A federal judge in Washington on Wednesday took away part of the Supreme Court’s power to limit picketing, protests, and other demonstrations on the marble plaza at the front of its building on Capitol Hill.  The judge voided all of the sixty-four-year-old law at issue, but then said she meant her ruling to apply only to the plaza even though the law sweeps more broadly than that.   The judge’s opinion is here.

U.S. District Judge Beryl A. Howell ruled in the case of a Maryland community college student who was arrested and prosecuted two years ago for displaying peacefully an anti-racism protest sign on the plaza, and was barred from doing that for a period of time.   Supreme Court spokeswoman Kathleen Arberg said the Court was evaluating the decision.

The nullified law reads this way: “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.”

That law’s constitutionality was challenged by Harold H. Hodge, Jr., a student at the College of Southern Maryland in LaPlata, after he was prosecuted for allegedly violating it on February 4, 2011.   As part of a deal with prosecutors, the charges were dropped, on condition that Hodge stay away from the site for six months.  He filed his lawsuit because he wants to return to the plaza for future protests.  He had been charged with violating both parts of the law — the ban on assemblies, and the ban on displays.

Judge Howell’s opinion contained an internal contradiction.  She stressed that she was striking down the law on its face — that is, as it was written — because she was not free as a judge to give it a more limited meaning.  However, in the last line of the opinion spelling out her reasons, she wrote that she “must find the statute unconstitutional and void as applied to the Supreme Court plaza.”

Ordinarily, if a court strikes down a law facially, it does not address its validity as applied to specific factual settings.  Judge Howell did not seek to reconcile the two.   One possible explanation was that she limited the ruling to the plaza because that is where the student was arrested for staging his protest.

The law as written reaches well beyond the plaza, to all parts of the Court’s property on a very large city block, including all sidewalks and the grounds, and reaches to the interior of the building itself.

In nullifying the anti-protest law, the judge said that she was not leaving the Court without a way to protect its ability to function, because there is a local Washington, D.C., law that makes it a crime to obstruct entrances to buildings after being told by police to move on.   The judge also noted that the Court’s Marshal has the authority to impose some limits on the use of the building and grounds, and has used that authority, for example, to limit the size of signs displayed outside the building.

The Supreme Court itself had previously ruled on the constitutionality of the law governing protests or demonstrations at or near its building.  In a 1983 decision in the case of United States v. Grace, the Justices nullified only the law’s ban on displays, and did so only as to the public sidewalks around the Court building.   The Court refused to strike down the entire law as written.

Judge Howell noted that, since that ruling by the Justices, local courts in Washington have “struggled to save the challenged statute from constitutional challenge.”   They have adopted, she noted, a limiting interpretation of the assembly ban, but not of the display ban.

The judge, quoting a Supreme Court police officer who testified in the case, said that the Court only allows “expressive activity” on the plaza when the media gathers to interview lawyers after an oral argument, or when photographers do commercial or professional filming on the plaza.  Those limitations, however, are not enforced on the sidewalks around the perimeter of the Court’s building, according to that officer.

The case, as the judge boiled it down in her ruling, thus involved picketing, protests, or displays on the Court’s plaza.  That is where Maryland student Hodges staged his protest in early 2011, wearing a sign that read: “The U.S. Gov. Allows Police To Illegally Murder and Brutalize African Americans and Hispanic People.”   Officers told him that violated the law controlling use of the plaza.

In his lawsuit against that law, Hodge made both a facial challenge and a challenge to it as applied to his specific actions that day.  In response, Justice Department lawyers urged Judge Howell to adopt the limiting interpretation that local D.C. courts had given to the law, to save it from constitutional attack.   The judge refused to do so, saying that would be to rewrite the law, which a judge cannot do.

The judge also declined to follow a Justice Department suggestion that she ruled explicitly that the Court’s plaza as a “nonpublic forum” to which the general public does not generally have access, so speakers can be barred from it.  She said it was not necessary to decide whether it was or was not a place to which the public has routine access.   The ban on speech activities under the law, she concluded, “is not reasonable” so it cannot stand at all.

The law, the judge found, is not limited to assuring that the public and lawyers can get into and out of the Court building.  And she ruled that the flat ban at issue was not necessary to preserve the appearance of the Court as a body “not swayed by external influence.”  The government had sought to justify the limitations on use of the plaza for those two reasons.

“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,” she wrote.  As written, she said, it could even ban a student who came to the plaza wearing a T-shirt identifying his or her school.

Besides violating the First Amendment because its sweep is unreasonable, Judge Howell declared it invalid as written because it swept too broadly.   “The Court finds that the overbreadth of the challenged statute is both real and substantial, and that judicial creation of a limiting construction is inappropriate.”

Even though the Supreme Court in the Grace case declined to strike down any part of the law, and instead read it in a more limited way, Judge Howell said that the Justices had not barred her from finding it invalid as too broadly written.

The lawsuit was aimed not at the Court itself, but at the Court’s Marshal, Pamela Talkin, and at the local U.S. attorney who prosecuted Hodges under the law.   One or both of them would be free to appeal the case to the D.C. Circuit Court and, perhaps, to the Supreme Court itself.   Even though the law at issue directly affects the Court itself, that would be no bar to the Court reviewing the case, as it did in the Grace case.

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Recommended Citation: Lyle Denniston, Court plaza ordered open to protests, SCOTUSblog (Jun. 12, 2013, 11:52 AM), http://www.scotusblog.com/2013/06/court-plaza-ordered-open-to-protests/