Preacher wins case against police who arrested him for praying at Capitol

Wednesday, April 5, 2000

A federal judge has ruled that police acted unlawfully when they told an
evangelical preacher that he could not lead quiet prayers inside the U.S.
Capitol because doing so would amount to a demonstration.

In late 1996, the Rev. Pierre Bynum, associate pastor of Waldorf Christian
Assembly in Maryland, led a “prayer tour” of the U.S. Capitol. Once inside
Statuary Hall, Bynum and his group were told by a Capitol Police officer that
they could not pray inside Capitol buildings, because the federal police
considered praying to be a form of demonstration.

Unlike the grounds surrounding the Capitol, which continue to be the site of
demonstrations, there has been a ban on demonstrations inside the Capitol
buildings since 1946. Congress passed a law in 1946 that read: “It shall be
unlawful for any person or group of persons willfully and knowingly to parade,
demonstrate, or picket within any of the Capitol Buildings.”

Following the incident, the American Center for Law and Justice, a socially
conservative international law firm, wrote to complain on Bynum’s behalf to the
U.S. Capitol Police about Bynum’s treatment. In May 1997, the board’s general
counsel replied that the Capitol Police believed that prayer was prohibited
inside the Capitol.

“Tours would be a permissible activity provided that they are not a
demonstration that is conducted in such a manner as to have the purpose,
propensity or effect of drawing a crowd of onlookers or involves expressive
conduct that conveys a message supporting or opposing a point of view,” John T.
Caulfield, the Capitol Police Board’s general counsel, wrote to the ACLJ.

The ACLJ then sued the U.S. Capitol Police Board and Capitol Police in a
District of Columbia federal court arguing that Bynum’s free-speech and
religious-liberty rights had been violated by the federal officers’ actions.

In an opinion made public on April 3, U.S. District Judge Paul L. Friedman
said Congress’ ban on demonstrations inside Capitol buildings was
constitutional, but the ban on prayer or other forms of expressive conduct was

Friedman ordered the Capitol Police to stop “enforcing, threatening to
enforce or attempting to enforce the ban on prayer against the Reverend Pierre
Bynum when he prays as part of the privately conducted prayer tours of the
United States Capitol that he leads.” Friedman also enjoined the Capitol Police
from “enforcing any restrictions on First Amendment conduct within the United
States Capitol on the basis that such conduct is ‘expressive conduct that
conveys a message supporting or opposing a point of view or has the … propensity
to attract a crowd of onlookers.’ “

In his 17-page opinion, Friedman acknowledged that the Capitol buildings are
not a traditional public forum, such as public streets and parks. This is so
because “the expression of ideas inside the Capitol may be regulated in order to
permit Congress peaceably to carry out its lawmaking responsibilities and to
permit citizens to bring their concerns to their legislators,” he said.

Friedman noted that government could regulate First Amendment activity in
nonpublic forums “as long as the restrictions are ‘viewpoint neutral’ and
‘reasonable in light of the purpose served by the forum.’ ”

In Bynum’s situation, however, Friedman said the Capitol Police’s regulations
on demonstrations within the buildings were vague, overbroad and therefore in
violation of the First Amendment.

“Congress’ statutory prohibition against demonstrating appears aimed at
controlling only such conduct that would disrupt the orderly business of
Congress — not activities such as quiet praying, accompanied by bowed heads and
folded hands,” Friedman wrote. “The police could properly use the statutory
standards to control, for example, groups of people praying in a way that
impeded or obstructed passageways, hearings or meetings, involved loud,
threatening or abusive language or physical violence, or was otherwise
disorderly or disruptive. Plaintiff’s activity was none of these.”

Friedman said the Police Board had expanded Congress’ ban on demonstrations
in Capitol buildings. The expanded regulation could not withstand constitutional
scrutiny, the judge wrote.

“While there certainly are types of expressive acts that rise to the level of
a demonstration, any regulation that allows a police officer the unfettered
discretion to restrict behavior merely because it ‘conveys a message’ or because
it has a ‘propensity to attract a crowd of onlookers’ cannot survive a
constitutional challenge,” Friedman wrote.

Jim Henderson, a senior ACLJ attorney based in Washington, lauded Friedman
for releasing a “completely defensible” ruling.

“The U.S. Capitol is a symbol of freedom and free speech,” Henderson said.
“We are grateful the court found that prayer is protected speech — and not a
form of demonstration.”

Assistant U.S. Attorney Rudolph Contreras said his office has 60 days before
an appeal has to be filed and that no decision to do so has been