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


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 media stakeout on the U.S. Supreme Court plaza is a familiar part of argument day in high-profile cases. Lawyers and advocates go before cameras and microphones outside the court as soon as they finish arguing before the justices inside.

Now, that aspect of Supreme Court life is garnering attention itself, in connection with litigation over the constitutionality of a federal law that bans protests on the same marble plaza where the press conferences take place.

In a case challenging that law on First Amendment grounds, the American Civil Liberties Union of the Nation's Capital is pointing to media gaggles or stakeouts as a fatal sign of inconsistency. The question posed: How can protests be banned, when court officials allow the plaza to be used for other clearly expressive activities protected by the First Amendment?

"Litigants and their advocates gather on the plaza to make their case to the public via the media," the ACLU's brief, filed Jan. 31 in the U.S. Court of Appeals for the D.C. Circuit, states. "Rather than seeing the court grounds as a sacred place of silent neutrality, the public is accustomed to images of the court grounds serving as an open forum, featuring this expressive activity."

The stakeouts, according to the brief, are "part of a choreographed advocacy strategy that is no less expressive" than a demonstration.

The brief was filed in Hodge v. Talkin, pending before the D.C. Circuit. No date has been set for argument.

By highlighting the media stakeouts, does the ACLU run the risk that the court will respond by barring the media from the plaza as well as protesters?

"That would be a shame," said Art Spitzer, longtime legal director of the ACLU's affiliate in Washington. "But we hope that the court will realize that it is untenable to allow large media gatherings and nothing else" and will respond by allowing, not banning, media and protesters alike.


In the case before the appeals court, Harold Hodge Jr. was arrested on the plaza in 2011 for wearing a small sign protesting police mistreatment of African-Americans and Hispanics. He was charged under 40 U.S.C. 6135, which bars "processions or assemblages" on Supreme Court grounds, as well as holding banners or devices designed to "bring into public notice" parties, organizations or movements. The charges were ultimately dropped after Hodge agreed to stay away from the court for six months.

Hodge challenged the law nonetheless, as have many past protesters arrested in front of the court. But unlike prior challenges in Washington courts, Hodge won last summer. Judge Beryl Howell of the U.S. District Court for the District of Columbia ruled in June the law was "substantially overbroad and irreconcilable with the First Amendment."

Soon after the ruling, the court's marshal, Pamela Talkin, promulgated new rules banning protests based on another statute that allows the court to protect "suitable order and decorum" on court grounds. The new regulations are also under challenge in a separate case. Under either set of rules, protests are allowed on the public sidewalk in front of the court plaza, because of a 1983 Supreme Court decision that said banning protests on the sidewalk was unconstitutional.

But the new ban on protests on the court plaza did not stop the U.S. Depart­ment of Justice from appealing Howell's decision, in an effort to salvage the old law referring to assemblages and banners.

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