WASHINGTON, DC – Attorneys for The Rutherford Institute have asked the U.S. Supreme Court to declare its own ban on expressive First Amendment activity on the Supreme Court plaza unconstitutional. In asking the Court to hear the case of Hodge v. Talkin, Rutherford Institute attorneys argue that the U.S. Court of Appeals for the District of Columbia’s decision to uphold a 60-year-old federal statute criminalizing expressive First Amendment activity on the Supreme Court plaza conflicts with the high court’s own rulings regarding expressive activity in public elsewhere. For example, in 1972, the Supreme Court struck down limits on similar protests on the Capitol grounds, located across the street from the Court’s plaza. The Court of Appeals ruling was issued in response to a lawsuit filed by Rutherford Institute attorneys on behalf of activist Harold Hodge, who was arrested while standing silently in front of the U.S. Supreme Court on a snowy day wearing a sign voicing his concerns about the government’s disparate treatment of African-Americans and Hispanics.
Affiliate attorney Jeffrey Light is assisting The Rutherford Institute in defending Hodge.
“This is definitely a first: asking the justices of the U.S. Supreme Court to declare unconstitutional their own statute limiting expressive activity,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “It’s our hope that the Supreme Court will reconcile the inconsistencies inherent in this First Amendment ban on what is essentially their front porch and reinforce their historic commitment to free speech activities in public places.”
On January 28, 2011, Harold Hodge quietly and peacefully stood in the plaza area near the steps leading to the United States Supreme Court Building, wearing a 3’ X 2’ sign around his neck that proclaimed: “The U.S. Gov. Allows Police To Illegally Murder And Brutalize African Americans And Hispanic People.” The plaza is a place where the public is allowed to gather and converse, and is in all relevant respects like a public square or park where citizens have traditionally met to express their views on matters of public interest. However, Hodge was handcuffed, placed under arrest, and then transported to U.S. Capitol Police Headquarters for violating 40 U.S.C. § 6135, which broadly makes it unlawful to display any flag, banner, or device designed to bring into public notice a party, organization, or movement while on the grounds of the U.S. Supreme Court, thereby banning expressive activity on the Supreme Court plaza. Rutherford Institute attorneys subsequently filed a lawsuit challenging § 6135, and in June 2013 a district court judge struck down the law finding the ban to be “repugnant” to the Constitution, “unreasonable, substantially overbroad, and irreconcilable with the First Amendment,” not to mention “plainly unconstitutional on its face.” In response, the government not only appealed that ruling, but the marshal for the Supreme Court—with the approval of Chief Justice John Roberts—issued even more strident regulations outlawing expressive activity on the grounds of the high court, including the plaza. Rutherford Institute attorneys have since filed a related lawsuit challenging the Supreme Court’s more strident regulations.