The opinion of the court was delivered by: OBERDORFER
The essential facts are not in dispute. Plaintiff Mary Terese Grace entered upon the sidewalk in front of the Supreme Court building shortly after noon on March 17, 1980, and began to display a sign, approximately four feet by two and one-half feet, upon which were inscribed, verbatim, the words of the first amendment. Within a few minutes, a Supreme Court police officer approached Grace and instructed her to go across the street. The officer indicated in response to Grace's inquiry that the law, and more specifically 40 United States Code, required that she leave. After some further exchange of words the officer informed her that if she did not move she would have to come with him into the Supreme Court building. Fearing arrest, Grace left.
Plaintiff Thaddeus Zywicki entered upon the sidewalk in front of the Supreme Court in May, 1978, and began distributing to passersby leaflets which were reprints of a letter to the Editor of the Washington Post from a United States Senator concerning the subject of removal of unfit judges from the bench. Near Zywicki, and also on the Supreme Court grounds, was a coin-operated newsstand for the Washington Star. After Zywicki had distributed a few of these leaflets, a Supreme Court police officer approached him and stated that Title 40 of the United States Code prohibited the distribution of leaflets on Supreme Court grounds. Fearing arrest, Zywicki left.
On January 8, 1980, Zywicki returned to Supreme Court grounds to distribute pamphlets containing invitations to and information about several meetings and events termed "religious reflection(s) in solidarity with oppressed peoples of Central America," Guatemala, and Latin America. See Exhibit 2 to Complaint, filed May 13, 1980. Shortly after his arrival, however, Zywicki was approached by a Supreme Court police officer and informed that he was prohibited by law from distributing leaflets on Supreme Court grounds. When the officer, in response to Zywicki's inquiry, indicated that Zywicki would be arrested if he continued leafletting, Zywicki left.
On February 4, 1980, Zywicki again entered upon Supreme Court grounds and began distributing handbills allegedly concerning "political and human oppression in Guatemala." Complaint, filed May 13, 1980, at P 16. Zywicki had been informed by counsel that a Superior Court judge had "narrowed the application" of 40 U.S.C. § 13k to prohibit only conduct engaged in "with the specific intent of influencing, impeding, or obstructing the administration of justice." Id. Shortly after Zywicki began distributing the handbills, however, he was once again instructed that he would be subject to arrest if he persisted. At the time of this warning, Zywicki and the officers involved were standing near a Washington Post vending machine. After protesting that newspapers were allowed to distribute printed matter on the grounds while he was denied that "right," Zywicki left.
Plaintiffs claim that they had no intention to interfere with the business of the Supreme Court or influence the Court with respect to any given case. Indeed, Ms. Grace acted because she was "alarmed that a statute could prohibit peaceful freedom of expression on the grounds of the Supreme Court." Id. at P 9.
Plaintiffs do not claim that they applied to the Supreme Court Marshal for any permit to engage in the conduct for which they seek judicial protection or sought any ruling from him before they physically appeared on the Supreme Court grounds. Compare Jeannette Rankin Brigade v. Chief of Capitol Police, 342 F. Supp. 575, 578 n.5 (D.D.C.1972) (McGowan, J., for a three-judge court). On the other hand, 40 U.S.C. § 13l authorizes the Supreme Court Marshal to issue and publish regulations for the "maintenance of suitable order and decorum within the Supreme Court building and grounds." The only such regulation was published on November 26, 1975, to fix the hours during which the Supreme Court building is open to the public. The Marshal has, however, furnished an affidavit in these proceedings about his practice and that of his officers to advise any person carrying a sign, passing out leaflets or participating in a demonstration on the Supreme Court grounds to cease and leave the grounds or be arrested. The affidavit asserts that this is a uniform practice and that those who do not cease and leave are arrested. According to the affidavit, this practice is enforced uniformly without regard to the message of the expressive conduct. Affidavit of Alfred Wong, Marshal of the Supreme Court, May 27, 1980.
Plaintiffs contend that the statute's potential for improper application discourages exercise of first amendment freedoms and that it lends itself to discriminatory enforcement. Plaintiffs emphasize that, unlike the defendants in Cox v. Louisiana, 379 U.S. 559, 85 S. Ct. 476, 13 L. Ed. 2d 487 (1965), who appeared 2,000 strong approximately 100 feet in front of a Louisiana courthouse, each of the two plaintiffs here sought to engage in "pure speech such as lone leafletting and lone signholding". Memorandum of Points and Authorities in Support of Plaintiffs' Motion for Summary Judgment and In Opposition to Defendants' Motion for Summary Judgment, p. 3. Plaintiffs contend that where such first amendment rights are at stake "the burden is on the Government to demonstrate a legitimate and compelling Governmental interest in sustaining the statute on its face and as applied," and they urge this Court to "engage in a factored balancing analysis to evaluate whether a statute is susceptible to improper application and is necessary to accomplish a legitimate Government interest." Id. Such a process should, they contend, lead to the conclusion that the Government's interest in protecting the Supreme Court from outside influence does not justify interference with their peaceful, solitary and unobtrusive leafletting and sign carrying.
The District of Columbia Superior Court has exclusive jurisdiction over prosecutions under § 13k.
Plaintiffs point to a decision of that Court that § 13k by its terms reaches only persons who carry signs or distribute leaflets on the Supreme Court grounds "with the intent to disrupt, interfere with, or impede the administration of justice, or with the intent of influencing the administration of justice." United States v. Ebner, et al., Docket No. 12487-79 (Hannon, J.) January 22, 1980. Plaintiffs represent that they did not intend to interfere with or disrupt the Supreme Court and therefore should be declared immune from arrest or threat of prosecution. Thus, plaintiffs urge, in effect, that even if the statute were itself valid, as written, it does not proscribe their leaflets and signs.
Defendants counter with reference to Supreme Court decisions sustaining the constitutionality of statutes which foreclose expressive conduct near a United States courthouse in aid of the "legitimate Government interest in protecting the judicial system from the pressures which picketing near a courthouse might create."
Cox v. Louisiana, 379 U.S. at 562, 85 S. Ct. at 479. Defendants also cite Justice Black's opinion in Adderley v. Florida, 385 U.S. 39, 47-48, 87 S. Ct. 242, 247, 17 L. Ed. 2d 149 (1966), rejecting "the assumption that people who want to propagandize protests or views have a constitutional right to do so whenever and however and wherever they please." Defendants emphasize the distinction drawn in Jeannette Rankin Brigade, supra, between the constitutional responsibility of the legislative branch to be responsive to public petition and opinion and the need of courts to act solely on formally filed pleadings and records as addressed in oral argument in the courtroom in a form prescribed by court rule and custom. Thus, pointing to this distinction, Judge McGowan's opinion suggests that "there are some areas (such as courthouses) in which the Government may absolutely prohibit the exercise of first amendment rights, especially the right to assemble." Jeannette Rankin Brigade v. Chief of Capitol Police, 342 F. Supp. at 583. The Supreme Court site which defendants would insulate from leaflets and signs is, they point out, small and well defined by statute. Moreover, there are other areas nearby, on the Capitol grounds and elsewhere in and ...