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Strikes Law Banning Demonstrations at Supreme Court
from a long line of local court rulings, a federal
judge in the District of Columbia on Tuesday struck
down the 64-year-old law that prohibits demonstrations and displays on the
grounds of the U.S. Supreme Court.
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"The absolute prohibition on
expressive activity in the statute is unreasonable, substantially overbroad, and
irreconcilable with the First Amendment," wrote U.S. District Judge
Beryl Howell in a 68-page ruling issued late Tuesday in the case Hodge
The law, which has been invoked to arrest individuals ranging from death penalty
protestors to kneeling ministers and Princeton University scholar Cornel West,
is so broadly worded, Howell found, that it could apply to groups of tourists,
court employees, or even a "familiar line of preschool students … holding
hands with chaperones, parading on the plaza on their first field trip to the
Howell also made short shrift of one of
the key arguments that has been made in defense of the law, namely that it is
necessary to preserve the image of the court as an institution "not swayed
by external influence."
"It is hard to imagine how tourists assembling on the plaza wearing
t-shirts bearing their school's seal, for example, could possibly create the
appearance of a judicial system vulnerable to outside pressure," Howell
wrote. "While there may be a legitimate interest in protecting the decorum
of the judiciary, the challenged statute is not a reasonable way to further that
the government appeals the decision, Tuesday's ruling could set the stage for
the Supreme Court's first review of the no-protest law in 30 years.
decision came in the case of Harold Hodge Jr., a Maryland resident who was
arrested on the court's plaza in January, 2011 for standing on the court's
marble plaza while holding a small sign that read "The U.S. Gov. Allows
Police To Illegally Murder and Brutalize African Americans And Hispanic
People." Court police told Hodge three times that he was in violation of 40
U.S.C. 6135 — the law Howell declared unconstitutional — and he refused to
Hodge was charged with violating the law, which states that "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."
Later that year, charges were dropped after Hodge agreed to stay away from the
court and its grounds for six months.
In January 2012, Hodge filed a suit in the U.S. District Court for the District
of Columbia, stating that he wanted to return to the court to engage in
"peaceful, non-disruptive political speech and expression." With the
aid of lawyers from the Rutherford Institute, Hodge challenged the
constitutionality of the law. The
court's marshal, Pamela Talkin, is the named defendant, along with U.S. Attorney
Ronald Machen Jr.
Tuesday night, Jeffrey Light who represented Hodge for the institute, praised
the ruling in a statement. "Today's district court decision striking down
the law is well-reasoned and thorough, and relies on solid analysis rather than
mere labels to reach its conclusion," Light said.
In her detailed ruling, Howell reviewed
the history of the Supreme Court statute and a similar law that barred
demonstrations on the grounds of the nearby U.S. Capitol. That law was struck
down on First Amendment grounds by a three-judge panel in 1972 in a ruling that
Howell cited at length.
1983, the Supreme Court ruled on an earlier version of the law banning displays
and assemblages on Supreme Court grounds. In U.S. v. Grace, the court ruled that
the law was unconstitutional when applied to demonstrations on the public
sidewalks around the court.
But the court sidestepped the broader issue of the constitutionality of the
law's ban on protests on court grounds. As a result, protests are a frequent
occurrence on the sidewalk in front of the court, but
as one court police officer once put it, "the First Amendment ends"
where the sidewalk ends and the marble plaza begins.
Ever since the Grace decision, challenges to the law brought by those arrested
on the plaza have been turned away by the local District of Columbia Court of
each time, Howell noted, that court has placed a "limiting
construction" on the law to keep it within constitutional limits. That
construction of the law confined the purpose of the law to protecting court
property and personnel and preserving order, decorum, and the image of
impartiality. But Howell rejected that narrowing construction, asserting that it
was not rooted in the language of the law and amounted to rewriting it.
She also assumed, without deciding, that under First Amendment doctrine, the
court grounds could be viewed as a "nonpublic forum" not traditionally
used for public assemblies and communication. That designation usually allows
restrictions on expression. But Howell said that status was "artificially
induced" because of strict enforcement of the law against protests.
She also said "the physical
features of the Supreme Court plaza — with its long benches and fountains and
wide open space in front of an iconic American building open to the public —
suggest a more welcoming invitation to the public and public expression than is
suggested by the defendants or the statute."
In addition, Howell noted that the plaza in front of the court is often the
venue for media interviews with advocates involved in Supreme Court cases, and
has also been used as the backdrop for movie segments.
even though the court grounds are assumed to be a nonpublic forum, Howell said,
the absolute ban on expression contained in the law is "not
Howell said she "does not find that an interest in allowing 'unimpeded
ingress and egress' of visitors to the Court is a sufficiently significant
interest to justify the absolute prohibition on expressive activity on the plaza
enshrined in the two clauses of the statute."
and federal laws that prohibit blocking the entrances to buildings, Howell said,
are sufficient to protect the government's interest in preserving access and