At the Supreme Court, You’ve Got the Freedom to Speak Elsewhere
March 7, 2017 (Fault Lines) –Protests have become a regular thing in the time of Trump. While many remain peaceful, others turn into violent events where trash cans burn, Starbucks gets looted, and necks get yanked. Some people like the opiate of protests, marches, sign-carrying, regardless of whether this actually changes others’ hearts and minds. Fortunately for them, the Free Speech clause gives them wide latitude to get high on protesting.
But one place where you can’t protest is at the Supreme Court. You may be familiar with the gatherings out front, usually with signs and microphones. These media stunts protests are intended to get on the news so, the group’s message can be propagated. These photo ops protests are perfectly legally if they stay on the sidewalks. Otherwise, they’re not.
In 1949, Congress passed 40 USC 6135, which says:
It shall be unlawful to parade, stand, or move in processions or assemblages in the Supreme Court Building or grounds, or to display therein any flag, banner, or device designed or adapted to bring into public notice any party, organization, or movement.
In deciding that the sidewalks were not covered by this statute, the Supreme Court relied heavily on the fact that public sidewalks are traditionally public forums, and that the clause at issue was only the Display Clause. And the fact that these particular sidewalks abutted the Supreme Court grounds didn’t change the analysis. The Court concluded that there isn’t anything peculiar to the Court that would require a total ban on speech on the sidewalks.
But beyond the sidewalks is the Supreme Court building and plaza. A couple years ago, the D.C. Circuit established that these areas were nonpublic forums and upheld the statute. In that case, Harold Hodge, Jr. hung from his neck a two-by-three-foot sign displaying the words “The U.S. Gov. Allows Police To Illegally Murder And Brutalize African Americans And Hispanic People.” After four warnings and four refusals to leave, Hodge was arrested. After conviction, he attacked the statute civilly.
Courthouses, says the D.C. Circuit, are not usually public forums. And the Supreme Court implied that its courthouse was also a nonpublic forum. Moreover, the D.C. Circuit Court found that not limiting access to the plaza at certain times in no way changed the analysis. An interesting nugget in the decision is how the Courthouse is different than the Capitol Building because judges aren’t politicians.
Once the D.C. Circuit concluded it was a nonpublic forum, it was a smooth downhill ride for the panel. The law didn’t discriminate based on viewpoint; so, that was out as a path to victory. And the government argued that the need to silence speech furthered the interests of decorum and the appearance that the Court was immune to political pressure. Based on these concerns, the Court held that the statute was a reasonable restriction in a nonpublic forum.
In case that 40 USC 6135 didn’t provide enough protection, Congress bolstered it with 40 USC 6134, which says:
It is unlawful to discharge a firearm, firework or explosive, set fire to a combustible, make a harangue or oration, or utter loud, threatening, or abusive language in the Supreme Court Building or grounds.
The other provision is about assembling and displaying, while this is mostly about making noise. Together these statutes effectively stifle all the conceivable methods of speech. Several protestors found out that this prohibition includes interrupting oral argument:
After the Supreme Court’s Marshal gaveled the Court into session and “audience members to their seats, . . . only one member of the audience,” Appellee Belinda Rodriguez, “remained standing.” She raised her arm into the air and said, “We rise to demand democracy. One person, one vote!”
After Supreme Court police removed Appellee Rodriguez from the courtroom, Appellee Matthew Kresling stood up and said, “We rise to . . . Money is not speech. One person, one vote!” Then, upon Kresling’s removal, Appellee Yasmina Mrabet raised an arm in the air while saying, “Justices, is it not your duty to protect our right to self-government? The first . . . overturn Citizens United. One person, one vote!”
Upon Mrabet’s restraint and removal, Appellee Richard Saffle stood and stated, “Justices, is it not your job to ensure free, fair elections?” Like his cohorts, he too was restrained and removed from the courtroom by police. After Saffle’s disruption, Chief Justice Roberts warned the remaining audience members that “[a]nyone else interested in talking will be admonished that it’s within the authority of this Court to punish such disturbances by criminal contempt.”
Nevertheless, Appellee David Bronstein began singing “immediately” after the Chief Justice’s warning. Bronstein sang, “We who believe in freedom shall not rest; we who believe in freedom shall not rest.” Bronstein, too, was removed and restrained. All of the Appellees were placed under arrest and subsequently transported to a U.S. Capitol Police station. In total, the Appellees’ spectacle “lasted approximately two to four minutes.”
Before the District Court, the protestors argued that the words ‘harangue’ and ‘oration’ were unconstitutionally vague. The Court agreed, ruling the statute unconstitutional. The D.C. Circuit reversed.
Although harangue and oration were today unusual words, the Court concluded that Congress’s use of them did not deprive citizens of fair notice and thus violate Due Process. In the past, the words became associated with making public speeches. And while not in common use, they maintain that meaning today. Ask the next ten cashiers you meet if they know what those words mean. You probably won’t get 10/10.
On the one hand, Congress chose words that an ordinary person would be unlikely to know. On the other, the Court could point to a long-standing understanding of those words to supply the statute with greater clarity. One can argue that legislatures should use plain English whenever possible, but their failure to do so is not malfeasance of constitutional proportions. The Court’s job is to make sense of words on the page, and that’s what the Court did here.
The Court noted that the words carried different definitions, but through the magic of legal interpretation they came to mean public speeches disrupting the Supreme Court’s order and decorum. It’s a solid legal analysis. But it does leave a reader wondering why Congress couldn’t just write it that way in the first place.
It really shouldn’t be the role of the Courts to fix bad drafting, which is what it spends much of its time doing. Sure, drafting is hard, and it’s impossible not to create ambiguity or vague sections in a long enough document. But here, it would have been straightforward to prohibit any noise that disrupts the Court’s operation.
Ultimately, it’s a legal fiction to say that an ordinary person can read what was actually written and understand what Congress meant to say. If it were otherwise, then we’d need few lawyers and judges. And it’s a perfectly defensible fiction deployed here. But the broader question is, should courts go this far to bail out legislatures?
These canons of interpretation represent a legislative get-out-of-jail-free card. They can continue to draft sloppy, unclear, and difficult-to-understand statutes, with the expectation that the courts will usually bail them out. Drafting by interpreting increases the power of the judiciary at the expense of the legislative. And it permits individual legislators to act without any skin in the game. This means that there is no incentive for them to change behavior.
Meanwhile, an ordinary citizen can’t read the statute and understand the meaning, undercutting the other legal fiction of notice by passage. Even after a judicial decision explaining the statute, a regular person won’t know that, unless they know how to search for cases and look for annotations. And it is the ordinary citizen that faces arrest, detention, and prosecution for slipshod drafting. That’s not the way lawmaking should work.