Judge Beryl A. Howell commenting in the recent Hodge decision regarding demonstrating at the Supreme Court, recounting the history of the statute, and the related one at the Capitol:
The panel concluded that “it is difficult to imagine a statute which could more plainly violate the principle that ‘First Amendment freedoms need breathing space to survive[and] government may regulate in the area only with narrow specificity.’”
And later she said...
The Circuit pointed out that the three judge panel in Jeannette Rankin Brigade II, 342 F. Supp. at 585, had “unequivocally stated, ‘[the] desire of Congress, if such there be, to function in the ‘serenity’ of a ‘park like setting’ is fundamentally at odds with the principles of the First Amendment.’”
and ...
an interest in ‘the glorification of
a form of government through visual enhancement of its public buildings’ can no more justify an absolute prohibition of free expression on the Supreme Court grounds than on the grounds of the United States Capitol.”
Id. (no citation provided). The Circuit further explained that: The sight of a sole picketer may indeed mar an otherwise pristine morning or perfectly centered snapshot. However, it is just that annoyance - if such be the case- that may cause bystanders or passerby to stop and take notice, to become aware of an issue, to formulate a response to a companion. This awareness and interchange is, in part, precisely what the First Amendment is designed to protect.
and ...
Indeed, finding that “[a] total ban on that conduct is no more necessary for the maintenance of peace and tranquility on the public sidewalks surrounding the building than on any other sidewalks in the city[,]”
and ...
The plaza is “open to the public 24 hours a day, except under special circumstances when it is closed by the Marshal,” and“[t]he public is free to enter and leave the Supreme Court plaza at all hours.”
and ...
Summary judgment shall be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
and ...
Nonetheless, “[n]othing in the Constitution requires the Government freely to grant access to all who wish to exercise their right to free speech on every type of Government property without regard to the nature of the property or to the disruption that might be caused by
the speaker’s activities.” Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 799 - 800 (1985). Acknowledging that the government, “‘no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated,’” id. at 800 (quoting Greer v. Spock , 424 U.S. 828, 836 (1976)), the Supreme Court “has adopted a forum analysis as a means of determining when the Government’ s interest in limiting the use of its property to its intended purpose outweighs the interest of those wishing to use the property for other purposes[,]” id. Consequently, the defendants urge the Court to conduct a forum analysis of the Supreme Court plaza as the threshold issue in evaluating the constitutionality of the statute, and to find “that the Supreme Court plaza is a nonpublic forum under First Amendment analysis.” ... Any restriction based on the content of speech in a public forum “Must satisfy strict scrutiny, that is, the restriction must be narrowly tailored to serve a compelling government interest.”
