Without comment, the U.S. Supreme Court justices announced Monday their decision not to review a case challenging speech restrictions on the court’s property.
“Shame on the court for making a mockery of the First Amendment and engaging in a hypocritical double standard that does a grave disservice to its historic stance on free speech,” said constitutional attorney John W. Whitehead, president of the Rutherford Institute.
Whitehead’s group has defended Harold Hodge, who was arrested for holding a protest sign on the public plaza in front of the court.
Rutherford argues the court has allowed news conferences, protests and even a wide range of other activities on the site, such as “commercial or professional films.”
Hodge challenged the court’s regulations as a violation of the First Amendment, and District Judge Beryl Howell sided with Hodge.
“The absolute prohibition of expressive activity in the statute is unreasonable, substantially overbroad, and irreconcilable with the First Amendment,” Howell wrote. “The court therefore must find the statute unconstitutional and void as applied to the Supreme Court plaza.”
But Howell’s decision was overturned on appeal, and on Monday, the justices refused to hear the case, which, according to Whitehead, effectively exempts the Supreme Court plaza from the First Amendment.
“By failing to right this wrong and refusing to hold itself accountable to the First Amendment, this Supreme Court has once and for all invalidated its role as the guardian of the people’s rights,” he said.
When Howell, finding the censorship to be “repugnant” to the Constitution, struck the regulations, the managers of the court building, with the cooperation of the justices, imposed new regulations within hours.
The court repeatedly has declined to comment on the case, even though it’s a constitutional issue that affects the American public on the court’s own front porch.
A lawsuit still is pending over the creation and imposition of the subsequent rules, Rutherford said.
The case, Hodge v. Talkin, focuses on a 60-year-old practice of banning free speech on the court plaza.
“As this case makes clear, free speech is no longer considered an inalienable right or an essential liberty, even by those government entities entrusted with protecting it. True free speech tests the limits of our so-called egalitarian commitment to its broad-minded principles and does not sit well with those who are easily offended, readily intimidated or who need everything wrapped in a neat and tidy bow,” Whitehead said as the case developed.
The First Amendment states: “Congress shall make no law … abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
But the Supreme Court’s managers have determined 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 or grounds a flag, banner, or device designed to adapted to bring into public notice a party, organization, or movement.”
Whitehead previously explained how speech gradually has been curbed at the plaza.
“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 earlier in the case.
On Jan. 28, 2011, Hodge 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.”
Hodge 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.”
“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.
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, the judges noted 200 protesters 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.
In a commentary, Whitehead explained the Supreme Court already has “defended the free speech rights of Ku Klux Klan cross-burners, Communist Party organizers, military imposters, Westboro Baptist Church members shouting gay slurs at military funerals, a teenager who burned a cross on the lawn of an African-American family, swastika-wearing Nazis marching through the predominantly Jewish town of Skokie, abortion protesters and sidewalk counselors in front of abortion clinics, flag burners, an anti-war activist arrested for wearing a jacket bearing the words ‘F#@k the Draft,’ high-school students wearing black armbands to school in protest of the Vietnam War, a film producer who created and sold videotapes of dogfights, a movie theater that showed a sexually explicit film, and the Boy Scouts of America to exclude gay members, among others.”
He continued, “Basically, the Supreme Court has historically had no problem with radical and reactionary speech, false speech, hateful speech, racist speech on front lawns, offensive speech at funerals, anti-Semitic speech in parades, anti-abortion/pro-life speech in front of abortion clinics, inflammatory speech in a Chicago auditorium, political speech in a private California shopping mall, or offensive speech in a state courthouse.”
But the justices not only refused to hear Hodge’s appeal, but “in doing so, it also upheld the 60-year-old law banning expressive activity on the Supreme Court plaza.”
“Mind you, this was the same ban that a federal district court judge described as ‘unreasonable, substantially overbroad … irreconcilable with the First Amendment,’ ‘plainly unconstitutional on its face’ and ‘repugnant’ to the Constitution,” he wrote.
But it’s not complicated, he insisted.
“This ban on free speech in the Supreme Court plaza, enacted by Congress in 1949, stems from a desire to insulate government officials from those exercising their First Amendment rights, an altogether elitist mindset that views the government ‘elite’ as different, set apart somehow, from the people they have been appointed to serve and represent.”