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Hodge v. Talkin

United States District Court, District Circuit

June 11, 2013

HAROLD H. HODGE, JR., Plaintiff,
v.
PAMELA TALKIN, et al., Defendants.

MEMORANDUM OPINION

BERYL A. HOWELL United States District Judge

Following his arrest for violation of 40 U.S.C. § 6135 for wearing a sign while standing “quietly and peacefully” on the Supreme Court plaza, the plaintiff, Harold Hodge, Jr., brought this lawsuit to challenge the constitutionality of that statute under the First and Fifth Amendments “on its face and as applied to his desired activities, ” which include returning to the Supreme Court plaza to “engage in peaceful, non-disruptive political speech and expression.” Amended Complaint (“Am. Compl.”), ECF No. 8, ¶¶ 1, 20, 28. The defendants Pamela Talkin, Marshal of the United States Supreme Court, and Ronald Machen, Jr., U.S. Attorney for the District of Columbia, in their official capacities have moved to dismiss the complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Alternatively, they have moved for summary judgment pursuant to Federal Rule of Civil Procedure 56(a). Defs.’ Mot. to Dismiss or in the Alternative, for Summ. J. (“Defs.’ Mot.”), ECF No. 14. For the reasons explained below, the defendants’ motion is denied because the Court finds the challenged statute unconstitutional under the First Amendment. Summary judgment will therefore be entered for the plaintiff pursuant to Federal Rule of Civil Procedure 56(f).[1]

I. BACKGROUND

The plaintiff, as noted, has been arrested for violating the statute he now challenges on constitutional grounds. Set forth below is pertinent factual and legal background to evaluate his claim and the pending motion.

A. The Plaintiff’s Protest and Arrest at the Supreme Court Plaza and Subsequent Prosecution

The plaintiff, Harold Hodge, Jr., is a citizen of Maryland and a full time-student at the College of Southern Maryland. Am. Compl. ¶ 5. According to the Amended Complaint, the plaintiff, on January 28, 2011, visited the Supreme Court plaza (“the plaza”) wearing a sign “approximately 3 feet long and 2 feet wide” that read: “The U.S. Gov. Allows Police To Illegally Murder and Brutalize African Americans And Hispanic People.” Am. Compl. ¶¶ 17-20. The plaintiff states that his purpose in standing on the plaza and wearing the sign “was to engage in expression on a political matter of public interest and importance and to raise public awareness about the adverse treatment of minorities by law enforcement.” Am. Compl. ¶ 18. According to the plaintiff, he “approached the Supreme Court building from the west . . . and . . . proceed[ed] up the steps leading up to the plaza in front of the Supreme Court building.” Am. Compl. ¶ 19. Once there, the plaintiff “stood quietly and peacefully upon the plaza area near the steps leading to the sidewalk in front of the Supreme Court Building, approximately 100 feet from the doors of the main entrance leading into the Supreme Court Building.” Am. Compl. ¶ 20. After standing there for a few minutes, the plaintiff was approached by an officer of the Supreme Court of the United States Police, who “informed Mr. Hodge that he was violating the law and . . . told [him] to leave the plaza.” Am. Compl. ¶ 21. After the plaintiff was given three warnings, and refused to depart, the officer told the plaintiff “that he was under arrest for violating 40 U.S.C. § 6135.” Am. Compl. ¶¶ 22-23. The plaintiff “was told to place his hands behind his back, and he peacefully and without resistance complied with this request.” Am. Compl. ¶ 23. The plaintiff was “then handcuffed and taken to a holding cell within the Supreme Court building [and then] transported to U.S. Capitol Police Headquarters where he was booked and given a citation for violating 40 U.S.C. § 6135.” Am. Compl. ¶ 24.

On February 4, 2011, the plaintiff was charged in an information filed in the Superior Court for the District of Columbia by the U.S. Attorney for the District of Columbia with violating 40 U.S.C. § 6135. Am. Compl. ¶ 25. The information alleged specifically that the plaintiff “‘did unlawfully parade, stand, or move in processions or assemblages in the Supreme Court Building or grounds, or to [sic] display in the Building and grounds a flag, banner, or device designed or adapted to bring into public notice a party, organization, or movement.’” Am. Compl. ¶ 25 (quoting Information). The plaintiff and the government reached an agreement, pursuant to which the charge under 40 U.S.C. § 6135 would be dropped if the plaintiff stayed away from the Supreme Court Building and grounds for six months. Am. Compl. ¶ 26. The plaintiff complied with the agreement, and, on September 14, 2011, the charge under 40 U.S.C. § 6135 was dismissed. Am. Compl. ¶ 27.

B. The Instant Lawsuit

On January 23, 2012, the plaintiff filed this lawsuit challenging the constitutionality of 40 U.S.C. § 6135.[2] The plaintiff claims that he “desires to return to the plaza area . . . and engage in peaceful, non-disruptive political speech and expression in a similar manner to his activity on January 28, 2011.” Am. Compl. ¶ 28. He also “desires to return to the plaza area in front of the Supreme Court building and picket, hand out leaflets, sing, chant, and make speeches, either by himself or with a group of like-minded individuals.” Am. Compl. ¶ 29. Specifically, the plaintiff is interested in “convey[ing]” a “political message, ” “directed both at the Supreme Court and the general public, ” namely to “explain how decisions of the Supreme Court have allowed police misconduct and discrimination against racial minorities to continue.” Am. Compl. ¶ 29. He claims, however, that he is “deterred and chilled from doing so because of the terms of 40 U.S.C. § 6135 and his prior arrest on January 28, 2011 and subsequent prosecution for violating that statute.” Am. Compl. ¶ 30. The Court held argument on the pending motion on April 26, 2013, and, following that hearing, both parties, with the permission of the Court, supplemented their briefing regarding issues raised at the motions hearing.[3] See Defs.’ Supplemental Brief (“Defs.’ Supplemental Br.”), ECF No. 19; Pl.’s Supplemental Opp’n to Defs.’ Mot. to Dismiss or in the Alternative for Summ. J. (“Pl.’s Supplemental Opp’n”), ECF No. 20.

C. The Challenged Statute – 40 U.S.C. § 6135

The challenged statute, 40 U.S.C. § 6135, provides in full that:

It is unlawful to parade, stand, or move in processions or assemblages in the Supreme Court Building or grounds, or to display in the Building and grounds a flag, banner, or device designed or adapted to bring into public notice a party, organization, or movement.

40 U.S.C. § 6135. The statute is comprised of two clauses: first, the “Assemblages Clause, ” which provides that “[i]t is unlawful to parade, stand, or move in processions or assemblages in the Supreme Court Building or grounds, ” and, second, the “Display Clause, ” which makes it unlawful “to display in the Building and grounds a flag, banner, or device designed or adapted to bring into public notice a party, organization, or movement.” 40 U.S.C. § 6135. The plaintiff was charged with violating both clauses of the statute. See Am. Compl. ¶ 25.

The Court’s “Building and grounds” referenced in the statute include the Supreme Court Building as well as the grounds extending to the curbs of four streets, namely “the east curb of First Street Northeast, between Maryland Avenue Northeast and East Capitol Street[, ]” “the south curb of Maryland Avenue Northeast, between First Street Northeast and Second Street Northeast[, ]” “the west curb of Second Street Northeast, between Maryland Avenue Northeast and East Capitol Street[, ]” and “the north curb of East Capitol Street between First Street Northeast and Second Street Northeast[.]” 40 U.S.C. § 6101(b)(1). Violations of section 6135, which may be prosecuted in the United States District Court for the District of Columbia or the Superior Court of the District of Columbia, are subject to a fine or imprisonment for “not more than 60 days, or both[, ]” except if “public property is damaged in an amount exceeding $100, the period of imprisonment for the offense may be not more than five years.” 40 U.S.C. § 6137(a)-(c).

D. History of the Challenged Statute

A review of the history of the challenged statute and the case law addressing its constitutionality is necessary to set the plaintiff’s instant challenge in context. The statute was enacted in 1949 and originally codified at 40 U.S.C. § 13k. The bill introducing the statute was “patterned very largely after the law which authorized special guards to police the Capitol grounds.” S. Rep. No. 81-719, at 1828 (1949). Thus, the Court first briefly examines the statute promulgated to govern the policing of the Capitol grounds, 40 U.S.C. § 193g.

1.Statute Governing Capitol Grounds, 40 U.S.C. § 193g[4]

From 1810 until 1935, the Supreme Court was housed in the United States Capitol Building. See Architect of the Capitol, Old Supreme Court Chamber, http://www.aoc.gov/capitol-buildings/old-supreme-court-chamber (last visited June 10, 2013). During that period, in 1882, Congress enacted legislation “to regulate the use of the Capitol Grounds, ” then including the Supreme Court, and “to prevent the occurrence near it of such disturbances as are incident to the ordinary use of public streets and places[.]” 22 Stat. 126 (1882); see also 13 Cong. Rec. 1949 (1882) (statement of Morrill) (stating that the bill to regulate the use of the Capitol Grounds was necessary because “[c]onstant damage is committed on the Capitol, pieces of the bronze doors are stolen, ink is strewed from the bottom to the top of the stairs, plants are stolen from the grounds in large numbers, shrubs and trees are injured” and “I believe there can be no objection to giving the police court some chance to prevent the constant mutilation of the Capitol and of the trees and shrubs and grounds around about it”). The legislation included, in section 6, essentially the same language that would, more than a half century later, appear in 40 U.S.C. § 6135 and its predecessor statute, 40 U.S.C. § 13k:

Sec. 6. That it is forbidden to parade, stand, or move in processions or assemblages, or display any flag, banner, or device designed or adapted to bring into public notice any party, organization, or movement.

22 Stat. 127 (1882) (hereinafter, “Capitol Grounds statute”). From 1882 until 1969, there were “several recodifications, and various changes in and additions to the surrounding statutory provisions relating to conduct upon the Capitol Grounds[, ] [b]ut the absolute prohibition against all ‘processions or assemblages’ . . . remained untouched.” Jeannette Rankin Brigade v. Chief of Capitol Police, 421 F.2d 1090, 1106 (D.C. Cir. 1969) (“Jeannette Rankin Brigade I”) (Bazelon, C.J., dissenting) (footnote omitted). This was “despite suggestions to the legislature that passing years and progressive developments in the protection of First Amendment freedoms may have sorely dated the statute.” Id. (citing Security of the Capitol Buildings: Hearing on S. 2310 Before the S. Subcomm. on Pub. Bldgs. and Grounds of the S. Comm. on Pub. Works, 90th Cong., 1st Sess. at 9-10, 26 (1967)).[5]

In the 1960s and 1970s, this nearly century-old Capitol Grounds statute was subject to scrutiny both by the D.C. Court of Appeals, which imposed a limiting construction on the statute, [6] and by a three-judge panel of this Court, which found the statute unconstitutional, a holding summarily affirmed by the Supreme Court. Some discussion of those cases is necessary to provide context for this Court’s examination of 40 U.S.C. § 6135.

In 1970, the D.C. Court of Appeals affirmed the judgment of the Chief Judge of what was then the D.C. Court of General Sessions, who imposed a limiting construction on the Capitol Grounds statute. In that case, the appellees, who refused to leave the East Capitol steps after being ordered to do so by the Capitol police, had moved to dismiss the charging informations on grounds that § 9-124 of the D.C. Code, or 40 U.S.C. § 193g, was unconstitutional. The trial court acknowledged “the overbroad scope of § 9-124[, ]” but nevertheless found “sufficient basis in legislative and other materials” to limit its scope. United States v. Nicholson, 263 A.2d 56, 57 (D.C. 1970). Specifically, the trial court limited the statute “to the imposition of criminal Security of the Capitol Buildings: Hearing on S. 2310 Before the S. Subcomm. on Pub. Bldgs. and Grounds of the S. Comm. on Pub. Works, 90th Cong., 1st Sess. At 9-10 (1967). punishment for acts or conduct which interferes [sic] with the orderly processes of the Congress, or with the safety of individual legislators, staff members, visitors, or tourists, or their right to be free from intimidation, undue pressure, noise, or inconvenience.” Id. (internal quotation marks omitted). Limited in that manner, the trial court found the statute constitutional, while simultaneously concluding that the facts did not justify convictions based on this limited construction of the statute. Id. The D.C. Court of Appeals affirmed the dismissal of the informations for failure to state an offense. Id.; Jeannette Rankin Brigade v. Chief of Capitol Police, 342 F.Supp. 575, 580 (D.D.C. 1972) (“Jeannette Rankin Brigade II”) (quoting the D.C. Court of General Sessions as further explaining that “[i]t is appropriate, therefore, under the statute, to bar or order from the Capitol, any group which is noisy, violent, armed, or disorderly in behavior, any group which has a purpose to interfere with the processes of Congress, any member of Congress, congressional employee, visitor or tourist; and any group which damages any part of the building, shrubbery, or plant life” (citation omitted)).

Two years later, in 1972, a three-judge panel of the District Court for the District of Columbia, including two D.C. Circuit judges, reviewed a complaint by a coalition of women against the Vietnam War, challenging the validity of the Capitol Grounds statute, 40 U.S.C. § 193g, under the First and Fifth Amendments. Jeannette Rankin Brigade II, 342 F.Supp. at 577-78. In that case, the defendants “assure[d]” the panel that, although they disagreed with the Nicholson interpretation of the statute, they had nonetheless adhered to that interpretation of the statute in enforcing it. Id. at 580. The panel refused to embrace the Nicholson limiting construction, however, nor the government’s argument that, inter alia, the statute should “not be read literally as forbidding all assemblages, but . . . should be taken as providing that there may be no assemblages larger than 15 in number[, ]” id. at 586, [7] and found the statute facially unconstitutional.[8] The panel concluded that “it is difficult to imagine a statute which could more plainly violate the principle that ‘First Amendment freedoms need breathing space to survive [and] government may regulate in the area only with narrow specificity.’” Id. at 585 (alteration in original) (quoting N.A.A.C.P. v. Button, 371 U.S. 415, 433 (1963)). The panel further expounded that “[w]hile some substantial governmental interests in the Capitol Grounds may warrant protection, none have been alleged which are sufficiently substantial to override the fundamental right to petition ‘in its classic form’ and to justify a blanket prohibition of all assemblies, no matter how peaceful and orderly, anywhere on the Capitol Grounds.” Id.[9] The panel also noted the difficulties that the “flatly prohibitory language” of the statute posed for those enforcing the statute, stating that “[t]hey bear the burden of trying to enforce and sustain a statute which, however unremarkable it may have appeared to be in 1882 when it was first enacted, fairly bristles with difficulties when it is sought to be enforced 90 years later.” Id. At 586.[10]

The panel in Jeannette Rankin Brigade II reflected that “[t]he local courts of the District of Columbia have . . . felt unable to recognize [the constitutional propriety of the statute] without putting a substantial gloss upon Section 193g by an expansive interpretation of its terms, ” but refused the invitation to adopt this construction or create a limiting construction of its own that could save the statute’s constitutionality. Jeannette Rankin Brigade II, 342 F.Supp. at 586. The panel also discussed failed attempts in 1967 by the U.S. Attorney for the District of Columbia “to warn the Congress that this statute was in trouble, and to make a proposal for its revision” to limit its scope. Id. Specifically, the panel highlighted the U.S. Attorney’s testimony before Congress that Section 193g “‘presents a problem, ’” and his statement that “‘[t]he indications are that reasonable regulations even-handedly enforced as a regulatory measure over the area adjacent to a legislative assembly would be valid under recent Supreme Court decisions, but that is different from providing for an outright abolition without any regulatory steps.’” Id. at 586 n.14 (quoting Security of the Capitol Buildings: Hearing on S. 2310 Before the S. Subcomm. on Pub. Bldgs. and Grounds of the S. Comm. on Pub. Works, 90th Cong., 1st Sess. at 10 (1967)).[11]The government urged the Jeannette Rankin Brigade II panel to save the Capitol Grounds statute by adopting its own limiting construction of the statute. Id. at 586-87. The panel did not mince words in rejecting that proposal, however. While the panel was “not unsympathetic with the reasons which prompt the United States Attorney to ask us to rewrite a curiously inept and ill-conceived Congressional enactment, we think that is a function more appropriately to be performed by Congress itself.” Id. at 587. The Supreme Court summarily affirmed the panel’s decision later that year. See Chief of Capitol Police v. Jeannette Rankin Brigade, 409 U.S. 972, 972 (1972).[12]

2. History of the Challenged Statute, 40 U.S.C. § 6135

As noted, the immediate predecessor to the challenged statute was 40 U.S.C. § 13k, which was introduced as part of a bill intended “to provide positive statutory authority for the policing of the Supreme Court Building and grounds, defining the exact territorial limits thereof, authorizing the appointment of special police, and defining their duties and powers.” S. Rep. No. 81-719, at 1828 (1949). This legislation had become necessary because, although the Supreme Court had occupied its own building since 1935, from 1935 until 1948, the Supreme Court Building and grounds were policed under the authority of the District of Columbia’s government. Id. In 1948, however, the governing body of the District of Columbia, the Board of Commissioners, “cancel[led] all special police commissions, including the ones for the guards for the Supreme Court Building” because of uncertainty over the authority the Commission could give to the police assigned to the Supreme Court. Id. This prompted introduction in Congress of legislation modeled after the statute governing the U.S. Capitol Building and grounds to govern the policing of the Supreme Court and grounds. Id.; H.R. Rep. No. 81-814, at 2 (1949) (noting that when the uncertainty over the authority of the Supreme Court guards was brought to the attention of the Chief Justice, “the Marshal was directed to have a bill prepared similar to the legislation providing for the Capitol Police, ‘To define the area of the United States Capitol Grounds, to regulate the use thereof and for other purposes[.]’” (citing 60 Stat. 718, ch. 707 (1946)).

The legislation for the Supreme Court Building and grounds defined the territory covered and provided for regulations governing “[v]arious acts, such as sale of goods in the building, display of advertising, soliciting alms, injury to the building or grounds, discharging of firearms, making speeches, parading or picketing.” S. Rep. No. 81-719, at 1828 (1949). The legislation, inter alia, authorized the Marshal of the Supreme Court “to restrict and regulate travel and occupancy of the building and adjacent grounds and to prescribe rules and regulations for the protection of said premises and the maintenance of order and decorum.” Id. The Senate Report accompanying the legislation noted that “[i]n keeping with the dignity which should surround the Supreme Court of the United States and the building and grounds which house it, the committee feel [sic] that this legislation should be enacted promptly.” Id. The House Report also noted the urgency of enacting the legislation, explaining that “[u]nless the authority requested in this bill is provided at this session of Congress, the guards of the Supreme Court will have no authority as special policemen to make arrests for offenses committed in the Supreme Court or grounds after November 1, 1949[, ]” and noting that “[i]t is the belief of the Committee on the Judiciary that in keeping with the dignity of the highest Court in the land, provision should be made for the policing of its building and grounds similar to that which is made for the U.S. Capitol.” H.R. Rep. No. 81-814, at 2 (1949).

Section 6 of the legislation contained the prohibition that would later be codified at 40 U.S.C. § 13k. The House Report accompanying the legislation summarized section 6, stating that it “prohibits parades or displaying of any flag or banner designed to bring into public notice any party, organization or movement[, ]” and that the section was “based upon the law relating to the Capitol Buildings and Grounds.” H.R. Rep. No. 81-814, at 3 (1949). As enacted, 40 U.S.C. § 13k is nearly identical to the challenged statute, providing in full:

It 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.

Pub. L. No. 81-250, § 6, 63 Stat. 616, 617 (1949) (codified at 40 U.S.C. § 13k).[13]

The statute was in the same form in 1981 when the D.C. Circuit considered the constitutionality of 40 U.S.C. § 13k in Grace v. Burger, 665 F.2d 1193 (D.C. Cir. 1981) (hereinafter, “Grace I”), and found the statute unconstitutional on its face. In that case, two individuals, who were threatened with arrest while separately distributing leaflets and wearing a sign on the sidewalks surrounding the Supreme Court, filed a complaint “seeking a declaratory judgment that 40 U.S.C. § 13k is unconstitutional on its face, and a permanent injunction prohibiting the Supreme Court police from enforcing the statute.” Grace I, 665 F.2d at 1195. The D.C. Circuit considered the statute in its entirety and found the statute wholly “repugnant to the First Amendment of the Constitution.” Id. at 1194. Specifically, while the Circuit acknowledged that “public expression that has an intent to influence the administration of justice may be restricted, ” id. (citing Cox v. Louisiana, 379 U.S. 559 (1965) (“Cox II”)), it found that Congress had already achieved that result in a “more narrowly drawn statute, ” id., namely 18 U.S.C. § 1507, enacted in 1950 as part of the Subversive Activities Control Act of 1950, Title I, Pub. L. No. 81-831, § 31(a), 64 Stat. 987, 1018 (1950). That statute provided in full:

Whoever, with the intent of interfering with, obstructing, or impeding the administration of justice, or with the intent of influencing any judge, juror, witness, or court officer, in the discharge of his duty, pickets or parades in or near a building housing a court of the United States, or in or near a building or residence occupied or used by such judge, juror, witness, or court officer, or with such intent uses any sound-truck or similar device or resorts to any other demonstration in or near any such building or residence, shall be fined not more than $ 5, 000 or imprisoned not more than one year, or both.

18 U.S.C. § 1507 (1976) (quoted in Grace I, 665 F.2d at 1203).[14] As Justice Clark explained in Cox II, 18 U.S.C. § 1507 was “written by members of [the Supreme Court] after disturbances . . .occurred at buildings housing federal courts.” Cox II, 379 U.S. at 585 (Clark, J., concurring and dissenting).[15]

In Grace I, the D.C. Circuit compared the total ban on expressive activity set out in 40 U.S.C. § 13k unfavorably to the more narrowly drawn provision in 18 U.S.C. § 1507. See Grace I, 665 F.2d at 1203. Specifically, the Court explained that 18 U.S.C. § 1507 “prohibits expressive conduct on the Supreme Court grounds designed to influence Supreme Court Justices or to interfere with the administration of justice[, ]” and concluded that it was “unable to find any other significant governmental interest to justify the absolute prohibition of all expressive conduct contained in section 13k[.]” Id. at 1194, 1203. The D.C. Circuit therefore rejected the government’s argument that the total ban on expressive conduct was necessary “to maintain the dignity and decorum of the Supreme Court.” Id. at 1203. While the Circuit acknowledged that “it would appear that this is the sole justification of the statute advanced in the legislative history” for 40 U.S.C. § 13k, the Circuit “[did] not believe that this concern alone is sufficient to justify the absolute prohibition of free expression contained in this statute.” Grace I, 665 F.2d at 1203; see also id. at 1203 n.18 (citing, e.g., 95 Cong. Rec. 8962 (1949) (statement of Rep. Celler) (“(All) this bill does . . . is to apply the same rules to the Supreme Court building and its adjoining grounds as are now applicable to the Capitol itself-no more and no less.”); id. at 1204 (“[E]ven if the asserted interest [in the ‘peace’ and ‘decorum’ of the Supreme Court] is legitimate by itself, it cannot justify the total ban at issue here.”). Thus, the D.C. Circuit found the statute “unconstitutional and void.” Id. at 1194.

In its decision, the D.C. Circuit analogized the challenged statute with the “similarly worded” statute governing the policing of the Capitol Building and grounds. The Circuit pointed out that the three-judge panel in Jeannette Rankin Brigade II, 342 F.Supp. at 585, had “unequivocally stated, ‘[the] desire of Congress, if such there be, to function in the ‘serenity’ of a ‘park-like setting’ is fundamentally at odds with the principles of the First Amendment.’” Grace I, 665 F.2d at 1204 (quoting Jeannette Rankin Brigade II, 342 F.Supp. at 585). Acknowledging the different institutions that were the focus of the Capitol Grounds statute and the precursor to the challenged statute, the Circuit nevertheless found the constitutional infirmity the same, explaining that, “while the Capitol and Supreme Court buildings house different government entities, justifying different restrictions on free expression, . . . an interest in ‘the glorification of a form of government through visual enhancement of its public buildings’ can no more justify an absolute prohibition of free expression on the Supreme Court grounds than on the grounds of the United States Capitol.” Id. (no citation provided). The Circuit further explained that:

The sight of a sole picketer may indeed mar an otherwise pristine morning or perfectly centered snapshot. However, it is just that annoyance-if such be the case-that may cause bystanders or passerby to stop and take notice, to become aware of an issue, to formulate a response to a companion. This awareness and interchange is, in part, precisely what the First Amendment is designed to protect.

Id. The Circuit went so far as to emphasize that “we believe that it would be tragic if the grounds of the Supreme Court, unquestionably the greatest protector of First Amendment rights, stood as an island of silence in which those rights could never be exercised in any form.” Id. at 1205. While noting a preference “to adopt a narrowing construction of the statute in order to avoid a holding that section 13k is unconstitutional, ” the Circuit nevertheless concluded that a “validating construction is simply impossible here” where the legislative history is “slim” and “suggests only the desire on the part of Congress to surround the Court with the same cordon of silence that Congress attempted to place around the Capitol, ” a measure found unconstitutional. Id. At 1205-06.

Following the D.C. Circuit’s clear rejection as facially unconstitutional of the precursor to the challenged statute, the Supreme Court took a narrower approach to its review of the statute. By contrast to the D.C. Circuit, which held the entire statute unconstitutional, the Supreme Court limited its review to the Display Clause as the plaintiffs were threatened with arrest only for violation of that clause. United States v. Grace, 461 U.S. 171, 175 (1983) (hereinafter, “Grace II”).[16] Upon review of the statute and its legislative history, the Supreme Court concluded that “it is fair to say that the purpose of the Act was to provide for the protection of the building and grounds and of the persons and property therein, as well as the maintenance of proper order and decorum” and that, in particular, section 6, codified at 40 U.S.C. § 13k, “was one of the provisions apparently designed for these purposes.” Id. at 182 (noting that “[a]t least, no special reason was stated for [the] enactment” of 40 U.S.C. § 13k).

The Supreme Court echoed the D.C. Circuit’s decision in part, however, and expressed the view that, while “[w]e do not denigrate the necessity to protect persons and property or to maintain proper order and decorum within the Supreme Court grounds, . . . we do question whether a total ban on carrying a flag, banner, or device on the public sidewalks substantially serves these purposes.” Id. Indeed, finding that “[a] total ban on that conduct is no more necessary for the maintenance of peace and tranquility on the public sidewalks surrounding the building than on any other sidewalks in the city[, ]” the Supreme Court found the Display Clause unconstitutional as applied to the public sidewalks surrounding the Supreme Court. Id. at 182-84 (explaining that “this is not to say that those sidewalks, like other sidewalks, are not subject to reasonable time, place, and manner restrictions, either by statute or by regulations”). The Supreme Court thus “affirmed” the judgment of the D.C. Circuit “to the extent indicated by [its] opinion” with ...


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