ON REHEARING EN BANC
PER CURIAM:
Circuit Judge Mikva files an opinion, in which Circuit Judge Wald concurs, in support of a judgment reversing. Chief Judge Robinson and Circuit Judge Wright file a statement joining in the judgment and concurring in Circuit Judge Mikva’s opinion with a caveat. Circuit Judge Edwards files an opinion joining in the judgment and concurring partially in Circuit Judge Mikva’s opinion. Circuit Judge Ginsburg files an opinion joining in the judgment. Circuit Judge Wilkey files a dissenting opinion, in which Circuit Judges Tamm, MacKinnon, Bork and Scalia concur. Circuit Judge Scalia files a dissenting opinion, in which Circuit Judges MacKinnon and Bork concur. The judgment appealed from is reversed, and the case is remanded to the District Court with instructions to enjoin appellees from prohibiting sleeping by demonstrators in tents on sites authorized for appellants’ demonstration.
MIKVA, Circuit Judge:
The Community for Creative Non-Violence (CCNV) applied for and was granted a renewable seven-day permit to conduct a round-the-clock demonstration, commencing on the first day of winter, on the Mall and in Lafayette Park in Washington, D.C. The declared purpose of the demonstration was to impress upon the Reagan Administration, the Congress, and the public the plight of the poor and the homeless. The National Park Service (Park Service) granted CCNV a permit to set up two symbolic campsites, one on the Mall with a maximum of one hundred participants and forty tents, and one in Lafayette Park with approximately fifty participants and twenty tents.
Although the permit allowed the demonstration participants to maintain a twenty-four hour presence at their symbolic campsites, the Park Service denied the participants a permit to sleep. According to the government, such conduct would violate the Park Service’s recently revised anti-camping regulations, see 36 C.F.R. §§ 50.19, 50.-27 (1982). CCNV claims that this prohibition strikes at the core message the demonstrators wish to convey — that homeless people have no permanent place to sleep. Accordingly, CCNV and seven individuals who wish to participate in the demonstration seek a court order invalidating the permit’s limitation on sleeping as an unconstitutional restriction on their freedom of expression. Following cross-motions for summary judgment, the district court decided in favor of the Park Service and the case arose on expedited appeal. After briefing and oral argument before a motions panel, but before that panel issued a decision, the ease was heard en banc.
Because we conclude that the government has failed to show how the prohibition of sleep, in the context of round-the-clock demonstrations for which permits have already been granted, furthers any of its legitimate interests, we reverse the district court’s decision and grant CCNV’s request for injunctive relief.
I. Background
A. The Regulatory Framework
This case presents the second occasion in which the government has sought to apply anti-camping regulations to demonstrations proposed by this appellant. In 1981, the Park Service allowed CCNV to erect nine tents in Lafayette Park to symbolize the desperation of homeless persons, but denied the demonstrators permission to dramatize this concern by actually sleeping in the tents. Under the regulations then in effect, 36 C.F.R. § 50.19(e)(8) (1981) (use of temporary structures); id. § 50.27(a) (camping), the Park Service reasoned that overnight sleeping would carry the demonstration beyond the permissible “use of symbolic campsites reasonably related to First Amendment activit[y]” and into the impermissible realm of “camping primarily for living accommodation,” see 46 Fed.Reg. 55,961 (1981). CCNV appealed that ruling.
In Community for Creative Non-Violence v. Watt (CCNV I), 670 F.2d 1213 (D.C.Cir. 1982), this court held that the Park Service had misapplied those regulations to CCNV’s proposed activity. Because the regulations precluded only camping “primarily for living accommodation,” and the act of sleeping in CCNV’s demonstration was not to be done for that purpose, the court found that such conduct fell outside of the Park Service’s proscription:
[T]here is no evidence in the Record suggesting that the handful of tents in Lafayette Park is intended “primarily for living accommodation.” The appellees will not prepare or serve food there; they will not build fires or break ground; they will not establish sanitary or medical facilities. Indeed the uncontroverted evidence in the case is that the purpose of the symbolic campsite in Lafayette Park is “primarily” to express the protestors’ message and not to serve as a temporary solution to the problems of homeless persons. Thus the only activity at issue here — sleeping in already erected symbolic tents — cannot be considered “camping”
Id. at 1217. As a result of the court’s decision, CCNV staged its demonstration, including sleeping, for approximately seven weeks last winter.
The Park Service has since revised its camping regulations for the National Capital Region through a formal rulemaking. 47 Fed.Reg. 24,299-306 (1982) (codified at' 36 C.F.R. §§ 50.19, 50.27 (1982)). The new regulations, set out in the margin, specifically include within the definition of prohibited camping the act of sleeping “when it reasonably appears, in light of all the circumstances, that the participants, in conducting these activities, are in fact using the area as a living accommodation regardless of the intent of the participants or the nature of any other activities in which they may also be engaging.” 47 Fed.Reg. at 24,302. Although the amended regulation admittedly permits some leeway for administrative discretion, the Park Service has determined that the regulation prohibits the sleeping that would be done at CCNV’s demonstration this winter.
To understand fully the government’s current policy on sleeping in the capital’s parks, it is important to note that sleeping is not, per se, illegal. Visitors to the capital,' or workers on their lunch breaks, may safely catnap for short periods of time without running afoul of the law. Sleeping, in these circumstances, conjures up no threats to peace and public order. Although the Park Service’s anti-loitering regulation prohibits sleeping with intent to remain for more than four hours, it contains an exception for those with the proper authorization of the Superintendent of the National Capital Parks. See 36 C.F.R. § 50.25(k) (1982). And, as mentioned, the government’s camping regulation also allows for “sleeping activities” that are not deemed to constitute use of the area for living accommodation. An example of the discretion inherent in this latter determination is evidenced by the Park Service’s authorization, for participants in a Vietnam veterans’ demonstration on the Mall in May 1982, of all-night sleep at a mock Vietnam War-era “firebase” where some of the demonstrators were periodically roused to stand symbolic “guard duty.” See Park Service Permit to Vietnam Veterans Against the War dated April 20,1982 and accompanying letter, reprinted in Record Document (RD) 5. The only apparent distinction between the sleeping in the veterans’ demonstration and the sleeping proposed by CCNV is that the veterans slept on the ground, without any shelter. According to the Park Service’s interpretation of the new regulations, one’s participation in a demonstration as a sleeper becomes impermissible “camping” when it is done within any temporary structure erected as part of the demonstration.
The Park Service nonetheless allows the erection of temporary structures, including tents, in connection with permitted demonstrations under 36 C.F.R. § 50.19(e)(8) (1982). Originally worded to allow any “temporary structures .. . reasonably necessary for the conduct of the demonstration,” 41 Fed.Reg. 12,879,12,883 (1976), this regulation was amended in 1982 to state specifically that temporary structures “may be erected for the purpose of symbolizing a message,” 47 Fed.Reg. at 24,305. Since that amendment, the Park Service has, on at least two occasions besides this one, granted permits to groups of demonstrators to erect symbolic tents. See Park Service Permit to ACORN dated June 18, 1982, reprinted in RD 5 (50 tents dramatizing housing crisis); Park Service Permit to Palestine Congress of North America dated September 8, 1982, reprinted in RD 5 (107 tents symbolizing Palestinian refugee camp). Tents were also allowed prior to the amendment to symbolize conditions in Vietnam, the plight of American Indians, and the plight of the homeless. 47 Fed. Reg. at 24,301.
B. The Case Law
The dispute in this case over the Park Sérvice’s camping regulations bears similarities to numerous other disputes that this court has heard within the last fifteen years, each concerning the proper use of public park lands within the nation’s capital. Eg., CCNV I, 670 F.2d 1213 (D.C.Cir. 1982) (sleeping in Lafayette Park); United States v. Abney, 534 F.2d 984 (D.C.Cir.1976) (sleeping in Lafayette Park); Vietnam Veterans Against the War v. Morton (VVAW), 506 F.2d 53 (D.C.Cir.1974) (camping on Mall); A Quaker Action Group v. Morton (Quaker Action), No. 71-1276 (D.C.Cir. Apr. 19, 1971), vacated mem., 402 U.S. 926, 91 S.Ct. 1398, 28 L.Ed.2d 665 (1971) (camping on Mall); see also O’Hair v. Andrus, 613 F.2d 931 (D.C.Cir.1979) (papal mass on Mall); A Quaker Action Group v. Morton, 516 F.2d 717 (D.C.Cir.1975) (public gathering in Lafayette Park); Women Strike for Peace v. Morton, 472 F.2d 1273 (D.C.Cir. 1972) (display on Ellipse); Jeannette Rankin Brigade v. Chief of Capitol Police, 421 F.2d 1090 (D.C.Cir.1969) (assembly on Capitol grounds). It should not be surprising, therefore, to learn that from this considerable history of decisionmaking the court has on several occasions addressed the propriety vel non of sleeping, in connection with public demonstrations, on the Mall and in Lafayette Park.
In 1971, in Quaker Action, No. 71-1276 (D.C.Cir. Apr. 19, 1971), this court modified a district court order limiting an anti-war demonstration on the Mall to the hours of 9:00 am to 4:30 pm. As a matter of summary reversal, the court lifted the district court’s nighttime curfew and allowed the demonstrators to use a section of the Mall “as part of their public demonstrations . . . for the purpose of sleeping in their own equipment, such as sleeping bags ... . ” Id., cited in VVAW, 506 F.2d at 56 n. 9. The Supreme Court vacated our summary reversal in that case by a decree without opinion in Morton v. Quaker Action Group, 402 U.S. 926, 91 S.Ct. 1398, 28 L.Ed.2d 665 (1971), an action which a motions panel of this court recognized as controlling in a dispute between the same litigants and involving similar sleeping on the Mall three years later. See VVAW, 506 F.2d at 56. Despite the very specific nature of its holding, the VVAW panel expressed its view that camping overnight is an activity “whose unfettered exercise is not crucial to the survival of democracy ■ and ... thus beyond the pale of First Amendment protection.” Id. at 57-58. In United States v. Abney, 534 F.2d 984 (D.C.Cir.1976), this court characterized the gratuitous statements in VVAW as non-binding dicta and held that, in the unusual circumstances of an individual protestor’s round-the-clock vigil in Lafayette Park, unavoidable sleeping “must be taken to be sufficiently expressive in nature to implicate First Amendment scrutiny in the first instance.” Id. at 985. The Abney court then held the Park Service’s anti-loitering regulation unconstitutional as applied, but stated in dicta that, “[i]t may well be that [a non-discretionary] across-the-board ban on sleeping outside official campgrounds would be constitutionally acceptable if duly promulgated and even-handedly enforced.” Id. at 986.
The question left open by Abney was not squarely before us last term in CCNV I; the Park Service’s anti-camping regulation was construed to avoid the constitutional issue. As part of the court’s decision, however, it was necessary to categorize the sleeping activities of the protestors as falling within one of two administrative classifications: (1) the use of symbolic campsites reasonably related to first amendment activities or (2) camping primarily for living accommodations. The CCNV I court concluded:
We have no doubt as to which category encompasses the activities in question here. First, the appellees are engaged in a political protest and a petition for redress of grievances. As part of their protest, the appellees desire permission to sleep in their tents in Lafayette Park. This appears to be no more than “the use of [a] symbolic campsiteQ” Moreover, as the District Court found, in this case sleeping itself may express the message that these persons are homeless and so have nowhere else to go.
670 F.2d at 1216-17 (footnote omitted) (emphasis in original). When the CCNV I decision is added to the decisions of this court in Abney and Quaker Action, it is quite clear that on several occasions this court has acknowledged that sleep can be “expressive,” or part of a political protest, for the purposes of either administrative or constitutional classifications.
II. Discussion
The district court’s decision in this ease necessarily followed from its conclusions that: (1) CCNV’s demonstration falls within the scope of the amended anti-camping regulations; (2) sleeping, within the context of. CCNV’s demonstration, falls outside the scope of the first amendment; and (3) even assuming first amendment scrutiny is required, the new anti-camping regulations are constitutional as applied to CCNV’s proposed sleeping activities. Although we agree that CCNV’s proposed activities fall within the government’s amended regulations, we cannot uphold the constitutionality of the regulations as applied to CCNV.
A. The Scope of the New Regulations
CCNV contends that it does not fall under the amended anti-camping regulations because it seeks to use sleep as a form of expression and not for “living accommodation” purposes. We cannot accept this argument. The regulation’s exclusion of “the intent of the participants or the nature of any other activities in which they may also be engaging,” 36 C.F.R. §§ 50.19(e)(8), 50.-27(a) (1982), underscores the evident purpose of the regulations to cover “living accommodations” that may also be expressive of the demonstrators’ message. Indeed, in the prefatory statement accompanying the 1982 amendments, the Park Service indicated that it was “amending § 50.19(e)(8) to forbid specifically the use of any such structures, including tents, for the purpose of conducting any living accommodation activity,” which was defined to include “sleeping.” 47 Fed.Reg. at 24,304 (emphasis added). As we stated in CCNV I, the court may rely upon an agency’s contemporaneously issued policy statement as an accurate representation of the agency’s purpose. 670 F.2d at 1216 (citing Environmental Defense Fund, Inc. v. EPA, 636 F.2d 1267, 1280 (D.C.Cir.1980)). It thus seems clear to us that these demonstrators come under the new regulations.
B. The Scope of the First Amendment
The scope of the first amendment’s protection of free expression is not as amenable to precise definition as the Park Service’s prohibition of “camping.” The Supreme Court has afforded first amendment scrutiny to government regulation of such expressive activities as demonstrating, marching, leafletting, picketing, wearing armbands, and affixing a peace symbol to an American flag. Although we acknowledge that all conduct need not be labelled “speech” merely because the doer “intends thereby to express an idea,” United States v. O’Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 1678, 20 L.Ed.2d 672 (1968), we also recognize that expressive conduct cannot be written out of the Constitution merely because the government may wish to label it “camping.” The values implicit in the first amendment are too multifaceted to be subject to wooden categorizations.
In the present case, our evaluation of the government’s ban on sleeping in symbolic structures is underscored by first amendment scrutiny because, as applied to CCNV’s proposed demonstration, the government’s ban will clearly affect expression: there can be no doubt that the sleeping proposed by CCNV is carefully designed to, and in fact will, express the demonstrators’ message that homeless persons have nowhere else to go. The “test” used by the Supreme Court to determine whether conduct is “sufficiently imbued with elements of communication to fall within the scope of the First ... Amendment[ ],” Spence v. Washington, 418 U.S. 405, 409, 94 S.Ct. 2727, 2729, 41 L.Ed.2d 842 (1974) (per curiam), is to examine the intent of the would-be communicator and the context in which his or her conduct takes place. In Spence, for example, the Court held that displaying the American flag with an attached peace symbol in the context of demonstrations against the bombings of Cambodia and the Kent State killings:
was not an act of mindless nihilism. Rather, it was a pointed expression of anguish by appellant about the then-current domestic and foreign affairs of his government. An intent to convey a particularized message was present, and in the surrounding circumstances the likeli hood was great that the message would be understood by those who viewed it.
Id. at 410-11, 94 S.Ct. at 2730-2731 (emphasis added). This court has already held that, within the context of an individual’s round-the-clock vigil, sleeping could be taken as “sufficiently expressive in nature to implicate First Amendment scrutiny in the first instance.” Abney, 534 F.2d at 985. In the present case, within the context of a large demonstration with tents, placards, and verbal explanations, the communicative context is sufficiently clear that the participant’s sleeping cannot be arbitrarily ruled out of the arena of expressive conduct.
Indeed, we cannot understand how the government can deny the indicia of political expression that permeate CCNV’s pointed use of the simple act of sleeping. The protestors choose to sleep, purposely across from the White House and Capitol grounds, in sparsely appointed tents which the Park Service has already designated as undeniably “symbolic.” Their permit application states that this conduct is intended to send the same message as this court recognized was sent in CCNV’s 1981-82 demonstration: that the problems of the homeless will not simply disappear into the night. Unlike the thousands of homeless men and women whose nights are spent on grates, in doorways, or in back alleys, these demonstrators propose to sleep within the conspicuous context of two organized demonstration sites that create a backdrop — by the combined use of structures, explanatory signs, and verbal discourse — to ensure that the message sought to be sent by the demonstrators’ conduct will, in all likelihood, be received. True, CCNV has devised a means of expression that also serves to provide the protestors with the “luxury” of a blanket and a bit of groundspace, within a tent, with which to pass a winter’s night. But for those genuinely homeless persons who choose to forsake temporarily their grates and doorways for these tents, the communicative dimension of the sleeping in this demonstration is not overshadowed by the simultaneous provision of a single amenity. The first amendment is not so rarefied that it cannot accommodate within its scope the conduct of these demonstrators who use their bodies to express the poignancy of their plight.
We add, moreover, that even were we not to focus on the peculiarly expressive nature of sleeping, first amendment scrutiny would still be implicated. This conclusion stems from the fact that the protestors’ purpose, whether asleep or awake, is to maintain a “symbolic presence that makes more visible and concrete the results of [presidential and congressional] inaction” on the conditions of the homeless. See CCNV application to demonstrate filed September 7, 1982, reprinted in RD 1, at 2. In short, the demonstrators seek to create an inescapable night- and-day reminder to the nation’s political leadership that homeless persons exist. Given this undeniable intent, and the contextual fact that the demonstration will take place at the seat of our national government, it is clear that CCNV’s proposed “presence” is intended to be expressive regardless of whether the demonstrators sit down, lie down, or even sleep during the course of the demonstration. Thus, whatever the particular form of the protestors’ presence at night, their presence itself implicates the first amendment. In this respect, CCNV’s twenty-four hour presence is entitled to the same first amendment protection as a vigil. Although not as small, stylized, or silent as the “reproachful presence” in Brown v. Louisiana, 383 U.S. 131, 142, 86 S.Ct. 719, 724, 15 L.Ed.2d 637 (1965) (silent civil rights vigil in a segregated public library), it is identical in both concept and purpose to such conduct. See United States v. Abney, 534 F.2d 984 (D.C. Cir.1976) (sleeping as part of a vigil in Lafayette Square entitled to first amendment scrutiny in the first instance).
We wish to make clear, however, that by holding sleeping to be expressive conduct within the context of this particular demonstration, we reject two subsidiary arguments urged on us by CCNV. First, we reject CCNV’s contention that sleeping in its demonstration is uniquely deserving of first amendment protection because it directly embodies the group’s message that homeless people have no place else to sleep. Under CCNV’s distinction, a group with a “no-place-to-sleep” message (such as the homelessness of refugees) could express it by deliberately sleeping, but a group with a different message (such as opposition to the nuclear arms race) could not sleep. Such a distinction is impermissible, however, because it would require the government to draw distinctions among groups desiring to express themselves through sleeping depending on the subject matter or content of their message and its alleged relationship to sleep, something the first amendment is designed to prevent. See, e.g., Consolidated Edison Co. v. Public Service Commission, 447 U.S. 530, 536, 100 S.Ct. 2326, 2332, 65 L.Ed.2d 319 (1980); L. Tribe, American Constitutional Law § 12-2, at 580 (1978). Second, we also reject CCNV’s argument that its sleeping must be protected because it is the most effective means by which the group can convey its message. The first amendment does not guarantee individuals access to the most effective channels of communication. See, e.g, Adderley v. Florida, 385 U.S. 39, 47-48, 87 S.Ct. 242, 247-248, 17 L.Ed.2d 149 (1966). On the other hand, the fact that CCNV’s manner of expression may turn out to be quite effective does not make it any the less “speech.”
C. The Regulation as Applied
That CCNV’s conduct comes within the scope of the first amendment, however, only begins our constitutional analysis. In United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), the Supreme Court noted that “when ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.” Id. at 376, 88 S.Ct. at 1678. The O’Brien Court then established that a governmental interest may be sufficiently justified
if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.
Id. at 377, 88 S.Ct. at 1679. In short, O’Brien requires us to engage in a balancing of first amendment freedoms and their societal costs that is structured to place a thumb on the first amendment side of the scales.
In approaching this task, we are mindful that CCNV seeks a permit for the exercise of first amendment rights on public parkland whose use for communication is of special importance:
There is an unmistakable symbolic significance in demonstrating close to the White House or on the Capitol grounds which, while not easily quantifiable, is of undoubted importance in the constitutional balance. Although this theory has been used to justify demonstrations near state capitols as well, see Edwards v. South Carolina, 372 U.S. 229 [83 S.Ct. 680, 9 L.Ed.2d 697] (1963), it is in Washington — where a petition for redress of national grievances must literally be brought — that the theory has its primary application.
Women Strike for Peace v. Morton, 472 F.2d 1273, 1287 (D.C.Cir.1972) (Wright, J., concurring). As the Supreme Court added in Grayned v. City of Rockford, 408 U.S. 104, 115, 92 S.Ct. 2294, 2302, 33 L.Ed.2d 222 (1972), “[t]he right to use a public place for expressive activity may be restricted only for weighty reasons.”
The Park Service argues that its prohibition of CCNV’s sleeping in the symbolic tents is justified because such activity could: (1) deprive others of the use of nationally significant space; (2) cause significant damage to park resources; (3) create serious sanitation problems; (4) seriously tax law enforcement resources; and (5) increase requests for such activity in connection with other demonstrations that would, in turn, create pressure from nondemonstrating visitors for similar accommodations. 47 Fed.Reg. 24,302 (1982). These interests are identified by the Park Service in its brief in this case and were also identified in its 1982 rulemaking to justify the flat prohibition of “camping.” Id. “Camping,” however, includes such non-sleeping activities as making fires, digging, earth breaking, and cooking. Id. at 24,305. Because CCNV neither seeks to do any of these activities, nor requests permission to establish medical or sanitation facilities, to store personal belongings, or even to serve food, the government’s interests must be weighed against only that activity which CCNV seeks to do: sleep within tents that they have been given permission to erect and at which they have been allowed to maintain a twenty-four hour presence.
This is not to say, however, that the government’s interest in prohibiting expressive sleeping at symbolic campsites that is part of a demonstration must be weighed in a vacuum. In Heffron v. International Society for Krishna Consciousness, 452 U.S. 640, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981), the Supreme Court held that the government’s interest in prohibiting first amendment activity must be assessed not in terms of letting just one group pursue the activity but in terms of letting all similarly situated groups do so. Id. at 654, 101 S.Ct. at 2567. Transposed to the first amendment activity involved in this case, therefore, Heffron requires us to determine if the government’s interests in park preservation, law enforcement, and the like (outlined above) are furthered by prohibiting expressive sleeping by all individuals or groups similarly situated to CCNV — that is, by all those who wish to engage in sleeping as part of their demonstration and have been granted renewable permits to demonstrate on a twenty-four hour basis on sites at which they have also been allowed to erect temporary symbolic structures. The dissent insists that we weigh the government’s interests in prohibiting sleeping by all groups— whether for first amendment purposes or not — lest we “nickle and dime every regulation to death.” Dissenting Opinion at-616. The dissent’s addition of makeweights to the government’s side of the balance, however, shortchanges the first amendment’s premium on precision. Here, the Park Service has already established a renewable permit procedure that limits the number of people who are allowed to demonstrate or to erect symbolic structures. The interests of people who do not possess a permit are simply not at issue in this case.
Having properly focused the inquiry, it is difficult to imagine how the application of the Park Service’s regulations to groups similarly situated to CCNV will further any important interest. Because such groups are already allowed to erect tents and maintain an all-night presence during which time they may sit, stand, or even lie down in the tents, there are no incremental savings of park resources, sanitation facilities, or law enforcement personnel to be gained by proscribing only sleep. Indeed, allowing an all-night presence by wakeful protestors would seem to tax sanitation facilities, law enforcement personnel, and the park resource itself to a greater extent than would allowing those same protestors simply to sleep.
Our review of the prefatory rationale to the revised regulations reveals at most only one attenuated governmental interest in precluding CCNV’s demonstrators from sleeping:
Experience with administering the court’s decision allowing sleeping has revealed that sleeping activity by demonstrators expands to include other aspects of living accommodations such as the storage of personal belongings and the performance of necessary functions which have converted the sleeping area into actual campsites.
47 Fed.Reg. at 24,301. But this justification must be found wanting under O’Brien’s “no greater [restriction] than is essential” test; any interest in preventing other “camping” activity can be furthered by less restrictive means. Here, the Park Service’s renewable permit procedure provides a mechanism whereby permits can be revoked if illegal activities occur. See 36 C.F.R. § 50.19(f) (1982).
The government’s interest in preserving parkland for the use of others is also not furthered by its ban on sleep. If anything, the nighttime enjoyment of Lafayette Park and the Mall by nondemonstrators would probably be enhanced if the 150 CCNV demonstrators were asleep. Because CCNV has already been granted a renewable seven-day, twenty-four hour permit to demonstrate at its two discrete sites, a ban on sleeping simply does not preserve those parts of the parks for the use of others. To the extent that other demonstrators wish to use the space temporarily allocated to CCNV, the Park Service’s permit procedures already provide for nonrenewal of CCNV’s weekly permit. See id. § 50.-19(e)(5).
We are next urged to consider the government’s interest in preventing “pressure” for similar living accommodations from nondemonstrating visitors to Washington, D.C. 47 Fed.Reg. at 24,302. As a practical matter, we seriously question whether there is a large market for living accommodations in sparse tents on the Mall, in the winter, without heating, cooking, medical, or sanitation facilities. Even assuming that such a market is theoretically possible, we note that such an “undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.” Tinker v. Des Moines School District, 393 U.S. 503, 508, 89 S.Ct. 733, 737, 21 L.Ed.2d 731 (1969). As a constitutional matter, moreover, the Park Service is free to apply its anti-camping regulations to such nondemonstrators who, by definition, have no first amendment interests to “balance” against the regulation. We add that any governmental interest in not treating certain groups — even those exercising first amendment rights — differently from others would appear to be marginally insignificant. Demonstrators are already accorded privileges not permitted nondemonstrators, such as the right to stay in the park all night despite the anti-loitering regulation, 36 C.F.R. § 50.25(k) (1982), and the right to erect temporary structures, id. § 50.19(e)(8). The additional privilege of sleeping at the demonstration site as part of the demonstration would seem of minimal consequence to the distinctions on treatment already drawn.
Finally, the government suggests that requests for convenient camping by persons pursuing speech activities would increase. If by this the government means that additional camping requests will be made by those who merely wish to sleep in parks near the sites of daytime demonstrations, such requests may be denied. It would seem an entirely permissible distinction to permit sleeping that is expressive as part of a twenty-four hour vigil, but not to permit sleeping that is a mere convenience to daytime demonstrators. See Quaker Action Group v. Morton, 402 U.S. 926, 91 S.Ct. 1398, 28 L.Ed.2d 665 (1971); VVAW, 506 F.2d 53 (D.C.Cir.1974). If, on the other hand, the government anticipates an increase in applications for symbolic campsites, with requests for permission to sleep during all night demonstrations, it may not deny all such requests merely because it expects a large number of people to apply.
Our holding does not mean, however, that the Park Service must grant every request, at any time, for any number of temporary structures or sleepers. Merely because we have held that expressive sleep may not be prohibited on the basis of the message conveyed does not mean that all forms of regulation are foreclosed to the government. Thus, the government may use valid, content-neutral, time, place, or manner regulations provided that such regulations are both reasonable and narrowly tailored to further the government’s substantial interests. See Police Department of Chicago v. Mosley, 408 U.S. 92, 101 n. 8, 92 S.Ct. 2286, 2293 n. 8, 33 L.Ed.2d 212 (1972); Grayned, 408 U.S. at 115, 92 S.Ct. at 2302. The government may, for example, limit the number of tents, the size of tents or campsites, and the number of persons allowed to sleep. It may continue its current practice of issuing permits on a renewable weekly basis, under which one group’s permit will not be renewed if another group requests the space, and under which the permit may be revoked if the demonstrators engage in such prohibited activities as cooking or making fires. It may set aside certain times when no demonstrations are allowed in order to accommodate other particularly heavy uses of the parks. See 36 C.F.R. § 50.19(d)(1), (e)(8) (1982). And possibly, it may be able to set aside some of the more serene areas of the Memorial Core area as “sanctuaries” at which round-the-clock demonstrations are never compatible.
In sum, the Park Service has failed to demonstrate that the government’s interests will be furthered by keeping these putative protestors from the sleeping activity which is the sole point in dispute. We reverse, therefore, because the indiscriminate line the government seeks to draw against sleeping cannot pass first amendment muster. Accordingly, we grant CCNV the injunctive relief it seeks, enjoining the Park Service from prohibiting sleep at CCNV’s demonstration.
Conclusion
The Mall and Lafayette Park are special places in the stockpile of American fora. They are at the very heart of the nation’s capital where ideas are to be expressed and grievances are to be redressed. Thus, the focus of this case is the symbolic locus of the first amendment. This explains the series of understandable difficulties that the Park Service has had in trying to fashion rules that meet the multifarious demands put upon these unique public lands. It also rationalizes the number of times that this court has visited the problems of the Mall, Lafayette Park, and the first amendment.
But the uniqueness does not justify an abandonment of either first amendment principles or legitimate government interests in managing these public places. Considering these two imperatives, we reach several conclusions.
First, the Park Service regulations are facially valid and can be employed in the management of the Mall and Lafayette Park.
Second, the application of these regulations to specific fact situations implicating the first amendment must be measured against the government’s interest in limiting certain activities and the means it employs to further those interests. It is in this respect that the Park Service cannot be upheld in its decision that tenting is all right, lying down is all right, maintaining a twenty-four hour presence is all right, but sleeping is impermissible.
Finally, the Park Service cannot mechanically apply its regulations to requests from groups seeking to exercise first amendment rights through sleeping. Although the government can and must retain a “content-neutral” obliviousness to the kind of message which a particular group seeks to express through sleeping, the Park Service cannot be oblivious to the implications of the first amendment — or the attendant complications. Each distinction and each line the Park Service draws in such applications must bear close scrutiny to ensure that symmetry of management does not crowd out first amendment claims.
We doubt that this will be the last occasion that this court will have to undertake the difficult reconciliation of first amendment activities with the necessity for order and management in the Mall and Lafayette Park. In a pluralistic society boasting of its free expression, we can expect no less.
It is so ordered.
. As revised, section 50.27(a) prohibits camping in park areas not designated as public camping grounds, and defines the term as follows:
Camping is defined as the use of park land for living accommodation purposes such as sleeping activities, or making preparations to sleep (including the laying down of bedding for the purpose of sleeping), or storing personal belongings, or making any fire, or using any tents or shelter or other structure or vehicle for sleeping or doing any digging or earth breaking or carrying on cooking activities. The above listed activities constitute camping when it reasonably appears, in light of all the circumstances, that the participants, in conducting these activities, are in fact using the area as a living accommodation regardless of the intent of the participants or the nature of any other activities in which they may also be engaging.
36 C.F.R. § 50.27(a) (1982). Section 50.-19(e)(8), as amended, prohibits the use of temporary structures for camping outside of designated camping areas. It reads as follows:
In connection with permitted demonstrations or special events, temporary structures may be erected for the purpose of symbolizing a message or meeting logistical needs such as first aid facilities, lost children areas or the provision of shelter for electrical and other sensitive equipment and displays. Temporary structures may not be used outside designated camping areas for living accommodation activities such as sleeping, or making preparations to sleep (including the laying down of bedding for the purpose of sleeping), or storing personal belongings, or making any fire, or doing any digging or earth breaking or carrying on cooking activities. The above-listed activities constitute camping when it reasonably appears, in light of all the circumstances, that the participants, in conducting these activities, are in fact using the area as a living accommodation regardless of the intent of the participants or the nature of any other activities in which they may also be engaging.
Id. § 50.19(e)(8).
. Although the veterans’ application to demonstrate was filed prior to the effective date of the amended regulations, the Park Service applied the new regulations. See Letter from Park Service to Vietnam Veterans Against the War dated April 22, 1982, reprinted in Record Document (RD) 5.
. Despite conflicting evidence in the record as to whether some of the veterans slept all night, it is clear that the Park Service authorized at least some participants in the demonstration to “be asleep in the area at all times during the night.” Id.
. Section 50.19(e)(8) was promulgated in response to the decision of this court in Women Strike for Peace v. Morton, 472 F.2d 1273 (D.C. Cir.1972) (per curiam). See 47 Fed.Reg. 24,304 (1982). In that case, the court held that Women Strike for Peace, an anti-war organization, could erect a temporary display on the Ellipse. Although the per curiam opinion was followed by three separate statements, the reasoning of the judges was clear: “the Park Service is required to allow the erection of structures by demonstrators to the same extent that it participates in or sponsors the erection of structures itself.” Id. at 24,300. The assumption that lies behind this proposition is also clear: “[a structure] is a vehicle for expression of views ... and [to the extent that it acts as such is] entitled to a degree of First Amendment protection.” 472 F.2d at 1288 (Wright, J., concurring); see also id. at 1295 (Leventhal, J., concurring) (“Structures on park land, even though temporary, are within the reach of freedom of communications .... ”). With our opinion today, we reaffirm the result reached in that decision.
. See also CCNV I, 670 F.2d at 1217 n. 26 (confirming this distinction). The motions panel in WAW was correct in holding that the action taken by the district court “directly contravened the controlling precedent.” VVAW, 506 F.2d at 55 n. 6. We refuse, however, to read the precedent as broadly as that panel. The Supreme Court’s decision on which that panel grounded its argument, Morton v. Quaker Action Group, 402 U.S. 926, 91 S.Ct. 1398, 28 L.Ed.2d 665 (1971), was issued without an opinion. Absent any supporting reasoning, it should not, and indeed cannot, be cited as precedent for the proposition that sleep can never be protected by the first amendment. The Supreme Court has held consistently that summary disposition extends “only to ‘the precise issues presented and necessarily decided by those actions.’ ” Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 499, 101 S.Ct. 2882, 2888, 69 L.Ed.2d 800 (1981) (quoting Mandel v. Bradley, 432 U.S. 173, 176, 97 S.Ct. 2238, 2240, 53 L.Ed.2d 199 (1977) (per curiam)). As Chief Judge Bazelon observed in his statement concurring in the denial of rehearing en banc in the WAW case itself, it is very difficult to ascertain what issues the Supreme Court determined in its 1971 decision. VVAW, 506 F.2d at 61.
. Because CCNV’s proposed conduct is clearly proscribed by the regulations, CCNV may not claim that those regulations are constitutionally void for vagueness. See, e.g., Parker v. Levy, 417 U.S. 733, 756, 94 S.Ct. 2547, 2561, 41 L.Ed.2d 439 (1974) (“One to whose conduct a statute clearly applies may not successfully challenge it for vagueness.”).
We also do not find the regulations to be overbroad because the amount of constitutionally protected activity covered by the regulations (assuming arguendo that such activity exists in this case) cannot reasonably be calculated as “substantial.” As the Supreme Court stated in Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 2917, 37 L.Ed.2d 830 (1973), “[w]here conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” The government’s ban against sleeping in tents applies to all park areas administered by National Capital Parks in the District of Columbia, Maryland, and Virginia. 36 C.F.R. § 50.1 (1982). Because camping in these areas is primarily for recreation, the chances of the ban directly conflicting with sleeping as an arguable form of expression must be estimated as small. There is certainly no evidence before us today to suggest that any such conflict can be characterized as “substantial.”
. See, e.g., Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963).
. See, e.g., Shuttlesworth v. City of Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969).
. See, e.g., Schneider v. Town of Irvington, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939).
. See, e.g., Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940).
. See, e.g., Tinker v. Des Moines School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969).
. See, e.g., Spence v. Washington, 418 U.S. 405, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974).
. It is far too late in the day to pretend that the Supreme Court has sanctioned an unwavering first amendment line between speech and conduct. Such a view cannot be squared with either the holdings of those cases extending first amendment protection to a wide range of physical activities, see supra cases cited in notes 7-12, or with the Court’s occasional statements on the matter. E.g., Brown v. Louisiana, 383 U.S. 131, 141-42, 86 S.Ct. 719, 723-724, 15 L.Ed.2d 637 (1966) (plurality), cited in Tinker v. Des Moines School District, 393 U.S. 503, 505, 89 S.Ct. 733, 735, 21 L.Ed.2d 731 (1969) (“[First amendment] rights are not confined to verbal expression. They embrace appropriate types of action which certainly include the right in a peaceable and orderly manner to protest by silent and reproachful presence .... ”); see also Ely, Flag Desecration: A Case Study in the Roles of Categorization and Balancing in First Amendment Analysis, 88 Harv.L.Rev. 1482, 1495 (1975) (“The O’Brien Court thus quite wisely dropped the ‘speech-conduct’ distinction as quickly as it had picked it up.”).
The theoretical objections to a speech-conduct distinction have been noted by several commentators. See, e.g., Baker, Scope of the First Amendment Freedom of Speech, 25 U.C. L.A.L.Rev. 964, 1010 (1978) (“If the distinction is between ‘expressing’ and ‘doing,’ most conduct falls into both categories.”); Ely, supra, at 1495 (“Attempts to determine which element ‘predominates’ will ... inevitably degenerate into question-begging judgments about whether the activity should be protected.”); Henkin, The Supreme Court, 1967 Term — Foreword: On Drawing Lines, 82 Harv.L.Rev. 63, 79 (1968) (“Even singular, idiosyncratic forms of expression can prove no less articulate, as when Simeon spent his days sitting on a pillar in the desert or the King of Denmark wore a six-pointed star.”); Note, Symbolic Conduct, 68 Colum.L.Rev. 1091, 1108 (1968) (“Recent work in communications theory underlines the connection between free choice of the medium of communication and freedom of expression.”). Even Professor Emerson, a leading proponent of the speech-action distinction, acknowledges that “the clearest manifestation of expression involve[s] some action, as in the case of holding a meeting, publishing a newspaper, or merely talking.” T. Emerson, The System of Freedom of Expression 80 (1970).
. See Photographs of 1981-82 CCNV demonstration dated February 22, 1982, reprinted in RD 17; Declaration of Gabrial Leanza, 1) 7, reprinted in RD 19.
. See Second Declaration of Mitch Snyder, H 5, reprinted in RD 15; Declaration of Gabrial Leanza, K 8, reprinted in RD 19.
. Although CCNV clearly evidences in its permit application an intent to express a message through the protestors’ sleeping, it also documents a very functional view of sleeping: that sleeping opportunities are vital to its demonstration in order to make it possible for the homeless to attend. See CCNV application to demonstrate filed September 7, 1982, reprinted in RD 1, at 2. The government contended at oral argument that CCNV had thus belied any true intent to communicate a message through the participants’ sleeping. But we do not find the government’s argument to be so conclusive. To the extent that we are assessing CCNV’s intent, and not its skill in drafting documents, we cannot close our eyes to the fact that CCNV’s application indicates that sleeping will serve both an expressive and functional purpose. Moreover, we note that CCNV need not prove the intent of its demonstrators by any sort of preponderance of evidence. As we indicate in note 31 infra, demonstrators should be held to no higher standard than the advancement of a plausible contention that their conduct is intended to, and in the context of their demonstration likely will, express a message. In this case, such a plausible contention is supplied by CCNV’s intent to model this year’s demonstration after last year’s. Despite what must surely have been the same sociological realities of the homeless last year, the CCNV I court found that sleeping in the tents in the winter of 1981-82 sent an unmistakable message. 670 F.2d at 1217.
. Although the CCNV I court did not decide the constitutional issue, it is unclear how last year’s sleeping could have been sufficiently expressive for the purpose of satisfying the Park Service’s old policy criterion (“use of symbolic campsites reasonably related to First Amendment activities,” 46 Fed.Reg. 55,959, 55,961 (1981)), but remain insufficiently expressive to fall within the first amendment this year. As CCNV indicates in its 1982 application, the demonstration planned for this year is modeled after last year’s demonstration. See CCNV application to demonstrate filed September 7, 1982, reprinted in RD 1, at 2.
. Appellants’ Reply to Opposition to Appellants’ Emergency Motion for Injunction Pending Appeal and Opposition to Appellants’ Motion for Summary Affirmance 20.
. Appellants’ Reply, supra note 18, at 12-13.
. Indeed, as Professor Tribe indicates, there is an identifiable interest in according unorthodox modes of expression first amendment protection:
If only orthodox modes of expression were protected, “the old saw that familiarity breeds contempt,” ... might mean that truly effective communication would be left undefended by the first amendment. Moreover, ... laws which leave unorthodox media defenseless in effect favor orthodox messages
L. Tribe, American Constitutional Law § 12-20, at 685 n. 12, (quoting Ely, supra note 13, at 1489) (emphasis in original).
. “The basic issue in all such cases is how much the First Amendment requires society to give up in the interest of communication — that is, what price we are willing to put on free speech.” Women Strike for Peace v. Morton, 472 F.2d 1273, 1284 (D.C.Cir.1972) (Wright, J. concurring).
. The metaphor of placing a judicial thumb on the first amendment side of the scales may be attributed to the genius of Professor Harry Kalven. See Kalven, The Concept of the Public Forum: Cox v. Louisiana, 1965 Sup.Ct.Rev. 1, 28.
. Appellees’ Response in Opposition to Appellants’ Emergency Motion for Injunction Pending Appeal 8-9.
. See CCNV application to demonstrate filed September 7, 1982, reprinted in RD 1, at 2.
. See Letter from Mitch Snyder to Park Service dated March 5, 1982, reprinted in RD 19, at 1.
. Seq CCNV application to demonstrate filed September 7, 1982, reprinted in RD 1, at 2.
. CCNV has never maintained that it needs or desires to use cots in these symbolic campsites. See December 5th Declaration of Mitch Snyder, H 5, reprinted in RD 21. We note that CCNV used bedding materials (blankets) last year and that it is quite likely that it will do so again. This use of bedding is one of the indicia the Park Service employs to determine if “camping” is taking place. See 36 C.F.R. §§ 50.-19(e)(8), 50.27(a) (1982). We hold, however, that in the context of sleeping in tents, the government has no discernible reason to prohibit such bedding; bedding in a tent requires no additional ground space, is out of view, and has no connection to any of the other interests asserted by the government in this case — sanitation facilities, law enforcement personnel, or living accommodation subsidies.
. It has been suggested by some that the Supreme Court in Heffron v. International Soc. for Krishna Consciousness, 452 U.S. 640, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981), signaled a departure from the less restrictive means test of O’Brien. See Note, 61 Neb.L.Rev. 167, 182-86 (1982). Compare Tacynec v. City of Philadelphia, 687 F.2d 793, 797-98 (3d Cir.1982) with New York City Unemployed and Welfare Council v. Brezenoff, 677 F.2d 232, 237 (2d Cir.1982). We find, however, that the majority in Heffron did apply the test to the regulation of ISKCON’s activities. See 452 U.S. at 654, 101 S.Ct. at 2567. The Court examined the alternatives put forward by ISKCON — penalizing disorder, limiting the number of people authorized to conduct the activity, restricting the activity to certain locations within the forum— and concluded that “it is quite improbable that the alternative means ... would deal adequately with the problems posed .... ” Id. Such is not the case here; the alternative put forward in Heffron itself, for instance, would better serve the Park Service’s interests than a total ban on sleep and would be less restrictive of the first amendment activity proposed. See infra notes 29 & 32.
. In addition, we note that the Park Service surely has the ability to police demonstrations against the expansion of activities such as cooking, making fires, etc. Indeed, many pages of the government’s brief are taken up with illustrations of how it has enforced the sleeping ban against other groups since the new regulations came into effect. Appellees’ Response, supra note 23, at 10-13. It would appear that the Park Service could simply shift its personnel from nighttime sleep patrols to policing against these other activities, thereby assuring the protection of parkland at little, if any, additional expense.
. Such a fear would be truly undifferentiated because any increase in requests for living accommodations by nondemonstrators simply could be refused by the Park Service. Accordingly, this wholly insubstantial fear of “requests” is of far less significance than the real possibility in Heffron that a significant influx of people with a valid right of access to a state fair would flood the walkways of an already crowded fairgrounds with leafletters and solicitors. 452 U.S. at 652-53, 101 S.Ct. at 2566-2567.
. We reiterate that the Park Service is not allowed to decide whether it sees a sufficient relationship between the message of the would-be demonstrators and their asserted expressive interest in sleeping. See supra text at 593. Instead, it need’ only determine whether the demonstrators seek to sleep for expressive purposes, as opposed to sleep for mere convenience or recreation. We note that the Park Service already makes this same determination in evaluating requests for temporary structures “for the purpose of symbolizing a message.” 36 C.F.R. § 50.19(e)(8) (1982). Accordingly, we do not expect the Park Service to become enmeshed in any in-depth probe of the requesters’ ulterior motives. Rather, we expect that all plausible requests will be accepted at face value and processed by the Park Service with the same degree of respect and efficiency that the Park Service has processed demonstrators’ requests for temporary symbolic structures. And, we add, that any permits for symbolic sleeping which are abused by demonstrators may, as always, be rescinded.
. The dissent inexplicably assumes that the only less restrictive means for furthering the government’s interests in park management is to discriminate among applicants for “camping” permits on the basis of subject matter or content — something that neither we, nor the dissent, countenance as a legitimate governmental option. Whatever the dissent’s purpose in knocking down this straw man, it nowhere else discusses the obvious alternative of revoking a demonstration’s permit should its participants engage in non-sleep “camping” activities. See supra note 29. Indeed, unlike the situation in Heffron where the Court found that alternative means for crowd control could not deal adequately with the potentially large numbers of state fair solicitors, 452 U.S. at 654, 101 S.Ct. at 2567, both the government and the dissent have underscored the potential effectiveness of permit revocation as a means of enforcing the Park Service’s anti-camping regulations in Lafayette Park and on the Mall:
Furthermore, in the one case where the Park Service detected a violation of the regulations, it demanded compliance and the next day, after similar violations occurred, revoked the demonstration permit for non-compliance with the regulations and conditions of the permit. A standard of reasonable, evenhanded enforcement calls for no more.
Dissenting Opinion at 611; see also Appellees’ Response, supra note 23, at 10-13.
. See Women Strike for Peace, 472 F.2d at 1290 (“It would be permissible, for example, ... to regulate the size or aesthetic character of displays built on park land.”) (Wright, J., concurring).
. We note that both CCNV and the government indicated some flexibility at oral argument as to the overall number of demonstrators. While we do not hold that CCNV, or any group, has a right to as many round-the-clock protestors as it likes, we also require that the Park Service, in setting any limitations, do so with an eye to the first amendment values which we have identified in this opinion.
. In Washington Free Community, Inc. v. Wilson, 334 F.Supp. 77 (D.D.C.1971), the court held that the governmental interest in protecting the serenity of such places as the Lincoln and Jefferson Memorials may be greater than its interest in promoting the serenity of such busy places as Dupont Circle, Farragut Square, or Lafayette Park. Id. at 82. Without expressing any views on the precise calculus of interests as to any one area, we note that the Memorial Core area in Washington, D.C. is comprised of discrete, and often quite different, parts. Although we think that the public’s interest in expressing its views are particularly strong on the Mall and in Lafayette Park, see supra text at 593, the Park Service need not treat the Memorial Core area as a monolithic whole.
. In his separate dissenting statement, Judge Scalia attempts to extract a simple rule from a complex web of cases. His efforts are confounded for at least two reasons. First, to determine if conduct is sufficiently expressive to implicate first amendment scrutiny, the Supreme Court has instructed us to look to the context in which the conduct takes place and the intent with which it is carried out. Spence v. Washington, 418 U.S. at 410-11, 94 S.Ct. at 2730-31. It is not possible to resolve the question merely by stating, as does Judge Scalia, that “[i]t is difficult to conceive of any activity inherently less expressive than the act (if it may be called that) of sleep.” The same judgment could also be made about the act of sitting down in Brown v. Louisiana, 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966) (the library sit-in case), and only proves Professor Ely’s warning that such intuitive conclusions “inevitably degenerate into question-begging judgments about whether the activity should be protected,” see Ely, supra note 13, at 1495. Second, Judge Scalia collapses the four-pronged O’Brien test into a one-pronged standard. But in O’Brien the Supreme Court was analyzing a law that it found not to have been directed against the communicative nature of draft card burning and still felt it necessary to consider the extent to which substantial governmental interests were furthered and the possibility of using less restrictive means. The fact that the Spence Court invalidated the application of a statute which was directed against the communicative nature of flag displays, without reaching the O’Brien test, hardly suggests that O’Brien was, sub silentio, overturned. Judge Scalia’s attempt to restrict O’Brien to “speech-plus” cases not only overlooks the wholly nonverbal conduct for which O’Brien was convicted but also the values underlying the first amendment. To suggest that individuals can be punished for expressive nonverbal conduct because they violate a “neutral” law — regardless of whether the application of that law to them is necessary to further an important governmental interest — puts a premium on spoken or written “speech” that has no bearing on the values of self-expression and contribution to the marketplace of ideas that give the first amendment meaning. Judge Scalia’s preoccupation with these types of “speech” ignores the fact that the first amendment’s values may be furthered by nonverbal, as well as verbal, expression.