By Tony Mauro Contact All Articles The National Law Journal June 12, 2013

Departing from a long line of local court rulings, a federal judge in the District of Columbia on Tuesday struck down the 64-year-old law that prohibits demonstrations and displays on the grounds of the U.S. Supreme Court.

“The absolute prohibition on expressive activity in the statute is unreasonable, substantially overbroad, and irreconcilable with the First Amendment,” wrote U.S. District Judge Beryl Howell in a 68-page ruling issued late Tuesday in the case Hodge v. Talkin.

The law, which has been invoked to arrest individuals ranging from death penalty protestors to kneeling ministers and Princeton University scholar Cornel West, is so broadly worded, Howell found, that it could apply to groups of tourists, court employees, or even a “familiar line of preschool students … holding hands with chaperones, parading on the plaza on their first field trip to the Supreme Court.”

Howell also made short shrift of one of the key arguments that has been made in defense of the law, namely that it is necessary to preserve the image of the court as an institution “not swayed by external influence.”

“It is hard to imagine how tourists assembling on the plaza wearing t-shirts bearing their school’s seal, for example, could possibly create the appearance of a judicial system vulnerable to outside pressure,” Howell wrote. “While there may be a legitimate interest in protecting the decorum of the judiciary, the challenged statute is not a reasonable way to further that interest.”

If the government appeals the decision, Tuesday’s ruling could set the stage for the Supreme Court’s first review of the no-protest law in 30 years.

The decision came in the case of Harold Hodge Jr., a Maryland resident who was arrested on the court’s plaza in January, 2011 for standing on the court’s marble plaza while holding a small sign that read “The U.S. Gov. Allows Police To Illegally Murder and Brutalize African Americans And Hispanic People.” Court police told Hodge three times that he was in violation of 40 U.S.C. 6135 — the law Howell declared unconstitutional — and he refused to depart.

Hodge was charged with violating the law, which states that “it is unlawful to parade, stand, or move in processions or assemblages in the Supreme Court Building or grounds, or to display in the Building and grounds a flag, banner, or device designed or adapted to bring into public notice a party, organization, or movement.”

Later that year, charges were dropped after Hodge agreed to stay away from the court and its grounds for six months.

In January 2012, Hodge filed a suit in the U.S. District Court for the District of Columbia, stating that he wanted to return to the court to engage in “peaceful, non-disruptive political speech and expression.” With the aid of lawyers from the Rutherford Institute, Hodge challenged the constitutionality of the law. The court’s marshal, Pamela Talkin, is the named defendant, along with U.S. Attorney Ronald Machen Jr.

Tuesday night, Jeffrey Light who represented Hodge for the institute, praised the ruling in a statement. “Today’s district court decision striking down the law is well-reasoned and thorough, and relies on solid analysis rather than mere labels to reach its conclusion,” Light said.

In her detailed ruling, Howell reviewed the history of the Supreme Court statute and a similar law that barred demonstrations on the grounds of the nearby U.S. Capitol. That law was struck down on First Amendment grounds by a three-judge panel in 1972 in a ruling that Howell cited at length.

In 1983, the Supreme Court ruled on an earlier version of the law banning displays and assemblages on Supreme Court grounds. In U.S. v. Grace, the court ruled that the law was unconstitutional when applied to demonstrations on the public sidewalks around the court.

But the court sidestepped the broader issue of the constitutionality of the law’s ban on protests on court grounds. As a result, protests are a frequent occurrence on the sidewalk in front of the court, but as one court police officer once put it, “the First Amendment ends” where the sidewalk ends and the marble plaza begins.

Ever since the Grace decision, challenges to the law brought by those arrested on the plaza have been turned away by the local District of Columbia Court of Appeals.

But each time, Howell noted, that court has placed a “limiting construction” on the law to keep it within constitutional limits. That construction of the law confined the purpose of the law to protecting court property and personnel and preserving order, decorum, and the image of impartiality. But Howell rejected that narrowing construction, asserting that it was not rooted in the language of the law and amounted to rewriting it.

She also assumed, without deciding, that under First Amendment doctrine, the court grounds could be viewed as a “nonpublic forum” not traditionally used for public assemblies and communication. That designation usually allows restrictions on expression. But Howell said that status was “artificially induced” because of strict enforcement of the law against protests.

She also said “the physical features of the Supreme Court plaza — with its long benches and fountains and wide open space in front of an iconic American building open to the public — suggest a more welcoming invitation to the public and public expression than is suggested by the defendants or the statute.”

In addition, Howell noted that the plaza in front of the court is often the venue for media interviews with advocates involved in Supreme Court cases, and has also been used as the backdrop for movie segments.

But even though the court grounds are assumed to be a nonpublic forum, Howell said, the absolute ban on expression contained in the law is “not reasonable.”

Howell said she “does not find that an interest in allowing ‘unimpeded ingress and egress’ of visitors to the Court is a sufficiently significant interest to justify the absolute prohibition on expressive activity on the plaza enshrined in the two clauses of the statute.”

Local and federal laws that prohibit blocking the entrances to buildings, Howell said, are sufficient to protect the government’s interest in preserving access and decorum.

Tony Mauro can be contacted at tmauro@alm.com. Mike Scarcella, who contributed, can be reached at mscarcella@alm.com.

• Aloysious Farquart
June 12, 2013 11:44 AM
[Howell also made short shrift of one of the key arguments that has been made in defense of the law, namely that it is necessary to preserve the image of the court as an institution "not swayed by external influence."]

Who on earth manages to maintain that false image in their head… and how did Howell discover it…?

Leave a Comment: