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On The Front Lines

NY Times Examines U.S. Supreme Court’s Double Standard in First Amendment Issues as Reflected in The Rutherford Institute’s Hodge v. Talkin Case

WASHINGTON, DC — Writing for the New York Times, journalist Adam Liptak draws attention to the U.S. Supreme Court’s inconsistencies when it comes to First Amendment jurisprudence (“The First Amendment’s Limit: The Supreme Court’s Plaza,” Oct. 13, 2014), especially when it relates to expressive activity on the Supreme Court plaza as is in the case of Hodge v. Talkin, et al., a First Amendment case being litigated by Rutherford Institute attorneys. As Liptak points out in his analysis of the Hodge case, “The First Amendment is strong medicine, the Supreme Court keeps telling us, and it even requires vulnerable people to listen to things they do not want to hear… But the Supreme Court’s devotion to the First Amendment has its limits. It stops at the edge of the grand marble plaza outside its own courthouse.”

Rutherford Institute attorneys filed the First Amendment lawsuit on behalf of Harold Hodge, who was arrested for violating a 60-year old federal ban 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. At the time of his arrest, Hodge was standing silently in front of the U.S. Supreme Court on a snowy day wearing a sign voicing his concerns about police brutality against African-Americans and Hispanics. In response to the Institute’s legal challenge of the ban on expressive activity as facially unconstitutional, District Court Judge Beryl L. Howell subsequently struck down the law, declaring it to be “repugnant” to the Constitution and “unreasonable, substantially overbroad, and irreconcilable with the First Amendment.” Within days of Judge Howell’s ruling, 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 continue to litigate the Hodge case, which is making its way through the courts on appeal.

“The great irony in this case is that the institution violating Harold Hodge’s First Amendment rights is the very same one that is entrusted with safeguarding those rights—the U.S. Supreme Court,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of A Government of Wolves: The Emerging American Police State. “Unfortunately, the Court’s logic seems heavily weighted in favor of the elite. As Adam Liptak so accurately pointed out in his New York Times piece: ‘It seems that people with power or connections can use the plaza. Mr. Hodge, who sought to call attention to police brutality, cannot.’”

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.” Hodge was approached by a police officer who informed him that he was violating the law and issued him three warnings to leave the plaza. Hodge refused, was handcuffed, and placed under arrest for violating 40 U.S.C. § 6135. Affiliate attorney Jeffrey Light is assisting The Rutherford Institute in its defense of Hodge’s First Amendment rights.

Case History

09-23-2014 • Rutherford Institute Attorneys Present Oral Arguments in Hodge Case, Challenging Ban on Expressive Activity on U.S. Supreme Court Plaza

01-21-2014 • Rutherford Institute Asks Appeals Court to Affirm Ruling that Ban on Expressive Activity on Supreme Court Plaza Is Unconstitutional

06-12-2013 • Victory: Declaring Ban 'Repugnant' to Constitution, Federal Court Affirms First Amdt. Rights of Protester Arrested in Front of U.S. Supreme Court

04-26-2013 • Oral Argument: Rutherford Institute Calls on Court to Protect First Amendment Rights of Man Arrested for Anti-Police Sign in Front of Supreme Court


11-04-2013: Rutherford Institute Challenges U.S. Supreme Court's Ban on Expressive Activities, Files First Amendment Lawsuit on Behalf of Political Activists

Commentary: Has the First Amendment Become an Exercise in Futility?


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