On June 11, in the case Hodge v. Talkin, a U.S. District judge in D.C. struck down a 64 year old law banning demonstrations on the grounds of the Supreme Court.  The statute, originally codified in 1949 as 30 U.S.C. § 13k, was slightly modified in 2002 and became 40 U.S.C. § 6135. The statute bans gatherings or displays intended to bring notice to a particular group or movement.  It was originally based on an older statute concerning the policing of the Capitol grounds and was designed to preserve the dignity of the Supreme Court.

In her decision, U.S. District Judge Beryl Howell wrote that the statue was “irreconcilable with the First Amendment” and so broad it could apply to a “line of preschool students . . . parading on their first field trip to the Supreme Court.”  The decision arose out of Hodge v. Talkin, in which Harold Hodge, Jr. was arrested in January 2011 for holding a sign that read “The U.S. Gov. Allows Police to Illegally Murder and Brutalize African Americans And Hispanic People.”  After Hodge agreed to stay away from the Court for six months, the charges were dropped.  A year after his arrest, Hodge brought this action, stating that he wanted to engage in “peaceful, non-disruptive political speech and expression.”

A 1983 ruling by the Supreme Court allowed an exception to 40 U.S.C. § 6135: the sidewalks surrounding the Supreme Court plaza were deemed public forums where peaceful demonstrations could not be banned.  Since that time, however, the courts have been reluctant to extend that area into the plaza.  Even Judge Howell noted that the plaza could be seen as a non-public forum, which allows for restrictions on public demonstrations and expressions.  But she noted that its non-public status resulted from the enforcement of the laws against protests and that the area naturally suggested a “more welcoming invitation to . . . public expression.”

While Judge Howell’s decision constituted a significant victory for certain advocates of First Amendment rights, it was short-lived.  Within days, the Supreme Court issued a new regulation limiting gatherings and demonstrations.  This one specifically allows casual use by “tourists and visitors.”  That exemption seems targeted to assuage concerns raised by Judge Howell that the previous regulation could prohibit even the most mundane activities.

While no doubt the Supreme Court’s rapid issuance of the new regulation was motivated in part by a perceived need to maintain the proper decorum in the area surrounding the highest court in the Nation, the Supreme Court was likely more concerned by another issue: its image of impartiality.  If the Supreme Court plaza plays host to a group of protestors some might perceive it as tacit support of the group or might question if the protests influenced the Justices in their deliberations.  With rulings pending on a slew of controversial issues–affirmative action, the Voting Rights Act, and gay marriage–the Court has an especially pressing need to maintain an image of impartiality.  For protestors, the message is clear: keep it on the sidewalk.