Jun 17, 2013 What happens when SCOTUS reviews its own First Amendment-violative limits on free expression inside and outside its building?
What happens if and when SCOTUS reviews its own First Amendment-violative limits on free expression inside and outside its building?
On June 11, 2013, U.S. District Court Judge Beryl A. Howell (D.D.C.), on First Amendment grounds, struck down a statute used to arrest a man “wearing a sign approximately 3 feet long and 2 feet wide’ that read: ‘The U.S. Gov. Allows Police To Illegally Murder and Brutalize African Americans And Hispanic People.'” Amended Complaint of Harold Hodge, quoted in injunction order in Hodge v. Talkin, et al., Civ. Act. No. 12-00104 (BAH) (D.D.C. June 11, 213).
Two days later, on June 13, 2013, Supreme Court Chief Justice Roberts approved overly broad limits (see the full text here) on free expression, in violation of the First Amendment, inside the Supreme Court and on its surrounding grounds. The new limit is somewhat — but insufficiently, when it comes to the First Amendment — narrower than the statutory ban that was struck down by Judge. Howell. Either the new regulatory ban was hastily penned, or perhaps it was drafted in advance of the federal injunction in the event one was issued against the statutory ban.
Here is the language of the regulation, called Regulation Seven (thanks to Lyle Denniston for posting the regulation, which I found nowhere in Westlaw, and only in one other Google result):
This regulation is issued under the authority of 40 U.S.C. § 6102 to protect the Supreme Court building and grounds, and persons and property thereon, and to maintain suitable order and decorum within the Supreme Court building and grounds. Any person who fails to comply with this regulation may be subject to a fine and/or imprisonment pursuant to 40 U.S.C. § 6137. This regulation does not apply on the perimeter sidewalks on the Supreme Court grounds. The Supreme Court may also make exceptions to this regulation for activities related to its official functions.
No person shall engage in a demonstration within the Supreme Court building and grounds. The term “demonstration” includes demonstrations, picketing, speechmaking, marching, holding vigils or religious services and all other like forms of conduct that involve the communication or expression of views or grievances, engaged in by one or more persons, the conduct of which is reasonably likely to draw a crowd or onlookers. The term does not include casual use by visitors or tourists that is not reasonably likely to attract a crowd or onlookers.
In other words, the foregoing demonstration ban is overbroad in the first place, in violation of the First Amendment, and fails to save itself from violating the First Amendment, by asserting that the “term [demonstration] does not include casual use by visitors or tourists that is not reasonably likely to attract a crowd or onlookers.” Does that mean that political activist and actor Martin Sheen is more likely to be deemed a demonstrator than others, merely because his mere presence as a celebrity is “likely to attract a crowd or onlookers”? What about the common occurrence of reporters and others swarming around litigants and their lawyers in high-profile Supreme Court cases, after they approach the court’s large outdoor grounds after leaving oral argument inside the courthouse? Are they now going to be required to go straight to the adjacent sidewalk without a pause or word before reaching the sidewalk? Won’t they then risk police orders to not block pedestrian traffic on the sidewalk?
Thanks to my brother civil liberties lawyer Mark Goldstone for repeatedly standing up for the First Amendment, and for affirming his readiness to litigate against the above-posted new regulation against demonstrations at the Supreme Court.