Appeals court upholds ban on demonstrations on the Supreme Court plaza

|The Volokh Conspiracy |

Supreme Court building, together with the plaza (which reaches up to, but doesn't include, the grey city sidewalk in front of the Court). Source: Architect of the Capitol.
Supreme Court building, together with the plaza (which reaches up to, but doesn't include, the grey city sidewalk in front of the Court). Source: Architect of the Capitol.

The D.C. Circuit just upheld today (Hodges v. Talkin) the ban on demonstrations on the Supreme Court plaza, the open space in front of the Supreme Court. In United States v. Grace (1983), the Supreme Court itself held that the government can't broadly restrict speech on the city sidewalk in front of the Supreme Court, just as it generally can't broadly restrict speech on other sidewalks (which are seen as "traditional public fora"). But the plaza, the D.C. Circuit held, is a "nonpublic forum," in which reasonable, viewpoint-neutral restrictions are permissible. And this restriction, the D.C. Circuit held, is indeed viewpoint-neutral and reasonable:

To begin with, restricting expressive assemblages and displays promotes a setting of decorum and order at the Supreme Court. Congress could reasonably conclude that demonstrations and parades in the plaza, or the display of signs and banners, would compromise the sense of dignity and decorum befitting the entryway to the nation's highest court. A nonpublic forum like the plaza "by definition is not dedicated to general debate or the free exchange of ideas." Instead, "when government property is not dedicated to open communication the government may—without further justification—restrict use to those who participate in the forum's official business." Here, the Supreme Court plaza serves as the integrated staging area through which to approach the Supreme Court building and encounter the important work conducted within it. Rather than "restrict use" of the plaza "to those who participate in the [Court's] official business," the government grants access to all comers. In doing so, the government does not lose its ability to require visitors to comport themselves in a manner befitting the site's basic function.

The statute also promotes the understanding that the Court resolves the matters before it without regard to political pressure or public opinion. Allowing demonstrations directed at the Court, on the Court's own front terrace, would tend to yield the opposite impression: that of a Court engaged with—and potentially vulnerable to—outside entreaties by the public. At the least, the appearance of a Court subject to political pressure might gain increasing hold. This case illustrates the point. Hodge tells us he wants to use the plaza to send a "political message … directed … at the Supreme Court" explaining how its decisions "have allowed police misconduct and discrimination against racial minorities to continue." Congress may act to prevent just those sorts of conspicuous efforts on the courthouse grounds to pressure the Court to change its decision-making—efforts that could well foster an impression of a Court subject to outside influence. Reserving the plaza as a demonstration-free zone counters the sense that it is appropriate to appeal to the Court through means other
than "briefs and oral argument." It thereby protects the judicial process, and the Supreme Court's unique role within that process, "from being misjudged in the minds of the public."

This also reminds me of something I wrote about a year ago, with regard to the supposed contrast between demonstrations outside abortion clinics and demonstrations outside the Court. The Court, that argument goes, was hypocritical in striking down the 35-foot buffer zone around abortion clinics, when it has a so much bigger buffer zone around itself, given that demonstrations are generally not allowed on the Supreme Court's plaza area or, of course, in the building. (For one of many instances of this argument, see here.) I think this argument is based on a basic misunderstanding of the underlying legal framework, although there is an interesting insight to be had here—which has little to do with the Court as such—about "traditional public forum" doctrine more broadly.

1. To begin with, as I noted, the Supreme Court has struck down a law that banned protests on the sidewalks around the Supreme Court. The decision was nearly unanimous; Justice Stevens concluded that the statute didn't apply to such protests, and thus didn't think it necessary to reach the constitutional question.

Abortion clinics are thus treated by McCullen v. Coakley like the Court, and like a vast range of businesses and organizations that are targeted for demonstrations by labor protesters, public issue protesters and so on. Speech on the sidewalks around those places is constitutionally protected, although blocking entrances to those places is not.

2. Now it's true that—as we see in today's D.C. Circuit decision—demonstrations and protests off the sidewalks, and on the open space around the Supreme Court building, are forbidden. But likewise an abortion clinic can bar demonstrations and protests on its property off the sidewalks, as can post offices, factories and other entities.

The abortion clinic has this power because there is no First Amendment right to demonstrate on private property without the property owner's permission. The Supreme Court and post offices have this power because there is generally no such right to demonstrate on "nonpublic forum" government property (i.e. property other than sidewalks, parks and streets that hasn't been deliberately opened for public speech). The rule is consistent: Protests on sidewalks are allowed, protests on the institution's property off the sidewalks are not.

3. Of course, one possible response is, "Hey, we're just poor abortion clinics—we can't afford wide open space around our building. So even if the Court isn't unfairly preferring itself over abortion clinics, it's preferring rich institutions over poor ones." I think that's on the right track to an interesting insight, but it's not quite there yet.

After all, the abortion clinic doesn't really want a lot of wide open space around the building. Indeed, so long as people are in that wide open space, they can likely see and hear the protesters, and if the goal is to shield patients from the protesters, that goal is better served by just getting them inside the building, which the abortion clinic does have. So the clinic's patients have to deal with protesters on the sidewalks, but once the patients go off the sidewalks—and, in the clinic's case, into the building—the protesters are outside. Likewise, the Court's personnel (including the Justices) have to deal with protesters on the sidewalks outside the Court, but once they go off the sidewalks, into the building or onto the open space around the building, the protesters are away from them.

4. But of course the Justices don't really have to deal with protesters, and especially not sidewalk counselors, for a simple reason: They park on the property, in an underground garage. If they see a protester, it's for a brief moment, separated by glass and metal. The situation is precisely the same for abortion clinics that have on-premises parking, and patients who drive into the parking lot or garage. (Garages—as opposed to open-air parking lots—of course provide visual separation—and some degree of audio separation—and not just physical separation. They are uncommon, I suspect, for standalone clinics, but more common for clinics that are suites within larger office buildings, although of course some office building owners may feel public pressure not to rent space to abortion clinics.)

In this respect, the situation is again similar to many other businesses. If you run a storefront restaurant and are being picketed by a union or an animal rights group or anyone else, your customers have to walk past the picketers, which may be uncomfortable for them and may mean more business lost for you. If you run a restaurant with its own parking lot, and most of your customers drive in, then they just have to drive past the picketers and then see them some distance away as they walk to the entrance—less uncomfortable. If you run a restaurant in a shopping mall or office building with an enclosed garage, then the driving customers will have to drive past the picketers and won't even have to see them. Of course, the customers who walk up will have to walk past the picketers in any event.

The same is true if you run a business, and the picketers are trying to reach your employees. The impact on the employees, and on you, varies sharply depending on the parking situation, and on whether your employees drive.

5. Now here I do think we see an interesting class-based effect of the law—indeed, of public forum law more broadly. If you own a car, you can better shield yourself from many things that a pedestrian can't (approaches, sounds, smells). If your organization can afford space in a building that has on-site parking, or, better yet, on-site covered parking, your driving clients can likewise better shield themselves from such things. But if you're a poorer or smaller organization, or a poorer or smaller business, or someone who can't afford a car, you can't shield yourself as well. That is the effect of "traditional public forum" doctrine.

And this isn't just limited to sidewalks. Consider another quintessential traditional public forum—a park. The free speech rights of protesters in such a park mean less peaceful enjoyment for users of the park. If you go to the city park, you might find yourself dealing with unwanted approaches by leafleters or proselytizers, unwanted noise from protests, and the like. The city can implement content-neutral time, place, and manner restrictions that diminish these annoyances, but it can't eliminate them altogether. But if you are rich enough to belong to a country club, you can just go there and be entirely free from such annoying speech.

Or consider schools. Some people think that their children will be happier at school if other students' speech (in school or outside school) is restricted in various ways. We can debate whether or not that's true, but at least people who can afford private schools have the option of sending their children to places that have such restrictions. Given the Tinker v. Des Moines Independent School District decision, public schools are limited in their ability to impose such restrictions. As a result, people who can't afford private schools don't have the option of sending their children to such places. (Although given the normal practices in most public school systems, public school parents couldn't easily choose their children's school in any event.)

So the result is that doctrines that protect free speech on government property—sidewalks, parks, public schools—end up exacerbating the already substantial differences between the experiences of the poorer and the richer. Because the poor are stuck using the government property (e.g., they have to walk on the sidewalk, rather than driving into the parking lot), they are more exposed to the speech on this property, and the annoyance and offensive of such speech. If the government could shut down the speech on its property, then it could, if the political process so came out, try to give poorer people some of the peace and quiet and shielding from speech that richer people enjoy.

Of course, these same free-speech-on-government-property doctrines also especially protect the speech of the poor, who might be able to afford to reach people using leaflets and signs, but not using billboards and TV advertising campaigns. Likewise, these doctrines have historically protected the speech of groups that see themselves as representing poorer people, such as labor union, civil rights activists and the like. And I think that on balance, the protection of speech on sidewalks and parks is a good idea.

But it is worth noting that such protection does yield situations in which poorer people, and clients of poorer organizations, find it harder to shield themselves from the annoyance and offense created by public speech, and richer people and clients of richer organizations find it much easier. And it is this effect that really explains the Justices-vs.-abortion-clinic-patients effect (for those abortion clinic patients that walk to the building), and not some hypocritical self-protection that the Justices uniquely provide themselves.

(If I recall correctly, much of my thinking about item 5 was shaped by a conversation I had with Professor Sandy Levinson many years ago, though he is of course not at all responsible for the particular points I am making here.)

Thanks to How Appealing for the pointer.