpublished opinion: "Such a regulation impermissibly singles out those who wish to gather in order to exercise their First Amendment rightsŠthis regulation is therefore unconstitutional."10. After USFS reformulated their permit regulation and sought to enforce it by injunction against individuals preparing for the annual Fourth of July gathering in 1988, District Judge Justice in the U.S. District Court for Eastern Texas invalidated those as unconstitutional 11. In his final judgment and memorandum opinion, Judge Justice noted the USFS suspicion, antagonism, animosity, and hostility toward Rainbow gathering attendees; regulatory ambiguity and unbridled discretion with the agency decision-makers; and singling out of Rainbow gathering participants for enforcement of the permit regulation 12. Although the case was not decided on the signature issue, on pages 27-29 of the memorandum opinion, Judge Justice wrote: The fact that the regulations add an additional requirement for a permit which does not appear in the earlier regulations, and which seems to be uniquely applicable to the Rainbow Family (see footnote 12), while retaining a constitutionally repugnant permit scheme that singles out expressive activity of special treatment, further support this impression that the Forest Service has not been motivated in this litigation solely out of concern for public health and safety but rather has been motivated, at least to some degree, by hostility to the Rainbow Family."

Footnote 12 stated:

"The proposed amended regulations provide that a permit may be denied if someone from the group seeking the permit will not sign the permit application on behalf of the group and agree to be held responsible for meeting the terms of the permit. See 53 Fed. Reg. At 16550 (May 10, 1988) adding new subsection (5) to 36 CFR Section 251.54 (i). Although the Forest Service did not attempt to enforce its non-commercial group use regulations against Rainbow gatherings between 1988 and the publication of the current amendments in 1995, USFS law enforcement has been found by federal courts to have utilized other means of unconstitutionally harassing Rainbow gathering attendees through road stop checkpoints selectively targeted at them. U.S. District Judge Clark of the Western District of Missouri declared the selective targeting of a road stop checkpoint on a rural road leading to the 1996 annual gathering unconstitutional 13. The Eighth Circuit later reversed the injunctive relief the District Court had granted for a technical reason of the plaintiff's standing at the time she filed her complaint, but the Eighth Circuit opinion upheld the declaration of unconstitutionality of the road stop and wrote: 14 "It is possible that Ms. Park would have standing to seek injunctive relief in an action commenced today, if these more recent checkpoints establish a pattern of wrongdoing by the Forest Service. It is our hope, however, that Ms. Park will not have to resort to legal action again to be free from future violations of her constitutional rights, and that the administrators of the Forest Service will insure that the inappropriate conduct of 1996 is not repeated."

In a similar federal civil suit challenging USFS road stop check points, District Judge Schlesinger of U.S. District Court of Florida granted a preliminary injunction for pro se plaintiffs and stated: "The evidence strongly suggests defendant Forest Service has selectively targeted its enforcement efforts against plaintiff, and its actions may not, at least in some instances, be in accordance with the Fourth Amendment of the United States Constitution."15. The case was later dismissed because of a lack of funds for the pro se litigant from Missouri to obtain an attorney to proceed for him in Florida.

Since these two road stop check point cases, USFS has apparently ceased employing specific stop points and instead has diversified its covert assault of attrition by increasing its use of roving traffic stops, often with dubious cause. More importantly, however, USFS has begun an overt campaign of enforcing the non-commercial group use permit regulations as amended after seven years of modification efforts designed to mask the most obvious unconstitutional aspects that had been specifically identified and ruled upon in the Israel and Rainbow decisions. However, USFS insistence on a group representative's signature on the permit was not removed from the regulatory scheme, and this requisite for issuance of a special use permit has been the flaring point when USFS has sought to enforce the permit requirement against Rainbow gathering attendees.


Some people have suggested that various "Rainbow Councils" make collective decisions for the "Rainbow Family", and that participants at Rainbow gatherings are "ruled" by whatever unanimous consensus occurs at these "councils". These presumptions are the basis of Forest Service law enforcement's logic that Rainbow gathering attendees are able to make a group decision to designate a representative to sign a permit without altering the fundamental unique characteristics of First Amendment protected association at Rainbow gatherings. Indeed, it seems at first blush that such a tangible determination as the location of the next Fourth of July gathering would require some authoritative group decision-making process to resolve. However, even if there were some substantial basis in the records of previous cases to conclude that some distinguishable entity called the Rainbow Family existed, the facts of record in the Nenninger case and other scenarios of regional gatherings beg the question of to what degree an informal assembly of individuals on public land can model their behavior on the examples of some entity before being considered an entity also. The record in the Nenninger case reveals 3(although the Magistrate ruled it to be irrelevant) on numerous occasions annual Fourth of July gatherings, as well as regional gatherings in the Ozarks, have sometimes occurred simultaneously in different places because participants did not agree on a site location and there was no "official" decision that had any binding authority. Furthermore, it is not uncommon at all for individuals at Rainbow gatherings to deviate from the guidance of some "council" consensus regarding any variety of issues and there is no legal recourse for anyone to enforce any supposed group decision upon any individual that chooses not to comply. For example, despite the longstanding tradition that alcohol is discouraged at Rainbow gatherings, as a citizen over 21 years of age, there is no legal means by which anyone can stop me from bringing a bottle of whiskey to the prayer pole in the center of the gathering if I so choose. However, the overwhelming respect for the unanimous agreement of concerned individuals communicating together in meetings about an issue of common interest usually provides the impetus for voluntary support among peers in the broader network of Rainbow gathering participants. The distinction between being "ruled by consensus" and peer persuasion to cooperate was made in the Nenninger record and has been emphasized by the custom among many Ozark Rainbow gathering attendees to refer to this communication process as the verb "counsel", rather than the noun "council" 4.

Counsel is not a political process of collective decision-making so much as it is a process for individuals to get to understand each other in depth more clearly so as to coordinate harmonious cooperation based on enlightened personal choice. This is the core meaning of consensus. Although counsel may occur in many forms, typically, consensus evolves during Rainbow counsel by all concerned individuals assembling in a circle on public land during daylight and passing a feather or other sacred object to focus everyone's attention on one person who speaks at a time without being interrupted 5. With patient listening and loving intention participants can develop new perspectives that foster cooperation.

However, the consensus process is not perfect. Inherent with the responsibility to listen is the right to filibuster. Many egocentric interests are apt to flare from time to time in an abuse of the Rainbow counsel process, but the ultimate prevalence of listening manifests the degree of peaceful and voluntary cooperation that is the fundamental expressive message which distinguishes the quality of a Rainbow gathering in comparison to any other assembly of an arbitrary number of persons (75 in the USFS permit regulation cases) that are physically present in an arbitrarily defined area (USFS designated about 20 acres as the gathering area in the Nenninger case 6).

Arguably, the peaceful social evolution of diverse people without the need for heavy-handed law enforcement by the state is close to the core of the purpose of the First Amendment generally, and the free marketplace of ideas specifically. Not only does the free and open counsel process itself foster the robust exchange of ideas necessary to sustain voluntary cooperation, but the diverse content of expression during Rainbow gatherings finds very specific avenues through voluntary music, art, theatre, religion, yoga, massage, personal growth workshops, interpersonal relationships, births, deaths, and practically every imaginable profound human experience possible as well as through the creative avenues of survival such as provision of food, water, child care, and health care. For example, the centerfold of the 2000 edition of Always Free, a newspaper usually published by volunteers from the land during the Fourth of July gathering, depicts a map of several dozen of the hundreds of independent camps and kitchens at that gathering 7.

All of the months of heartfelt work and celebration approach climactic jubilance when the entire village of over 20,000 people manifested in an undeveloped area of public land hushes in silent meditation from the dawn of the Fourth of July until high noon, at which time multitudes of children parade from the Kid Village camp to the prayer pole in the center of the gathering, around which thousands of people have joined hands in a circle several miles in circumference, in a sincere contemplative sharing of this vision and model for world peace, and to usher in one more new year of First Amendment freedom for ourselves and our children, manifested in the spirit of the drafters of the Bill of Rights-that is to say not because government officials granted a privilege to gather and associate in the manner of equality dictated by our conscience-but because we demanded it as a fundamental human right to peacefully associate and assemble; because we refused to accommodate our fears to governmental intimidation and harassment, but instead proceeded on the path of love and equality; because that spirit of love is at the core of the First Amendment fortress and from within that shielded aura of protection from overt forms of governmental oppression, Rainbow gathering participants have been able to dance between the covert attempts at harassment to effectively awaken the higher consciousness of fellow participants, local communities, and to varying degrees even the government agents that are assigned to interact with gathering participants. This unique social phenomenon is a tangible demonstration of voluntary cooperation without the necessity for authority over individuals' sovereign freedom.

While this loving example of voluntary cooperation surely furthers the purposes of the inter-faith, inter-cultural, inter-racial silent meditation for world peace on the dawn of each birthday of the declaration of independence of our nation from tyrannical control; just as surely this expressive collective demonstration threatens the ability of today's tyrannical social and political forces to control people's lives through fear and coercion. Rainbow gatherings have always engaged a clash of consensual and institutional values, but as the media of mostly word of mouth used to communicate about gatherings that drew 5,000 or so people in the early 1970s expanded to include more printed media and drawing upward of 10,000 people in the 1980s and the evolution of regional and local gatherings modeled on these early annual gatherings occurred, attention from high level law enforcement within the federal government has also increased. Today's internet access to information about Rainbow gatherings through several independent web sites 8, has not only helped to inform potential participants and other curiosity seekers, but has also served as a convenient means for law enforcement to identify and track assemblies designated as Rainbow gatherings. For example, an internet posting was used by USFS to determine the details of where people were gathering in the Nenninger case 9. However, as will be discussed in detail later in this essay, the arguments and facts of record in the Nenninger case raise unique questions of just where on the continuum of degrees of interpersonal cooperation USFS law enforcement may constitutionally determine that a group entity has been identified.

Issues raised by the Nenninger case and several other recent cases involving the contested regulation present serious First Amendment questions of whether the act of getting a representative signature on a contractual permit form inures legitimate benefits to the government that warrant sacrifice of the genuinely held fundamental tenets of the gatherers that internal representative power allocation is incongruent with egalitarian principles of non-violence. The Forest Service asserts that the legitimate interests served by the regulation are to: 1) protect the environment, 2) protect public health and safety, and 3) allocate space among forest users. Indeed, many of the provisions of the permit could be interpreted to serve these purposes. However, although the "legal effect" USFS argues the signature requirement is necessary for may be significant when applied to an organized group such as the Boy Scouts, the provision is useless and impossible to comply with when applied to individuals that are only assembled by informal means.

In the case of enforcement against Rainbow gathering attendees, the lack of any internal hierarchical power allocation means that compliance with the signature requirement would compel gatherers to pledge their allegiance in word and deed to a type of association that imposes a vicarious liability among people that is beyond the actual boundaries of their own association and structure. USFS arguments that the signature requirement is needed to give the permit "legal effect" attempts to vest rights and responsibilities and to recognize a legal entity in a peaceful assembly of individuals although their association has no distinct, identifiable membership and exists only as a name, they have no legal means to expel individuals from the assembly, and have no legal means to enter into a contract. The signature requirement requires a declaration of membership affiliation that in reality does not exist.

This essay addresses the case law outlining the parameters of First Amendment protection from government compelled expression and association and analyzes how this case law can be applied in defense of individuals participating in public assemblies on National Forest land, particularly with regard to the facts and arguments presented in the pending Nenninger appeal. Although many important issues have been raised in similar cases, the Nenninger case is unique in the quality of the evidentiary record to challenge the legitimacy of the signature requirement, as will be detailed hereinafter. The thesis of this paper, and the fundamental liberty interest at stake in the Nenninger appeal, is that the First Amendment protection from government compulsion of an individual to express a particular message or to join a particular form of association forbids USFS from requiring a representative signature from individuals that informally associate on public land when other less intrusive and more effective means for meeting legitimate government interests are readily available.

Legal Analysis

Several books about First Amendment protection of assembly and association were published in the early 1960s that analyzed the basic themes of this issue, but do not directly address the question of personal choice in the nature of association at an informal assembly. The Right to Assembly and Association 16 provides a comprehensive overview of the criteria that distinguish unlawful assemblies that provoke violence, how to protect controversial assemblies from hostile audiences, principles protecting meetings in public streets, street parades, and assemblies in public parks. Freedom of Association 17 details the parameters of protection of association for the purposes of religion, labor, livelihood, politics, and subversion. The Constitutional Right of Association 18 hashes some of these same categorical issues and hints at the specific issues presented by attempting to apply the signature requirement to Rainbow gathering attendees through its discussion of the Lanzetta v. New Jersey 19 holding in 1939 that the unconstitutionally vague language in an anti-gang statute failed to define "gang", "known to be a gang member", and "membership" or how membership could be secured. Generally, however, the broad contexts of these books do not peruse the depths of legal analysis necessary to clarify the essence of an individual's right to choose how to associate informally. Likewise, a book published in 1971, Groups and the Constitution 20, is geared toward the constitutional rights of individuals to form organized entities.

A review of legal treatises to define the parameters of an organized group illustrates the distinctions that must be confronted when evaluating the constitutional rights of individuals to informally associate. 7 C.J.S. 21 describes the term "association" as a body of persons acting together, without a charter, but upon the methods and forms used by corporations, for the prosecution of some common enterprise (Section 2); defined by a contract of association in the form of a constitution or articles of association (Section 5); requiring formal meetings to act (Section 7); having elected or appointed officers in accord with articles of association and bylaws whom have the power to bind the association as designated therein (Sections 9, 13, and 15); and having a defined membership (Section 19); a majority of such members may bind the association (Section 20); individual members are liable for association debts and individuals or representatives are liable for unauthorized acts (Section 31). In contrast, Rainbow gathering attendees do not act by methods and forms used by corporations; there are no articles of association, constitution, or other defining contract; actions at Rainbow gatherings do not require any formal meeting; there are no officers or representative that can bind the individuals gathering; there is no defined membership; and a majority of individuals assembled cannot bind any minority. As much as I think USFS would like for individual attendees to be liable for debts the Forest Service determines are due from the group entity that does not exist in order to chill the participation of Rainbow gathering attendees that own substantial assets, such an argument by USFS depends on the erroneous presumption of these various factors that constitute an "association".

Similarly, 6 Am. Jur. 22 distinguishes relevant definitions of the phrase "associations and clubs" from Rainbow gatherings. It states that an "association" that exists in name only is not an association at all as the term is applied in both common and legal vernacular (Section 1); an "association" has exclusive right to use of its name (Section 16); and the association may expel members for cause (Section 32). In contrast, the uncertainty of how to distinguish what degree of cooperation among individuals associating in the National Forests constitutes a Rainbow gathering and what criteria distinguishes a "member" from any other person support the conclusion that there is no entity with an exclusive right to use of a name or the ability to exclude an individual from a Rainbow gathering, but rather, the concepts reflected in the terms "Rainbow gathering" and "Rainbow Family" exist only as names and do not indicate and association at all. The American Jurisprudence entry quotes Motta v. Samuel Weiser, Inc.23: "A court may not recognize an association as a legal entity under a statute or, alternatively, determine that a right vests in the individual members of an association unless the association has a distinct, identifiable membership." The facts that USFS is trying to compel Rainbow gathering attendees to form contractual methods of association among each other that do not already exist and that there is no cognizable entity with a clearly identifiable membership necessitates that we analyze First Amendment protections by pinpointing the core values that recognized case law seeks to preserve.

One 1982 essay located on the InfoTrac database, First Amendment Protection Against Government Compelled Expression and Association 24, focuses some of the important parameters of this issue into perspective. The law review article identifies four seminal United States Supreme Court cases that are distinguished from cases protecting the affirmative First Amendment right to participate in the free marketplace of ideas from an overbearing competitive mandatory message such as Miami Herald Publishing Co. v. Tornillo 25 and Elrod v. Burns 26. Tornillo held that forcing a newspaper to provide equal space for opposing points of view unconstitutionally diminished the resources available to the newspaper to publish its preferred message. Similarly, Burns held that compelling the political allegiance of sheriff's deputies as a condition of employment unconstitutionally diminished the resources available for the deputies to express their true political views. The distinction is important because although the free marketplace of ideas is commonly and appropriately espoused as the general purpose of First Amendment protection from the prohibition of expression, when the government seeks to compel some expressive message against the will of a citizen, we must inquire more deeply into the question of exactly what right is at stake.

The article argues that the four primary cases cited point to a right of individual self determination of the persona presented to society and in what manner it is presented and to what degree it is kept private. Secondly, the cases point to the right to a conscience free of shame and disgrace stemming from an inability or unwillingness to defy the state's pressure to falsely declare allegiance to a government dictated message. These four cases, West Virginia Board of Education v. Barnette 27, Wooley v. Maynard 28, Abood v. Detroit Board of Education 29, and Pruneyard Shopping Center v. Robins 30 are each discussed below in terms of their application to defenses against application of the signature requirement to Rainbow gatherings and other assemblies of peaceful cooperating individuals with no formal affiliation associating in the National Forests.

Perhaps most similar to imposition of the signature requirement upon Rainbow gathering attendees is the Barnette case. After upholding a mandatory flag salute three years earlier in Minersville School District v. Mobitis 31, in 1943 the Court reversed itself and explicitly rejected the argument that the free marketplace of ideas left ample avenues open for the students to declare their opposition to the mandated behavior and held that the required flag salute and recital of the pledge of allegiance invaded "the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to protect." Although the students objecting to the mandatory expressive behavior were objecting on religious grounds as Jehovah's Witnesses, the plurality explicitly declared protection for individuals from such compulsion regardless of the nature of their objections. Justice Jackson wrote for the majority at page 642 the often-quoted passage to defend civil libertarians: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us."

The Court summed up the issue concisely at page 630: "The sole conflict is between authority and the rights of the individual." The Court held that the First Amendment prevents any sort of government compulsion to express or associate unless the individual right is outweighed by some countervailing government interest.

The record in the Nenninger case demonstrates that the signature requirement has actually deterred volunteers from cooperating with the Forest Service's purported interests of public health and safety because of fear that they would be appointed by the Forest Service as someone who should sign a permit for the whole gathering. Furthermore, there is a long history of responsible land stewardship, attentiveness to public health and safety, and cooperation among users of the National Forests by Rainbow gathering attendees. The Nenninger record is explicit that the reason USFS was not requesting a bond is that: "Based on past experience from previous Rainbow Gatherings all of the clean up and rehabilitation has been performed in a timely manner and to an acceptable standard. For this reason the bond requirement has been waived."Š"Based on analysis of environmental effects and past experience, the effects of implementing this action will result in slight environmental effects to either physical or biological components of the environment." 32. USFS admitted that the terms of the operating plan were complied with, even though the permit wasn't signed 33. The USFS red herring claim of concern for public health and safety is particularly dubious in the Nenninger case because it is the first time USFS has interfered with the temporary installation of a spring fed piped water system at a Rainbow gathering in that an additional summons was issued to the defendant for building a structure on National Forest land without a special use permit. USFS also admitted that neither defendant, nor the "group" USFS appointed him to represent had any authority to exclude anyone from the gathering area 34. Thus, the facts of record in the Nenninger case demonstrate substantial arbitrariness in USFS claims of legitimate government interests that might be served by the signature requirement and draw attention to the improper selectively targeted governmental motive behind the "legal effect" imposed by the signature requirement to be a distaste for the expressive message communicated in deeds by the rare ability of large numbers of individuals to cooperate effectively without establishing any systems of hierarchy or forced delegation of personal responsibility.

The next chronological milestone after Barnette that carves out individual protection from government compelled expression is Wooley. The District Court ruled that compulsory display of the state motto on the license plate of an automobile belonging to an individual that objected to the message conveyed by that motto infringed the individual's right to "symbolic speech". However, upon certiorari review, the Supreme Court expressly did not rule on the symbolic speech issue, but instead ruled that individuals have a "negative First Amendment right" to keep their viewpoint private from either being compelled to express a government dictated message absent an asserted state interest that outweighs that individual interest in privacy or the necessity to violate that privacy by having to refute the individual's apparent endorsement of the government mandated message through affirmative exercise of the free marketplace of ideas. The majority opinion stated at 714: "The right to speak and the right to refrain from speaking are complementary components of the broader concept of 'individual freedom of mind'." The Court found that even though the degree of personal involvement with expressing the government dictated message was less than the compulsory pledge of allegiance and flag salute in Barnette, there was no asserted governmental interest that was in fact served by the compulsory daily expression of an undesired government dictated message on a license plate. (In a footnote, the Court distinguished the message "In God We Trust" on currency because the message has no significant nexus with expression by the individual in that currency is not usually publicly displayed as is the case of a license attached to personal property.) Similar to the religious objection to expressing the "live free or die" motto on a license plate, individuals motivated by a spirit of voluntary cooperation based on love and equality are being told to muddy the purity of the ambience that is the foundation of this type of inspired association with the words and act of altering the purely voluntary nature of Rainbow gatherings by establishing a system of expressive association that is contrary to attendees' sincerely held beliefs.

In Abood, the Court found that a state law requiring union membership was constitutional in so far as it promoted the legitimate government interest in preventing non-union workers from free riding on the benefits of collective bargaining without paying dues, but that union politicking unrelated to collective bargaining trampled the First Amendment rights of union members that did not agree with the political message. Likewise, it is constitutional for USFS to impose special regulations on all individuals equally when special conditions such as a large influx of people into an area occurs, but it is unconstitutional to attempt to impose the representative signature requirement upon informally associated individuals because it mandates the reach of association beyond what is necessary to assure the USFS legitimate interests and is contrary to the conscience of the individuals involved.

The Gaebler essay gives particular scrutiny of the Pruneyard case because it appears to force the owners of shopping centers to either subsidize the expression of a message they find objectionable or to expose their persona to refute that message even if they would rather keep their position private. The Court held that since the shopping center was open to the public, the owners were not likely to be associated with a message that was being expressed by activists that had set up a table to gather petition signatures. The owners were therefore precluded from evicting the activists based on the content of their message. The key distinction seems to be that the allowance of individuals to express themselves in a shopping center that is open to the public has less of a nexus with personal subsidization of the content of a message than displaying a motto on a license plate attached to a personal vehicle, or paying union dues to pay for union politicking unrelated to collective bargaining, or saluting the flag while reciting the pledge of allegiance.

In considering the Pruneyard case in the context of the USFS signature requirement controversy, the relevant question is whether there is a significant nexus of personal subsidization of the government compelled message between requiring a group representative signature and the acts necessary to honestly designate a representative. In consideration of the all inclusive and anarchist nature of interpersonal association at Rainbow gatherings, the act of forming a system whereby a group decision such as the designation of a representative could be made would obviously alter the nature of this profound and unique forum. The most fundamental factor of how Rainbow gatherings manifest and why people are attracted to them is therefore threatened by the signature requirement.

Several other Supreme Court cases addressing issues of membership affiliations give support to the notion that Rainbow gathering attendees cannot be compelled to form such an association when considered together with the cases establishing a negative First Amendment right to be free from government compelled expression or association. National Association for Advancement of Colored People v. State of Alabama 35 held that absent a history of violence, compelled disclosure of membership unconstitutionally chills the right of association. However, Communist Party v. Subversive Activities Control Board 36 held that the association's purpose of violent overthrow of the government warranted the compelled disclosure of membership. The effect of Rainbow gatherings may have something to do with changing society, but there is certainly no common assertion of violence as the means for achieving changes. Rainbow gathering attendees should therefore not be required to profess the existence of a membership any more than NAACP should be compelled to disclose the content of membership.

NAACP V. Claiborne Hardware 37 held that even if some participants in a boycott resort to violent tactics, other persons that did not contribute to the violence could not be held liable. Similarly, only Rainbow gathering attendees that violate provisions of USFS regulations that are related to the legitimate purpose of environmental protection, protecting public health and safety, and cooperating with other forest users should be held liable for their actions.

Echoing the sentiments of the 1939 decision in Lanzetta v. New Jersey 19, the 1999 Supreme Court held in City of Chicago v. Jesus Morales 43 that an anti-gang loitering ordinance was unconstitutionally vague because it did not adequately define "loitering" or "criminal street gang member". While even the worst fears of public harm USFS promotes as a basis to justify its regulation do not approach the magnitude of the purported purposes of Chicago's loitering ordinance, the same vagueness plagues the USFS term "group use".

In a striking parallel to the non-technological telepathic media of love that is the forum of Rainbow gathering assemblies, the Supreme Court noted in Reno v. ACLU 44: "No single organization controls any membership in the Web, nor is there any single centralized point from which individual web sites or services can be blocked from the Web." The majority effectively recognized that the technology of this media prohibits the prior restraint inherent in efforts to zone the internet, the O'Connor-Rehnquist dissent notwithstanding. If the technological nature of the internet as an all inclusive forum is the basis for accepting that it cannot be regulated in the same manner as a broadcast media such as radio or television that occupies an exclusive range of control over a limited public resource such as the airwaves, then it logically follows that the sociological nature of Rainbow gatherings as an all inclusive open forum should be recognized as a basis for accepting that they cannot be regulated in the same manner as a group that excludes some views from the assembly forum. The Reno v. ACLU decision should be interrelated with the cases establishing a negative First Amendment right to be free from government compelled expression or association to demonstrate that it is just as absurd to expect Rainbow gathering attendees to form a formal membership association as it would be to expect all internet users to join a membership organization that subjects its members to internal censorial review. Just as internet users can be held liable for libel, individual Rainbow gathering attendees can be held accountable for any transgressions of laws of general applicability.

Several cases that establish the right of the constituents of an association to determine the means that best serves constitutionally protected purposes can be interrelated with the cases establishing the negative First Amendment right to be free from compelled association to establish that people who informally associate in the National Forests at Rainbow gatherings cannot be compelled to adopt a form of association to suit the convenience of the government absent some compelling government interest. In Tashjan v. Republican Party 38 the Court held that neither the state nor court may substitute its judgment for a political party's as to the boundaries of its association and structure that best allows it to pursue its political goals. Similarly, Eu v. San Francisco County Democratic Central Committee 39 held that the First Amendment protects a political party's determination of the people that constitute the association, to identify the process of electing leaders, and to select representative standard bearers. USFS attempts to appoint representatives for Rainbow gatherings tramples these recognized rights and the negative First Amendment rights to abstain from these formalities. Boy Scouts of America v. Dale 40 held that the Boy Scouts may exclude a gay scoutmaster because B.S.A. is an expressive association and the courts must defer to the association's determination of the nature of its expression and what internal circumstances would impair that expression. If B.S.A. can determine that a gay scoutmaster would impair their preferred expressive message, then Rainbow gathering attendees should be able to individually determine that forming a style of formal association that would accommodate the government's interests in expedient accountability would impair the fundamental expressive message that personal responsibility and freedom are requisites for social evolution based on love and equality.

Factual Application

Several of the facts of record in the Nenninger case that support a challenge to the signature requirement are highlighted in the amicus curiae brief 41 filed by People for Compassion and Understanding Free Assembly Project in support of defendant's brief. Evidence was excluded that would have described the counsel process, the common tenet that no one controls anyone else at a Rainbow gathering, and why the USFS incident commander for USFS wrote in a memo relating to the permit issued for the Fourth of July gathering two years earlier out of the same district office that "the 1996 permit was a joke", and whether there is actually any group authority that chooses sites for Rainbow gatherings. The magistrate refused to allow the signer of the 1996 permit to testify as to the USFS inducements to sign the fraudulent permit and refused testimony that USFS would not disclose to defendant the terms of an operating plan attached to a permit or the identity of the signer of the permit for a recent Rainbow gathering in southern Illinois because the signer wished to remain anonymous. The magistrate would not allow testimony explaining why there were occasions that gatherings occurred simultaneously when individuals could not agree. One witness elaborated on the difference between the verb counsel as a non-binding information exchange that regularly occurs at Rainbow gatherings and the noun council as an embodiment of representative authority that simply does not exist in the context of Rainbow gatherings.

The record shows that USFS determined group membership based on profiles of appearance including "a lot of tie-dyes, long hair, dreadlocks, sandals, peace signs, and banners". The District Ranger said he could make a similar distinction if 75 or more urbanites came to the rural river access area and he acknowledged that each of the persons identified as part of the "group" was a member of the general public. He testified that defendant could not be a group by himself and by signing a permit he would have been representing a group USFS called "Rainbow Spring Gathering" on the permit they proffered. He acknowledged that neither defendant nor the "group" he was appointed by USFS to represent had any authority to exclude anyone from the area, even if someone had come to the area with a flamethrower during dry conditions, and that by the terms of the permit, the "Rainbow Spring Gathering" would have been liable for any resulting damages. USFS testimony was that they distinguished Rainbow people as a group by identifying them with internet sites describing Rainbow gatherings, recognizing some individuals from a similar event, or that campers "pretty much identified themselves" as part of a cohesive group by using nicknames, or by simply being in the area of the event. The District Ranger admitted that 75 or more individuals sometimes had camped and assembled at this site, but they were not required to get a permit because they did not identify themselves as "part of a collective group". USFS also acknowledged that defendant was chosen for citation because he actively spoke with USFS in attempts to cooperate in creating a harmonious gathering.

Each of the seven defense witnesses testified to the essential nature of personal standing and responsibility necessary for the unique message of such gatherings to be expressed. A medical doctor trained in psychiatry testified that personal responsibility is essential to the transformative nature of Rainbow gatherings. One witness testified "Šthe most wretched homeless, confused person can come and find healing, find hope at a gathering, because he sees a spirit of cooperation he doesn't see anywhere else." One witness testified that he was deterred from providing a bulletin board for people to post free information on special interests and activities and information about public health, safety, environmental concerns, weather bulletins, and maps showing trails and sensitive areas because he was afraid he would be targeted as a leader for citation purposes. USFS would not consider alternatives to the signature requirement that were offered such as reliance on the unsigned operating plans that had effectively communicated standards for Rainbow gatherings since the 1988 Rainbow decision or the defendant's specific offer to USFS to solicit official volunteers using standard USFS forms for the purpose of creating an avenue of communication between USFS and Rainbow gathering attendees. Furthermore, the folly of USFS purported interests in public health and safety is highlighted by the fact in the record that clean water was not immediately available to treat a burn victim since volunteers had been deterred from installing a gravity fed piped spring water system by law enforcement threats and water had to be hauled in five gallon buckets42.


There are other valid issues in the Nenninger appeal and in other related cases around the country. However, the signature requirement is the central issue that cannot be compromised without destroying the type of public assembly right at stake. Never before in the history of mankind have so many people assembled in such numbers on common land with such a degree of peaceful cooperation in the absence of any internal governing structure or the controls effectuated by commercial exchange. As this pioneering spirit of voluntary cooperation matures in the psyche of society, it is essential to the values of peaceful social evolution that the government loosen its grip of accountability and allow individual citizens the opportunity to experiment by trial and error without big brother holding us by the reins of vicarious liability.


  1. U.S.A. v. Nenninger, Case No. 98-03047-01-CR-S-E- W.D.MO.
  2. Rainbow Guide 2000. P.O. BOX 1016, Hackensack, N.J. 07602-1016
  3. U.S.A. v. Nenninger, supra. PCU amicus brief at 7-8; Transcript at 188-189, 103-104.
  4. U.S.A. v. Nenninger, supra. Appellant's brief at 4; Transcript at 120-122.
  5. See footnote 2.
  6. U.S.A. v. Nenninger, supra. Trial Exhibit 1, permit applicatioin prepared by USFS.
  7. Always Free Newspaper. 2000. Montanna.
  9. U.S.A. v. Nenninger, supra. Transcript at 83.
  10. U.S. v. Israel, No. CR-86-027-TUC-RMB (1986), U.S. District Court of Arizona.
  11. U.S. v. Rainbow Family, 695 F. Supp. 294 (1988).
  12. U.S. v. Rainbow Family, Civil Action No. L-88-68-CA, Memorandum Opinion, Final Judgment, April 14, 1989, Civil Docket page no. 104.
  13. Tracie Park v. The Forest Service of the United States of America, Case No. 96-3288- CV-S-RGC, U.S. District Court of Western Missouri.
  14. Park v. Forest Service, 295 F3d 1034 (8th Cir. 2000).
  15. Addison v. Forest Service, Case No. 98-CIV-OC-10-C, U.S. District Court of Florida.1988.
  16. Abernathy, Glenn. The Right to Assembly and Association. Columbia: University of South Carolina Press. 1961.
  17. Rice, Charles, E. Freedom of Association. New York: New York University Press.
  18. Fellmann, David. The Constitutional Right of Association. Chicago: The University of Chicago Press. 1963.
  19. Lanzetta v. New Jersey, 306 US 451 (1939).
  20. Horn, Robert, A. Groups and the Constitution. New York: AMS Press. 1971.
  21. Corpus Juris Secendum, Volume 7. Associations.
  22. American Jurisprudence, 2d Edition, Volume 6. Associations and Clubs.
  23. Motta v. Samuel Weiser, Inc., 598 F. Supp. 941 (D. Me. 1984); affirmed at 768 F2d 481 (1st Cir. 1985); certiorari denied at 474 US 1033.
  24. Gaebler, David. First Amendment Protection Against Government Compelled Expression and Association. Boston College Law Review, Volume 23, page 995. July, 1982.
  25. Miami Herald v. Tornillo, 418 US 241 (1974).
  26. lrod v. Burns, 427 US 347 (1976)
  27. West Virginia Board of Education v. Barnette, 319 US 624 (1943).
  28. Wooley v. Maynard, 430 US 705 (1977).
  29. Abood v. Detroit Bd. Of Educ. 431 US 209 (1977).
  30. Pruneyard Shopping Center v. Robins, 447 US 74 (1980).
  31. Minersville School District v. Gobitis, 310 US 586 (1940).
  32. U.S.A. v. Nenninger, supra. Appellant's Reply Brief at 6; Trial Exhibit 4.
  33. U.S.A. v. Nenninger, supra. Appellant's Brief at 6; Transcript at 44.
  34. U.S.A. v. Nenninger, supra. PCU amicus brief at 3; Transcript at 51-53.
  35. Nat. Ass. for Adv. Of Colored People v. State of Alabama, 357 US 449 (1958).
  36. Comm. Party v. Subversive Activities Control Bd. 367 US 1 (1961).
  37. NAACP V. Claiborne Hardware Co., 458 US 886 (1982).
  38. Tashjan v. Republican Party 479 US 208 (1986).
  39. Eu v. San Francisco County Democratic Cent. Comm., 489 US 214 (1989).
  40. Boy Scouts of America v. Dale, 530 US 640 (2000).
  41. U.S.A. v. Nenninger, supra. PCU amicus brief at 2-10.
  42. U.S.A. v. Nenninger, supra. Transcript at 119-120.
  43. City of Chicago v. Jesus Morales, 527 US 41 (1999).
  44. Reno v. ACLU, 520 US 1113 (1997).