dissenting:
I have no quarrel with “the policy of the Secret Service to prohibit any form of demonstration within the interior grounds of the White House, regardless of the nature of the message sought to be conveyed.” Ante at 966. Indeed, I assume the government could ban tourist traffic altogether at the White House, if that appeared necessary for any reason. My problem with the majority view, therefore, is not with proscribing the conduct at issue here.
My concern, rather, is premised on the fact that, as presently administered, the White House is to some extent a public place. Customarily, the public is welcome on White House grounds at prescribed times and in specified areas. Until recently, in fact, the government permitted peaceful speech activities there. Ante at 966 n.5. It follows, and our cases so hold,1 that if “the person lawfully in charge”2 of the White House grounds asks a public invitee to leave — at the risk of otherwise violating a criminal, unlawful entry statute — elementary due process requires notice (forewarning) of a specific reason why that visitor has no “lawful authority to remain.” D.C. Code 1973, § 22-3102. Without such notice, arrests and prosecutions for unlawful entry on public property could be arbitrary — at the whim of enforcers — for the statute itself provides no standard regulating conduct. Appellants had no proper notice that what they were doing was unlawful. As a consequence, their convictions should be reversed.
To repeat: no one challenges the government’s right to impose “more stringent regulation of conduct within the White House complex than would be tolerated on most other government properties.” Ante at 965. But the majority invokes this right without dealing with the government’s corresponding obligation to notify the public with sufficient clarity what the limits of permissible conduct on White House property are, so that they can conform their conduct accordingly. Under the theory of the majority, a member of the public who is welcome on White House grounds can be *971asked to leave — under threat of criminal prosecution — on the basis of “an internal agency memorandum that has no force or effect of law and which has not been made available to the general public.” Ante at 967. As elaborated below, I suggest that the majority’s application of the unlawful entry statute, on the basis of criteria in a secret memo, is unconstitutional. It violates due process.
I.
In Leiss v. United States, D.C.App., 364 A.2d 803 (1976), cert. denied, 430 U.S. 970, 97 S.Ct. 1654, 52 L.Ed.2d 362 (1977), the defendant Leiss entered the White House grounds during public tour hours and began reading a statement protesting American policy in Southeast Asia. He refused to leave at closing time, and, after warnings by officers on the scene, he was arrested and charged with unlawful entry. Leiss contended that § 22-3102 was void for vagueness on its face in that it provided no ascertainable standards for law enforcement and thus failed to provide notice of the prohibited conduct. Leiss, supra at 805 & n.l.
We rejected the vagueness challenge, reasoning that the statute is “aimed at certain limited conduct which is constitutionally subject to restraint. It prohibits the act of entering or remaining upon any property when such conduct is both without legal authority and against the expressed will of the person lawfully in charge of the premises.” Id. at 806 (emphasis added). More specifically, as to the first criterion, “to be subject to the statute’s sanctions, one must be without legal right to trespass upon the property in question.” Id. (emphasis added). We held, accordingly, that the statute was not unconstitutional on its face precisely because it did not permit law enforcement officers upon “mere whim,” id., to order persons off White House property. To the contrary, Leiss was lawfully arrested and convicted because there constitutionally had to be — and there was — an objective, discernible basis for asking him to leave separate from the general language of the statute itself:
It is incontrovertible that appellant was aware that the statute prohibited his particular conduct. He could have had no doubt that his presence on the White House grounds past the noon closing hour would be against the will of the persons in lawful charge of the premises. That will was expressed by the sign on the gate restricting visiting hours, and by Captain Manthos’ plain advice that appellant was forbidden to remain upon the premises after the closing hour. [Id. at 807 (emphasis added).[3]
Four years later in Carson v. United States, D.C.App., 419 A.2d 996 (1980) — a *972case the majority virtually ignores — we reaffirmed and elaborated the point:
Thus, under the statute as construed in Leiss, individual citizens may not be ejected from public property on the order of the person lawfully in charge absent some additional, specific factor establishing their lack of a legal right to be there. See United States v. Nicholson, D.C.Ct. Gen.Sess., [9]7 Wash.D.L.Rep. 1213, 1216 (July 17, 1969), aff’d, D.C.App., 263 A.2d 56 (1970). Such factors may consist of posted regulations, signs or fences and barricades regulating the public’s use of government property, or other reasonable restrictions. [Id. at 998 (emphasis added).]
In Carson, the “specific factor,” known to the defendant, that justified the arrest was “a chain suspended from stanchions at a height of from eighteen inches to three and one-half feet, over which appellants had to step or jump to reach the area in which they were arrested.” Id. Just as the defendant in Leiss knew he was present unlawfully because he had stayed past posted White House visiting hours, the defendant in Carson knew he was vulnerable to arrest because he had gone into an area that was clearly marked off limits.
Accordingly, we have recognized in both Leiss and Carson that, in order to justify a conviction for unlawful entry on the White House grounds, due process requires notice of specific, prohibited conduct in addition to the bare, official warning to leave under the general authority of the statute itself. Leiss at 806; Carson at 998.4 Absent such notice, the unlawful entry statute, though not void on its face, will be void for vagueness as applied. See Parker v. Levy, 417 U.S. 733, 757, 94 S.Ct. 2547, 2562, 41 L.Ed.2d 439 (1974); Palmer v. City of Euclid, 402 U.S. 544, 545-46, 91 S.Ct. 1563, 1564, 29 L.Ed.2d 98 (1971) (per curiam); Cox v. Louisiana, 379 U.S. 536, 559, 568, 85 S.Ct. 476, 482, 13 L.Ed.2d 487 (1965); Leiss, supra at 807; Whittlesey v. United States, D.C.App., 221 A.2d 86, 89 (1966).
II.
The notice requirement under the unlawful entry statute may be satisfied by constructive, as well as actual, notice of the “specific factor establishing their lack of a legal right to be there.” Carson, supra at 998. But that is the rub, for there is no evidence that appellants knew or could have known of any restriction applicable to their conduct.
*973In the first place, the record contains no reference to any statute (other than § 22-3102 itself) or to any published rule or regulation relevant to appellants’ conduct. Compare Parker v. Levy, supra, 417 U.S. at 757, 94 S.Ct. at 2562 (court martial conviction under the military code not a denial of due process where the conduct prohibited was within the definitions and examples contained in manual available to members of the military); Booker v. United States, D.C.App., 283 A.2d 446, 447 & n.1 (1971) (conviction under unlawful entry statute upheld where City Council chairman ordered boisterous protestors to leave Council chamber in accordance with published Council rules of procedure requiring decorum during session); United States v. Approximately 683.79 Tons of Yellowfin Tuna, 383 F.Supp. 659, 662 (S.D.Cal.1974) (statute governing taking of tuna not void for vagueness; although required regulations are subject to change, “it can hardly be held that anyone is subject to forfeiture without proper notice. The regulations are clear and are readily available to the public.”).
Second, although unpublished policies also may serve to withdraw “lawful authority” to remain on public property, due process requires meaningful notice of such restrictions, such as “posted regulations” or “signs”. Carson, supra at 998; see Leiss, supra at 808-09; Whittlesey, supra at 89.5 In this case, appellants did not have access to the unpublished memorandum of January 18,1978 regulating “demonstrations” on White House property. Ante at 967. No posting or other warning gave advance notice of a Secret Service policy to prohibit “demonstrations” on the White House grounds. Captain Elgin testified that a sign at the outside perimeter post where visitors entered the grounds specified the visiting hours and prohibited smoking and picture-taking. Appellants acted within the limits of the posted rules.
Third, even assuming verbal warnings based on unpublished policies can provide adequate notice, the officers never told appellants that a “no demonstrations” policy was in effect. In asking appellants to leave, the officers only invoked the unlawful entry statute itself.6
Finally, absent a published regulation, a posted notice, or a verbal explanation of internal policy, appellants’ particular use of White House property did not in itself suggest a self-evident prohibition against their activity, for a limited area of the White House grounds is open to the public and, until recently, peaceful speech activities had been permitted there. Ante at 966 n.5. Appellants entered lawfully through the tour line and attempted to communicate their message in an area open to the public during regular tour hours. Neither the government nor the trial court suggested that their demonstration, including their use of an undisclosed amount of ashes and water, resulted in destruction or defacement of property. Nor did appellants interfere with any surrounding activity. In the words of the trial judge:
They didn’t obstruct the normal course of the line flowing into the White House. The objection to their presence, if any, was aesthetic. They weren’t supposed to be lying down and making a display, but they were not obstructing anybody.
*974The circumstances here contrast with a situation, for example, in which members of the public disturb the peace, disrupt government operations, or deface or despoil public property — and thus should be aware of the illegality of their acts. Compare Hurley v. Hinckley, 304 F.Supp. 704, 709-12 (D.Mass. 1969) (dicta treating disrupters of welfare office differently from peaceful protester under unlawful entry statute), aff’d mem. sub nom. Doyle v. O’Brien, 396 U.S. 277, 90 S.Ct. 603, 24 L.Ed.2d 469 (1970). Nor is this a case in which individuals have refused to leave a roped-off area or a room blocked off to tourist traffic — and thus should perceive themselves as trespassers. In Carson, supra, for example, we upheld the conviction of protesters because they crossed over a chain separating the tourist roadway from the White House lawn, a barrier that warned the defendants that their presence on the lawn was unauthorized. See id. at 998. In contrast, the circumstances here— especially given the history of permissible demonstrations on White House grounds— did not put appellants on notice that they were not permitted to lie on the ground in the public area in a mixture of ashes and water, or to talk to tourists in a non-obstructive manner at the side of the tourist line.
III.
In summary, even if the Secret Service lawfully can establish a policy barring demonstrations from the White House grounds — and clearly it can — the government cannot predicate criminal liability on that policy unless it gives the public reasonable notice of the conduct prohibited. See note 4 supra. In the present case, appellants had no notice that White House officials, as a matter of policy, would permit no demonstrations in the public area. Thus, the unlawful entry statute, as applied to appellants, violated due process.
The government obviously is concerned that appellants did not receive the kind of notice required for evictions from public property, for it has pressed the argument that the White House, as the President’s home, is better characterized as private not public property.7 It would follow that in order to convict for unlawful entry, the government only would have to prove that a person lawfully in charge had ordered appellants to leave; convictions for trespass on private property do not require an additional, independent showing of no “lawful authority to remain.” D.C.Code 1973, § 22-3102; see note 3 supra.
We rejected that argument in Carson, supra at 998. The en banc court apparently does so again today; my colleagues in the majority do not purport to change the Leiss-Carson test for unlawful entry at the White House. Actually, however, my colleagues straddle the issue. They neither recharacterize the White House as “private” property nor explain, if it is “public,” how appellants are to know that their conduct is criminal — aside from the word of the police.8 The majority prefers to rely solely on the assertion, with which I agree, that it is not “unreasonable for the Secret Service to limit the public’s access to the White House solely to the purpose of touring through portions of the Executive Mansion.” Ante at 966. This begs the question, however, for it says only that the Secret Service had the power to limit access while ignoring the requirement that the power be exercised in accordance with due process.
*975Given a history of permissible, peaceful demonstrations on the public area of the White House grounds, ante at 966 n.5, my colleagues advance an unsatisfactory basis for affirming appellants’ convictions. I respectfully dissent.9
. Carson v. United States, D.C.App., 419 A.2d 996 (1980); Leiss v. United States, D.C.App., 364 A.2d 803 (1976), cert. denied, 430 U.S. 970, 97 S.Ct. 1654, 52 L.Ed.2d 362 (1977).
. I agree with my colleagues in the majority that for purposes of enforcing the unlawful entry statute, Officer Brady, the senior Secret Service officer on the scene, was “the person lawfully in charge.” D.C.Code 1973, § 22-3102.
. Although D.C.Code 1973, § 22-3102, governs criminal trespass on both private and public property, Leiss has the practical effect of making an important distinction between the two situations. To establish a criminal trespass on private property, the government has to make only a single showing: that the defendant entered or remained on the property against the expressed will of the lawful occupant. Because a person’s presence on private property generally is at the pleasure of the lawful occupant, the demand of that occupant to leave in itself deprives the other party of “lawful authority” to remain on the premises, Feldt v. Marriott Corp., D.C.App., 322 A.2d 913, 915-16 (1974)— subject, however, to the defense of a good faith, reasonable belief in the right to remain on someone else’s property. Gaetano v. United States, D.C.App., 406 A.2d 1291, 1294 (1979).
In contrast, Leiss establishes, as to public property, that the government affirmatively must make two showings: (1) that a person in charge of the premises expressly ordered him or her to leave, and (2) that the alleged trespasser otherwise had no lawful authority to remain, i.e., a showing based on a ground independent of the evictor’s wishes. For example, an individual walking on the Capital Mall in a quiet and peaceful manner could not be held criminally liable solely for failure to obey a police officer’s order to leave that public property; there would have to be a legitimate, additional basis for the order. The trial court thus incorrectly stated the rule applicable here:
THE COURT: If Brady has the authority under the statute because he is the lawful occupant, and he tells them he wants them to leave, they are obligated to leave.
* * * * * *
He is in the same position as I am in my house. If I tell you to leave my house, you may be there lawfully and at any invitation, but when I revoke the invitation and tell you to leave you are obligated to leave.
. Due process precludes the state from punishing behavior deemed criminal unless the state gives fair warning to the public so that (1) individuals may assuredly conform their conduct to the law, see Papachriston v. City of Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110 (1972); Bouie v. City of Columbia, 378 U.S. 347, 351, 84 S.Ct. 1697, 1701, 12 L.Ed.2d 894 (1964); (2) law enforcement officials will be able to act evenhandedly, see Smith v. Goguen, 415 U.S. 566, 573, 575-76, 94 S.Ct. 1242, 1247, 1248-49, 39 L.Ed.2d 605 (1974); Grayned v. City of Rockford, 408 U.S. 104, 113-14, 92 S.Ct. 2294, 2301-02, 33 L.Ed.2d 222 (1972); Papachristou, supra, 405 U.S. at 162, 92 S.Ct. at 843; Coates v. City of Cincinnati, 402 U.S. 611, 614, 91 S.Ct. 1686, 1688, 29 L.Ed.2d 214 (1971); Shuttlesworth v. City of Birmingham, 382 U.S. 87, 90, 93 (1965); Cox v. Louisiana, 379 U.S. 559, 568-69 (1965); and (3) triers of fact will have adequate guidance for determining guilt or innocence. See Bouie, supra 378 U.S. at 353, 84 S.Ct. at 1702. See generally 1 C. Antieau, Modem Constitutional Law § 5.1, at 288 (1969). In short, as the Supreme Court stated in Smith, supra, 415 U.S. at 574, 94 S.Ct. at 1248: due process requires that all persons “ ‘be informed as to what the State commands or forbids,’ Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888 (1930), and that ‘men of common intelligence’ not be forced to guess at the meaning of the criminal law. Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926).”
Akin to this requirement of advance warning of the content of the criminal law is the constitutional principle that the state cannot convict a person for engaging in conduct that it has only since made criminal. See, e.g., Marks v. United States, 430 U.S. 188, 196, 97 S.Ct. 990, 995, 51 L.Ed.2d 260 (1977); Douglas v. Buder, 412 U.S. 430, 432, 93 S.Ct. 2199, 2200, 37 L.Ed.2d 52 (1973) (per curiam); Rabe v. Washington, 405 U.S. 313, 315-16, 92 S.Ct. 993, 994-95, 31 L.Ed.2d 258 (1972) (per curiam); Bouie, supra 378 U.S. at 355, 84 S.Ct. at 1703; Bowyer v. United States, D.C.App., 422 A.2d 973, 980-81 (1980).
. Cf. Niemotko v. Maryland, 340 U.S. 268, 271, 71 S.Ct. 325, 327, 95 L.Ed. 267 (1951) (convictions for disorderly conduct violated rights to free speech and equal protection when Park Commissioner and City Council denied Jehovah’s Witnesses permission to use park; no statute or ordinance required permit, and custom of requesting permission provided no standards).
. Officer Brady testified:
I advised Miss Smith that she was in violation of the Unlawful Entry Act and that if she didn’t leave that she would be arrested.
Again I repeated myself that you were in violation of the Unlawful Entry Act, and if you didn’t leave you would be arrested.
[Sergeant Elexia] said that you are in violation of the Unlawful Entry Act, and if you don’t leave you will be arrested.
Lieutenant Jenkins came on the scene, and he informed them that they were in violation of the Unlawful Entry Act, and if they didn’t leave they would be arrested.
Captain Elgin testified that the Secret Service informed any visitor carrying a placard to leave it at the gate. The record contains no evidence that appellants brought in any sign that would have triggered this warning.
. The government states in its brief: “Although the White House belongs to the United States, it is truly misleading to call it ‘public property.’ The White House is the private residence of the President of the United States, not a public park. The President and his designees have the same authorty over the White House grounds that a private citizen has over his residence. The interior grounds of the White House are not a public forum and appellants were obliged to leave when requested to do so.”
. The majority therefore must agree with the government’s alarming assertion in its supplemental brief that appellants “were not entitled to know the basis of the officer’s action so that they could debate with him whether they had ‘lawful authority’ to remain.” (Emphasis added.)
. Contrary to Chief Judge Newman’s view, I agree with the majority, see ante at 966 n.5, that if appellants had received proper notice of the ban on “demonstrations,” their arrest and conviction would have been lawful. I find that term sufficiently understandable to withstand challenge on the ground it is unconstitutionally vague. See generally Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., - U.S. -, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982).