We've all seen the odd protesters at the Supreme Court building. They stand on the sidewalk, often holding racist, homophobic, or anti-Semitic signs, and we politely ignore them, as they are so far from the building that it is easy to rush past them on the way to watch Justice Thomas fall asleep during oral arguments.
Conveniently ignoring the protesters is going to become a lot more difficult now, however, as D.C. District Court Judge Beryl A. Howell has just invalidated the law that restricts protests on the plaza and beyond, reports Reuters.
Harold Hodge Jr. was the protester behind the present case. He was arrested while holding a sign, on the plaza, feet from the sidewalk, that read, "The U.S. Gov. Allows Police To Illegally Murder and Brutalize African Americans And Hispanic People."
Hodge was given multiple warnings and told to depart, but refused to do so. He was then arrested and charged under 40 U.S.C. § 6135, the law at issue in this case. That law states:
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.
Though the case was dismissed via a plea deal (Hodge agreed to stay away from SCOTUS for six months), he wishes to return and resume exercising his First Amendment rights.
The government argued that the law was necessary to further two significant interests: unimpeded access to visitors of the Court and the appearance of a Court unswayed by obnoxious protesters.
But Judge Howell disagreed. She nixed the law after finding that it was overbroad and "could apply to, and provide criminal penalties for, any group parading or assembling for any conceivable purpose, even, for example, the familiar line of preschool students from federal agency daycare centers, holding hands with chaperones, parading on the plaza on their first field trip to the Supreme Court."
This isn't the first time such a law has been challenged in court. The SCOTUS no-protest law was modeled after a similar provision that barred protests on the grounds of the U.S. Capitol. That law was overturned in 1972.
A few years later, the D.C. Circuit tossed out this exact SCOTUS protest ban, calling it "wildly repugnant to the First Amendment." SCOTUS then narrowed the ruling and allowed the present-day sidewalk protests. The marble plaza, however, remained off-limits.
Despite SCOTUS' prior reluctance to strike the law in its entirety, and their narrowing of the law's reach, Judge Howell ruled that she could not do the same, and the law must fall in its entirety. Kinda. As Lyle Denniston of SCOTUSblog points out, her ruling calls it a "facial" challenge, announces that the entire law is dead, and in the final page of the lengthy opinion, narrows it to the plaza only. Protests in the building itself remain off-limits. One wonders how that contradiction will be treated by the appeals courts.
- Hodge v. Talkin (Opinion via Rutherford Institute)
- Victory: Declaring Ban 'Repugnant' to Constitution, Federal Court Affirms First Amdt. Rights of Protester Arrested in Front of U.S. Supreme Court (Rutherford Institute)
- With Term Coming to a Close, What Does SCOTUS Have Left? (FindLaw's U.S. Supreme Court Blog)