481 F.Supp.3d 15
D.D.C.2020Background:
- On June 11, 2018, nine demonstrators associated with the Poor People’s Campaign moved from the street onto the plaza/steps of the U.S. Supreme Court; three appellants (Barnes, Pelles, Theoharis) used a megaphone, spoke and joined hands in prayer.
- Supreme Court Police warned the group repeatedly to leave the plaza; after refusals, officers arrested the nine and charged them under 40 U.S.C. § 6135 (ban on parading/assemblages/display on Supreme Court grounds).
- Pretrial litigation included motions to dismiss (First Amendment challenges) and a magistrate’s denial of jury trial requests; most defendants entered deferred prosecution agreements; the three appellants pled guilty on Oct. 28, 2019 and were sentenced to time served and $100 fines.
- The three defendants appealed, arguing § 6135 is unconstitutional as applied to their expressive conduct (forum, strict scrutiny, viewpoint neutrality, overbreadth, and vagueness).
- Chief Judge Howell affirmed on August 24, 2020, relying principally on D.C. Circuit precedent (Hodge v. Talkin) that the Supreme Court plaza is a nonpublic forum and that § 6135 is a reasonable, viewpoint-neutral, and not unconstitutionally vague or overbroad restriction.
Issues:
| Issue | Plaintiff's Argument (Government) | Defendant's Argument | Held |
|---|---|---|---|
| Forum classification | Plaza is nonpublic forum; forum analysis supports regulation | Plaza is a public forum; restrictions require strict scrutiny | Plaza is a nonpublic forum (followed Hodge v. Talkin) |
| Standards for §6135 | §6135 is reasonable to protect decorum and judicial independence | §6135 fails strict scrutiny or is unreasonable even under nonpublic-forum review | §6135 is a reasonable restriction in a nonpublic forum |
| Viewpoint neutrality / selective enforcement | Law is viewpoint-neutral; alleged inconsistent enforcement does not render statute unconstitutional | Post-Hodge enforcement shows viewpoint discrimination/selective prosecution | No persuasive evidence of viewpoint discrimination; statute remains viewpoint-neutral |
| Vagueness / Overbreadth | Statute gives adequate notice and is not overbroad (Hodge resolves ambiguities) | Statute is vague/overbroad as applied and chills protected speech | §6135 is neither unconstitutionally vague nor overbroad |
Key Cases Cited
- Hodge v. Talkin, 799 F.3d 1145 (D.C. Cir. 2015) (holding Supreme Court plaza is a nonpublic forum and upholding §6135)
- United States v. Grace, 461 U.S. 171 (1983) (distinguishing public sidewalks from courthouse plaza for forum analysis)
- Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (1983) (framework for public/nonpublic forum analysis)
- Pleasant Grove City v. Summum, 555 U.S. 460 (2009) (forum characterization and public use guidance)
- Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788 (1985) (government creates a forum only by intentional opening)
- Int'l Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992) (nonpublic forum standard and permissible restrictions)
- Minn. Voters All. v. Mansky, 138 S. Ct. 1876 (2018) (content-based restrictions may be permitted in nonpublic forums)
- United States v. Williams, 553 U.S. 285 (2008) (vagueness doctrine principles)
- Hague v. Comm. for Indus. Org., 307 U.S. 496 (1939) (historical understanding of public forums)