Who do you think gets to decide a fight over the First Amendment’s speech protections when it’s a court doing the restricting.

Yeah. The court.

John Whitehead, a lawyer for the Rutherford Institute, confirmed on Thursday that it will be the lawyers on the Supreme Court bench who will get to decide whether an American citizen has First Amendment speech rights at the court.

Right now, he doesn’t.

And Whitehead said the prognosis for changing that isn’t great.

“Through a series of carefully crafted legislative steps and politically expedient court rulings, government officials have managed to disembowel this fundamental freedom, rendering the First Amendment with little more meaning than the right to file a lawsuit against government officials,” said Whitehead, a constitutional attorney.

“Ironically, when we appeal this case, it will be the justices of the U.S. Supreme Court who will eventually be asked to decide the constitutionality of their own statute, yet they have already made their views on the subject quite clear.”

At issue is the case of a man who was arrested for holding a sign in front of the court, on the public plaza there, where lawyers hold news conferences and there even have been some demonstrations.

Trust the government? Maybe you shouldn’t. Read the details in “Lies the Government Told You,” by Judge Andrew Napolitano.

But the fact is such things are banned by administrative rule from the Supreme Court, and they are only allowed sometimes.

Harold Hodge wasn’t a recipient of such a right.

On Jan. 28, 2011, he was holding a three-foot by two-foot sign stating, “The U.S. Gov. Allows Police To Illegally Murder And Brutalize African Americans And Hispanic People.”

Rutherford has argued the speech on the plaza, 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, should be allowed.

Hodge, however, was handcuffed and arrested. He was accused of violating a law that makes it “unlawful to display any flag, banner, or device designed to bring into public notice a party, organization, or movement while on the grounds of the U.S. Supreme Court.”

A U.S. district court judge struck the rule as clearly unconstitutional, but at the appellate level, it was reinstated.

On Thursday, Whitehead confirmed the U.S. Court of Appeals for the District of Columbia denied “without explanation” a petition for rehearing.

The request had been submitted because the decision that was released “conflicts with earlier decisions construing a nearly identical statute.”

“If citizens cannot stand out in the open and voice their disapproval of their government, its representatives and its policies without fearing prosecution, then the First Amendment is little more than window-dressing on a store window – pretty to look at but serving little real purpose,” said Whitehead.

For 60 years, the Supreme Court has had a rule “criminalizing expressive First Amendment activity on the Supreme Court plaza,” the institute explained.

WND has reported as the case progressed, including the earlier three-judge decision. And the ruling from the trial court that the ban was unconstitutional.

“In response, the government not only appealed that ruling, but the marshal for the Supreme Court – with the approval of Chief Justice John Roberts – issued even more strident regulations outlawing expressive activity on the grounds of the high court, including the plaza,” Rutherford reported.

Rutherford Institute attorneys have since filed a related lawsuit challenging the later orders.

The judges at the appeals court conceded that attorneys and litigants are allowed to use the plaza for public events such as news conferences and for “commercial or professional films relating to the court” but said the government still can exclude those it does not want to have access to the forum.

For example, it noted 200 demonstrators surged up onto the plaza to protest a Missouri grand jury’s decision not to indict a police officer who fatally shot a teenager in 2014.

The demonstration went on for 15 minutes, but no arrests were made.

U.S. District Judge Beryl Howell originally found: “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.”


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