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You Can’t Protest at the Supreme Court

The Rutherford Institute has filed a federal lawsuit on behalf of a man who was arrested for protesting on the plaza in front of the Supreme Court. All the man did, according to the complaint (and there’s video to support this), is wear a sandwich board with a message on it protesting mistreatment of minorities by the government.

Hodge was charged with violating 40 U.S.C. § 6135, an incredibly broad and clearly unconstitutional regulation prohibiting pretty much any form of protest on the grounds of the Supreme Court, no matter how peaceful it may be.

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.

The U.S. Attorney’s office was kind enough to give him an agreement that they would drop the charges if he stayed away from the Supreme Court building and grounds for 6 months. He did so, and the charges were dropped. But he is now challenging the law that prevents him from engaging in peaceful, non-disruptive protest. The complaint argues:

The provisions of 40 U.S.C. § 6135, by making it 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” is an unconstitutional
restriction on speech, both on its face and as applied to the conduct of Hodge, in violation of the First Amendment to the United States Constitution.

It’s hard to imagine a more flagrant and obvious violation of the First Amendment.

Comments

  1. The Lorax says

    “Congress shall make no law … abridging the … right of the people peaceably to assemble, and to petition the Government for a redress of grievances”

    “It is unlawful to [assemble] in the Supreme Court Building or grounds, …”

    Heavily paraphrased yes, but I don’t think anyone is going to shake their fists at me and accuse me of taking these things out of context.

  2. tubi says

    The complaint mentions speech, but isn’t this also a violation of those other First Amendment rights that get shunted aside, the right to petition for redress and the right to peaceably assemble? An assembly can be just one person, right?

  3. eric says

    This makes no sense; people protest at that building all the time. Every time there is a big media case, in fact.

    Hmmm, maybe they stay across the street and this guy didn’t?

  4. D. C. Sessions says

    An assembly can be just one person, right?

    If you make it “more than one person” then you can just arrest them all individually.

  5. Abby Normal says

    Seems pretty clear it’s unconstitutional to me. As this is a content neutral restriction of the First Amendment the question becomes, is it a proper application of Time, Place & Manner restriction. Generally that’s a four prong test:

    1. Does the regulation serve an important governmental interest?
    2. Is the government interest served by the regulation unrelated to the suppression of a particular message?
    3. Is the regulation narrowly tailored to serve the government’s interest?
    4. Does the regulation leave open ample alternative means for communicating messages?

    I’m having trouble coming up with any argument that might pass that test. But if this did make it to the Supreme Court I’d be almost hard pressed to imagine the Justices voting to allow protests at their workplace. I’d love to see the opinions on the case whichever way the decision lands.

  6. hoku says

    I think this is going to stand here. He’s going to lose because his claim is moot. Now if he were to protest again, and get busted again, then he’d have something.

  7. abb3w says

    @11, Abby Normal:

    I’m having trouble coming up with any argument that might pass that test.

    Something might be made based on the principle of the insulation of the judiciary from politics. The job of the judiciary is not so much to listen to the people, but to listen to the law and the evidence. Protest is in the arena of politics, and should correctly be directed to the executive branch (to change enforcement) or legislative branch (to change what the law is, or to impeach the judge for not listening to the law).

    Add in the practical problem that allowing protests would almost certainly mean they’d become large, and thus disrupt the function of the court, and it could meet #1. It’s content-neutral, so #2 passes. If it’s limited to court buildings, arguably #3. And if it’s explicitly possible to protest Congress and the President, and to file an amicus brief in any case where the political interest is materially affected, it would seem to be in #4. (It does not seem too egregious constraint for the judiciary to require all petition for redress be formally submitted in written form.)

    That said, the plain language makes it an uphill fight. However, I suspect that the judges might be able to justify it.

  8. juice says

    I guess the question is where is the free speech zone? Can he protest inside the supreme court chambers during a hearing? Right outside the door? In the hallway? On the front steps? On the plaza? On the sidewalk? Across the street?

    There are all sorts of time and place restrictions on speech, etc. What’s so different about this one?

  9. josephmccauley says

    You can’t have lunch there either. In 1972 my buddy and I went down to visit a friend at GW. We were doing the museums on a nice day, lots of people in a good mood. Lunchtime came and all the eating places were crowded, so we went into the Supreme Court building and found a quiet cafeteria. We were hairy scruffy college students so we stood out in that crowd. Before we could get a tray and get in line we were escorted out by security. They were very nice, but firm.

  10. Abby Normal says

    Abb3w, nicely laid out. Were I a judge I’d reject point 1 and laugh outright at 3. But I still can’t imagine a better scenario.

  11. eric says

    Abby Normal:

    I’m having trouble coming up with any argument that might pass that test.

    Well, AFAIK there’s only one public entrance (the main one), so I suppose they could claim they want to prevent people from blocking it. IIRC, members of the public who want to watch oral arguments have to line up in the entranceway/on the stairway, so maybe this is about not harassing them or getting in the way of the line.

    But that’s a reach; I basically have no good reason for this.

    Abb3w

    Something might be made based on the principle of the insulation of the judiciary from politics. The job of the judiciary is not so much to listen to the people, but to listen to the law and the evidence.

    No, that CANT be it, because the public is allowed to (and does) hear oral arguments.

    It’s one of DC’s lesser known tourist attractions; if the court is hearing oral arguments, just show up in the morning, and if you’re in line in time, you can watch them do their thing.

  12. sandy says

    I think it hinges on the plaza part. I work nearby and pass the Supreme Court every day and there are protesters. The police make them stay off the steps and raised “plaza” in front of the building. Some of the religious anti-abortion protesters stand right at the edge of the steps to protest. After closing time, tourists aren’t allowed on the plaza either. The guy in the video was not on the stairs or upper flat part. My guess is that they will argue security concerns.

  13. abb3w says

    @17, eric

    No, that CANT be it, because the public is allowed to (and does) hear oral arguments.

    Not allowing the public to hear argument would be more the other way around. It’s fine for the decisions of the judiciary to influence subsequent political discussion. Current judicial decisions about past events are expected to shape future political decisions, but current politics are not supposed to affect how past events are thereafter adjudicated — the basic prohibition of post-facto laws being the epitome.

    I’d also note, while the public can hear oral arguments, they mayn’t speak up any more than members of the public listening to debates in congress. (Possibly less, depending on how an amicus brief is compared to writing to your congresscritters.)

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