concurring in part and dissenting in part:
I concur in the opinion of the Court insofar as it holds the Park Service solicitation regulation unconstitutional as applied to ISK-CON’s activities. Insofar as the Court holds that the Park Service may prohibit ISKCON from selling audio tapes and certain beads, however, I dissent.
I. Audio Tapes
The Park Service allows demonstrators on the Mall to sell books, newspapers, leaflets, pamphlets, buttons, and bumper stickers that have a message relevant to their cause. At the same time it refuses to allow demonstrators to sell audio tapes with like content lest a large number of vendors flock to the Mall, resulting in a level of commercial activity “inconsistent with the Park Service’s statutory mandate to preserve and maintain the parks.”
As the Court notes (at 953-54), ISKCON’s sale of tape recordings of prayers, songs, and chants clearly implicates the First Amendment, especially on the Mall — the quintessential public forum in the civic life of the nation. Nevertheless, as the Court also notes (at 954-55), the sales regulation is content neutral and may therefore be upheld as a legitimate restriction upon the time, place, or manner of speaking if the Park Service shows that the regulation is “narrowly drawn to serve a significant governmental interest” and “leave[s] open ample alternative channels for communication of the information.” See Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 & n. 5, 104 S.Ct. 3065, 3069, & n. 5 (1984).
The Park Service’s interest in limiting commercial activity and thereby maintaining the unique aesthetic character of the Mall is undoubtedly significant; the disputed question here is whether its prohibition upon the sale of audio tapes is narrowly drawn to serve that interest, which turns upon the “fit” between the end being sought and the means chosen to accomplish it. See Board of Trustees, State University of New York v. Fox, 492 U.S. 469, 477-80, 109 S.Ct. 3028, 3033-35, 106 L.Ed.2d 388 (1989); see also Riley v. National Federation of the Blind of North Carolina, 487 U.S. 781, 795-96, 108 S.Ct. 2667, 2676-77, 101 L.Ed.2d 669 (1988) (commercial element to protected speech does not justify greater regulation). The fit need “not necessarily [be] perfect, but [it must be] reasonable; ... not necessarily the single best disposition but one whose scope is in proportion to the interest served.” Id. at 480, 109 S.Ct. at 3035; City of Cincinnati v. Discovery Network, Inc., — U.S. -, n. 12, 113 S.Ct. 1505, 1510 n. 12, 123 L.Ed.2d 99 (1993). Moreover, the Government bears the burden of showing that the regulation is “narrowly tailored.” See Fox, 492 U.S. at 480, 109 S.Ct. at 3035; Discovery Network, — U.S. at-n. 12, 113 S.Ct. at 1510 n. 12; see also United States v. Doe, 968 F.2d 86, 90 (D.C.Cir.1992).
In most cases, a content-neutral regulation of speech is not invalid simply because it is underinclusive — i.e., fails to restrict all of the activity that infringes upon the end that the Government seeks. See Erznoznik v. City of Jacksonville, 422 U.S. 205, 215, 95 S.Ct. 2268, 2275, 45 L.Ed.2d 125 (1975) (“Court frequently has upheld underinclusive classifications on the sound theory that a legislature may deal with one part of a problem without addressing all of it”). Nevertheless, as the Supreme Court has noted:
Exemptions from an otherwise legitimate regulation of a medium of speech may be *960noteworthy for a reason quite apart from the risks of viewpoint and content discrimination: they may diminish the credibility of the government’s rationale for restricting speech in the first place.
City of Ladue v. Gilleo, — U.S. -, -, 114 S.Ct. 2038, 2044, 129 L.Ed.2d 36 (1994) (citing Discovery Network, — U.S. at- -, 113 S.Ct. at 1511-15). In my opinion, the Park Service’s decision to ban the sale of audio tapes while it allows the sale of books diminishes to the vanishing point the credibility of its purported rationale.
Throughout this case the Park Service has presented but one explanation for its decision to prohibit the sale of audio tapes while allowing the sale of other expressive articles: By limiting the types of articles to be sold, the regulation effectively limits the number of vendors on the Mall, thereby reducing the “visual clutter,” “trash and debris,” “congestion,” and “degradation of the park[ ] atmosphere.” In short, the Park Service claims that by permitting fewer sales, the rule helps preserve the aesthetic quality of the Mall. That may be true, but the Supreme Court has specifically held that rationale insufficient to support an underinclusive regulation of protected speech in a public forum.
Discovery Network involved a Cincinnati ordinance that prohibited the placement upon public property of newsracks containing commercial handbills — but not of newsracks containing newspapers — on the ground that the regulation advanced the city's interest in preserving the attractiveness of the streets by reducing the total number of newsracks. The Court rejected that argument because the distinction drawn by the statute bore “no relationship whatsoever to the particular interests ... asserted.” Discovery Network, — U.S. at-, 113 S.Ct. at 1514 (emphasis in original). The Court explained:
[TJhe city’s primary concern, as argued to us, is with the aggregate number of news-racks on its streets. On that score, however, all newsracks, regardless of whether they contain commercial or noncommercial publications, are equally at fault.
Id. at-, 113 S.Ct. at 1515. The Court went on to hold that the ordinance was not a content-neutral regulation. Id. at- -, 113 S.Ct. at 1516-17. Contrary to the opinion of the Court in this case (at 956-58), however, the presence in Discovery Network of that “alternative rationale for invalidating the city’s policy,” id. at -, 113 S.Ct. at 1524 (Rehnquist, C.J., dissenting), does not mean that every underinclusive regulation is permissible so long as it is content neutral. On the contrary, as the Supreme Court reiterated in Gilleo, the Government’s failure adequately to justify an underinclusive regulation still renders it impermissible “quite apart from the risks of viewpoint or content discrimination.” — U.S. at-, 114 S.Ct. at 2044.
Just as certain newsracks in Discovery Network were no more responsible than others for the city’s visual blight, in this case audio tapes are no more at fault than books, buttons, or bumper stickers for commercialism on the Mall. The Park Service has offered no argument, nor even hinted at any evidence, suggesting why tapes should be prohibited while books are allowed; indeed, the Park Service’s stated rationale, if accepted, would equally support the opposite rule, i.e., a ban on books but not tapes. And for all we know, such a rule would be equally effective in keeping the Mall “essentially free of commercialism.” Ct.Op. at 957.
In its quest to limit commercial activity on the Mall the Park Service may be able constitutionally to prohibit sales with little or no expressive value, or to prohibit activity that is expressive but has a particularly disruptive impact; it may even be able to rule out entirely some protected speech so long as it does so by wholly neutral means (e.g., a lottery); but it may not limit protected speech capriciously. That is precisely what it has done here by allowing ISKCON to sell books but not tapes without saying why, in its judgment, the sale of tapes is more inimical to the preservation of the Mall. There may be valid reasons for the Park Service to distinguish tapes from books, but the simple fact that prohibiting tapes reduces the amount of commercial activity on the Mall to a more acceptable level is not one of them.
Though the Park Service, not the court, is charged with determining how best to conserve the Mall, see Community for Creative *961Non-Violence, 468 U.S. at 299, 104 S.Ct. at 3072, “[w]here constitutionally protected activity is implicated, we cannot simply defer to the Park Service’s unexplained judgment.” Doe, 968 F.2d at 90. Therefore, I would hold that the Park Service’s failure adequately to explain the distinction it has drawn proves fatal to its regulation as applied in this case.
II. Beads
ISKCON also wants to go on selling two types of beads at its stand on the Mall. One type apparently serves as an instrument of prayer and meditation while the other serves to identify the wearer as a devotee of Krishna. ISKCON’s sale of the former is of no moment to the First Amendment; those beads may be an aid to spiritual activity, but they are not in themselves communicative. I presume that the Park Service could not prohibit the use of a rosary or perhaps of a prayer mat on the Mall, but that does not mean that it must also allow vendors to sell them there. See There to Care, Inc. v. Commissioner of Indiana Department of Revenue, 19 F.3d 1165, 1167 (7th Cir.1994) (holding words used in bingo game not protected because they did “not convey ideas”).
The so-called identification beads, on the other hand, must be considered communicative in light of ISKCON’s assertions, the Park Service’s stipulations, and the procedural posture of this case. These beads seem to serve the same function for the wearer as does a lapel button or a bumper sticker. The ban on the sale of such beads therefore suffers from the same flaw, and should share the same fate, as the (thus far) unjustified ban upon the sale of audio tapes. I believe there are two distinctions worth noting, though.
First, a string of religious identification beads may be practically indistinguishable from the much larger class of decorative beads that are not communicative in any meaningful sense. Whereas an audio tape necessarily contains some information or expression, it is only the exceptional strand of beads that makes anything but a fashion statement. Therefore, the Park Service may be able to justify a flat prohibition upon the sale of jewelry based simply upon the administrative difficulty of sorting the speaking beads from the mute.
Second, ISKCON’s beads — like bumper stickers and T-shirts — may be communicative, but their sale does not add anything to ISKCON’s ability to communicate its ideas to passers-by on the Mall. Whereas a book, a tape, a newspaper, or a handbill is a convenient way of communicating more information than can be relayed on sandwich boards or by engaging a stranger in conversation, the message printed on a bumper sticker or a T-shirt or symbolized by a strand of beads is just as well communicated by its display as by its sale. In reality, the beads are of value as a medium of communication not primarily to ISKCON but to the purchaser who will use them to communicate to others. But while wearing a string of beads may be protected activity, see Goldman v. Weinberger, 475 U.S. 503, 507, 106 S.Ct. 1310, 1313, 89 L.Ed.2d 478 (1986); Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971), no first amendment principle makes the right to buy them coextensive with the right to display them.
Unfortunately, the Park Service rests its prohibition of the sale of beads not upon either of these grounds but upon the same rationale that it gives for not allowing the sale of audio tapes — claiming the authority to limit the number of transactions on the Mall in any content-neutral way it sees fit. Clearly enough the Park Service must draw the line somewhere if the Mall is not to be turned into a flea market; and perhaps the line it has drawn at the sale of beads is as good a line as any. Indeed, this may be an area in which any line must be substantively arbitrary — distinguishing among things that play indistinguishable roles in the expression of ideas — so that administrative convenience may be allowed to govern. But the Park Service has given the court no particular reason to think that is the case, and we may not supply one for it. See Doe, 968 F.2d at 90.
III. Conclusion
For the foregoing reasons, I respectfully dissent from the opinion of the Court insofar as it upholds the application of the Park *962Service sales regulation to the audio tapes and the identification beads involved in this case.