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TRI In The News

Free Speech Fight Gets Personal for Supremes

Supreme Court opinions are replete with references to “parties,” “plaintiffs” and “defendants.” In criminal cases, it’s the “prosecution” and “defense.” But now a whole new terminology may be needed.

That’s because they are being asked to overturn a “cordon of silence” they have established on their own front porch that protects them from speech they might find offensive, possibly in violation of the U.S. Constitution.

“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.”

That’s from a statement by the Rutherford Institute, which is  challenging the high court’s regulations that prohibit any kind of expressive activity on the court’s own public plaza.

The plaza is the open area at the court that has been the site of news conferences and demonstrations.

WND reported in January when lawyers for Harold Hodge asked the justices to hear the case.

Now the lawyers have filed a reply brief arguing against the government’s defense of the censorship zone and noting lower courts are divided over the issue.

So it’s time for the justices to take the case and defend free speech, the brief argues.

At the core of the problem is the fact that the D.C. Circuit Court and the D.C. Court of Appeals have come up with different interpretations.

“There are myriad issues of public concern unrelated to the court or its business that could be the subject of expression on the plaza and which might or might not be banned depending upon which … precedent enforcement officials or courts decide to follow,” the brief says.

A spokeswoman in the public relations office for the court told WND there would be no comment.

The case, Hodge v. Talkin, focuses on a 60-year-old practice of banning free speech on the court plaza, where reporters often appear on camera and news conferences have been allowed.

A lower court earlier determined that such a speech ban was “repugnant” to the Constitution.

It was U.S. District Judge Beryl Howell who ruled: “The absolute prohibition of expressive activity in the statute is unreasonable, substantially overbroad, and irreconcilable with the First Amendment. The court therefore must find the statute unconstitutional and void as applied to the Supreme Court plaza.”

When that ruling struck the statute as unconstitutional, the government not only appealed, but Supreme Court managers, with the endorsement of Chief Justice John Roberts, issued even more stringent regulations “outlawing expressive activity on the grounds,” Rutherford said.

A later ruling from the D.C. Court of Appeals claimed allowing “demonstrations” on the court plaza “would tend to yield the … impression … of a court engaged with – and potentially vulnerable to – outside entreaties by the public.”

“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.

Whitehead explained the case is “definitely a first” for the high court and said if the justices agree to review it regarding the meaning of the Constitution they’ll need to address two clauses of 40 U.S.C. Paragraph 6135, the Assemblages Clause and the Display Clause.

The First Amendment states: “Congress shall make no law … abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

But the Supreme Court’s managers have determined it is “unlawful to parade, stand, or move in processions or assemblages in the Supreme Court building or grounds, or to display in the building or grounds a flag, banner, or device designed to adapted to bring into public notice a party, organization, or movement.”

Trust the government? Maybe you shouldn’t. Read the details in “Lies the Government Told You,” by Judge Andrew Napolitano.

Whitehead previously explained how speech gradually has been curbed at the plaza.

“Through a series of carefully crafted legislative steps and politically expedient court rulings, government officials have managed to disembowel this fundamental freedom, rendering the First Amendment with little more meaning than the right to file a lawsuit against government officials,” said Whitehead earlier in the argument.

On Jan. 28, 2011, Hodge was holding a three-foot by two-foot sign stating, “The U.S. Gov. Allows Police To Illegally Murder And Brutalize African Americans And Hispanic People.”

Rutherford has argued the speech on the plaza, 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, should be allowed.

Hodge, however, was handcuffed and arrested. He was accused of violating a law that 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.”

“If citizens cannot stand out in the open and voice their disapproval of their government, its representatives and its policies without fearing prosecution, then the First Amendment is little more than window-dressing on a store window – pretty to look at but serving little real purpose,” said Whitehead.

The appeals court conceded that attorneys and litigants are allowed to use the plaza for public events such as news conferences and for “commercial or professional films relating to the court” but said the government still can exclude those it does not want to have access to the forum.

For example, the judges noted 200 protesters surged up onto the plaza to protest a Missouri grand jury’s decision not to indict a police officer who fatally shot a teenager in 2014.

The demonstration went on for 15 minutes, but no arrests were made.