consistently with the Constitution, to make reasonable provision for regulating the use of, and the conditions of access to, the Capitol Grounds, and (2) such provision may validly comprehend numerical restrictions upon the assemblages or persons upon those Grounds. Whatever the merit of these principles, they are tangential to the issue with which we have been dealing thus far in this opinion, namely, the constitutional propriety of Section 193g as it stands.
The local courts of the District of Columbia have, as noted hereinabove, felt unable to recognize that propriety without putting a substantial gloss upon Section 193g by an expansive interpretation of its terms. The defendants have recoiled from this particular escape hatch and implore us not to make the same error. That error, however, appears to be, in their view, no that the statute has, under the guise of judicial interpretation, been amended and the legislative purpose perverted, but rather that the amendment in question is not the one the defendants prefer as the way out of their constitutional dilemma.
It is the Government's submission to us that Section 193g should not be read literally as forbidding all assemblages, but that it should be taken as providing that there may be no assemblages larger than 15 in number. In its brief the Government graphically makes this point by quoting the statute with words (to be interpolated by us) in brackets, i.e., ". . . to stand . . . in processions or assemblages [of more than fifteen persons]."
Without such judicial emendations, so the Government forcefully argues, the present language of the statute is open to absurdities which Congress cannot be taken to have intended. Moreover, such a reading would make it possible for groups like the plaintiffs to approach the Capitol in groups of 15 for the purpose of presenting petitions for the redress of grievances or even of being photographed with their Congressman.
We do not, of course, make light of the problems and perplexities which the flatly prohibitory language of Section 193g creates for police and prosecutor. They bear the burden of trying to enforce and sustain a statute which, however unremarkable it may have appeared to be in 1882 when it was first enacted, fairly bristles with difficulties when it is sought to be enforced 90 years later. These problems were presumably what prompted the then United States Attorney, appearing in 1967 at committee hearings, to warn the Congress that this statute was in trouble, and to make a proposal for its revision.
Although Congress at that time amended and enlarged other sections of the Capitol Grounds statutes of which Section 193g is a part, it left the language of that section unchanged -- a decision which can only be regarded as a consciously deliberate one in view of the representations made to it about the need for change. The only inference logically to be drawn from this is that Congress reaffirmed its 1882 purpose to forbid all demonstrative assemblages of any size, no matter how peaceful their purpose or orderly their conduct.
A statute of that character is void on its face on both First and Fifth Amendment grounds; and we so declare this one to be.
There are, of course, occasions when courts, by limiting constructions placed upon the words of a statute, are able to turn back constitutional attack. See, e.g., United States v. Seeger, 380 U.S. 163, 85 S. Ct. 850, 13 L. Ed. 2d 733 (1965); Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S. Ct. 766, 86 L. Ed. 1031 (1942). But there are bounds beyond which it is not appropriate for courts to go in this regard, at least without exposing themselves to the charge that they are usurping the legislative function. See Aptheker v. Secretary of State, 378 U.S. 500, 515, 516, 84 S. Ct. 1659, 12 L. Ed. 2d 992 (1964). Although we are not unsympathetic with the reasons which prompt the United States Attorney to ask us to rewrite a curiously inept and ill-conceived Congressional enactment, we think that is a function more appropriately to be performed by Congress itself.
In the first place, the regulation of public access to the Capitol Grounds is a question of peculiar interest and importance to the Congress. We are not informed with respect to either the general objectives to be achieved by such regulation or the manifold special problems which must be accommodated. Secondly, we have no basis for concluding, as the defendants would have us do, that numerical limitations are the best way to achieve the Congressional purposes, or, if they are, what the exact numbers should be. These are issues best to be resolved by the legislative machinery of investigation and hearing, directed to proposals formulated by draftsmen who are both close to the facts and cognizant of the relevant legislative objectives. Indeed, we can scarcely conceive of a situation, so closely touching upon the immediate concerns of the Congress itself, where the intrusion of judicial prescription into the law-making process would be more out of keeping with the concepts embodied in the separation of powers.
In declining to save this statute by the means suggested by the Government, we do not consider that Congress is threatened with a state of anarchy until it can devise its own plan for the admission of the public to the Capitol Grounds. Those who presently go upon the Capitol Grounds, either singly or in groups, are subject to other sections of the existing laws regulating conduct within the Capitol Grounds which forbid (1) public travel on or occupancy of any area other than "roads, walks, and places prepared for that purpose by flagging, paving, or otherwise," (2) obstructing any roads or "hindering their proper use", (3) persons to "step or climb upon, remove, or in any way injure any statue, seat, wall, fountain, . . . tree, shrub, plant, or turf," (4) carrying "any firearm, dangerous weapon, explosive, or incendiary device", (5) entering or remaining on the floor of either House, or gallery in violation of any rules, or any room "with intent to disrupt the orderly conduct of official business", (6) uttering "loud, threatening, or abusive language, or (engaging) in any disorderly or disruptive conduct" anywhere on the Grounds "with intent to impede, disrupt, or disturb the orderly conduct of any session of the Congress", (7) engaging in any act of physical violence, and (8) parading, demonstrating, or picketing within any of the Capitol buildings.
While minute scrutiny may perhaps suggest that these provisions perhaps may not cover every conceivable contingency incompatible with good order, they hardly constitute the "statutory vacuum" which the Superior Court in Nicholson purported to fear, and which caused it elaborately to construe Section 193g to provide comparable protections. There is nothing in the prohibitions of § 193g which that construction preserved which is not also prohibited by other provisions of the Capital Grounds laws. The coexistence of § 193g with these prohibitions can, in reason, only imply that Congress must be taken, by the language it has used, to intend to prohibit absolutely assemblages which do not violate any of the more specific provisions. That purpose the Constitution does not countenance.
There remains the matter of the relief to be given at this time. As the foregoing reveals, although the plaintiffs have been back and forth on the question of immediate injunctive relief, their latest statement on the subject embodies a request that it be afforded. We have noted above (p. 580) the representation of defendants to this court that they propose to respect the Nicholson construction only until we rule. Under these circumstances, although our jurisdiction does not depend upon a grant of injunctive relief, the judgment we propose to enter will, in addition to declaring Section 193g to be void on its face because of the constitutional infirmities exposed hereinbefore, permanently enjoin the defendants from enforcing Section 193g.