Reacting swiftly to a federal judge’s ruling that seemed to open the Supreme Court’s marble plaza to demonstrations and protests, the Court on Thursday issued a new regulation barring any demonstration within the building or the grounds — but not the surrounding sidewalks — if the activity was “reasonably likely to draw a crowd or onlookers.”  The full text of the new Regulation 7 is here.

About twenty-four hours before the new rule emerged, U.S. District Judge Beryl A. Howell in Washington, D.C., had ruled unconstitutional a sixty-four-year old law that had banned any “assembly” or “displays” anywhere on Supreme Court property, although the judge limited her ruling to the ban as it applied only to the marble plaza in front of the building.

While the Supreme Court had on its books six other regulations on the use of its property, none of those had gone beyond the old law to deal with demonstrations or protests in or around the courthouse.  The Court’s police force had understood the old law to permit the Court to allow only two kinds of activity on its plaza: television crew interviews on days the Court had held hearings, and taking photographs for commercial or professional purposes with the Court’s permission.  (The Court’s full set of regulations on its property can be read here.)

While the new regulation, like all laws or rules, might seem open to differing interpretations, the Supreme Court’s public information officer, Kathleen Arberg, said the Court would not have any comment beyond the text of the new regulation.

The Court’s new rule, for example, said that the new ban “does not include casual use [of the building and grounds other than the sidewalks] by visitors or tourists that is not reasonably likely to attract a crowd or onlookers.”   There is no definition of “casual use,” but that exception seemed to be a response, at least in part, to Judge Howell’s suggestion that the old law she struck down went so far as to ban school children from appearing on the plaza wearing a T-shirt with the logo or name of their school.

The phrase in the new rule that what is banned are actions “reasonably likely to draw a crowd or onlookers” essentially means that it will be up to the Court’s police force to decide what that would entail.

It is not clear whether the new rule would ban a single picket from going on the plaza wearing or carrying a sign — the kind of activity by a Maryland college student that was explicitly involved in the case that led to Judge Howell’s decision.

New Regulation 7 imposes a flat ban on “a demonstration within the Supreme Court building or grounds,” but in an earlier part says that it “does not apply on the perimeter sidewalks on the Supreme Court grounds.”   (The Court itself had ruled in 1983 that its control on activity on its property did not apply on those sidewalks.)

The new regulation defines what is now banned as “demonstrations, picketing, speechmaking, marching, holding vigils or religious services and all other like forms of conduct that involve the communication or expression of views or grievances, engaged in by one or more persons, the conduct of which is reasonably likely to draw a crowd or onlookers.”   It is clear that it does apply to the marble plaza, as well as elsewhere on the outside of the building (other than the sidewalks) and everywhere inside the building.

Posted in Everything Else, Featured

Recommended Citation: Lyle Denniston, New protest ban for the plaza, SCOTUSblog (Jun. 13, 2013, 12:47 PM), http://www.scotusblog.com/2013/06/new-protest-ban-for-the-plaza/