United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
M. MERIWEATHER, UNITED STATES MAGISTRATE JUDGE
Shailly Barnes, Graylan S. Ellis Hagler, Jimmy Hawkins,
William Lamar, Hershey A. Mallette, Rosalyn W. Pelles, Noam
Sandweiss-Back, Robert T. Stephens, and Elizabeth Theoharis
(collectively “Defendants”) were arrested while
praying on the Supreme Court plaza and charged with violating
40 U.S.C. § 6135 (“§ 6135” or
“Section 6135”). See 40 U.S.C. §
6135 (2018). Section 6135 makes it unlawful “to parade,
stand, or move in processions or assemblages in the Supreme
Court Building or grounds [“the Assemblages
Clause”], 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 [“the
Display Clause”].” Id. Defendants
Barnes, Hagler, Lamar, Mallette, Pelles, Sandweiss-Back,
Stephens, and Theoharis have jointly moved to dismiss the
Information as unconstitutional. See Defs.'
Joint Mot. Dismiss (“Defs.' Mot.”), ECF No.
Defendant Hawkins has separately filed a Motion to Dismiss,
in which he incorporates the arguments in Defendants'
Joint Motion to Dismiss and raises a selective prosecution
claim. See generally Mot. Dismiss for Selective
Prosecution and Compel Disc. (“Hawkins Mot.”),
ECF No. 109. Defendants collectively argue that the
charges against them should be dismissed because: (1) §
6135 violates their First Amendment right to prayer and to
all instances of prayer in the plaza; and (2) § 6135 is
unconstitutionally overbroad and vague. Defs.' Mot. at 5.
Mr. Hawkins also separately argues that he has been subjected
to selective prosecution and asks that the Court dismiss the
charges against him on that basis or, alternatively,
authorize discovery regarding selective prosecution. Hawkins
Mot. The Court DENIES the joint motion to dismiss and Mr.
Hawkins' separate motion for the reasons set forth
11, 2018, Defendants allegedly were among a group of
demonstrators marching on First Street, N.E., near the United
States Supreme Court. See Opp'n Mot. at 1.
Defendants identify as religious individuals and leaders
associated with The Poor People's Campaign: A National
Call for Moral Revival. Defs.' Mot. at 1-2. During the
march, Defendants wore matching clothing connecting them to
the Poor People's Campaign. Opp'n Mot. at 1.
First Street, N.E., was reopened for vehicle use at the
conclusion of the march, approximately 100 to 150
demonstrators remained on the sidewalk in front of the
Supreme Court building. Id. at 2. The United States
Supreme Court Police Department (“USSCPD”)
surveyed the crowd and observed the nine Defendants depart
from the larger group, walk onto the lower steps of the
Supreme Court plaza, and gather in a circle near the base of
the stairs of the Supreme Court building. Id. No
arguments had been scheduled before the Court on that date.
Defs.' Mot. at 2. Members of the public were on the
plaza, and individuals with recording devices surrounded
Defendants. Id.; see also Defs.' Mot. Ex. 3,
Governmental Camera 101. Defendants prayed together on the
Supreme Court plaza. Defs.' Mot. at 1-2. Defendants
describe their prayer as “address[ing] voter
suppression, economic inequality, and persistent poverty in
the United States.” Id. at 2. While Defendants
were gathered at the base, one defendant, Elizabeth
Theoharis, gave a speech through a microphone connected to a
megaphone. Opp'n Mot. at 2. She passed the microphone to
others gathered around her. Id.
blocked entry to the Court's main door to prevent
Defendants from progressing into the building. Id.
While Defendants prayed in the plaza, USSCPD Chief Jeff Smith
issued three warnings to Defendants within a ten-minute
timespan. Id. With each warning, Chief Smith
notified Defendants that if they did not leave the premises,
USSCPD would arrest them. Id. After Defendants
ignored the warnings, USSCPD began arresting the Defendants.
Id. These arrests drew applause from onlooking
demonstrators from the sidewalk. Id. The Defendants
were arrested and charged with violating 40 U.S.C. §
6135. Id. at 3.
Information filed June 12, 2018, the United States charged
Defendants with violating 40 U.S.C. § 6135. See
Information at 2, ECF No. 1. Defendants face a maximum fine
of up to $5, 000 and a maximum sentence of up to sixty days
in jail. See 18 U.S.C. § 3571(b)(6) (2018); 40
U.S.C. § 6137(a) (2018). Defendants have been on
pretrial release since their initial appearance before this
Court on June 12, 2018.
DEFENDANTS' JOINT CONSTITUTIONAL CHALLENGE
contend that the Information should be dismissed because
§ 6135 violates the First Amendment as applied to
Defendants' alleged conduct on June 11, 2018 and to all
instances of prayer on the Supreme Court plaza. Defs.'
Mot. at 5; Hawkins Mot. at 1. The statute provides that,
“[i]t 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 (2018). In Hodge v. Talkin, the D.C.
Circuit found § 6135 constitutional as applied to the
Hodge plaintiff's desire to picket, leaflet, and
make a speech in the Supreme Court plaza. Hodge
v. Talkin, 799 F.3d 1145, 1150 (D.C. Cir. 2015).
Defendants contend that their prayer is an expressive
activity that was not addressed in Hodge, and that
precluding them from praying on the Supreme Court plaza would
violate the First Amendment. See Defs.' Mot. at
5. Defendants also assert that § 6135 is
overbroad and unconstitutionally vague. See Id. at
6. The United States counters that § 6135 is a
reasonable restriction on speech that is neither overbroad
nor void for vagueness. See Opp'n Mot. at 6-9.
The Court concludes that § 6135 may be constitutionally
applied to Defendants' alleged conduct at the Supreme
Court on June 11, 2018, and therefore rejects Defendants'
First Amendment challenge to the Information.
Section 6135 Does Not Violate the First Amendment as Applied
to Defendants or Other Individuals Who Wish
to Pray on the Supreme Court Plaza
Legal Standard Governing First Amendment Claims
First Amendment protects the right to free speech and
expression, but does not give individuals an unfettered right
to engage in expressive activity “wherever (and
whenever) [they] would like.” Hodge, 799 F.3d
at 1157. The government may restrict speech on government
property, and the scrutiny to which those restrictions will
be subjected turns on the nature of the forum where the
speech takes place. See Minnesota Voters Alliance v.
Manksy, 138 S.Ct. 1876, 1885 (2018). Restrictions on
speech in public forums are scrutinized more closely than
restrictions on speech in nonpublic forums. See id.
In public forums, “the government may impose reasonable
time, place, and manner restrictions on private speech, but
restrictions based on content must satisfy strict scrutiny,
and those based on viewpoint are prohibited.”
Id. In nonpublic forums, the government may prohibit
speech “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.” Id.; see also Hodge, 799 F.3d
at 1150. Thus, to determine whether a restriction on speech
violates the First Amendment, courts “proceed in three
steps: first, determining whether the First Amendment
protects the speech at issue, then identifying the nature of
the forum, and finally assessing whether the
[government's] justifications for restricting
…speech ‘satisfy the requisite
standard.'” Mahoney v. Doe, 642 F.3d 1112,
1116 (D.C. Cir. 2011) (quoting Cornelius v. NAACP Legal
Def. & Educ. Fund, 473 U.S. 788, 797 (1985)).
Court's analysis of Defendants' First Amendment
claims must begin with the D.C. Circuit's holding in
Hodge v. Talkin, given the overlap between the
issues addressed in Hodge and the arguments
Defendants raise here. In Hodge, a student who had
previously been arrested for violating § 6135 sought to
return to the Court to picket, distribute leaflets, and make
political speeches on the Supreme Court plaza. 799 F.3d at
1154. Mr. Hodge argued that § 6135 violated his First
Amendment rights to expression and was unconstitutionally
overbroad and vague. See id. When reviewing Mr.
Hodge's challenge to the statute's restriction of his
First Amendment rights, the Court declined to classify Mr.
Hodge's constitutional claims as a purely facial or as
applied challenge, and instead “examine[d] the validity
of the statute's application to . . . [the Supreme Court]
plaza-looking beyond the plaintiff's particular conduct
when assessing the statute's fit.” Id. at
upheld the constitutionality of § 6135, rejecting Mr.
Hodge's assertion that the statute was
“unconstitutional in all its applications in the
Supreme Court plaza.” Hodge, 799 F.3d at 1157.
First, the D.C. Circuit determined that the Supreme Court
plaza is a nonpublic forum, after reviewing its structural
design, its public accessibility, and the importance of
maintaining “the Court's central purpose, the
administration of justice to all who seek it.”
Id. at 1158-62. As such, the First Amendment allows
the government to implement “reasonable restrictions on
speech [at the plaza] as long as it refrains from suppressing
particular viewpoints.” Id. at 1150. Applying
that test, the D.C. Circuit determined that § 6135
reasonably relates to the government's interests in
“preserving decorum in the area of a courthouse and in
assuring the appearance (and actuality) of a judiciary
uninfluenced by public opinion and pressure.”
Id. It further held that § 6135 is neither
overbroad nor vague, in part because the statute applies only
to expressive conduct intended to attract attention. See
Id. at 1168.
Section 6135 Does Not Unreasonably Restrict Defendants'