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10/04/90 ROBERT PEARSON v. UNITED STATES

October 4, 1990

ROBERT PEARSON, ET AL., APPELLANTS
v.
UNITED STATES, APPELLEE



Appeals from the Superior Court of the District of Columbia; Hon. Arthur L. Burnett, Trial Judge

Rogers, Chief Judge, and Newman and Terry, Associate Judges.

The opinion of the court was delivered by: Rogers

Appellants appeal their convictions of parading and assemblage on Supreme Court grounds, 40 U.S.C. § 13k (1988), and unlawful entry, 40 U.S.C. § 13e (1988) and Regulation Two, promulgated pursuant to 40 U.S.C. § 131 (1988), on the ground that the statute and the regulation are not narrowly tailored to support the government's interests and violated their First Amendment rights by impermissibly prohibiting expression in a public forum, the Supreme Court plaza. Alternatively, they contend that, notwithstanding the trial Judge's narrowing constructions, the statute and regulation are unconstitutionally overbroad and vague. We affirm.

I

The essential facts are undisputed. In January 1988, appellants were among approximately fifty thousand people who participated in an annual anti-abortion march from the Ellipse in Washington, D.C. to the Supreme Court of the United States to protest the Court's decision in Roe v. Wade. *fn1 In anticipation of the march, the Marshal of the Supreme Court, acting pursuant to Regulation Two, closed certain areas of the Supreme Court grounds, including the plaza and main steps, between 1 p.m. and 6 p.m. on January 22, 1988, to all persons except the press. *fn2 Notice of the closure was posted at least twenty-four hours in advance of the march and barricades were placed at the top of the stairs leading to the Supreme Court plaza. Despite the plaza's closure, appellants approached the barricades in groups of two to seven people. They were advised by officers at the Court that if they entered the plaza area, they would be subject to arrest. *fn3 Appellants still entered the plaza and knelt down in prayer. *fn4 They were informed twice that they were violating the law and were requested to disperse. When appellants refused to leave, they were arrested for parading and Assemblage on Supreme Court grounds and unlawful entry. *fn5 At the time of their arrests there were about thirty people, including appellants, on the plaza.

The trial Judge denied appellants' motion to dismiss the charges. He rejected appellants' contention that the Supreme Court plaza is a public forum either by tradition or designation, and concluded that the relatively recent practice, according to appellants, of media interviews of counsel and news conferences held on the plaza did not create a tradition. Noting the unique function of the Supreme Court, the Judge observed that by enactment of section 13k and Regulation Two the government has, in effect, designated the plaza as a nonpublic forum. Each, the Judge ruled, was a content neutral and reasonable method of serving substantial government interests. Alternatively, citing United States v. Wall, 521 A.2d 1140, 1144 (D.C. 1987), the Judge ruled that section 13k, as well as Regulation Two, which was not before the court in Wall, were narrowly drawn and served a significant government interest even under the more stringent public forum standard. Finally, the Judge rejected appellants' claim that the statute and regulation were unconstitutionally overbroad because each was susceptible to a constitutionally sound limiting construction. The Judge construed the statute as limited to providing for protection of the Supreme Court building and grounds, and persons and property therein, and the maintenance of proper order and decorum, and Regulation Two as limited by its expressly stated purpose. Declining to rule on the vagueness claim, since appellants' conduct fell within the narrowed scope of the statute and regulation, the Judge nonetheless concluded that the statute and regulation, in light of their purposes, were clear and definite.

II

In Wall, this court, upon applying the different standards for reviewing statutes which regulate First Amendment speech depending on the character of the property at issue, rejected the same challenge to section 13k by anti-abortion demonstrators that is raised in the instant appeal. 521 A.2d at 1143-44 (citing Perry Education Ass'n v. Perry Local Educators' Ass'n (Perry), 460 U.S. 37, 44, 103 S. Ct. 948, 74 L. Ed. 2d 794 (1983)). In Wall, as here, a small group of anti-abortion demonstrators went to the plaza area of the Supreme Court grounds and ascended the steps leading to the entrance to the Court building. When they did not retreat to the sidewalk area after being warned they otherwise would be arrested, but continued to kneel and pray, they were arrested. The trial court held that the plaza area was a public forum and application of section 13k to Wall's activity was unconstitutional. Id. at 1142. This court reversed, holding that the first clause of the statute *fn6 passed muster under both the standard applicable to nonpublic forums and the test applied to time, place and manner restrictions permissible in public forums. *fn7 Id. Accordingly, the only question in the instant appeal is whether, as appellants contend, the standard used by this court in Wall has been "vitiated by several subsequent Supreme Court decisions," all of which, they claim, firmly hold that a statute is not narrowly tailored merely because it is "'not unrelated' to the means it is intended to serve." See M.A.P. v. Ryan, 285 A.2d 310 (D.C. 1971) (a division of the court is bound by opinion of another division absent en banc review). Relying on Ward v. Rock Against Racism, 491 U.S. 781, 109 S. Ct. 2746, 2758, 105 L. Ed. 2d 661 (1989), Frisby v. Schultz, 487 U.S. 474, 108 S. Ct. 2495, 2503, 101 L. Ed. 2d 420 (1988), and Boos v. Barry, 485 U.S. 312, 108 S. Ct. 1157, 99 L. Ed. 2d 333 (1988), appellants maintain that section 13k and Regulation Two are "'far broader' than necessary to achieve any legitimate governmental objectives" and consequently fail to meet the narrowly tailored standard. *fn8 To address this contention we first review the proper analytical framework.

A.

The Supreme Court has classified properties into three categories for purposes of First Amendment speech analysis: the traditional public forum, the government-designated public forum, and the non-public forum. Cornelius v. NAACP Legal Defense and Educational Fund, Inc. (Cornelius), 473 U.S. 788, 802, 105 S. Ct. 3439, 87 L. Ed. 2d 567 (1985); Perry, supra, 460 U.S. at 45. Where a property has a long tradition of devotion to assembly and debate, the rights of the government to restrict expressive activity are very limited. *fn9 Perry, supra, 460 U.S. at 45. In a public forum, where the restriction on speech is content based, the government must show that its regulation is "necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end." Id. (citing Carey v. Brown, 447 U.S. 455, 461, 100 S. Ct. 2286, 65 L. Ed. 2d 263 (1980)). However, even in a public forum, the government may enforce reasonable content neutral time, place and manner regulations that are "narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication." Id. at 45.

The second category is public property which has been designated as a place for expressive activity by government action. *fn10 Id. As in a traditional public forum, content based restrictions must be narrowly drawn to effect a compelling state interest. Id. at 46 (citing Widmar v. Vincent, supra note 6, 454 U.S. at 269-70.) Content neutral restrictions must be reasonable time, place and manner restrictions. Id. at 46.

Lastly, nonpublic forums are properties which are not forums for public communication or expression by tradition or designation. Id. Access to publicly owned property is not guaranteed by the First Amendment, id. (citing United States Postal Service v. Council of Greenburgh Civic Ass'ns, 453 U.S. 114, 129, 101 S. Ct. 2676, 69 L. Ed. 2d 517 (1981)), and like any private property owner, the government has the right "to preserve the property under its control for the use to which it is lawfully dedicated." Id. In addition to reserving the non-public forum "for its intended purposes, communicative or otherwise," the government may also enforce time, place and manner restrictions as long as the regulation on speech is reasonable and not an effort to suppress the speaker's point of view. Id.

Appellants contend that the Supreme Court plaza is a traditional public forum which has been devoted to assembly and debate. They maintain the plaza, as an unenclosed, accessible area immediately adjacent to an important government building, is physically and functionally similar to the public sidewalks surrounding that area, and the spacious public lawns and open areas surrounding the Capitol. *fn11 Consequently, appellants contend that the government mistakenly advances factors in support of the constitutionality of the statute and regulation which are relevant only to a determination of a designated public forum, and not to the Supreme Court, a traditional public forum.

Although we agree with appellants that the physical and functional attributes of a building may be relevant to a determination that a public property is a public forum, these attributes are properly significant only to the extent that they reflect the use and purpose of the property. *fn12 See Grace, supra, 461 U.S. at 178-80. As the government argues in its brief, the forum test should focus on whether the place has been devoted to assembly and debate, not whether the physical features of the Supreme Court are similar to other public forums, and appellants' assertion that the plaza has traditionally been used for public expression by the media, attorneys and others is unsupported in the record and in the law. Further, as the trial Judge pointed out, "even the appearance that the ...


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