On The Front Lines


Rutherford Institute Asks Appeals Court to Affirm Ruling that Ban on Expressive Activity on Supreme Court Plaza Is Unconstitutional



January 21, 2014

WASHINGTON, DC — Attorneys for The Rutherford Institute have asked a federal appeals court to affirm and uphold a lower court’s ruling that declared a federal ban on expressive activity on the U.S. Supreme Court plaza to be “repugnant” to the Constitution. In a brief filed with the U.S. Court of Appeals for the District of Columbia in Hodge v. Talkin, et al., Institute attorneys argue that a 60-year old statute 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 is facially unconstitutional.

The brief was filed in an appeal by the U.S. government after District Court Judge Beryl L. Howell struck down the law, declaring that “the absolute prohibition on expressive activity [on the Supreme Court plaza] in the statute is unreasonable, substantially overbroad, and irreconcilable with the First Amendment.” Judge Howell’s ruling came in response to a lawsuit filed by The Rutherford Institute on behalf of Harold Hodge, who was arrested on a snowy day in January 2011 while standing silently in front of the U.S. Supreme Court building wearing a sign voicing his concerns about the government’s disparate treatment of African-Americans and Hispanics. 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 filed a related lawsuit in November 2013 challenging the Supreme Court’s more strident regulations.

“There are a good many things that are repugnant to the Constitution right now—mass surveillance of Americans, roadside strip searches, forcible DNA extractions, SWAT team raids, civil commitments for criticizing the government, etc.—but for the U.S. Supreme Court to overtly prohibit expressive activity on its grounds in defiance of a federal court ruling declaring it a free speech zone shows exactly how perverse our so-called system of justice has become,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of A Government of Wolves: The Emerging American Police State.

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 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, placed under arrest for violating 40 U.S.C. § 6135, moved to a holding cell, and then was transported to U.S. Capitol Police Headquarters where he was booked and given a citation. The charge was dismissed in September 2011 after Hodge complied with an agreement to stay away from the Supreme Court building and grounds for six months.

Affiliate attorney Jeffrey Light is assisting The Rutherford Institute in its defense of Hodge.