On January 28, 2011, college student Harold Hodge, Jr. stood quietly and peacefully upon the Supreme Court Plaza, holding a large sign that said, “ The U.S. Gov. Allows Police to Illegally Murder and Brutalize African Americans And Hispanic People.”
Hodge then proceeded up the Plaza steps, and stopped about 100 feet from the doors of the main entrance leading into the Supreme Court. After three warnings that he should depart the Plaza, Hodge was next arrested and jailed.
The Statute at Issue
Hodge was charged under the little-known federal statute 40 U.S.C. sec. 6135, which states 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.” (The initial clause of the statute is known as the Assemblages Clause, and the subsequent clause is known as the Display Clause.)
Punishment for violations of either prong of the statute can consist of a fine, up to 60 days imprisonment, or both. (Related damage to public property, which was not at issue in Hodge’s case, can be punished by more significant prison time.) Hodge accepted an agreement under which the charges against him would be dropped if he agreed to stay away from the Supreme Court Building and its grounds for six months.
On January 23, 2012, Hodge sued, arguing that 40 U.S.C. sec. 6135 is unconstitutional, and noting that his First Amendment rights were currently being chilled, for he would like to return to the Supreme Court Plaza in the future, and engage there, just as he had before, in peaceful political speech concerning the plight of racial minorities in America, and concerning how, in his view, Supreme Court decisions have perpetuated that situation.
Fortunately, Hodge drew U.S. District Judge Beryl A. Howell as his judge. Her scholarly and thorough opinion addresses the modern statute and its related predecessors, as well as related opinions from the U.S. Supreme Court and the U.S. Court of Appeals from the D.C. Circuit. In addressing Hodge’s constitutional challenge, Howell deemed his speech to be First Amendment-protected. Surely, virtually any other conscientious judge would—and should—hold the same.
In her opinion, Judge Howell dodges the question of whether the Supreme Court Plaza is a public, or a nonpublic, forum. She cites evidence on both sides, including evidence from the plaza’s inviting architecture, which naturally draws the public; its history; and the fact that the public, at least, very clearly thinks that the Supreme Court Plaza is, indeed, a public forum. Ultimately, Judge Howell assumes in her opinion, without deciding, that the Supreme Court Plaza is a nonpublic forum, rather than a public forum. Even despite that analysis, however, Judge Howell decides that 40 U.S.C. sec. 6135 is not a reasonable limit on speech, because the interests that the government cites to defend its constitutionality are so weak, as the two-pronged analysis below suggests:
First, the government cites an interest in allowing “unimpeded ingress and egress” of visitors to the Court, but that interest hardly justifies a blanket ban on all speech and other expressive activity on the Supreme Court Plaza.
Second, the government cites an interest in “preserving the appearance of the Court as a body not swayed by external influence.” But, Judge Howell notes that while picketing could seem, to some observers, to be an attempt to exert pressure on the Court, 40 U.S.C. sec. 6135 sweeps much more broadly than just that, reaching not just picketers but also many others who have assembled on the Plaza for a variety of other reasons.
Here, Judge Howell underlined the overbreadth of 40 U.S.C. sec. 6135. Under First Amendment overbreadth doctrine, a law is overbroad if it reaches a real and substantial amount of free speech, as compared with the law’s plainly legitimate sweep. Judge Howell found substantial First Amendment overbreadth in both clauses of the statute at issue, the Assemblages Clause and the Display Clause.
More specifically, Judge Howell saw overbreadth in the Assemblages Clause in that it appeared to ban, for instance, parades, processions and assemblages of any kind. Even pre-schoolers’ first class trips to the Court would not be spared by the statute’s language.
In addition, Judge Howell found the Display Clause, too, to be overbroad, reading it as reaching even pamphleting and tourist groups’ T-shirts expressing their allegiance to the group to which they belong. As above, with respect to the Assemblages Clause, Judge Howell’s examples here are especially convincing because they are so realistic, such very typical examples of what one might see on a trip to the High Court.
In sum, Judge Howell made a sensible, correct and pro-First-Amendment decision that was in line with America’s strong heritage of protest, and in line, as well, with the idea that even the Supreme Court Plaza is ultimately of, by, and for the People themselves.