Protest Ban on SCOTUS Plaza OK'd by D.C. Cir.

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By Kimberly Robinson

Aug. 28 — A decades-old law prohibiting protests on the U.S. Supreme Court plaza doesn't run afoul of the First Amendment, the U.S. Court of Appeals for the District of Columbia Circuit held Aug. 28.

The ban, at 40 U.S.C. § 6135, makes it illegal 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.”

Section 6135 serves the “government’s long-recognized interests in preserving decorum in the area of a courthouse and in assuring the appearance (and actuality) of a judiciary uninfluenced by public opinion and pressure,” the court said.

The court noted that a similar law prohibiting expressive activity on the grounds of the nearby U.S. Capitol building was found unconstitutional in Chief of the Capitol Police v. Jeannette Rankin Brigade, 409 U.S. 972 (1972).

Politicians “ ‘are expected to be appropriately responsive to the preferences' of the public' ”—“and therefore are expected to accommodate public expression on the grounds of the legislative chamber”—but “the ‘same is not true of judges,' ” the court said, citing the Supreme Court's own recent decision in Williams-Yulee v. Fla. Bar, 83 U.S.L.W. 4269, 2015 BL 123300 (U.S. April 29, 2015).

Front Porch, Not Sidewalk

The plaza restrictions can't be extended to the sidewalk surrounding the Supreme Court, according to United States v. Grace, 461 U.S. 171 (1983).

In Grace, it was “of pivotal significance that there was ‘nothing to indicate to the public that these sidewalks are part of the Supreme Court grounds,' ” or “that ‘they have entered some special type of enclave,' ” the D.C. Circuit explained.

“The opposite is very much true of the Court's plaza,” which the D.C. Circuit described as “the elevated front porch of the Supreme Court building.”

“In marked contrast to the perimeter sidewalks considered in Grace, the Supreme Court plaza distinctively ‘indicate[s] to the public'—by its materials, design, and demarcation from the surrounding area—that it is very much a ‘part of the Supreme Court grounds,' ” Judge Srikanth Srinivasan wrote for the court.

Srinivasan would know. He argued about two dozen cases at the high court while working for the Solicitor General's office, prior to his 2013 appointment to the D.C. Circuit.

Ferguson Protest an Exception

The plaza is a “nonpublic forum” where “the government enjoys significantly greater latitude to regulate expressive activity” than on the public sidewalk, the court said.

It doesn't matter that “the Supreme Court Police in certain situations might opt to allow demonstrators onto the plaza for a brief period,” the court said.

It pointed to a 15-minute episode where about 200 demonstrators made their way onto the plaza to protest a Missouri grand jury's decision not to indict a Ferguson, Mo., police officer who shot a teenager.

“The fact that the protesters made their way onto the plaza for a quarter of an hour did not somehow transform the plaza into a public forum for all time,” the court said.

Pat on Back Also Banned

The restrictions are constitutional so long as they are “reasonable,” according to the “relaxed standards” applicable to nonpublic forums, the court said.

That low bar was met here because the protest ban is necessary to give the appearance of an impartial court.

“This case illustrates the point,” the court said.

Harold Hodge Jr. “tells us he wants to use the plaza to send a ‘political message' ” directed at the Supreme Court “explaining how its decisions ‘have allowed police misconduct and discrimination against racial minorities to continue,' ” the court said.

“Reserving the plaza as a demonstration-free zone counters the sense that it is appropriate to appeal to the Court through means other than ‘briefs and oral argument,' ” it said.

“Of course, this case would be decidedly different” if the law “were geared to shield the Supreme Court from having to face criticism just outside its own front door,” the court said. “A law that discriminated on the basis of viewpoint in that way would plainly infringe the First Amendment even in a nonpublic forum.”

But the law here applies to all protests—“even those seeking to give the Court a pat on the back, not a slap in the face,” the court said.

Judges Karen LeCraft Henderson and Stephen F. Williams joined the opinion.

Jeffrey Louis Light represented the plaintiff. The Department of Justice represented the defendants.

To contact the reporter on this story: Kimberly Robinson in Washington at krobinson@bna.com

To contact the editor responsible for this story: Jeffrey D. Koelemay at jkoelemay@bna.com

Full text at http://www.bloomberglaw.com/public/document/HAROLD_H_HODGE_JR_APPELLEE_v_PAMELA_TALKIN_MARSHAL_OF_THE_UNITED_.