Court now can ban protests on its threshold
on Aug 28, 2015 at 10:00 pm
More than two years after a federal judge took away most of the Supreme Court’s power to prohibit all picketing, protests, and other demonstrations on the plaza in front of its building, a federal appeals court revived that authority on Friday in a lengthy opinion.
A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit upheld a sixty-five-year-old federal law that restricts what the public may do on what the judges called the Court’s “elevated front porch.” That is the oval terrace officially known as “the plaza.” It is the space between the public sidewalk and the majestic marble steps that lead up into the Court building.
In 1983, the Court itself had ruled that the public had a right to use the public sidewalks on the perimeter of the Court’s property for demonstrations and other public speech activity. But the Court maintained tighter rules on what could occur on the plaza.
In that specific part of the property, the 1949 law makes it illegal to “parade, stand, or move in processions or assemblages,” and to display “a flag, banner, or device designed or adapted to bring into public notice a party, organization, or movement.”
While public demonstrations have regularly occurred on the Court’s front sidewalk next to the street — as, for example, happened on June 26 when the Court announced its ruling in the same-sex marriage cases — that kind of activity was forbidden on the plaza. However, in June 2013, U.S. District Judge Beryl A. Howell in Washington, D.C., ruled that the plaza ban violated the First Amendment. It was so sweeping, the judge said, that it would even make the plaza off-limits to school groups with students wearing t-shirts with logos on them.
She ruled in the case of a Maryland community college student, Harold H. Hodge, Jr., who in 2011 was accused of violating the 1949 law for carrying an anti-racism protest sign on the plaza. As part of a deal with prosecutors, the charges were dropped on condition that he stay away from the plaza for six months.
He filed a lawsuit challenging the law, both as written and as applied to his particular protest, saying that he hoped to resume picketing or leafleting or carrying signs on the plaza.
He won a sweeping ruling in Judge Howell’s court, although she left some room for the Court’s staff to take some measures to assure that activity on the plaza did not disrupt the Court’s proceedings. The Court reacted within a day after the ruling, issuing new rules that reinstated the ban on protests and demonstrations, but it applied that ban only to activity that “was reasonably likely to draw a crowd or onlookers.” That phrasing seemed to leave open the possibility of a lone protester or sign carrier peacefully patrolling the plaza.
The D.C. Circuit’s new ruling revived the Court’s full authority to manage the plaza by overturning Judge Howell’s decision. Going into great detail about the architectural significance of the plaza to the Court’s physical image and its functioning as a court, the opinion concluded that the plaza is not a public forum and thus Congress had the authority to limit protest activity on that site.
Noting the Court’s own prior ruling regarding the sidewalks around the outer edges of the Court’s property, the panel remarked that those areas were not a part of the Court’s grounds, but that the plaza was. “There is everything,” the opinion said, “to indicate to the public that the plaza is an integral part of those grounds. The plaza’s features convey in many distinctive ways that a person has entered some special type of enclave.” In serving as what amounts to the elevated front porch of the Supreme Court building (complete with a surrounding railing), the plaza — like the building from which it extends, and to which it leads — is a non-public forum,” the court of appeals said.
The law at issue in the case also is aimed at protecting the interior of the Court’s building from protests and other demonstrations. That use of the law was not at issue in Hodge’s challenge, and that use has been applied several times in recent years as individuals have staged sometimes noisy protests by rising to make statements or protests during the Court’s oral arguments.
The case was appealed to the D.C. Circuit not by the Court itself, but by its marshal, Pamela Talkin, along with the federal prosecutor whose task it is to bring charges against those who violate the law. The Supreme Court will have no comment on the new ruling, according to its public information officer, Kathleen L. Arberg.
The decision was written by Circuit Judge Sri Srinivasan and was joined by Circuit Judge Karen LeCraft Henderson and Senior Circuit Judge Stephen F. Williams.
