Thursday, January 14, 2016

Demonstrations at the Supreme Court by Martin Gugino

Re: The supreme Court Plaza - a lovely photo if you like


Demonstrations at the Supreme Court

Executive Summary
The court prohibits demonstrations on the Supreme Court Plaza because of bad optics. Harm to the solemnity, and they give the wrong impression. We argue that the optics are not bad or not always bad, but, on the contrary, the prohibition of all demonstrations on the Plaza is bad optics. It can be viewed as meaning that those in power are more in love with their titles and perquisites than with encouraging the people to oppose policies that they detest.

The statutes prohibiting demonstrations on the Supreme Court Plaza were recently upheld by the Appeals Court, in Hodge v Talkin. The Court’s thinking was that the Plaza is not a public forum, the legal term for places where first amendment protections are the strongest.

Here are links to source documents relevant to this case:
  1. opinion of the Appeals Court:
  2. oral argument from the Appeals court (text and audio)
  3. opinion of the District Court:

The key claims that led to the conclusion that the Plaza is not a public forum were as follows.

Claim 1: The Plaza is part of the Supreme Court

Excerpt from the Appeals Court opinion:  In marked contrast to the perimeter sidewalks considered in Grace, the Supreme Court plaza distinctively “indicate[s] to the public”— by its materials, design, and demarcation from the surrounding area — that it is very much a “part of the Supreme Court grounds.”

Comment:  While the Plaza is clearly part of the Supreme Court property, it is open to the public for coming and going, at all hours, for chatting, for tourism and photos on the staircase, and with benches for sitting. It would be hard to design a more public space. But it is true that the Plaza is the beginning of the court space.

Claim 2 and conclusion: The Plaza is designed to be of a piece with the building, so the rules for behavior are appropriately the same for inside and outside the building.

Excerpt: The plaza has been described as the opening stage of “a carefully choreographed, climbing path that ultimately ends at the courtroom itself.”  For that reason, the Court’s plaza unlike the surrounding public sidewalk, but like the courthouse it fronts — is a “nonpublic forum,” an area not traditionally kept open for expressive activity by the public.

Comment on claim 2: The quote above, from Justice Breyer, referring to choreography, can be seen to indicate a beautiful change and progression rather than a beautiful constant sameness. The quote does not imply, nor does common sense, that the court should set the same standards for demeanor inside and out.

Comment on conclusion: The implication that the court seems to find in the design is that the Plaza is a “nonpublic forum”, which in turn means that the government can advance any narrative (government speech) it wishes on the Plaza without thereby creating a forum, and without thereby creating the need for viewpoint neutrality. Is this conclusion based on design? Or is it closer to a claim of property rights?

The Court says that the Plaza is “unlike the surrounding public sidewalk”. We argue while that the eight steps up mark a transition, they make only a small difference in expected behavior.  While the eight steps up clearly indicate a movement onto the Supreme Court grounds, they do not indicate that any rights need to be surrendered by going up the eight steps. We argue that the original design intent is that the transition at the bronze doors is to be the stronger transition to the solemnity of the court than the eight steps up from the sidewalk to the Plaza, and the statute should reflect that difference.

Claim 3: The government is limiting expressive conduct in order to preserve the property for its intended purpose.
Excerpt: The government retains substantially greater leeway to limit expressive conduct in such an area and to preserve the property for its intended purposes: here, as the actual and symbolic entryway to the nation’s highest court and the judicial business conducted within it.

Comment: The government is indeed limiting expressive conduct, but what is the Plaza’s intended purpose? Is the plaza intended to be an area on which visitors line up, but otherwise be mostly useless? A bucolic diorama, a facade?

The Court is branch of the government, and to assemble to petition the government for redress of grievances is protected by the First Amendment. The court must expect to be approached on occasion by an aggrieved public. What is the government interest in emptying the Plaza by pushing the people onto the sidewalk, and then cautioning them not to impede the pedestrians? Is there a government interest that is served by having the people on the sidewalk rather than on the Plaza? The dignity of the bench is not enhancing by enforcing a gag order to the limit of its abilities.

We also question the claim that the “government retains substantially greater leeway“. We argue that the Court has much less leeway to limit expressive conduct at the Plaza than it might have in other locations where a claim of the right to assemble to petition cannot be raised. The court claims it has leeway to limit expressive conduct, beyond a time place manner limitation, without explaining on what that leeway is founded. To say that it comes from the fact that the Plaza is not a public forum is to beg the question. The question is why is it a “nonpublic forum”? We look for a principled application of neutral principles.

Claim 4: The ban is viewpoint neutral

Excerpt: Neither the Assemblages Clause nor the Display Clause targets specific viewpoints. They ban demonstrations applauding the Court’s actions no less than demonstrations denouncing them.

Comment: True, but why say this? Is one to think the plaza is an imitation forum? Who can speak there? Is this a claim to the “not unfairness” of the rules?

Claims 5 & 6: Decorum and the appearance of undue influence

Excerpt: And both clauses 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.

Comment as to decorum:  This statute precludes the defense that a demonstration was decorous. This is not viewpoint neutral or equal protection, since no procedure is available to apply for a decorous use of the Plaza. The thought seems to be that the Plaza belongs to the court for whatever impressions its management desires to present.  This silence is a communication of a message.

Comment as to appearance of a judiciary uninfluenced by pressure: Was Roosevelt’s “court packing” legislation improper, for the reason that it had the appearance, to some, of pressure? Was it improper for Dick Cheney to invite Justice Scalia to go duck hunting?  

There is a statute 18 USC 1507 which makes improper influence illegal. And we argue that the existence of that statute is sufficient answer to a claim of the appearance of improper influence. In addition, the harm to the court’s reputation from demonstrations is completely speculative. No allegation is required that any passerby have any thought concerning improper influence, or even that there be a passerby. The argument is, even more speculatively, that it is enough that some official think that some passerby might think, sometime in the future, something. This is prior restraint.  

Demonstrations differ from campaign financing. Demonstrations are protected.

What should be done

These statutes should be struck down.

We argue that these statutes, as written initially, are facially invalid because one can see that they are sweepingly overbroad, by reading them, and without knowing the facts of any case or controversy.

The method chosen by these statutes to preserve order and decorum is to place a bell-jar over the property, from curb to curb, by means of the repeated phrase “in the building or grounds”, and to set a uniform standard of demeanor to manifestly differing environments. The sidewalk differs from the plaza, inside differs from outside, and the courtroom on the second floor differs from the Gift Shop and Cafeteria on the first. The statute treats all these areas as the same.
The court has tried to fix this in the past, by removing the sidewalk from the statute. But the management of the court put the sidewalk back in via §6102 and regulation six, and they seem to question the opinion that the sidewalk is a traditional public forum. The court should expect that laws be better written. If the court were made to follow the statutes, the gift shop would be prohibited from selling anything, the lawyers could not orate, the flags would have to be taken down from the flag poles.   

More importantly the court should find that the intent of this statute is as outdated as its  predecessor statute at the capitol was. The people have the right to approach the government with their grievances, of which there are many.

Please note the Building Regulation 7, approved the day after these statutes were struck down,  reads “No person shall engage in a demonstration within the Supreme Court building and grounds.” Can the administration of the court do by regulation, what the Congress can not do by statute? Apparently.  

But as significant is that Regulation 7 includes a definition of the word “demonstration”, a definition copied from 36 CFR 7.96 g.1. Many have been arrested for demonstrating at the White House, especially in the center zone (36 CFR 7.96 g.5.vii sentence 7), where signs are, in effect, prohibited. This trend of encroaching on the First Amendment openly and without pretense  is troubling.  

1 comment:

  1. The defense seems treat this as a Free Speech case, hence the relevance of the public forum analysis. It is more correctly treated as a Petition the Government case, which triggers the expectation that the government will listen, which of course they have little desire to do. Their desire is irrelevant, as it is, of course, expected by the writers of the amendment, is the purpose for the clause.


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