by Bruce Dunlavy              (My blog home page and index of other posts may be found here.)

The First Amendment was made the first amendment for a reason. It includes within it the guarantee of “freedom of speech” and “the right of the people peaceably to assemble and to petition the Government for a redress of grievances,” considered by the authors of the Constitution to be two of the most important foundations of a free society.

How ironic, then, that these two rights have been declared inoperative in front of the purported guarantor of all rights, the Supreme Court of the United States (SCOTUS). That’s right, in the courtyard in front of the Supreme Court building, beneath the inscription “Equal Justice Under Law,” the judicial body charged with ensuring the rights of Americans denies them those rights. Free speech, yes, but “not in my front yard.”

On August 28, 2015, in the case of Hodge v. Talkin, a three-judge panel of the United States Court of Appeals for the District of Columbia unanimously reversed a lower court ruling.  In doing so, they upheld a 66-year-old law that declares the grounds of the Supreme Court a “No-Free-Speech Zone.” If you are not accustomed to reading court decisions, this one might be a good one for you start with.  As written decisions go, it is comparatively short and easy to understand. You can find it here.

The case involves Harold Hodge, Jr., who on January 28, 2011, had stood in the Supreme Court plaza about 100 feet from the building entrance.  Around his neck hung a two-foot-by-three-foot cardboard sign that read, “The U.S. Gov. Allows Police To Illegally Murder And Brutalize African Americans And Hispanic People.”  Hodge had contended that the 1949 law was an unconstitutional abridgement of free speech rights (and, by extension, free assembly and petition rights), and the District Court had agreed.

Hodge’s case represented him and his particular action, and also requested affirmation of the right to picket, hand out leaflets, speak publicly, chant, sing, or otherwise demonstrate (about SCOTUS decisions or anything else) on the grounds of the Court itself. A District Court  had decided in Hodge’s favor with a summary judgment (i.e., without a full hearing because the right decision was so obvious), noting that the law was “plainly unconstitutional on its face.” The subsequent appeal by the government to the Appeals Court resulted in a reversal of the lower court’s decision.

Writing the opinion was Judge Sri Srinivasan. In the decision, Srinivasan found that, first of all, Hodge did not have standing to bring any issue other than that of being in the Supreme Court plaza with a sign hanging around his neck, since he had not personally engaged in any of the other forms of demonstration for which he was seeking approval. In any case, the decision added, the government, like any private citizen, “has the power to preserve the property under its control for the use to which it is lawfully dedicated.” While no one would deny that principle, there is another aspect to that concept. Is not the ground in front of the highest judicial authority in the nation, the ultimate arbiter of legal disputes, an appropriate place – perhaps as appropriate as any public location – for an individual or group of individuals to exercise Constitutional rights?

Supreme Court of the United StatesImage credit:

The heart of the case, Srinivasan writes, is one of appearances – both physical and metaphysical. After some quibbling about architectural appearances (whether someone stepping into the plaza would reasonably assume from the surroundings that he/she had entered into a “non-public forum”), Srinivasan gets down to his main concern: that “judges are not politicians.”

Curiously, a similar law prohibiting demonstrations on the grounds of the United States Capitol was overturned in1972 in the case of Chief of the Capitol Police v. Jeannette Rankin Brigade. The Supreme Court affirmed a lower court decision allowing free speech, assembly, and demonstration at the home of the legislative branch of government, but continues to deny it at the center of the judicial branch. Their reasoning, cited by Srinivasan in Hodge, is that people have a right to demonstrate at the legislative center because the legislators are elected politicians and thus must be receptive to their constituents’ concerns.

That should be plain enough, and cannot be effectively disagreed with. On the other hand, the decision equates individual or group speech in the Supreme Court plaza with lobbying, and – citing an earlier case on which this decision relies extensively, United States v. Grace (1983) – puts forward a more enigmatic proposition. The Hodge decision contends that the use of the Court plaza as a public forum would make it “appear to the public that the Supreme Court is subject to outside influence or that picketing or marching, singly or in groups, is an acceptable or proper way of appealing to or influencing the Supreme Court.”  In other words, (metaphysical) appearances matter.

John W. Whitehead of The Rutherford Institute (the non-profit civil liberties organization that represented Harold Hodge) has demolished that argument by reminding us that the Justices of SCOTUS are not nine rubes with seventh-grade educations who could be easily swayed by someone such as Harold Hodge with a sign around his neck. Likewise, the Court is now subject to constant attempts at influence by the pernicious interests of money, as demonstrated by the outrageous Citizens United case (2010), which held that corporations are people and money is the same thing as speech.

Writing in the Washington Post,  Robert Barnes takes up this thread by pointing out the irony – if not the downright hypocrisy – of the same court that celebrates its defense of political free speech in Citizens United and disallowed “buffer zones” around abortion clinics in McCullen v. Coakley (2014) prohibiting free speech on its own doorstep.

Of course, the District of Columbia Court of Appeals does not have to have the last word on Hodge v. Talkin. Hodge and The Rutherford Institute have one more appeal opportunity. They could take their case to the United States Supreme Court. Their chances of success are, of course, minimal, since that court has already made clear its position on the subject.