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Courthouse-Step Protesters Take Case Inside
By Arthur Santana
Washington Post Staff Writer
Friday, February 15, 2002

Protesters arrested and charged with unlawfully demonstrating on the steps of the Supreme Court last month are taking the high court to task for its ban on free speech at its own doorstep.

For the group of seven, it wasn't what they protested Jan. 17, but where. They gathered not on the sidewalk in front of the court building, which is legal, but on the courthouse steps, which is not.

"We've heard from the Supreme Court police," said Abraham Bonowitz, director of the Abolitionist Action Committee, a Florida-based anti-death penalty group. "Where the marble starts, free speech ends."

Now, for the first time in four years, those protest restrictions are being challenged. At a trial later this year, a D.C. Superior Court judge will decide if the group was within its First Amendment right to assemble at a court where so many landmark First Amendment cases have been argued.

Bonowitz, 35, was also among 18 people arrested in January 1997 after unfurling a 30-foot banner -- which read "Stop Executions!" -- on the Supreme Court steps. Seven members of that group, he said, claimed the First Amendment defense but lost at trial and were given suspended sentences.

Ruling in that case, D.C. Superior Court Judge Robert E. Morin cited the federal law, saying that even peaceful demonstrations violate the "dignity and decorum" of the court, which prosecutors said was valid grounds for conviction. Morin's ruling was upheld by the D.C. Court of Appeals.

But Mark L. Goldstone, the attorney for Bonowitz and his fellow demonstrators, said that the court steps are used by the public all the time. Joggers, schoolchildren and tourists routinely climb its 45 steps, and news crews often film from them.

The law "is confusing and inconsistently applied," Goldstone said. "You can go up on the steps. You just can't express yourself on the steps."

He said he is angry that his clients were arrested at 10:30 a.m. but not released until 6:30 the next evening, spending what Goldstone said was 32 hours in jail for a 32-second protest.

"Essentially, what they decided to do was punish them without the benefit of a trial," he said.

Protesters are allowed to demonstrate on certain parts of the Capitol steps but not on certain sidewalks, Goldstone said. And they regularly gather at the fence in front of the White House and can demonstrate on the steps of the Lincoln Memorial if they get a permit from the U.S. Park Police and keep the protest peaceful.

Kathy Arberg, spokeswoman for the Supreme Court, would not comment on the law against demonstrating on the steps.

In a non-jury trial scheduled to begin June 27, D.C. Superior Court Judge Gerald I. Fisher will decide if the demonstrators should be found guilty of violating a law that says, "It shall be unlawful to parade, stand, or move in processions or assemblages in the Supreme Court Building or grounds, or to display therein any flag, banner, or device designed or adapted to bring to public notice any party, organization, or movement."

In 1983, the Supreme Court ruled that it was unconstitutional to ban demonstrations on the sidewalk in front of the court, but it said nothing about the steps. Justice Thurgood Marshall dissented, writing that people "do not lose their First Amendment rights at the edge of the sidewalk any more than students' rights to freedom of speech or expression end at the schoolhouse door."

In 1998, a preacher knelt in prayer at the first step of the courthouse to mark the National Day of Prayer. He was arrested and found guilty after a jury rejected his First Amendment defense.

For last month's protest at the court, the capital punishment opponents came from all parts of the country and Canada to demonstrate on the 25th anniversary of Utah's execution of Gary Gilmore. They walked to the top of the steps and unfurled their banner -- and were quickly surrounded by Supreme Court police.

At the June trial, Goldstone said he plans to argue that the 1997 Court of Appeals ruling was wrong.

"The nonviolent act of unfurling a banner on the steps of the Supreme Court shouldn't be a violation of law," he said. "We're going to try to impress upon Judge Fisher that Marshall's argument is correct and that the Supreme Court, the defender and protector of First Amendment rights, should allow a little bit of free speech on its own front steps."

Nina Kraut, who represented the 1997 group and the preacher in the 1998 case, said security concerns after Sept. 11 may make it tougher for the protesters to prevail. "I think the handwriting is on the wall," she said.

Bonowitz is hopeful that he will be found not guilty.

"There should be a change," he said. "This law is unconstitutional. It is the right of the people to be heard. And if you're not hurting people or property, what's the problem?"