WASHINGTON, DC — In pushing back against a government mindset that seeks to muzzle lawful First Amendment activity by establishing a “cordon of silence” in front of the U.S. Supreme Court plaza, The Rutherford Institute is urging the justices of the U.S. Supreme Court to hear the case of Hodge v. Talkin and, in doing so, overturn a 60-year-old federal statute criminalizing expressive activity on the plaza. The ban, which was described by a lower court as “repugnant” to the Constitution, extends even to those wearing t-shirts with political messages.
In advancing their arguments, Rutherford Institute attorneys have particularly emphasized the contradictions inherent in historic Supreme Court rulings that protect robust First Amendment activity in public places (including near military funerals and on the grounds of the Capitol, which are located across from the Court), while prohibiting them in the Court’s own “front porch.” The District of Columbia Court of Appeals ruled against Hodge in Aug. 2015, declaring that “[a]llowing demonstrations directed at the Court, on the Court’s own front terrace, would tend to yield the…impression…of a Court engaged with—and potentially vulnerable to—outside entreaties by the public.”
Affiliate attorney Jeffrey Light is assisting The Rutherford Institute in defending Hodge.
“As this case makes clear, free speech is no longer considered an inalienable right or an essential liberty, even by those government entities entrusted with protecting it. True free speech tests the limits of our so-called egalitarian commitment to its broad-minded principles and does not sit well with those who are easily offended, readily intimidated or who need everything wrapped in a neat and tidy bow,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “Unfortunately, emboldened by phrases such as ‘hate speech,’ ‘bullying,’ ‘extremism,’ and ‘civility,’ the government is whittling away at free speech, confining it to carefully constructed ‘free speech zones,’ criminalizing it when it skates too close to challenging the status quo, shaming it when it butts up against politically correct ideals, and muzzling it when it appears dangerous. It’s time to set free speech free.”
The case arose on January 28, 2011, when activist Harold Hodge was arrested for quietly and peacefully standing 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 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. In Jan. 2012, Rutherford Institute attorneys filed a lawsuit challenging § 6135. In June 2013, a district court judge struck down the statute, declaring it “unreasonable, substantially overbroad, and irreconcilable with the First Amendment.” 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.