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On The Front Lines

Rutherford Institute Challenges U.S. Supreme Court’s Ban on Expressive Activities, Files First Amendment Lawsuit on Behalf of Political Activists

WASHINGTON, DC — Attorneys for The Rutherford Institute have filed a First Amendment lawsuit challenging a regulation issued by the U.S. Supreme Court which broadly prohibits speech and expression in the plaza fronting the Supreme Court’s building. The regulation was issued in response to a June 2013 ruling in another lawsuit filed by Rutherford Institute attorneys in which a federal district court declared a Congressional statute banning expressive activities on the Supreme Court plaza “unreasonable, substantially overbroad, and irreconcilable with the First Amendment.” In the complaint filed today in the U.S. District Court for the District of Columbia on behalf of seven political activists, including a veterans rights advocate and anti-death penalty protesters, Institute attorneys allege that the Supreme Court’s attempt to reinstate the prohibition on speech on the public grounds fronting its building runs afoul of the U.S. Constitution’s guarantee of freedom speech and is overbroad and unduly vague.

“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.

The plaza area in front of the Supreme Court is oval in shape and approximately 252 feet in length, is open 24-hours a day and is no different than other traditional public fora such as parks and sidewalks. The plaza has historically been used for First Amendment activities, including press conferences by attorneys and litigants, tourists conversations about matters before the Supreme Court, and filming of scenes for movies. Nevertheless, a Congressional statute dating back to the 1950’s made it unlawful to “stand . . . or move in processions or assemblages in the Supreme Court Building or grounds, or to display in the Building and grounds a flag, banner, or device designed or adapted to bring into public notice a party, organization, or movement.”

In January 2012, The Rutherford Institute filed a lawsuit, Hodge v. Talkin, on behalf of a political activist who was charged with violating the statute for silently standing on the plaza with a sign six square feet in size expressing opposition to police brutality alleging that the ban on expressive activity on the plaza violated the First Amendment. In June 2013, U.S. District Court Judge Beryl L. Howell ruled that the statute was unconstitutionally overbroad, facially unconstitutional and void. Just two days after this ruling, the Supreme Court adopted Regulation 7, which attempts to reinstate the restrictions struck down by Judge Howell by banning any “demonstration” on the Supreme Court grounds, which is broadly defined by Regulation 7 to include all forms of conduct communicating views or grievances that might draw onlookers.

In challenging the new ban on behalf of activists who desire to engage in speech activities on the plaza of the Supreme Court, Institute attorneys allege that Regulation 7 is contrary to the constitutional principles set forth in Judge Howell’s ruling. Affiliate attorney Jeffrey Light is assisting The Rutherford Institute in its defense of the political activists.


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