On The Front Lines

In a Devastating Blow to First Amendment, U.S. Supreme Court Upholds ‘Repugnant’ 60-Year-Old Ban on Expressive Activity on Supreme Court Plaza

WASHINGTON, DC — In a devastating blow to the First Amendment, the U.S. Supreme Court has upheld a 60-year-old ban on expressive activity on the Supreme Court plaza. The Court’s ruling comes in response to an appeal filed by The Rutherford Institute in Hodge v. Talkin, which challenged a federal statute criminalizing expressive First Amendment activity on the Supreme Court plaza. The case arose after activist Harold Hodge was arrested while standing silently in front of the U.S. Supreme Court on a snowy day wearing a sign voicing his concerns about the government’s disparate treatment of African-Americans and Hispanics.

In calling on the Court to hear the case, Rutherford Institute attorneys had urged the justices to reconcile the inconsistencies inherent in the First Amendment ban on what is essentially their front porch and reinforce their historic commitment to free speech activities in public places. For example, in 1972, the Supreme Court struck down limits on similar protests on the Capitol grounds, located across the street from the Court’s plaza. Still pending is a second challenge brought by Rutherford Institute attorneys to the Court’s ban on expressive activity.

Affiliate attorney Jeffrey Light assisted The Rutherford Institute in defending Hodge.

“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 and author of Battlefield America: The War on the American People. “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.”

On January 28, 2011, Harold Hodge quietly and peacefully stood in the plaza area near the steps leading to the United States Supreme Court Building, wearing a 3’ X 2’ sign around his neck that proclaimed: “The U.S. Gov. Allows Police To Illegally Murder And Brutalize African Americans And Hispanic People.” The plaza is a place where the public is allowed to gather and converse, and is in all relevant respects like a public square or park where citizens have traditionally met to express their views on matters of public interest. However, Hodge was handcuffed, placed under arrest, and then transported to U.S. Capitol Police Headquarters for violating 40 U.S.C. § 6135, which broadly 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, thereby banning expressive activity on the Supreme Court plaza.

Rutherford Institute attorneys subsequently filed a lawsuit challenging § 6135, and in June 2013 a district court judge struck down the law finding the ban to be “repugnant” to the Constitution, “unreasonable, substantially overbroad, and irreconcilable with the First Amendment,” not to mention “plainly unconstitutional on its face.” In response, the government not only appealed that ruling, but the marshal for the Supreme Court—with the approval of Chief Justice John Roberts—issued even more strident regulations outlawing expressive activity on the grounds of the high court, including the plaza. Rutherford Institute attorneys have since filed a related lawsuit challenging the Supreme Court’s more strident regulations.

Case History

04-19-2016: Rutherford Institute Pushes Back Against Government Efforts to Muzzle Free Speech & Establish a 'Cordon of Silence' in Front of U.S. Supreme Court

01-06-2016: Free Speech Double Standard: Rutherford Institute Asks U.S. Supreme Court to Declare Unconstitutional Its Own Ban on Expressive Activity on Plaza

11-05-2015: Federal Appeals Court Refuses to Reconsider Decision Upholding 60-Year-Old Ban on Expressive Activity on U.S. Supreme Court Plaza

10-19-2015 : Rutherford Institute Asks Appeals Court to Reconsider Its Decision to Uphold 60-Year-Old Ban on Expressive Activity on U.S. Supreme Court Plaza

08-28-2015 : First Amendment Setback: Federal Appeals Court Upholds 60-Year-old Ban on Expressive Activity on U.S. Supreme Court Plaza as 'Reasonable'

09-23-2014: Rutherford Institute Attorneys Present Oral Arguments in Hodge Case, Challenging Ban on Expressive Activity on U.S. Supreme Court Plaza

01-21-2014: Rutherford Institute Asks Appeals Court to Affirm Ruling that Ban on Expressive Activity on Supreme Court Plaza Is Unconstitutional

06-14-2013: In an Attempt to Override a Federal Court Ruling Permitting Expressive Activities on Plaza, Supreme Court Outlaws Expressive Activities

06-12-2013: Victory: Declaring Ban 'Repugnant' to Constitution, Federal Court Affirms First Amdt. Rights of Protester Arrested in Front of U.S. Supreme Court

04-26-2013: Oral Argument: Rutherford Institute Calls on Court to Protect First Amendment Rights of Man Arrested for Anti-Police Sign in Front of Supreme Court

FURTHER READING:

Has the First Amendment Become an Exercise in Futility?