By Tony Mauro
Should the U.S. Supreme Court, a strong protector of free speech rights throughout the nation, be able to carve out a protest-free zone on its own premises?
That irony-laden question may go before the high court in coming months, after an August 28 appellate court decision declaring that demonstrators and signs can be banished from the marble plaza in front of the Supreme Court building, just across the street from the Capitol.
Citing the government’s interest in “preserving (or restoring) the public’s impression of a judiciary immune to outside pressure,” a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit ruled August 28 that the plaza “is an area in which the government may legitimately attempt to maintain suitable decorum for a courthouse.”
The ruling came in Hodge v. Talkin, in which Harold Hodge Jr. challenged the ban on First Amendment grounds after being arrested in 2011 for holding a two-by-three foot sign on the Supreme Court plaza. The sign read, “The U.S. Gov. Allows Police To Illegally Murder And Brutalize African Americans And Hispanic People.” Pamela Talkin, the marshal of the Supreme Court, was the official target of the lawsuit.
The 65-year-old law banning banners, processions and assemblages on the plaza was struck down in Hodge’s case at the federal district court level, but resurrected by the D.C. Circuit panel, led by Judge Sri Srinivasan. Hodge’s lawyer has said he will ask for a rehearing of the case by the full D.C. Circuit, and the challenge could ultimately go before the high court itself on appeal.
The rationale for the law, and for the ruling that upheld it, would at first blush appear to be weak in the face of the Supreme Court’s traditional strong protection for the rights of protesters. A speech-restricting law aimed at preserving the image of a government institution would probably be laughed out of court if the institution were City Hall or a legislature.
But, as most justices would agree, the Supreme Court is different – unelected, and above the political fray. “We speak a different grammar,” Justice Anthony Kennedy once said in arguing against allowing cameras into the high court. Making the same argument on another occasion, Chief Justice John Roberts Jr. said, “The Supreme Court is different, not only domestically but in terms of its impact worldwide.”
In a slightly different context, the high court wrote the same assertion into one of its opinions last term.
In Williams-Yulee v. Florida Bar, the court departed from its usual practice of striking down campaign finance restrictions on First Amendment grounds. Instead, it upheld a law barring judicial candidates from personally soliciting campaign funds. “Judges are not politicians,” the court in explaining why it was ruling differently. “Politicians are expected to be appropriately responsive to the preferences” of the public, the court continued, but the “same is not true of judges.”
Srinivasan cited those passages of Williams-Yulee in asserting that because the Supreme Court is not susceptible to pressure from protesters outside the court, those protesters can be shooed to the public sidewalk beyond the plaza. Put another way, because the Supreme Court is different, it can restrict speech in ways that, for example, the U.S. Capitol across the street from the court cannot. Protests are allowed on Capital grounds.
But is a ban on protests really the best way to showcase the independence of the judiciary and its ability to resist public pressure? Justices have been known to take a peek at demonstrations beyond their walls. The late Justice Harry Blackmun used to go out on the plaza to watch anti-abortion demonstrations, confident that he would not be recognized by protesters as the author of Roe v. Wade.
In 1992, Justice Anthony Kennedy brooded as he watched similar protests outside his window while deliberating about another ruling that upheld abortion rights. “Sometimes you don’t know if you’re Caesar about to cross the Rubicon or Captain Queeg cutting your own tow line,” he told journalist Terry Carter, who was interviewing him at the time.
In both instances and no doubt others, justices were exposed to demonstrators, yet still ruled against the positions they were espousing. It could be argued that allowing demonstrators on the plaza sends a stronger message about the judiciary’s strength and independence than embracing a law that treats justices as fragile flowers who must be shielded from people who exercise their First Amendment rights.
Tony Mauro is a contributor to the Newseum Institute’s First Amendment Center commentaries, and reports on the U.S. Supreme Court and legal issues for The American Lawyer. Contact Tony Mauro at [email protected]. On Twitter: @Tonymauro