Appellate court upholds law driving Supreme Court demonstrators to its sidewalk

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Aug 28, 2015 Appellate court upholds law driving Supreme Court demonstrators to its sidewalk

The United States Supreme Court sits on a big plaza where litigants and their lawyers often gather after oral argument.

However, if one wants to hand out leaflets or otherwise express their grievances outside of oral argument before the justices, they will be relegated to the sidewalk, based on existing law and today’s federal appellate approval of that law.

Ruling 3-0, a panel of the United States Court of Appeals for the District of Columbia Circuit determined that the Supreme Court grounds are a non-public forum and that, therefore, leafleters and demonstrators can be relegated to the sidewalk around the Supreme Court. Hodge v. Talkin, ___ F.3d ___ (D.C. Cir., Aug. 28, 2015).

I have not read this lengthy Hodge opinion in enough depth to determine what Hodge v. Talkin means for demonstrators who want to demonstrate at government-owned property when no adjoining sidewalk exists or where demonstrating on the sidewalk will invite police telling the demonstrators to move along so that they do not unduly interfere with pedestrians.

Yes, First Amendment jurisprudence over demonstrators’ rights includes a determination whether the demonstration location is a public forum, quasi-public forum, or non-public forum. However, if the Supreme Court plaza is a non-public forum that permits banning demonstrations, that calls into question the wisdom of the curren t public forum-demonstration jurisprudence.

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