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10/15/91 AMY L. MARKOWITZ v. UNITED STATES

DISTRICT OF COLUMBIA COURT OF APPEALS


October 15, 1991

AMY L. MARKOWITZ, APPELLANT, PETER CAPLAN, APPELLANT, JANE ZARA, APPELLANT, PAUL E. RUTHER, APPELLANT
v.
UNITED STATES, APPELLEE

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

Rogers, Chief Judge, Pryor and Belson,* Senior Judges. Opinion for the court by Senior Judge Belson. Dissenting opinion by Chief Judge Rogers.

The opinion of the court was delivered by: Belson

Each of the four appellants was charged with a single count of demonstrating in the United States Capitol building in violation of D.C. Code § 9-112 (b)(7) (1981). *fn1 Following a bench trial, the trial Judge found all appellants guilty and sentenced them to five days imprisonment with execution of the sentence suspended. The trial Judge then placed appellants on six months probation and ordered each to perform twenty-five hours of community service. On appeal, appellants contend that unless a requirement of a showing of disruption of the activities of Congress is read into section 9-112 (b)(7), it should be declared unconstitutional on its face. Appellants also contend that their conduct was no more disruptive than that of an ordinary tourist or visitor to the Capitol building, and therefore their convictions must be reversed. We affirm.

I.

Following a pretrial evidentiary hearing, the trial Judge denied appellants' motion to dismiss on the ground that the prosecutor's refusal to admit appellants into a diversion program unconstitutionally chilled their First Amendment rights and deprived them of equal protection of the law guaranteed by the Due Process Clause of the Fifth Amendment. Appellants do not challenge that ruling on appeal. The Judge prefaced his ruling on the motion with an extensive written statement of facts that served as the findings of fact on which he based his ruling. We set forth those findings here:

The testimony of all the witnesses was consistent for the most part. On December 18, 1987, the defendants along with approximately 10 to 15 other persons went to the Capitol Building to present a message or statement to Speaker of the House, Jim Wright, regarding aid to the Contra rebels in Nicaragua. They were escorted to the second floor of the Capitol Building by a page. When they got to the corridor area leading to the Democrat's door to the floor of the House of Representatives, which was then in session, a member of the U.S. Capitol Police force stopped them and asked them where they were going. According to Officer William Hynes the corridor in which they were stopped was then considered a "secure area" or a "restricted area" and was not then open to the general public. They said they wished to see Speaker Wright, whose office was about 30 feet down the corridor, but that they did not have an appointment. Officer Hynes called his detail office and requested that an official be sent up. The detail office called Sergeant Proctor and Sergeant Charles C. Johnson, who in turn called Officer William Turner. Shortly before 11:50 a.m. these three officers arrived at the second floor area where the defendants were located. At about the same time Officer Wells, who was in an adjacent stairwell, heard a commotion and also arrived on the scene. At that time the defendants were talking to some of the officers who agreed that one of the officers would escort Mr. Ruther to Speaker Wright's office to deliver the written message the group had brought. When Mr. Ruther returned, he and the other defendants conferred for a few seconds. It was then that Mr. Caplan began to pull out of his jacket pocket a banner. Ms. Zara took one end of the banner and they began to unfurl it. None of the witnesses testified that it was unfurled completely. Mr. Ruther said he could see enough of the lettering to see that the banner was upside down. Within a few seconds one of the officers grabbed the banner. Then all of the defendants sat down cross-legged in a circle in the corridor and began chanting loudly and clearly "No Contra Aid." Almost simultaneously the officers commenced grabbing the defendants, seizing them, and removing them from the area. The witnesses all agreed that only about a minute elapsed between the time Mr. Caplan and Ms. Zara began to take out the banner and the time the officers began seizing them.

United States v. Ruther, 116 Daily Wash. L. Rptr. 917, (D.C. Super. Ct. Mar. 17, 1988) (footnotes omitted).

The foregoing functioned as the findings of fact on which the motion was decided, and we treat them as such. We also note that the record of the motions hearing was incorporated by agreement into the record of trial. Thus the record facts on which the findings were based were before the Judge when he ruled on the merits and found appellants guilty.

At trial, much of the evidence was uncontested. The officers testified consistently with one another that at the time of the incident the corridor appellants were in was a restricted area of the Capitol building. *fn2 Generally, a building access card is needed to enter this corridor when it is restricted and thus not open to the public. Officer Hynes stated that at the time of appellants' conduct, a vote was taking place on the floor of the House of Representatives. Pursuant to regulations, when a vote is occurring, certain hallways and corridors are to be kept clear of all persons to allow free passage by House members. A bell and lighting system is used in the Capitol building to signal when a vote is in progress. Because visitors or tourists may be unfamiliar with this procedure, all persons who come into the area while it is restricted are approached by officers, told it is a secure area, and asked their purpose for being there.

The officers were also consistent in testifying that appellants were approximately five to ten feet from the Democratic door leading to the floor of the House of Representatives. The doorman at the door to the floor of the House of Representatives complained to the officers present that appellants' chanting was loud and disturbing, and could be heard on the House floor. Appellants chanted "NO CONTRA AID" about twelve times. According to Officer Hynes, House members were attempting to gain access to the Democratic door. When appellants began chanting, House members stopped in the hallway and "a crowd of members," approximately twelve, came off the House floor to see what was happening; a few members asked in an angry tone of voice what was going on. *fn3

Appellants were charged with demonstrating in the Capitol building in violation of D.C. Code § 9-112 (b)(7) (1989). Along with necessity and international law defenses, appellants asserted that section 9-112 (b)(7) was unconstitutional under the First and Fourteenth Amendments. The trial Judge declined to apply a narrowing construction to the statute to limit its application to disruptive demonstrations.

The parties did not request that the trial Judge make specific findings of fact. Following the bench trial, the trial Judge returned a general verdict of guilty.

All right. For the record, the Court has considered the matter, and the Court is of the view at this point that the facts and circumstances involved in this case not justify the necessity defense or the International Law defense, and the Court finds that the evidence relevant to those matters not sufficient at this point to exculpate or exonerate the defendants. And those defenses rejected, the Court finds that on the basis of the testimony and the evidence in the case at this point that the defendants are guilty as charged in the respective informations, and the Court so finds at this time.

Our review is subject to the limitations provided in D.C. Code § 17-305 (a) (1989), which provides in pertinent part: "when the case was tried without a jury, the court may review both as to the facts and the law, but the judgment may not be set aside except for errors of law unless it appears that the judgment is plainly wrong or without evidence to support it." See Robinson v. Jones, 429 A.2d 1372, 1374 (D.C. 1981).

II.

Appellants contend that the statutory prohibition against demonstrating in the Capitol building is unconstitutional "unless a requirement of disruption of, or an interference with Congressional activities . . . is read into the statute." Under their interpretation the statute would prohibit only conduct that disrupts the orderly functioning of Congress. Appellants further contend that because their conduct was not more demonstrative than conduct normally engaged in by tourists or visitors, their convictions must be reversed.

This court has recognized and adopted the Supreme Court's classification of types of government property for purposes of First Amendment analysis. Pearson v. United States, 581 A.2d 347, 349, 351-52 (D.C. 1990), pet. for cert. filed, April 22, 1991. The consideration of such classifications, commonly referred to as "forum analysis," is employed by the court to weigh the government's interest in limiting the use of its property against the competing interests of those who wish to use the property to conduct expressive activity. Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788, 800 (1985). Such analysis is appropriate because "nothing 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." Id. at 799-800 (emphasis added); accord, United States v. Wall, 521 A.2d 1140, 1143 (D.C. 1987).

The first category, traditional public forums, includes property that has a "long tradition of devotion to assembly and debate." Pearson, supra, 581 A.2d at 351 (citing Perry Education Ass'n v. Perry Local Educator's Ass'n, 460 U.S. 37, 45 (1983)). On such property, "the rights of the government to restrict expressive activity are very limited." Id. If a "government regulation discriminates among speech-related activities in a public forum, the Equal Protection Clause mandates that the legislation be finely tailored to serve substantial state interests, and the justifications offered for any distinctions it draws must be carefully scrutinized." Carey v. Brown, 447 U.S. 455, 461-62 (1980). In a traditional public forum, content-based regulations may be enforced if they are narrowly drawn to serve a compelling state interest, and "content-neutral restrictions on the time, place and manner of expression, are permissible if they are narrowly tailored to serve a significant governmental interest, and leave open ample alternative channels of communication." Wall, supra, 521 A.2d at 1143.

The second category includes what are referred to as designated public forums, encompassing public property that is not a public forum by tradition but that the state has designated for public use usually for limited expressive activity. Pearson, supra, 581 A.2d at 351 (citing Perry, supra, 460 U.S. at 45); accord, Wall, supra, 521 A.2d at 1143. Content-based regulations must meet the same criteria as apply to a traditional public forum, i.e., the regulation must serve a compelling state interest and must be narrowly drawn to achieve that end. Widmar v. Vincent, 454 U.S. 263, 269-70 (1981). If the restriction is content-neutral, the state may impose reasonable time, place, and manner restrictions. Pearson, supra, 581 A.2d at 351-52 (citing Perry, supra, 460 U.S. at 46). In a designated public forum, the state is not required to retain the open character of the forum (property) indefinitely. Wall, supra, 521 A.2d at 1143.

The third category comprises "public property which is not by tradition or designation a forum for public communication." Perry, supra, 460 U.S. at 46; 103 S.Ct. at 955 accord, Wall, supra, 521 A.2d at 1143. In such nonpublic forums, the government has the right, in addition to imposing reasonable time, place, and manner restrictions, to "reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view." Perry, supra, 460 U.S. at 46 (citing United States Postal Serv. v. Council of Greenburgh Civic Ass'n, 453 U.S. 114, 131 n.7 (1981)). Moreover, the state "has power to preserve the property under its control for the use to which it is lawfully dedicated." See id. The Supreme Court has explicitly stated that

property owned or controlled by the government which is not a public forum may be subject to a prohibition of speech, leafleting, picketing, or other forms of communication without running afoul of the First Amendment. Admittedly, the government must act reasonably in imposing such restriction, Jones v. North Carolina Prisoners' Union, 433 U.S. 119, 130-31 (1977), and the prohibition must be content-neutral.

United States Postal Serv., supra, 453 U.S. at 131 n.7 (citing Greer v. Spock, 424 U.S. 828 (1976); Adderly v. Florida, 385 U.S. 39 (1966)). A regulation governing a nonpublic forum, therefore, is evaluated for content neutrality and reasonableness. United States v. Kokinda, 110 S. Ct. 3115, 3119-20 (1990).

To invoke the forum analysis, it must be shown first that the activity or conduct in question is protected by the First Amendment; thereafter, the nature of the forum must be identified. Cornelius, supra, 473 U.S. at 797. In this instance, it is clear that appellants engaged in speech-related conduct by unfurling the banner on which was written "'the Contras are the problem, not the solution.' Nobel Peace Prize Laureate Oscar Arnulfo Arias," and by chanting "no Contra aid."

Addressing the nature of the location of the demonstration, the trial Judge, in ruling on the pretrial motions, referred to the undisputed testimony that the area in question was a restricted corridor. As he stated, "according to Officer William Hynes the corridor in which they were stopped was then considered [at that time] a 'secure area' or a 'restricted area' and was not then open to the general public." Ruther, supra, 116 Daily Wash. L. Rptr. at 917. The trial Judge further stated that "in Nicholson, *fn4 the defendants were gathered on the center steps of the East Front of the Capitol, rather than inside the building in a restricted area," id. at 921 (emphasis added), plainly a reference to his earlier finding that appellants were in a restricted area.

The record supports the trial Judge's factual finding that appellants were in a restricted corridor in the Capitol; indeed it was undisputed that the demonstration was conducted five to ten feet from the Democratic door of the House of Representatives and that the area was restricted because a vote of the House was in progress. Accordingly, the site of appellants' demonstration must properly be classified as a nonpublic forum. *fn5

We next must evaluate section 9-112 (b)(7) to determine whether it is (1) content neutral and (2) reasonable. The term "content neutral" has been used to describe restrictions on speech that "are justified without reference to the content of the regulated speech." Virginia Pharmacy Board v. Virginia Citizens Consumer Council Inc., 425 U.S. 748, 771 (1976). A statute whose purpose is unrelated to the content of expression is neutral "even if it has an incidental effect on some speakers or messages but not others." Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).

D.C. Code § 9-112 (b)(7) provides that "it shall be unlawful for any person or group of persons willfully and knowingly . . . to parade, demonstrate, or picket within any of the Capitol Buildings." Its express terms clearly indicate that Congress intended an absolute ban on all types of demonstrations in the Capitol buildings. The means Congress employed to serve its interest, a flat ban on all demonstrations in the Capitol buildings, is content neutral.

The next question to address is whether the statute is reasonable. In United States v. O'Brien, 391 U.S. 367 (1968), the Supreme Court stated that:

Whatever imprecision inheres in [the statute's] terms, we think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

Id at 377.

It is a known fact that the peculiar and historical nature of the Capitol building attracts many tourists each year. At the same time that the Capitol building is a historic landmark, however, it is also the place where members of Congress carry out the duties of office. The ability of members of Congress to function efficiently in light of the nature of their work is a legitimate and identifiable goal; among other things, they must have free passage to attend hearings and meetings, unobstructed access to the floor of the House of which they are members, and an undisturbed setting in which to deliberate and cast votes upon proposed legislation. The legislative history confirms the governmental interest Congress sought to serve, viz, to transact its business in an orderly manner without interference while respecting the right of the people to assemble peaceably and to petition the government. *fn6

Section 9-112 (b)(7) is reasonably drawn to proscribe conduct that would interfere with the ability of members of Congress to fulfill the duties of office. "The federal workplace, like any place of employment, exists to accomplish the business of the employer. . . . It follows that the Government has the right to exercise control over access to the federal workplace in order to avoid interruptions to the performance of the duties of its employees." Cornelius, supra, 473 U.S. at 805-06.

In Rock Against Racism, supra, the Supreme Court made it clear that, even in a public forum, a regulation of the time, place, or manner of protected speech "need not be the least restrictive or least intrusive means" of achieving the end sought. 491 U.S. at 798. The means chosen, however, cannot be "substantially broader than necessary to achieve the government's interest." Id. at 800. The means Congress adopted here, a ban on demonstrations, cannot be said to be substantially broader than necessary. *fn7 Although this court's opinion in Smith v. United States, 445 A.2d 961 (D.C. 1982) (en banc) dealt with the unique status of the White House, its observations concerning the potential of demonstrations are instructive. As we stated, "protests and politically motivated demonstrations inherently involve some degree of controversy. When controversy is flaunted before a large captive audience, there is always a chance for violence or unrest, however slight." Id. at 965. *fn8

We also observe that the right to engage in demonstrations is not unlimited.

The First Amendment does not demand unrestricted access to a nonpublic forum merely because use of that forum may be the most efficient means of delivering the speaker's message. Rarely will a nonpublic forum provide the only means of contact with a particular audience.

Cornelius, supra, 473 U.S. at 809 (citation omitted). This court in Leiss v. United States; 364 A.2d 803 (D.C. 1976), cert. denied, 430 U.S. 970 (1977), adopted the alternative means of expression test articulated by the Supreme Court in Pell v. Procunier, 417 U.S. 817, 823-24 (1974). In Leiss, supra, because alternative means were available to the appellant for the continued exercise of his right to protest outside the gate to the White House instead of on the White House grounds, there was "no infringement of protected expression sufficient to countervail the government's interests in limiting appellant's activity." Leiss, supra, 364 A.2d at 808-09; see also Smith, supra, 445 A.2d at 966 (not unreasonable to limit access to the White House for touring purposes, as an alternate forum for protests and demonstrations is available outside the gates); O'Brien v. United States, 444 A.2d 946 (D.C. 1982) (appellant had the option of distributing commercial leaflets in an alternative area approximately fifteen feet from the top of an escalator of a metro station). See generally Wall, supra, 521 A.2d at 1144; Carson v. United States, 419 A.2d 996 (D.C. 1980).

The availability of an alternate forum is not a prerequisite to the imposition of otherwise reasonable restrictions on a nonpublic forum. Nevertheless, the ready availability of alternate forums to appellants here weakens their position. They could have demonstrated on the grounds just outside the Capitol buildings. See Dellums v. Powell, 184 U.S. App. D.C. 275, 303, 566 F.2d 167, 195 (1977), cert. denied, 438 U.S. 916 (1978). Another alternative was the delivery of a letter or other form of written communication -- a method used successfully by these very appellants to petition the Speaker of the House just moments before they began to unfurl their banner and chant. Numerous other alternatives to a demonstration in the restricted area immediately next to the Democratic door to the House floor were available to appellants. The availability of the alternatives together with the importance to the Congress of protecting the environment in which it legislates leads us to the Conclusion that the statutory limitation on demonstrations is reasonable as applied to nonpublic forums within the Capitol buildings.

III.

Having rejected appellants' argument that the trial court erred, either as a matter of statutory construction or Constitutional requirement, in failing to construe the statute to include the element of disruption of, or interference with, the conduct of Congressional business, we turn to the record to ascertain whether it supports the trial Judge's general verdicts of guilt. *fn9

We note first that it is clear that appellants engaged in the type of activity the statute expressly forbids -- demonstrations in the Capitol building; defense counsel conceded at trial that the type of conduct engaged in by appellants constituted a demonstration. The following colloquy took place during defense counsel's examination of appellant Caplan:

[DEFENSE COUNSEL]:

Q. At the inception of the demonstration whereupon --

THE COURT: Counsel, you characterized it demonstration. You concede there was a demonstration?

[DEFENSE COUNSEL]: Sure.

THE COURT: Okay. All right.

[DEFENSE COUNSEL]:

Q. Your Honor -- excuse me Mr. Caplan. With respect to the inception of the demonstration, which for these purposes I will characterize as pulling out the banner, the beginning of the pulling out of the banner, at that time were you ever warned to cease and desist those activities?

A. No. *fn10

Although section 9-112 does not explicitly define a "demonstration," another source offers guidance and confirms the wisdom of counsel's concession.

Regulations adopted by the Capitol Police define the term demonstration. Article XIX of the Regulation of Vehicular and Pedestrian Traffic on United States Capitol Grounds in Connection with Demonstration Activities *fn11 states the following:

As used in this article, the term "demonstration activity" means demonstrating, parading, picketing, speechmaking, holding of vigils, sit-ins, or other activities, conducted for the purposes of demonstrating approval or disapproval of governmental policies or practices (or lack thereof), expressing a view on public issues, or bringing into public notice any issue or other matter.

We deem this a useful definition of the word "demonstration" as it is ordinarily used. We observe that although it includes the words "or other activities," those words do not broaden the definition to include activities of every type. Under the familiar ejusdem generis rule, *fn12 the word "activities" as used in the above definition refers to actions in the same class with "parading, picketing, speech making" etc., and does not include such things as conversation conducted in ordinary tones. *fn13

Under this definition and within the ordinary meaning of the word, the activity engaged in by appellants, before they began chanting, i.e., the unfurling of a large banner outside the Democratic door to the House chamber, could reasonably be found to have been a demonstration, and the trial Judge's general verdict cannot be questioned on the ground that the record does not support his finding that a demonstration took place. *fn14 Although ample evidence showed that appellants actually disturbed the conduct of the business of Congress, the trial Judge did not have to make such a finding under the statute and refrained from so doing. *fn15

Appellants also argue that under the tourist standard enunciated in Nicholson, supra note 4, 184 U.S. App. D.C. at 305, 566 F.2d at 197, and applied by this court to conduct in the Rotunda of the Capitol in Wheelock, supra, their conduct was "not more disruptive than that normally caused by tourists, visitors or lobbyists." The short answer to this argument is that it does not apply in areas like the one involved here that are restricted as to the general public including tourists.

At issue in Nicholson was the validity of provisions relating to the Capitol Grounds, D.C. Code §§ 9-118 to 9-132. Appellants in that case stood on the center steps of the east front of the Capitol reading from the Congressional Record a list of individuals killed in the Vietnam War. 184 U.S. App. D.C. at 305, 566 F.2d at 197. The Capitol Police arrested appellants after they refused to comply with an order from the Chief of the Capitol Police that they leave. Id. The trial Judge acknowledged that the Capitol Grounds statute "could not constitutionally be applied to enforce a policy of keeping off the Capitol Grounds groups of persons merely because they are controversial in character or because they seek to exercise First Amendment rights." Id. at 311, 566 F.2d at 203 (footnote omitted). The trial Judge, however, restricted the scope of the statute to save it from unconstitutionality by holding that it penalized only conduct that would be "more disruptive or more substantial (in degree or number) than that normally engaged in by tourists and others and routinely permitted on the Grounds." Id. at 313 n.22, 566 F.2d at 205 n.22 (emphasis added).

Nicholson applied the tourist standard it enunciated to the Capitol grounds only. Our holding in Wheelock applied the tourist standard to an area of the Capitol building that is open to the public, i.e., the rotunda. In this case, we deal with a restricted corridor that was closed to the public at the time, and to which access could then be gained only by showing a building access card. Thus, we hold that because tourists were not allowed in this corridor unless they had a building access card, the application of the tourist standard is inappropriate.

We are satisfied that after taking into consideration the purpose of this particular nonpublic forum and all surrounding circumstances, see Cornelius, supra, 473 U.S. at 809, the ban on all demonstrations in this particular nonpublic forum was reasonable and content neutral, and therefore constitutional. *fn16 We are similarly satisfied that the record supports the trial Judge's general verdicts of guilt. *fn17

For the foregoing reasons, the general verdicts entered by the trial Judge have not been shown to be vulnerable on legal or factual grounds, and appellants' convictions are

Affirmed.

ROGERS, Chief Judge, Dissenting: The majority construes D.C. Code § 9-112 (b)(7) to prohibit in the United States Capitol building any "activity" which is "conducted for the purposes of demonstrating approval or disapproval of governmental policies or practices (or lack thereof), expressing a view on public issues, or bringing into public notice any issue or other matter." Majority opinion at 21. The majority further concludes that this construction is constitutional, at least as applied to those portions of the Capitol that the government designates as "restricted areas." In my view, the majority's construction of the statute -- which allows the government to treat the Capitol as a virtual "First Amendment Free Zone," Board of Airport Comm'ners v. Jews for Jesus, Inc., 482 U.S. 569, 574 (1987) -- is both inconsistent with the legislative history and unconstitutional. Accordingly, I respectfully Dissent.

I.

The unique posture of this case must be emphasized. The trial Judge was presented with conflicting evidence on the question whether the demonstrators were disruptive before their arrest. Several police officers testified that appellants chanted loudly before their arrest. Some of the appellants testified that they silently unfurled the banner and were immediately arrested, and that they did not begin chanting until after the police officers seized them. The trial Judge explicitly declined to make a finding, however, on whether appellants were engaged in a disruptive demonstration before their arrest. The Judge concluded that he did not need to make such a ruling because the statute prohibited all demonstrations, even those that were entirely peaceful.

Therefore, in order to affirm the majority must assume, for purposes of this appeal, that appellants were entirely peaceful before their arrest. *fn1 Under the posture of this case, we must decide (1) whether the statute proscribes peaceful expressive conduct, and if so, (2) whether such a prohibition is constitutional. The majority answers these questions in the affirmative. In my view, the majority errs in both Conclusions.

A.

The statute provides that "it shall be unlawful for any person or group of persons willfully and knowingly . . . to parade, demonstrate, or picket within any of the Capitol buildings." D.C. Code § 9-112 (b)(7). The statute does not provide a more specific definition of the term "demonstrate," and the majority turns to a regulation promulgated pursuant to a different statute, 40 U.S.C. § 212 (b) (authorizing the Capitol Police Board to regulate traffic on the Capitol grounds), in construing the term. The legislative history of § 9-112 (b)(7), however, makes clear that Congress did not intend so broad a ban as the majority now approves.

Congress' primary purpose in enacting § 9-112 (b) was to respond to "a substantial increase in, the number of incidents of excessive disruption or disorderly conduct" in the Capitol buildings. S. REP. No. 573, 90th Cong., 1st Sess. 2 (1967). During the floor debate members of Congress justified the need for the statute by describing several disruptive demonstrations. See 113 CONG. REC. 29,388 (1967) (statement of Representative Colmer) ("a group of misguided Puerto Ricans . . . entered Capitol Building itself and up there in the corner of the gallery they arose and began a holocaust of shooting and a general disturbance here in the Capitol itself. A number of the Members were shot"); id. (a group "forced the guards up against the walls, entered the gallery itself, and created a great disturbance in the deliberations of the Nation's business"); id. at 29,930 (statement of Representative Anderson) ("some students . . . laid down upon the floor and began to kick and scream and carry on in a boisterous, disorderly and disgraceful fashion").

Congress was cognizant, however, of the need to balance its interest in preventing disruption with the people's rights "of freedom of expression and of assembly and the right to petition their Government." S. REP. No. 573, (supra) , at 2. Congress was also aware of the unique importance of protecting expressive activity at the Capitol. Hearings on S. 2310 Before the Subcomm. on Public Buildings and Grounds of the Senate Comm. on Public Works, 90th Cong., 1st Sess. [hereinafter Senate Hearings] at 18 (statement of David G. Bress, United States Attorney for the District of Columbia) (indicating "the closer relationship of first amendment rights on the Capitol Grounds, . . . including [the right to] petition to redress grievances"). As this court has recognized, "'the United States Capitol is a unique situs for demonstration activity' and 'is a place traditionally open to the public -- thousands visit each year -- to which access cannot be denied broadly or absolutely, [a fact which must be weighed] against the government's interest in protecting against possible damage to buildings and grounds, obstruction of passageways, and even dangers to legislators and staff.'" Wheelock v. United States, 552 A.2d 503, 506 (D.C. 1988) (quoting Kroll v. United States, 590 F. Supp. 1282, 1289, 1290 (D.D.C. 1983) (quoting Jeanette Rankin Brigade v. Chief of Capitol Police, 342 F. Supp. 575, 583-85 (D.D.C.), aff'd mem., 409 U.S. 972 (1972))). Through-out consideration of the legislation, the locus was to assure that Congress could function in an orderly and safe manner and to ban activity that would impede its work; nothing would suggest that Congress intended to ban any and all forms of expressive conduct in the Capitol buildings. See infra note 4 and accompanying text.

Given Congress' expressed purposes, the statutory term "demonstrate" is properly construed to apply only to expressive conduct which is disruptive because it is incompatible with the orderly functioning of Congress. *fn2 Thus, in order to be prosecuted under § 9-112 (b)(7) for expressive conduct in a Capitol corridor, a person's behavior must be so disruptive as to be "incompatible with the normal activity" of the area in which his or her conduct occurs. Grayned v. City of Rockford, 400 U.S. 104, 116 (1972); cf. Wheelock, supra, 552 A.2d at 508 (demonstrators in the Capitol Rotunda can be prosecuted under § 9-112 (b)(7) only if they "interfere[] with the rights of others to a greater degree than tourists do"). Such behavior would have to be markedly different from the conduct of tourists and others (even lobbyists seeking to express views on legislation) who are routinely in the area.

Accordingly, in view of the conflicting evidence at trial regarding appellants' pre-arrest conduct, and the absence of any finding by the trial Judge whether appellants' conduct was disruptive because incompatible with the orderly functioning of Congress, I would remand the case to the trial Judge to determine whether appellants' conduct prior to their arrest was disruptive because incompatible with the orderly functioning of Congress.

B.

The majority's construction of § 9-112 (b)(7) is not only inconsistent with the legislative intent, it is also contrary to constitutional requirements. In Wheelock, supra, 552 A.2d 503, the court held -- with respect to demonstrations in the Capitol Rotunda -- that § 9-112 (b)(7) must be subject to a narrowing construction in order to save it from constitutional infirmity. A similar limiting construction is necessary in the instant case.

In Wheelock, supra, the Capitol police closed the Capitol Rotunda in order to arrest a group of protestors who had staged a peaceful demonstration. Although the demonstrators were prosecuted for unlawful entry, the court noted that the convictions could only be upheld if there was some "legal factor establishing the [demonstrators'] lack of a legal right to remain" in the Capitol Rotunda. Id. at 505. The government argued that § 9-112 (b)(7) provided the justification for the demonstrators' arrest. The court rejected that argument, and adopted a narrowing construction for § 9-112 (b)(7) in order to save it from constitutional attack:

As to the general prohibition against demonstrating [contained in § 9-112 (b)(7)], the seminal case in this area explains why appellants' conduct cannot constitute the basis for penalizing the exercise of their constitutional rights unless it interfered with the rights of others to a greater degree than tourists do.

Id. at 508 & n.6 (citing United States v. Nicholson, 97 Daily Wash. L. Rptr. 1213 (July 17, 1969), aff'd, 263 A.2d 56 (D.C. 1970), appended to Dellums v. Powell, 184 U.S. App. D.C. 275, 305, 566 F.2d 167, 197 (1977), cert. denied, 438 U.S. 916 (1978)); *fn3 see also United States v. Murphy, 114 Daily Wash.L.Rptr. 2149 (Oct. 20, 1986) (Schwelb, J.) (granting judgments of acquittal to demonstrators in the Capitol Rotunda after applying Nicholson construction to § 9-112 (b)(7)). Thus, with respect to demonstrations in the Capitol Rotunda, the court has limited the reach of § 9-112 (b)(7) to conduct that interferes with the rights of others to a greater degree than tourists.

Although Wheelock involved a demonstration in the Capitol Rotunda, the rationale underlying Wheelock applies with equal force to expressive conduct in the Capitol corridor. As the majority concedes, a content neutral regulation which places incidental burdens on speech must be evaluated under the test enunciated by the United States Supreme Court in United States v. O'Brien, 391 U.S. 367, 376-77 (1968), which held that a statute not aimed at expression is constitutional only if "it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest." Id. at 377; see also Arshack v. United States, 321 A.2d 845 (D.C. 1974) (applying the O'Brien test to D.C. Code § 9-123 (b)(5)).

Applying the O'Brien test to § 9-112 (b)(7), the government interest offered in support of the statute is "to insure that Congress can transact its business in an orderly manner, without interference," while at the same time "to guarantee that there is no infringement on the rights of the people . . . to assemble peaceably and to petition the Government for a redress of grievances." Senate Hearings, supra, at 1 (September 21, 1967) (statement of Senator Jordan, chairman of the Subcommittee). *fn4 The governmental interest in protecting Congress from such disruptive conduct is substantial and legitimate, and certainly applies to demonstrations in the Capitol corridor. See Wheelock, supra, 552 A.2d at 507 ("Congress has an indisputably legitimate interest in regulating the Capitol building to ensure the safety of legislators, employees, and visitors").

The problem with the majority's interpretation of § 9-112 (b)(7), however, is that it views the statute as proscribing in the Capitol all expressive conduct that could be characterized as a "demonstration," regardless of whether the conduct interferes with the orderly conduct by Congress of its business. Although a content-neutral regulation need not adopt the "least restrictive means" in order to survive constitutional scrutiny, Ward v. Rock Against Racism, 491 U.S. 781, 797-98 (1989), the government "may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance [the government's] goals." Id. at 799. Under the majority's interpretation, § 9-112 (b)(7) would prohibit all corridor demonstrations, even those that pose no threat to the order and safety of the Congress. Such a construction sweeps far too broadly. *fn5

The majority relies on Smith v. United States, 445 A.2d 961, 965 (D.C. 1982) (en banc), for the proposition that demonstrations "inherently involve some degree of controversy. When controversy is flaunted before an unwilling audience, there is always a chance for violence or unrest, however slight." Majority opinion at 16 (quoting Smith). As the majority recognizes, however, Smith dealt with the unique status of the White House. *fn6 In the quite different context of the Capitol building, the court in Wheelock made clear that the mere chance that a speaker's controversial views might prompt violence is an insufficient basis for prohibiting a peaceful, nondisruptive demonstration. See Cohen v. California, 403 U.S. 15, 22 (1971) ("we do not think the fact that some unwilling 'listeners' in a public building may have been briefly exposed to [the offensive speech] can serve to justify this breach of the peace conviction . . ."). Most recently, in Texas v. Johnson, 491 U.S. 397 (1989), the United States Supreme Court rejected just such an argument as the majority makes:

Texas claims that its interest in preventing breaches of the peace justifies Johnson's conviction for flag desecration. However, no disturbance of the peace actually occurred or threatened to occur because of Johnson's burning of the flag. . . .

We have not permitted the government to assume that every expression of a provocative idea will incite a riot, but have instead required careful consideration of the actual circumstances surrounding such expression, asking whether the expression "is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (reviewing circumstances surrounding rally and speeches by Ku Klux Klan). To accept argument that [the government] need only demonstrate "the potential for a breach of the peace," . . . and that every flag-burning necessarily possesses that potential, would be to eviscerate our prior holding in Brandenburg.

Id. at 409. Thus, the government may not base an arrest on the possibility that the demonstration could become unruly; protestors can be punished only for demonstrations which are actually disruptive. The majority's Conclusion that Congress can "prevent the existence of circumstances which rationally can be viewed as creating a potential for disturbances," majority opinion at 25 n. 17, is therefore contrary to the law.

C.

The fact that appellants' conduct occurred in a "restricted area" does not change the analysis. Appellants were arrested not for being in a restricted area, but for demonstrating. The police officers testified without exception that appellants were placed under arrest -- immediately after they began to unfurl the banner -- for demonstrating in the Capitol building. *fn7 The fair import of the testimony is that appellants would not have been arrested if they had not attempted to unfurl the banner. Nor did the trial Judge view this as a restricted area case. *fn8 This case therefore does not call into question the power of Congress to declare certain areas within the Capitol off limits to the general public, and to arrest those who refuse, after proper warnings, to leave such areas. See Arshack, supra, 321 A.2d at 847-48.

The majority's focus on the "restricted area" in which appellants were arrested is therefore misplaced. Given the posture of the case, the court must assume that appellants were arrested for entirely peaceful, nondisruptive expressive conduct. The fact that this conduct occurred in a "restricted area" only has relevance if Congress is permitted to designate certain areas as "First Amendment Free Zones" in the United States Capitol building, in which a citizen is free to walk, but is not free to express views. The Supreme Court has made clear that even in a "nonpublic forum" the government is not permitted to go so far. Board of Airport Comm'ners v. Jews for Jesus, Inc., supra, 482 U.S. 569. *fn9

In Jews for Jesus, a local resolution designated Los Angeles International Airport (LAX) as "not open for First Amendment activities by any individual and/or entity." Id. at 570. The Supreme Court concluded that the ordinance was unconstitutional:

On its face, the resolution . . . reaches the universe of expressive activity, and, by prohibiting all protected expression, purports to create a virtual "First Amendment Free Zone" at LAX. The resolution does not merely regulate expressive activity in the Central Terminal Area that might create problems such as congestion or the disruption of the activities of those who use LAX. . . . We think it obvious that such a ban cannot be justified even if LAX were a nonpublic forum because no conceivable governmental interest would justify such an absolute prohibition of speech.

Id. at 574-75 (first emphasis in original, second emphasis added).

The majority's construction of § 9-112 (b)(7) is equally broad and equally flawed. Instead of limiting the reach of the statute to expressive conduct which creates "congestion or the disruption of the activities of those who use" the Capitol, id. at 574, the majority construes the statute as prohibiting all speech "in the same class with 'parading, picketing, speech making,' etc." that occurs in a restricted area. Majority opinion at 21. Indeed, despite the majority's disclaimer to the contrary, it is difficult to understand why its construction of § 9-112 (b)(7) would not reach "the wearing of a T-shirt or button that contains a political message," even though such conduct "is still protected speech even in a nonpublic forum." *fn10 Id. at 576. A lobbyist, likewise, would seem to be at risk. If a visitor to a municipal airport may not be punished for engaging in nondisruptive expressive conduct, then surely one who visits the United States Capitol, which is "a unique situs for demonstration activity;" Wheelock, supra, 552 A.2d at 506 (quotation and citation omitted), is similarly protected.

The majority disclaims an intention to equate "demonstration" with all expressive activity. Thus, the majority concedes that neither wearing a T-shirt with a political slogan nor "conversation conducted in ordinary tones" would "fall within a reasonable reading of the definition" of § 9-112 (b)(7). Majority opinion at 21 & n.13, 25 n.17. Given this concession, however, the majority's Conclusion that appellants clearly engaged in a demonstration within the meaning of § 9-112 (b)(7) seems puzzling. The majority relies on the fact that appellants "unfurled a large banner," but the posture of the case requires us to assume that appellants did so silently. If appellants, instead of unfurling a banner, had instead silently removed their jackets, revealing T-shirts covered with provocative political slogans, would the majority reach a different result? In attempting to distinguish between "banner" speech and other types of speech, the majority ends up drawing seemingly arbitrary lines.

The majority's limiting principle is that the statute only bans expressive conduct "in the same class with 'parading, picketing, speech making' etc." Majority opinion at 21. In addition to being disturbingly vague, this construction divorces the statute front its purpose of protecting Congress from disruptive conduct. *fn11 In my view, the majority errs in adopting a construction that turns on whether an individual's conduct falls into a "class" defined with little or no connection to the statutory purpose, especially since a much less troublesome construction is available. See McIntosh v. Washington, 395 A.2d 744, 757 (D.C. 1978) (the court has a duty to adopt a construction that saves a law from constitutional attack). The more straightforward construction of § 9-112 (b)(7) -- indeed, the only construction consistent with the legislative history and constitutional requirements -- is that the statute applies only to conduct that is actually disruptive of the orderly functioning of Congress. Accordingly, I would remand the case for the trial Judge to make a finding whether appellants' conduct was disruptive before their arrest.


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