The Supreme Court To America: Don’t Protest Me, Bro!
Funny thing about the First Amendment’s speech clause: For something that’s relatively straightforward – “Congress shall make no law … abridging the freedom of speech” – it’s generated endless controversy and misunderstanding.
Earlier this week, U.S. District Judge Beryl A. Howell struck down a federal statute (40 U.S.C. § 6135, if you’re scoring at home), that provides:
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.
Judge Howell’s ruling in the case captioned Harold H. Hodge, Jr. v. Pamela Talkin, et al., No. 12-00104 (U.S. Dist. Ct. D. DC June 11, 2013) (.pdf format), found that “the absolute prohibition on expressive activity in the statute is unreasonable, substantially overbroad, and irreconcilable with the First Amendment,” and, therefore, “the statute [is] unconstitutional and void as applied to the Supreme Court plaza.” Slip op. at 67.
Howell’s ruling (PDF) meant, for the first time in more than half a century, protesters would be allowed on the Supreme Court’s plaza instead of being relegated to the sidewalk where they typically gather.
Or it would have, that is, if the Supreme Court didn’t nip it in the bud almost immediately. According to The Associated Press, a rule the court issued Thursday bans “picketing, speech-making, marching or vigils” on the Supreme Court’s plaza, while explicitly making way for “casual use” by visitors.
The Court’s new rule, known as Regulation Seven of the Court’s Building Regulations, states:
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.
So, that tells you what the Supreme Court thinks of Judge Howell’s ruling, I suppose. Which is to say: They’re not impressed.
But it raises some important questions about the extent to which speech is regulated in America. We like to think that all expressive conduct, especially that which is directed to government officials and institutions, is absolutely protected in all circumstances. A common refrain during the Occupy protests was: The First Amendment is our permit!
Which is nice turn of a phrase, but, for better or worse, it’s pretty meaningless from a legal point of view.
For example, in Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984), the Supreme Court upheld the National Park Service’s decision to grant permits for the creation of a mock tent-city in the “National Monument-core parks” in Washington (Lafayette Park and the Mall), but to deny protesters the right actually to camp overnight in the tent-city. Writing for the Court, Justice Byron “Whizzer” White (the only Heisman Trophy candidate ever to sit on the Court, as I like to point out), explained:
We need not differ with the view of the Court of Appeals that overnight sleeping in connection with the demonstration is expressive conduct protected to some extent by the First Amendment. We assume for present purposes, but do not decide, that such is the case, … but this assumption only begins the inquiry. Expression, whether oral or written or symbolized by conduct, is subject to reasonable time, place, or manner restrictions. We have often noted that restrictions of this kind are valid provided that they are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.
468 U.S. at 293 (citations and footnote omitted).
The Court upheld the Park Service’s permitting decision, because the underlying regulation which prohibited overnight camping in the “National Monument-core parks” was “narrowly focuse[d] on the Government’s substantial interest in maintaining the parks in the heart of our Capital in an attractive and intact condition, readily available to the millions of people who wish to see and enjoy them by their presence.” Id. at 296.
So, despite Judge Howell’s ruling in the Hodge case, the same rationale seems to apply to the Supreme Court’s rule prohibiting “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” on its grounds. The rule is content-neutral (meaning the court isn’t permitting some speech and prohibiting others); and, like the Park Service’s rule in Clark, is “narrowly tailored to serve a significant government interest” – i.e., as the rule states, “to maintain suitable order and decorum within the Supreme Court building and grounds.”
More to the point, however well-reasoned Judge Howell’s opinion may be, it’s the Supreme Court that gets to decide the constitutionality of rules prohibiting or limiting protests on the Supreme Court’s grounds. If I had to take a wild guess, I’d say they’re probably not going to find their own rule to be unconstitutional. The fox guarding the hen house and all that (albeit with some legal precedent in this case).
Just remember, kids, they’re not final because they’re right, they’re right because they’re final.
David von Ebers
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