The Supreme Court recently exempted itself from the First Amendment in a fight over a protest sign on the public plaza outside its front doors, simply refusing to consider arguments that the Constitution’s protection of that right should apply.
But the pesky issue of what people can say on the plaza is coming up again, this time with a fight over religious speech that already is taking up the time of the U.S. District Court in Washington.
Over the years, the plaza at the court has been used for public events such as news conferences and for “commercial or professional films relating to the court.” Some 200 protesters surged up onto the plaza in 2014 to protest a Missouri grand jury’s decision not to indict a police officer who fatally shot a teenager, and nothing happened, even though the demonstration went on for 15 minutes.
John Whitehead, of the Rutherford Institute, which is working on the newest case, has pointed out that the court 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 justice refused to tolerate a small sign held by Harold Hodge that said, “The U.S. Gov. Allows Police To Illegally Murder And Brutalize African Americans And Hispanic People,” and had law enforcement agents confront and remove the man holding it.
The Supremes eventually resolved that court case by simply refusing to discuss a lower appeals court’s decision it violated the justices’ speech ban. The district court, in that case, had struck the limit as unconstitutional, but the justices immediately re-imposed another speech ban to replace it.
Now there’s a new fight, brought by several individuals who say they have the right under the Religious Freedom Restoration Act to pray on the plaza, or to speak against the death penalty there.
The federal government has submitted a brief to the judge explaining that no, they do not.
The DOJ alleges that John Payden-Travers and Midgelle Potts have not established that their faith compels them to speak or pray “on the plaza.” Or that the government has “substantially” burdened them.
“A ‘substantial burden’ exists only ‘when government action puts substantial pressure on an adherent to modify his behavior and to violate his beliefs,'” the DOJ told the judge. “An inconsequential or de minimis burden on religious practice does not rise to this level, nor does a burden on activity unimportant to the adherent’s religious scheme.”
The government argues that a ban on religious expression at this location was unimportant, so the case should be dismissed.
In the court filing, the government argues that it can “dictate where people can engage in religious activity,” Rutherford reported.
The background, again, is that Rutherford is challenging the 2013 ruling adopted by the justices when, in the earlier Hodge case, their 60-year-old limit banning expressive activities, was thrown out.
“Payden-Travers v. Talkin [the new case] takes up where Hodge left off, challenging the court’s broader prohibitions on expressive activity, especially as they relate to religious expression,” Rutherford officials explained.
They say the plaza prohibition violates the Religious Freedom Restoration Act, which says the government must have a compelling interest in order to intrude on someone’s religious liberty, and it must do so in the least restrictive way.
“There are a good 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 for the U.S. Supreme Court to overtly prohibit expressive activity on its grounds shows exactly how perverse our so-called system of justice has become,” Whitehead said.
“Unfortunately, free speech zones, bubble zones, trespass zones, anti-bullying legislation, zero tolerance policies, hate crime laws, overly vague noise ordinances, and a host of other legalistic maladies dreamed up by politicians and prosecutors have conspired to corrode our core freedoms,” he said.
Rutherford explained, “The plaza area in front of the Supreme Court is oval in shape and approximately 252 feet in length, is open 24 hours a day and is no different than other traditional public fora such as parks and sidewalks. The plaza has historically been used for First Amendment activities, including press conferences, tourists’ conversations, and filming of scenes for movies. Nevertheless, a 60-year-old statute broadly made 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, thereby banning expressive activity on the Supreme Court plaza.
“When in January 2012, the Rutherford Institute filed a lawsuit, Hodge v. Talkin, on behalf of a political activist who was charged with violating the statute by silently standing on the plaza with a sign protesting police brutality. In June 2013, U.S. District Court Judge Beryl L. Howell ruled that the statute was unconstitutionally overbroad, facially unconstitutional and void. Just two days after this ruling, the Supreme Court adopted Regulation 7, which attempts to reinstate the restrictions struck down by Judge Howell by banning any ‘demonstration’ on the Supreme Court grounds, which is broadly defined by Regulation 7 to include all forms of conduct communicating views or grievances that might draw onlookers.”
When the earlier case was decided, Whitehead said, “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.”
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 explained earlier the fight isn’t complicated.
“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.”