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

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 ยง 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 ...


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