Bonowitz v. US, 97-CM-1611, 97-CM-1654, 98-CM-486, 97-CM-1651, 97-CM-1662, 97-CM-1652, 97-CM-1663.

• Decision Date: 05 August 1999
• Docket Number: No. 97-CM-1611, 97-CM-1654, 98-CM-486, 97-CM-1651, 97-CM-1662, 97-CM-1652, 97-CM-1663.,97-CM-1611, 97-CM-1654, 98-CM-486, 97-CM-1651, 97-CM-1662, 97-CM-1652, 97-CM-1663.
• Citation: 741 A.2d 18
• Parties: Abraham BONOWITZ, Joseph E. Byrne, Thomas Muther, Jr., Jon Holtshopple, William R. Pelke, Kurt J. Rosenberg, Stephanie B. Gibson, Appellants, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

741 A.2d 18

Abraham BONOWITZ, Joseph E. Byrne, Thomas Muther, Jr., Jon Holtshopple, William R. Pelke, Kurt J. Rosenberg, Stephanie B. Gibson, Appellants, v. UNITED STATES, Appellee.

No. 97-CM-1611, 97-CM-1654, 98-CM-486, 97-CM-1651, 97-CM-1662, 97-CM-1652, 97-CM-1663.

District of Columbia Court of Appeals.

Argued January 7, 1999.

Decided August 5, 1999.

As Amended on Grant of Rehearing in Part December 9, 1999.

Nina Kraut, Washington, DC, appointed by this court, for appellant Bonowitz.

Mark Goldstone, appointed by this court, for appellants Byrne, Muther, Jr., Holshopple, Pelke, Rosenberg and Gibson.

David B. Goodhand, Assistant United States Attorney, with whom Wilma A. Lewis, United States Attorney, and John R. Fisher and Mary-Patrice Brown, Assistant United States Attorneys, were on the brief, for appellee.

Before TERRY and REID, Associate Judges, and BELSON, Senior Judge.

BELSON, Senior Judge.

Appellants were convicted of unlawful parading and assembling on Supreme Court grounds in violation of 40 U.S.C. § 13k (1994). They argue on appeal that the application of that statute violates their First Amendment rights by impermissibly prohibiting speech. We affirm.

On January 17, 1997, members of the Supreme Court Police observed appellants demonstrating on the sidewalk below the Supreme Court plaza area. Shortly thereafter, appellants began to move as a group inside the plaza area to the top of the steps leading to the Court's main entrance. Once appellants reached the main entrance they unfurled a banner thirty feet long by four feet wide which read "STOP EXECUTIONS," and they began to sing and chant in unison.

The police verbally warned appellants that they were in violation of § 13k, and would be arrested if they continued. After handing appellants a small card which outlined the contents of § 13k and giving them the opportunity to desist, the police arrested appellants and charged them with unlawful parading and assemblage on Supreme Court grounds.

In a non-jury trial, the trial court found appellants guilty of violating § 13k, which provides that "[i]t shall be unlawful to parade, stand, or move in processions or assemblages in the Supreme Court Building or grounds, or to display therein any flag, banner, or device designed or adapted to bring into public notice any party, organization, or movement." The court rejected appellants' contention that the Supreme Court plaza was either a public forum or a government-designated public forum. Instead, the trial court concluded that the plaza was a nonpublic forum, and that clause 1 of § 13k (the "congregation clause") is constitutional as applied to prohibit appellants' protest.

Appellants argue here that the Supreme Court plaza is a government-designated public forum, and thus any laws regulating speech in the plaza should be subject to the same strict level of scrutiny applied to traditional public fora. Appellants also contend that § 13k is a content-based regulation of speech and is unconstitutional because it is not narrowly tailored to serve a compelling government interest.¹

The government, on the other hand, contends that the plaza is a nonpublic forum, and thus 13k's restrictions on speech are subject to a more relaxed level of scrutiny. Specifically, the government contends that § 13k is constitutional under the First Amendment because it is reasonable and does not constitute viewpoint discrimination.

"[T]he Court [has] identified three types of fora: the traditional public forum, the public forum created by government designation, and the nonpublic forum." Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788, 802, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985) (citing Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983)). "Traditional public fora are defined by the objective characteristics of the property, such as whether, `by long standing tradition or by government fiat,' the property has been `devoted to assembly and debate.'" Arkansas Educ. Television Comm'n v. Forbes, 523 U.S. 666, 677, 118 S.Ct. 1633, 140 L.Ed.2d 875 (1998) (quoting Perry, supra, 460 U.S. at 45, 103 S.Ct. 948). Any attempt by the government to limit speech in a public forum will be subject to a strict level of scrutiny. The precise level of such scrutiny will depend on whether the government restrictions are content-based or contentneutral. Content-based restrictions must be "necessary to serve a compelling state interest and [must be] narrowly drawn to achieve that end." Perry, supra, 460 U.S. at 45, 103 S.Ct. 948 (emphasis added) (citation omitted). Content-neutral restrictions of the time, place, and manner of expression may be enforced if they are "narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication." Id. (emphasis added) (citations omitted).

Unlike traditional public fora, government-designated public fora are created by "purposeful government action." Forbes, supra, 523 U.S. at 677,118 S.Ct. 1633. "The government does not create a [designated] public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional public forum for public discourse." Cornelius, supra, 473 U.S. at 802,105 S.Ct. 3439. "If the government excludes a speaker who falls within the class to which a designated public forum is made generally available, its action is subject to strict scrutiny." Forbes, supra, 523 U.S. at 677, 118 S.Ct. 1633 (citing Cornelius, supra, 473 U.S. at 802,105 S.Ct. 3439; United States v. Kokinda, 497 U.S. 720, 726-27, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990) (plurality opinion of O'Connor, J.)).

Finally, "[w]here the property is not a traditional public forum and the government has not chosen to create a designated public forum, the property is either a nonpublic forum or not a forum at all." Forbes, supra, 523 U.S. at 677, 118 S.Ct. 1633. In such a case, the government can regulate speech "as long as the restrictions are reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view." Cornelius, supra, 473 U.S. at 802, 105 S.Ct. 3439.

Pearson v. United States, 581 A.2d 347 (D.C.1990), presented this court with a challenge to the constitutionality of § 13k similar to the challenge mounted by appellants here. The appellants in Pearson were among fifty thousand protestors who participated in the annual "March for Life" to the Supreme Court to protest the Court's decision in Roe v. Wade.² Id. at 349. Although the vast majority of the fifty thousand protestors demonstrated legally along the sidewalks and streets surrounding the Supreme Court plaza, Pearson and others entered the plaza area and were arrested pursuant to § 13k. Id. After conviction of violating, inter alia, § 13k by unlawful parading and assemblage on Supreme Court grounds, the Pearson appellants pressed before this court the argument that the plaza was a government-designated public forum because the Court regularly permitted access to the plaza to attorneys and others associated with the Court's cases in order to disseminate information to the media. Id. at 353. We rejected that argument, however, holding:

Even if, as appellants assert, the Court "regularly" permits the press and media to use the plaza and steps for reporting purposes, this practice does not compromise the non-public status of the Court and its grounds. At most, if such action created a "limited" public forum, the constitutional right of access would extend only to other activities of similar character. Perry, supra, 460 U.S. at 48, 103 S.Ct. at 956. Clearly appellants' demonstration activity is not of similar character to that of the media, attorneys, and others who use the Court's grounds for the limited purpose of disseminating information about and from the Court to the public.

Id.

Here, appellants rely on Pearson to advance their position in two ways. First, appellants attempt to distinguish Pearson from the instant case by suggesting that the record in Pearson "was devoid of any evidence whatever which showed that the plaza [had] been used for public expression by the media, attorneys, and others." Appellants further suggest that, unlike the record in Pearson, the record in this case "is replete with credible evidence that the plaza is, indeed, used by the media, by attorneys and litigants, by professors and other scholars, and by commercial film-makers." The explicit assumption underlying our holding in Pearson, however, defeats this attempt at distinction. The Pearson holding assumed the existence of activity "of the media, attorneys, and others who use the Court's grounds for the limited purpose of disseminating information about and from the Court to the public," and concluded that "this practice does not compromise the non-public status of the Court and its grounds." Id. at 353. Therefore, we reject appellants' suggested distinction between this case and Pearson.

Second, appellants attach a great deal of significance to the above-quoted "at most, if" language in Pearson which addressed, but did not adopt, the hypothesis that the plaza might have become a government designated public forum. Id. Appellants argue that this language, in light of recent Court-permitted access to the entertainment media, means that Pearson must now be read to stand for the proposition that the plaza is a government designated public forum, and that thus § 13k is subject to strict scrutiny. Appellants point out that after our 1990 decision in Pearson, the Court permitted plaza access for commercial film purposes, including "The Pelican Brief" and "The People v. Larry Flynt." We find appellants' argument unpersuasive, principally because the slight additional permitted use of the plaza is insubstantial and, in any event, notably different from what appellants attempted. Moreover, subsequent to our holding in Pearson, the Supreme...