D.C. Court Upholds Arrest of Protesters at Supreme Court

The District of Columbia's highest court today unanimously upheld the conviction of six protesters who were arrested in January 2007 on the steps of the U.S. Supreme Court for unfurling a 30-foot banner that said, "STOP EXECUTIONS!"

The six protesters who challenged the prosecution had unfurled the banner while they were waiting in line the morning of Jan. 17, 2007, to attend an argument session in the high court. The demonstration marked the 30-year anniversary of the execution of Gary Gilmore, the first person put to death since the reinstatement of capital punishment in 1976.

The demonstrators, according to court records, chanted: “What do we want? Abolition. When do we want it? Now.” The chief of the Supreme Court police issued two verbal warnings that the protesters were violating a law that prohibits parades and banner displays in the Supreme Court and on the Court’s grounds, according to court records. A Superior Court judge found the protesters guilty at a non-jury trial.

In the D.C. Court of Appeals, a court-appointed lawyer argued the arrest of the protesters violated the First Amendment expression right because the authorities did not tell the demonstrators about an alternative location for the group to carry and display the banner.

A three-judge appellate panel—Chief Judge Eric Washington, Judge Inez Smith Reid and Senior Judge John Terry—today unanimously affirmed the convictions. The judges said in their ruling that the Supreme Court plaza is a “non-public forum for First Amendment purposes.” The court's opinion is here.

The Supreme Court itself has ruled that the prohibition on processions that applies to the plaza in front of the high court does not apply to the sidewalk adjacent to it, the appellate judges noted in their opinion.

The appellate judges said there is no case law supporting the argument that the authorities need to inform protesters about an alternative location to demonstrate. “To the contrary, controlling precedent—and common sense—make clear that such a warning is not required,” the D.C. Court of Appeals said.

The panel judges said Supreme Court police gave the protesters “ample opportunity to move to the sidewalk, or any other place where they might have chosen to voice their concerns legally, by issuing multiple warnings to them over a period of several minutes before any arrests were made.”

The lawyer for the protesters, Mark Goldstone, a solo practitioner in Washington, argued the arrests were unlawful based on the language of the statute itself. The statute prohibits banners in the Supreme Court “building and grounds.”

Goldstone argued the conjunction “and” means the protesters could only be arrested for displaying a banner both in the court and on the court grounds. An earlier version of the statute include the word “or.”

The appeals court said a review of legislative history showed no intent to change the substance or scope of the statute from its earlier version.

More photos from the protest after the jump.

Photos by National Law Journal photographer Diego M. Radzinschi

Comments

[Sebastian Graber, Esq.]

I am the attorney who argued U.S. v. Grace, the Supreme Court case which held that demonstrations on the sidewalk surrounding the Court could not be prohibited by the statute because the sidewalk is a traditional public forum.
That was the key to victory in Grace. Every attempt after Grace to argue that demonstrations on the steps or plaza should be protected under the First Amendment have failed because these areas are considered "non-public forums."
The key to broadening protection to the steps or plaza is to produce evidence of unequal enforcement, e.g., people / tourists are allowed to wear T-shirts or buttons with political messages. That might demonstrate "content based" discrimination. But the courts do not seem willing to expand the "public forum" area of the Court beyond the Sidewalk. Because the sidewalk is not very wide, it would be better to allow demonstrations at least on the first plaza level. We shall see.
Good luck to all who contine to press the boundaries of First Amendment expression!

[Steve]

Thank you for this witness, Jack and everyone!

[John]

Contrary to popular belief, Corporations do not have, nor have they ever had, First Amendment Rights. Only natural persons have rights. And contrary to the posting that Corporations reserve their rights, they still have no rights. That is only an act taken as the result of some attorney or attorneys telling their client(s) that a corporation can reserve its rights, it can't.
Further, the class known as subjects according to the Common Law of England, as subjects in America have no first, second, fourth, ninth and tenth amendment rights. That is only reserved for the people not the subjects.

[Paul Stewart]

What is saddest to me is that Corporations now have greater First Amendment rights and protection than individual citizens. We often hear about the Founder's intent. I do not think this was it!

[Jack Payden-Travers]

As the protestor being dragged off by the police in the above photos, I should like to add to the story. Two of us had prepared to do a pro se appeal in front of the DC Court of Appeals on behalf of all six. Originally we were granted a 30 minute argumentation on the docket. However several days before our scheduled hearing when the clerk realized the appeal was to be argued by the defendants and not our court appointed counsel, Mark Goldstone, the right to an oral hearing was rescinded and only the briefs were considered. So much for Free Speech and the right to defend oneself.

[Arline Jolles Lotman, Esq]

Bad decision but can it be reviewed by 9 Justices without questioning bias?