The Volokh Conspiracy

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Freedom Plaza can be free of inauguration protests


The U.S. Capitol during a rehearsal for the inauguration of Donald Trump on Jan. 15 in Washington. (Mandel Ngan/Agence France-Presse via Getty Images)

Today, in one of its first decisions in 2017, the U.S. Court of Appeals for the D.C. Circuit held that groups seeking to protest at Donald Trump's inauguration have no First Amendment right to use Freedom Plaza for their protests. In ANSWER Coalition v. Basham, the court held that the National Park Service (NPS) may reserve the use of Freedom Plaza for ticketed bleachers without violating the protesters' First Amendment rights.

Under existing NPS regulations, the service may issue priority permits for a portion of the spaces along the inauguration parade route for use by the Presidential Inaugural Committee. Pursuant to these regulations, the NPS granted a priority permit for ticketed bleachers on Freedom Plaza. As it happens, Freedom Plaza is also a desirable location for protests, or so the petitioners claimed. Yet while the plaza is a traditional public forum, the D.C. Circuit held that the NPS regulations and their application here are fully consistent with the First Amendment.

Writing for the court, Judge Cornelia T.L. Pillard explained:

The Park Service regulation authorizing the priority permit, including the space on Freedom Plaza for the bleachers, is not a content- or viewpoint-based speech restriction, but a reasonable time, place, and manner regulation of the use of a public forum. It sets aside bleacher areas, including on Freedom Plaza, for the Inaugural Committee's use as part of the package the rule reserves to the Committee as event organizer. The First Amendment requires that any reasonable, content-neutral regulation limiting expression along the parade route leave ample space 4 available for peaceful demonstrations. The First Amendment does not, however, support ANSWER's claim of a right to displace spectator bleachers with its own demonstration at Freedom Plaza.

The ANSWER Coalition will be able to protest Trump's inauguration, just not on Freedom Plaza.