On Jan. 28, 2011, Harold Hodge Jr. stood on the Supreme Court plaza in Washington DC silently wearing a sandwich board that said “The U.S. Gov. Allows Police To Illegally Murder And Brutalize African Americans And Hispanic People.” He was promptly arrested because of a 60 year old law that prohibits any form of protesting at the Supreme Court. A federal judge has now ruled in his favor in the free speech suit he filed as a result.
Federal law, specifically 40 U.S.C. § 6135, says:
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.
Judge Beryl L. Howell rightly declared that law to be unconstitutional in what seems to me to be one of the most obvious conclusions in legal history. There was a similar statute forbidding even peaceful assemblies at the Capitol building but it was struck down in 1972. How ironic that the law attempts to void the First Amendment rights to free speech and peaceable assembly at the very seat of the government that is supposed to uphold and defend those rights.
When this law was passed in 1949, the Senate report accompanying the bill said that it was necessary to prohibit speech there “[i]n keeping with the dignity which should surround the Supreme Court of the United States and the building and grounds which house it.” Because “dignity” is obviously so much more important than liberty. Judge Howell ruled that “the absolute prohibition on expressive activity [on the Supreme Court plaza] in the statute is unreasonable, substantially overbroad, and irreconcilable with the First Amendment.” How could anyone possibly disagree? You can read the full ruling here.