Free Speech Zone
Tony Mauro
American Lawyer Media
March 18, 2002
On the east steps of the U.S. Capitol, protest demonstrations are common, even since Sept. 11. The main difference, a Capitol police spokesman says, is that now, "We no longer simply check for weapons. We also look for powdered substances."
But a few hundred yards away, on the steps of the Supreme Court, demonstrations are never permitted -- not before Sept. 11, and not since.
This lingering anomaly was underscored on the morning of Jan. 17, when seven anti-capital punishment demonstrators were arrested on the Supreme Court steps after they briefly unfurled a banner proclaiming "STOP EXECUTIONS!"
The seven had walked up the steps unnoticed, joining a jogger and several others who were on the steps at the same time. But as soon as the banner came out from under a demonstrator's coat and was stretched out, police came running from inside the Court to end the demonstration.
"It was up for about 28 seconds," says Abe Bonowitz of Gainesville, Fla.-based Citizens United for Alternatives to the Death Penalty, one of those arrested. "The first thing they did was rip it out of our hands." Once the group refused to leave, the seven were placed under arrest.
And then came the paperwork It was well into the next day before the seven were released after entering not guilty pleas in D.C. Superior Court.
"They went in for 30 hours for a 30-second demonstration," says Mark Goldstone, a Bethesda, Md., solo practitioner representing the protesters. A trial is set for late June on their challenge to the federal law, 40 U.S.C. 13(k), that prohibits demonstrations and the display of banners and flags on Supreme Court grounds.
If this all seems like déjà vu all over again, it is.
Exactly five years earlier, Bonowitz and a somewhat larger group of protesters were arrested for displaying an identical banner in the same place. (It was not, however, the same banner; that one was lost in the evidence room by D.C. police.) Jan. 17 is an important date for abolitionists, this year marking the 25th anniversary of Gary Gilmore's execution in Utah in 1977.
The last time the demonstrators were arrested, their challenge to 13(k) ended unsuccessfully, with an adverse decision from a superior court judge and a unanimous affirmance in August 1999 by the D.C. Court of Appeals. The court found that the Supreme Court steps and plaza amount to a nonpublic forum, where reasonable, viewpoint-neutral speech restrictions are permitted.
So will the outcome be any different this time?
"There's always hope," says Goldstone. While the security concerns that have blossomed since Sept. 11 might make it seem even less likely that protests will be allowed, Goldstone sees the potential for an opposite effect.
"With all the security changes since then, the areas for public discourse have been shut down one by one," says Goldstone. "In a democracy, there needs to be an outlet valve, a way to speak directly to those in power."
Goldstone also thinks the dynamics have changed concerning one of the government's key arguments in support of the ban on demonstrations on Court grounds.
The government's theory is that protests may well be appropriate on the steps of the Capitol, as a way for the public to petition elected representatives. But at the Supreme Court, the theory goes, the justices are above political influence, and the public should not get the impression that it can be swayed by demonstrators on its front steps.
"That argument sounds even tinnier now than it did five years ago," says Goldstone. "The Court really is a political institution. Bush v. Gore cemented that."
Bonowitz is less concerned about the strategy for challenging the law than he is about increasing the pressure on the Court to end the death penalty. "We didn't go there [to raise] the First Amendment issue. Executions have to stop, and this is the place where they can be stopped."