Off Their Front Porch: Protesters Have No Free-Speech Rights On Supreme Court Plaza

The Constitution doesn't apply in the area just outside the main court that interprets the Constitution.

A federal appeals court ruled  on Friday that the elevated marble plaza surrounding the Supreme Court building is a "nonpublic forum" and thus authorities may prosecute those who protest or pass out leaflets there.

"Under the lenient First Amendment standards applicable to nonpublic forums," wrote the U.S. Court of Appeals for the D.C. Circuit, "the government can impose reasonable restrictions on speech as long as it refrains from suppressing particular viewpoints."

The court drew a distinction between the public sidewalks outside the plaza -- which the Supreme Court in 1983 ruled were a public forum  protected by the First Amendment -- and the plaza itself, which can be policed under a federal statute  prohibiting "assemblages" and "displays."

The court's opinion included a detailed description and a photograph  of the Supreme Court's grounds.

 The D.C.-based appeals court that decided the case is widely regarded as the second-most important federal court in the country.

The case was brought by a man who in 2011 stood on the plaza near the front entrance with a sign around his neck that read “The U.S. Gov. Allows Police To Illegally Murder And Brutalize African Americans And Hispanic People.”

After receiving and ignoring three warnings from Supreme Court police, Harold Hodge was arrested and charged under the statute proscribing protests and signs on the plaza. Prosecutors then agreed to dismiss the charges so long as he stayed away from the court's grounds for six months, which he did.

Following the dismissal, Hodge sued in federal court, contending the statute violated the First Amendment because it conflicted with his desire to "engage in peaceful, non-disruptive political speech and expression." 

A lower court bought the argument and struck down the statute as unconstitutional. But the D.C. Circuit reversed that decision, reasoning that the plaza is an "integral" part of the Supreme Court building, and that the 1949 statute is a "reasonable, view-point neutral" way for the government to maintain order. 

The court noted that Congress could at any time amend the law to allow "for the robust exercise of First Amendment activity by the general public" on the plaza. And it made clear that people have unlimited access to the area for "non-expressive" purposes -- such as posing for pictures or admiring the premises.

So if your goal is to picket and protest at the nation's high court, you're better off sticking to the sidewalks. At least there, the First Amendment still applies.