Speech Limits in Supreme Court Plaza Upheld

(CN) - The D.C. Circuit upheld a 66-year-old law prohibiting the display of a banner or placard in the plaza in front of the U.S. Supreme Court.

Harold Hodge Jr. had challenged the law after he was charged under it in 2011 when he visited the plaza to "raise public awareness about the adverse treatment of minorities by law enforcement."

Then a student at the College of Southern Maryland, Hodge said he stood about 100 feet from the court's main entrance, wearing a sign measuring 3-feet long by 2-feet wide that read: "The U.S. Gov. Allows Police to Illegally Murder and Brutalize African Americans And Hispanic People."

A court officer warned Hodge three times and then arrested the young man for violating Section 6135 of 40 U.S.C., which prohibits citizens from parading, standing or moving in processions in the Supreme Court building or grounds, or displaying a flag, banner, or other device designed to draw public attention to a party, organization, or movement. Those two sections of the 1949 law are known as the assemblages and display clauses.

Though D.C. prosecutors agreed to drop the charge against Hodge if he stayed away from the Supreme Court for six months, Hodge filed suit because he said Section 6135 was unconstitutional and deters him from returning to the plaza for additional picketing.

Hodge named a U.S. Supreme Court marshal and a U.S. attorney as defendants in their official capacities. They moved to dismiss or for summary judgment.

U.S. District Judge Beryl Howell instead granted Hodge summary judgment in a blistering 68-page opinion that slammed Section 6135 as a violation of the First Amendment.

But D.C. Circuit reversed Howell's 2013 decision Friday, finding that the government may limit expressive conduct in the "symbolic entry way" to the nation's highest court.

"The Supreme Court plaza distinctively 'indicate[s] to the public' that it is very much a 'part of the Supreme Court grounds.' The plaza has been described as the opening stage of 'a carefully choreographed, climbing path that ultimately ends at the courtroom itself,'" Judge Sri Srinivasan wrote for a three-judge panel. "For that reason, the court's plaza - unlike the surrounding public sidewalks, but like the courthouse it fronts - is a 'nonpublic forum,' an area not traditionally kept open for expressive activity by the public."

Srinivasan emphasized that the government may impose reasonable restrictions on citizens' First Amendment rights, as long as the restriction is content-neutral and serves a legitimate government interest.

Both the assemblages clause and the display clause "reasonably relate to 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," Srinivasan said.

In support of its decision, the court cited the Supreme Court's April decision in Williams-Yulee v. Fla. Bar, which lets states bar judicial candidates from personally soliciting campaign funds.

This ruling reinforced the government's "considerable latitude" to preserve the appearance of an independent judiciary by restricting speech, the panel found.

It is also reasonable to forbid the display of signs on the plaza, given "the availability of an alternative site for expressive activity in the immediate vicinity: the sidewalk area directly in front of the court's plaza," according to the ruling.

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