Protesters argue for right to demonstrate on steps of U.S. Supreme Court

Friday, January 8, 1999

“Where the marble begins, free speech ends.” That was what an unnamed U.S. Supreme Court police officer told anti-death penalty protesters two years ago when they were about to be arrested for demonstrating on Supreme Court grounds.

An appeals court in Washington, D.C., which handles local matters, heard arguments yesterday over whether the 50-year-old law that triggered those arrests violates the First Amendment.

The statute makes it illegal to “parade, stand, or move in processions in the Supreme Court building and grounds … or to display therein any flag, banner or device designed to bring into public notice any party, organization or movement.” The law carries a potential penalty of up to 60 days in jail and a $100 fine.

Eighteen demonstrators were arrested under the law on the steps of the court after they unfurled a 30-foot long banner proclaiming “Stop Executions Now” on Jan. 17, 1997, the 20th anniversary of the resumption of capital punishment.

First Amendment advocates have long attacked the law as an ironic restriction on free speech, shutting off from protests the very court that has done so much to expand the expressive rights of protesters everywhere else. Demonstrations and public displays are common outside the U.S. Capitol, which is just across the street from the Supreme Court.

But the court and the government have justified the law, arguing the Supreme Court is different — more dignified and insulated from public pressure.

“The public must understand that the court is not subject to influence outside its doors,” Justice Department lawyer David Goodhand told a panel of the District of Columbia Court of Appeals yesterday.

But a lawyer for the demonstrators argued that the court’s enforcement of the law was selective and arbitrary, amounting to “viewpoint discrimination” which violated the First Amendment.

Attorney Nina Kraut noted that news conferences held by lawyers arguing cases before the court occur frequently on the court’s plaza. She said these conferences were aimed at influencing the court as much as any demonstration was.

“My clients were much more dignified than any press conference,” Kraut told the panel. In addition to news conferences, with the court’s permission, documentaries and movies have been filmed on the court’s marble plaza, in the same spot where the demonstrators were arrested.

If those activities are allowed, Kraut argued, the court has effectively created a public forum on its front plaza where selectivity cannot be permitted.

But the Supreme Court has qualified its public forum doctrine in recent years, ruling that just because some expressive activities are permitted in a public place, that does not mean all expressions have to be allowed. In its ruling last year in Arkansas Educational Television Commission v. Forbes, for example, the court found that a campaign debate sponsored by a public television station is a nonpublic forum in which the sponsor, even though it is a government agency, can be selective in deciding which candidates to — so long as its criteria are “viewpoint neutral.”

Several of the judges yesterday invoked the Forbes case in questioning Kraut, who insisted that the Supreme Court plaza is a pure public forum not covered by the ruling. “I don’t know how this could not be a public forum,” she said.

Goodhand argued that the court’s policies are consistent with the Forbes ruling because they are neutrally applied. “There is no censoring that goes on,” said Goodhand.

In the case argued yesterday, a lower court had upheld the law as a regulation that furthered the legitimate goal of “sheltering and insulating the judiciary from the appearance of political influence.” That ruling set the stage for the appeal by seven of the 18 demonstrators arrested. The appeals court panel took the case under advisement yesterday.

Since the 1997 demonstration, several other protesters have been arrested under the same law. Last October, 19 demonstrators deliberately moved onto the plaza to get themselves arrested to protest the court’s low minority hiring record for law clerks.

Last May, the Rev. Patrick Mahoney of the Christian Defense Coalition was arrested for praying on the court’s steps. His trial is set for later this month. Kraut, who is defending Mahoney as well, says she has subpoenaed Supreme Court Chief Justice William Rehnquist to testify about the court’s policies on demonstrations. The Supreme Court has moved to quash the subpoena.

Tony Mauro covers the Supreme Court for USA TODAY and is a legal correspondent for the First Amendment Center.