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June 25, 1998



Before Terry, Schwelb, and Farrell, Associate Judges.

The opinion of the court was delivered by: Farrell, Associate Judge:

While present in the gallery of the United States Senate watching debate on welfare revision legislation, appellants and others arose from their seats, pointed their fingers at the Senate floor, and repeatedly chanted the word "Shame." The presiding officer of the Senate heard the voices and called for order to be restored. Appellants did not stop chanting until they were removed from the gallery. They were subsequently arrested and charged with violating D.C.Code § 9-112(b)(4) (1995), which makes it unlawful for any person or group of persons, willfully and knowingly,

[t]o utter loud, threatening, or abusive language, or to engage in any disorderly or disruptive conduct, at any place upon the United States Capitol Grounds or within any of the Capitol Buildings with intent to impede, disrupt, or disturb the orderly conduct of any session of the Congress or either House thereof, or the orderly conduct within any such building of any hearing before, or any deliberations of, any committee or subcommittee of the Congress or either House thereof.

Following a bench trial, the court found appellants guilty as charged and, in a thoughtful written opinion, denied their motions to dismiss the charges on First Amendment and Due Process grounds.

On appeal, appellants primarily argue that § 9-112(b)(4), unless limited by judicial construction to behavior that causes "an actual, material" disruption of congressional business, punishes protected expression in violation of the First Amendment. Read to prohibit any "disorderly or disruptive" activity in the Senate gallery, they contend, the statute overregulates expressive activity in a "limited" or "designated public forum" and is constitutionally overbroad. We reject these arguments.

For purposes of First Amendment analysis, "[t]his court has recognized and adopted the Supreme Court's classification of types of government property." Markowitz v. United States, 598 A.2d 398, 403 (D.C. 1991). The Supreme Court has recently summarized those types of speech fora as follows:

[T]raditional public fora are open for expressive activity regardless of the government's intent. The objective characteristics of these properties require the government to accommodate private speakers. The government is free to open additional properties for expressive use by the general public or by a particular class of speakers, thereby creating designated public fora. Where the property is not a traditional public forum and the government has not chosen to create a designated public forum, the property is either a nonpublic forum or not a forum at all.

Arkansas Educ. Television Comm'n v. Forbes, ___ U.S. ___, ___, 118 S.Ct. 1633, 1641, 140 L.Ed.2d 875 (1998) (emphases added). Contrary to appellants' premise, the government questions whether the Senate gallery is even a "designated public forum," since it has not "traditionally [been] held open for the use of the public for expressive activities," Pearson v. United States, 581 A.2d 347, 353 (D.C. 1990) (emphasis added); rather, the public is admitted to the gallery to observe, nothing more. Appellants rejoin that "communicative activity [remains] present" in the important sense described by the District Court in ACT-UP v. Walp, 755 F. Supp. 1281 (M.D.Pa. 1991):

[T]he communication . . . between the chamber and gallery works two ways: the audience listens to the political decision-making of the elected officials, and the [714 A2d Page 766]

elected officials receive the message, by the very presence of citizens in the gallery, that they are being watched, that their decisions are being scrutinized, and that they may not act with impunity outside the watchful eye of their constituents.

Id. at 1288 (deciding that the Pennsylvania House of Representatives gallery is a limited public forum). Still, as the Supreme Court has recognized, fitting a government property into one forum type rather than another is of "limited utility" if the nature and extent of government regulation at issue would withstand First Amendment analysis under either. See Members of the City Council of the City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 815 n. 32, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984); see also Pearson, 581 A.2d at 354. In assessing the constitutionality of § 9-112(b)(4), we conclude that nothing turns on whether the Senate gallery is a designated public forum rather than a nonpublic forum, and so we do not decide that issue.

As with a traditional public forum, if the government seeks to limit the content of expression in a designated public forum, such "regulation must serve a compelling state interest and must be narrowly drawn to achieve that end." Markowitz, 598 A.2d at 403. But "[i]f the restriction is content-neutral, the state may impose reasonable time, place, and manner restrictions on the speech." Id. Such restrictions are perforce reasonable if they are "narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication." Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983); United States v. Wall, 521 A.2d 1140, 1143 (D.C. 1987).

Section 9-112(b)(4) comfortably meets these standards. It is viewpoint-neutral on its face and imposes reasonable time, place, and manner restrictions on speech consistent with the significant government interest it serves, while leaving open ample means of communication not calculated to disrupt the orderly conduct of the legislature's business. Indeed, this court already has held as much. In District of Columbia v. Gueory, 376 A.2d 834 (D.C. 1977), we sustained against First Amendment challenge an ...

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