Should protests be banned on the steps of the Supreme Court?

It’s not as if the Supreme Court doesn’t already have enough on its plate for us to talk about this year, but Adam Liptak, the SCOTUS reporter for the New York Times, finds another bone to be gnawed upon. In a case I’d not even noticed, Harold H. Hodge Jr. was arrested in 2011 for carrying a sign bearing a political message on the marble steps in front of the court. As it turns out, there is a law on the books which dates back to 1949 which allows for protests and related activity on the sidewalk in front of the court, but no further.

That vast and inviting space, with its benches and fountains, seems better suited to public debate than a military funeral or the sidewalk outside an abortion clinic. But the court insists on banning free speech on the plaza. Court police officers have been known to instruct visitors to remove small buttons bearing political messages.

Last year, a federal judge struck down the law that bans protests on the plaza, calling it “irreconcilable with the First Amendment.” Pamela Talkin, the marshal of the Supreme Court, appealed the decision, and last month, a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit heard arguments.

While I knew about this restriction, I’ll confess that I never really gave it all that much thought. For some reason, my gut reaction has been to shrug and not be that concerned. Maybe that’s because it’s such a relatively small area which is blocked off, or perhaps because it’s the highest court in the land and it would be unseemly to have it shut down while groups of opposing activists screamed at each other. But reading the coverage of this story, I have to admit that there doesn’t seem to be any rational – to say nothing of constitutional – reason for such a total ban. That feeling was amplified when I read attorney Doug Mataconis’ explanation of it.

Given that ruling,[McCullen v. Coakley] it’s hard to see how a blanket ban on protests of any kind can withstand scrutiny. Obviously, authorities would still be within their rights to regulate the time, place and manner of large protests and the like as long as they are doing so in a manner that isn’t based on the content of the speech in question. As a general rule, though, a blanket ban on any protests at all, or indeed just a simple act of free speech such as a sign containing a political message such as the one at issue in the case described above, would seem to clearly be unconstitutional. Additionally, the distinction that the current law makes between the plaza itself and the sidewalk that it is right in front of is clearly a distinction without a difference. A protest in the plaza is no more likely to assault the integrity of the Court in the eyes of the public than one on the sidewalk would, and the idea that the Justices are going to be any more swayed because protesters have moved the few feet involved in going from the sidewalk to the plaza is really quite absurd.

I can understand some reasonable limitations to protests on the plaza such as we have for other public areas and sensitive properties. It doesn’t sound like there are any extra security measures required for the Justices themselves, since if I’m recalling correctly, they and their staff enter and exit through some other back entrance, secret tunnel or Maxwell Smart phone booth elevator. But protests should not shut down the comings and goings of others who need access to the court, nor even the normal flow of tourists who wish to see what is arguably an historic landmark in addition to being a working office of the Judicial branch. For that matter, there are reasonable limits to protests anywhere, since they should not shut down the general flow of traffic or block the operation of any business (government or private) or private homes. Exceptions can be made to the traffic flow question for limited times via application for a lawful permit, such as we already do for parades and protest marches in cities. (This allows for planning in advance of the disruption.)

But with all that said, I think Doug is correct. A blanket ban on free speech at all times on the very steps of the last line of defense for that precise freedom seems absurd. If this goes all the way to the top and the Supreme Court upholds this law, they will send a clear message that they are setting themselves above the rest of the nation. That’s not exactly a freedom embracing theme, nor one which will inspire confidence in those who must rely on them for the protection of their rights.