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A federal judge has blasted the Supreme Court’s plaza policy, which forbids people from being in “assemblages” or carrying signs that are intended to attract attention, declaring such limits in the shadow of the building where the First Amendment is supposed to be protected unconstitutional.
With hours, the Supremes bashed back, installing a new set of restrictive “regulations” specifying what can and cannot happen on the high court property including the plaza.
It was Judge Beryl Howell who wrote in an opinion this week that such limits – outlined in federal law and based on the “dignity” of the location – are unconstitutional and unenforceable.
“The absolute prohibition of expressive activity in the statute is unreasonable, substantially overbroad, and irreconcilable with the First Amendment,” the judge wrote. “The court therefore must find the statute unconstitutional and void as applied to the Supreme Court plaza.”
Constitutional attorney John Whitehead, president of the Rutherford Institute, said Howell’s “frank, no-holds-barred ruling affirming the Supreme Court plaza as a free speech zone throws a lifeline to the First Amendment at a time when government officials are doing their best to censor, silence and restrict free speech activities.”
Whitehead, author of “A Government of Wolves: The Emerging American Police State,” said there are “many things that are repugnant to the Constitution right now – mass surveillance of Americans, roadside strip searches, forcible DNA extractions, SWAT team raids, civil commitments for criticizing the government, etc. – but this ruling at least sends a message all is not lost as long as we still have some members of the judiciary who understand and abide by both the letter and the spirit of the rule of law, our U.S. Constitution.”
However, the high court posted online an announcement that it now is imposing a regulation that bans activities on the court’s grounds or building such as picketing, speech-making, marching, vigils or religious services “that involve the communication or expression of views or grievances, engaged in by one or more persons, the conduct of which is reasonably likely to draw a crowd or onlookers.”
The notice said the plan has been approved by the marshal and approved by Chief Justice John Roberts.
Whitehead said the new maneuver to restrict constitutional rights is being researched.
“We’re going to go after it. We’re going to do what we can to challenge it,” he said.
The original case developed over the Jan. 28, 2011, appearance on the plaza by Harold Hodge. He stood quietly and peacefully in the plaza area wearing a small sign that proclaimed: “The U.S. gov. allows police to illegally murder and brutalize African Americans and Hispanic people.”
The Rutherford report said the plaza is a place where the public is allowed to gather and converse and is, in all relevant respects, like a public square or park where citizens have traditionally met to express their views on matters of public interest.
But police immediately approached Hodge and told him he was breaking the law. When Hodge refused to leave, he was arrested, taken to police headquarters and cited.
Later, the charge was dropped because Hodge fulfilled an agreement to stay away from the building for six months. But he later filed the challenge to the constitutionality of the special protection for the justices on the Supreme Court.
Rutherford Institute attorneys argued that absolute prohibition on speech and expression on the Supreme Court plaza is unreasonable and unnecessary to protect any legitimate governmental interest with respect to the court or its proceedings.
See a video report on the case:
Rutherford noted that the message of Hodge's sign was correct, citing statistics that show black males are more than one-third of prisoners in state and federal lockups, even though they make up only 10 percent of the population.
And beyond that, Hodge "has a right to be out there," he said.
Whitehead said the whole idea of a zone without free speech violates the constitutional concept of being able to "petition our leaders."
The court opinion says that the concept of limiting freedoms through a law advocating for the "dignity" of the courthouse was "repugnant."
The judge said the limit at the Supreme Court was based on a similar earlier law that was used to protect the U.S. Capitol.
However, that law already was declared unconstitutional.
"Given that the challenged statute was rooted directly in the Capitol Grounds statute, which was ruled unconstitutional, and is clearly relevant here, the court takes judicial notice of this history."
The opinion noted that attorneys are allowed to hold news conferences there, and court officials have approved commercial filming projects on site.
The judge said a decision on whether the location is a public forum or not wasn't needed.
"Even if the court were to conclude that the plaza is a nonpublic forum, the absolute ban on speech set forth in [the federal law] is not reasonable and, thus, the court concludes that the 'justifications for restricting … speech' on the Supreme Court plaza simply do not 'satisfy the requisite standard."