Outside the Supreme Court, a History of Protests — and Press

The ACLU files an amicus brief in a First Amendment dispute in the D.C. Circuit.

, The National Law Journal

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Media gathered outside the U.S. Supreme Court on the day of arguments in the case challenging California's Prop 8 legislation
Media gathered outside the U.S. Supreme Court on the day of arguments in the case challenging California's Prop 8 legislation

The Justice Department's brief in the D.C. Circuit does not mention the court's allowance of media interviews on the plaza, but it does repeat its main argument that courts — and especially the Supreme Court — are different from other public institutions where protests are allowed.

"It is well established that the government has a legitimate interest in limiting picketing or demonstrating near courthouses," the government's brief asserts. "Unlike other parts of government, courts do not make decisions by reference to public opinion."

The ACLU brief challenges the government's assertion that courthouses get or deserve special protection, offering numerous examples and color photographs of protests on courthouse grounds around the country.

The brief also includes iconic photographs of the late Thurgood Marshall and others celebrating their civil rights victories in Brown v. Board of Education and Cooper v. Aaron on the steps of the Supreme Court. Also in part of the brief are more recent photos of the winning respondents kissing and raising their arms in victory on the plaza in the gay rights case Hollingsworth v. Perry last year.

"The range of viewpoints expressed on courthouse grounds throughout the country spans the political spectrum," the ACLU brief states, "and is a testament to the fact that citizens view the 'courthouse steps' as an extension of the town square — a place to air their grievances with the judicial system, or the government or society more generally." As such, the ACLU asserts, the court plaza is a classic public forum where restrictions on expression must be "narrowly tailored to serve a significant government interest."

Spitzer said he included the color photos — rare for court briefs — because, as the saying goes, "a picture is worth a thousand words. Luckily, they don't count toward the word limits for briefs."

Hodge's lawyer, Jeffrey Light, a Wash­ington solo practitioner, argues the court's policy is inconsistent because numerous First Amendment activities are allowed on the plaza without being prosecuted under the law.

"During high profile cases, the Supreme Court plaza is indistinguishable from a town square," Light wrote in his brief, which is supported by the Rutherford Institute. "The presence of demonstrators on the plaza would also be compatible with the operation of the Supreme Court and its appearance as a body not swayed by outside influence. Far from preserving the integrity and dignity of the Court, the statute does the opposite."

Contact Tony Mauro at tmauro@alm.com.

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