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Bonowitz v. United States

August 05, 1999


Before Terry and Reid, Associate Judges, and Belson, Senior Judge.

The opinion of the court was delivered by: Belson, Senior Judge

Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.

Appeals from the Superior Court of the District of Columbia

(Hon. Robert E. Morin, Trial Judge)

Argued January 7, 1999

Decided August 5, 1999

Appellants were convicted of unlawful parading and assembling on Supreme Court grounds in violation of 40 U.S.C. § 13k (1994). They argue on appeal that the application of that statute violates their First Amendment rights by impermissibly prohibiting speech. We affirm.

On January 17, 1997, members of the Supreme Court Police observed appellants demonstrating on the sidewalk below the Supreme Court plaza area. Shortly thereafter, appellants began to move as a group inside the plaza area to the top of the steps leading to the Court's main entrance. Once appellants reached the main entrance they unfurled a banner thirty feet long by four feet wide which read "STOP EXECUTIONS," and they began to sing and chant in unison.

The police verbally warned appellants that they were in violation of § 13k, and would be arrested if they continued. After handing appellants a small card which outlined the contents of § 13k and giving them the opportunity to desist, the police arrested appellants and charged them with unlawful parading and assemblage on Supreme Court grounds.

In a non-jury trial, the trial court found appellants guilty of violating § 13k, which provides that "[i]t shall be unlawful to parade, stand, or move in processions or assemblages in the Supreme Court Building or grounds, or to display therein any flag, banner, or device designed or adapted to bring into public notice any party, organization, or movement." The court rejected appellants' contention that the Supreme Court plaza was either a public forum or a government-designated public forum. Instead, the trial court concluded that the plaza was a nonpublic forum, and that clause 1 of § 13k (the "congregation clause") is constitutional as applied to prohibit appellants' protest.

Appellants argue here that the Supreme Court plaza is a government-designated public forum, and thus any laws regulating speech in the plaza should be subject to the same strict level of scrutiny applied to traditional public fora. Appellants also contend that § 13k is a content-based regulation of speech and is unconstitutional because it is not narrowly tailored to serve a compelling government interest. *fn1

The government, on the other hand, contends that the plaza is a nonpublic forum, and thus 13k's restrictions on speech are subject to a more relaxed level of scrutiny. Specifically, the government contends that § 13k is constitutional under the First Amendment because it is reasonable and does not constitute viewpoint discrimination.

"[T]he Court [has] identified three types of fora: the traditional public forum, the public forum created by government designation, and the nonpublic forum." Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788, 802 (1985) (citing Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (1983)). "Traditional public fora are defined by the objective characteristics of the property, such as whether, `by long standing tradition or by government fiat,' the property has been `devoted to assembly and debate.'" Arkansas Educ. Television Comm'n v. Forbes, 523 U.S. 666, 677 (1998) (quoting Perry, supra, 460 U.S. at 45). Any attempt by the government to limit speech in a public forum will be subject to a strict level of scrutiny. The precise level of such scrutiny will depend on whether the government restrictions are content-based or content-neutral. Content-based restrictions must be "necessary to serve a compelling state interest and [must be] narrowly drawn to achieve that end." Perry, supra, 460 U.S. at 45 (emphasis added) (citation omitted). Content-neutral restrictions of the time, place, and manner of expression may be enforced if they are "narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication." Id. (emphasis added) (citations omitted).

Unlike traditional public fora, government-designated public fora are created by "purposeful government action." Forbes, supra, 523 U.S. at 677. "The government does not create a [designated] public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional public forum for public discourse." Cornelius, supra, 473 U.S. at 802. "If the government excludes a speaker who falls within the class to which a designated public forum is made generally available, its action is subject to strict scrutiny." Forbes, supra, 523 ...

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