On The Front Lines

Federal Court Affirms Ban on Peaceful Protests on Supreme Court Plaza, Refuses to Protect Religious Freedom Rights of War, Death Penalty Protesters

WASHINGTON, D.C. — A federal court has dismissed a lawsuit brought by The Rutherford Institute on behalf of two peace activists whose ability to engage in expressive activity in the Supreme Court plaza has been restricted by a federal law and U.S. Supreme Court regulation that forbid virtually all speech on the plaza in front of the Supreme Court’s building. In challenging the restrictions as a violation of the Religious Freedom Restoration Act (RFRA), a federal law protecting the exercise of religious beliefs, Institute attorneys argued that the Supreme Court’s ban on expressive activities on its front porch muzzled those whose religious beliefs compel them to engage in peaceful protests and speak out against war and the death penalty. However, in dismissing the lawsuit, the federal district court ruled that the law and regulation do not substantially burden the protesters’ religious beliefs and practices because the activists could demonstrate elsewhere. The ruling follows a 2015 decision that gave the Supreme Court the green light to restrict expressive First Amendment activities on its plaza.

Affiliate attorney Jeffrey Light assisted The Rutherford Institute with the lawsuit. The district court’s ruling in Payden-Travers v. Talkin is available at www.rutherford.org.

“The great irony in this case is that the institution violating expressive activities is the very same one that is entrusted with safeguarding those rights—the U.S. Supreme Court,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “For the Supreme Court to overtly prohibit expressive activity on its grounds shows exactly how perverse our so-called system of justice has become. As journalist Adam Liptak so rightly pointed out, ‘The First Amendment is strong medicine, the Supreme Court keeps telling us, and it even requires vulnerable people to listen to things they do not want to hear… But the Supreme Court’s devotion to the First Amendment has its limits. It stops at the edge of the grand marble plaza outside its own courthouse.’”

The plaza area in front of the Supreme Court is open 24-hours a day and has historically been used for First Amendment activities, including press conferences, tourist conversations, and filming of scenes for movies. Nevertheless, a 60-year-old statute 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. 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 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 banned any “demonstration” on the Supreme Court grounds, which is broadly defined to include all forms of conduct communicating views or grievances that might draw onlookers. In 2015, a federal appeals court found that the statute did not violate the First Amendment’s guarantee to freedom of speech. The Rutherford Institute continued its challenge to the plaza restrictions under RFRA on behalf of two activists whose religious beliefs require that they speak out and be public witnesses against violence and the death penalty.