The United States Supreme Court

A battle over why American citizens aren’t allowed free speech on the plaza of the U.S. Supreme Court – the last defense of their constitutional rights – has been elevated to an appellate court.

Lawyers with the Rutherford Institute are asking the U.S. Court of Appeals for the District of Columbia Circuit to uphold a lower court ruling that declared the ban on expressive activity on the public plaza “repugnant” to the U.S. Constitution.

The case began Jan. 28, 2011, when Harold Hodge stood quietly in the plaza wearing a 24-inch by 36-inch sign that said: “The U.S. Gov. Allows Police To Illegally Murder And Brutalize African Americans And Hispanic People.”

Even though, Rutherford attorneys argued, the plaza is where the public gathers and converses, and “is in all relevant respects like a public square or park where citizens have traditionally met to express their views,” Hodge was arrested.

He was told he was violating the law and charged. His case was resolved when he stayed away from the court plaza as ordered.

When the subsequent challenge to the speech restriction arrived before U.S. District Judge Beryl Howell, the judge found that such limits are unconstitutional.

Howell said: “The absolute prohibition of expressive activity in the statute is unreasonable, substantially overbroad, and irreconcilable with the First Amendment. The court therefore must find the statute unconstitutional and void as applied to the Supreme Court plaza.”

Finding the restriction removed, the justices and court managers who work at the building struck back immediately. They installed within hours a new set of restrictive “regulations” specifying what can and cannot happen on the high court property, including the plaza.

Now, constitutional attorney John Whitehead, president of the Rutherford Institute, is asking the appeals court to affirm the decision by Howell. Whitehead said the district judge’s decision was a “frank, no-holds-barred ruling affirming the Supreme Court plaza as a free speech zone.”

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.”

When the previous rules were struck down, the high court posted online an announcement that it was 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.”

A separate lawsuit is challenging the decision by court administrators, whose actions were rubber-stamped by Chief Justice John Roberts.

See a video report on the original dispute:

Now in a brief filed at the Court of Appeals, Rutherford Institute attorneys are arguing for Americans’ rights to expression on the court plaza.

The original limit must “be struck down because its absolute prohibition on expressive conduct is unreasonable and prohibits a substantial amount of protected activity,” the brief argues.

“Expressive activity is not incompatible with the design and function of the Supreme Court plaza, which should be deemed a public forum,” the attorneys contend.

While the restriction is intended to preserve “the integrity and dignity of the court,” the limits actually do the opposite, because such an “enforced silence … would probably engender resentment, suspicion, and contempt much more than it would enhance respect.”

The plaza, after all, the brief argues, is a large open area like a park, with benches and fountains, where “members of the public are permitted to enter and leave … at practically all times.”

Routinely, news conferences and other “events” related to the court cases are held there, the brief says.

Rutherford previously 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,” Whitehead said.

Whitehead said the whole idea of a zone without free speech violates the constitutional concept of being able to “petition our leaders.”

Howell concluded 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 has been 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 judge said.

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