The government has a "legitimate interest" in prohibiting demonstrations on Supreme Court grounds, the Justice Department asserted in a brief filed with the U.S. Court of Appeals for the D.C. Circuit on Monday.
In the case Hodge v. Talkin, the department is urging the circuit court to restore the law banning assemblages, processions and displays on court property, 40 U.S.C. 6135. Judge Beryl Howell of the U.S. District Court for the District of Columbia struck down the law in June, declaring it to be "unreasonable, substantially overbroad, and irreconcilable with the First Amendment."
Soon after Howell's decision, the marshal of the court Pamela Talkin issued a new "Regulation Seven" banning protests, this time invoking a different law, 40 U.S.C. 6012, which authorizes her to establish rules to maintain "suitable order and decorum." The new rule has been challenged in separate lawsuit, Miska v. Talkin.
Even though the high court has moved on to a different statute, it is not unusual that the Justice Department would try to resurrect the old one, which has been upheld numerous times in the past by local courts. In the 1983 decision United States v. Grace, the Supreme Court ruled that banning protests on the public sidewalk in front of the court was improper, but it did not decide whether it was constitutional as applied to the court's marble plaza.
In the case before the D.C. Circuit, Maryland resident Harold Hodge Jr. was arrested on the court plaza in 2011 for holding up a sign protesting police brutality against minorities.
The Justice Department brief relies heavily on its traditional argument that the ban is based on the government's interest in preventing the public perception that the justices can be swayed by protests or public opinion.
"Unlike other parts of government, courts do not make decisions by reference to public opinion," the brief states. "Congress may reasonably enact measures to protect both actual and apparent efforts to influence courts through means other than the orderly presentation of briefing and argument."
Jeffrey Light, a D.C. lawyer representing Hodge, said Tuesday the government's argument does not hold water. "Assuming that a protest somehow creates the false impression that the court can be swayed," Light said, "the response in a democracy is more speech, not silencing speech." The court has numerous ways, Light added, to "correct that false impression" through statements of its own.
Light said that, given other pending litigation involving protests at the Supreme Court, it may be years before the issue is finally resolved and protests are allowed on court property -- as they are permitted across the street at the U.S. Capitol, and at other courthouses around the country.