Hodge v. Talkin

• Decision Date: 28 August 2015
• Docket Number: No. 13–5250.,13–5250.
• Citation: 799 F.3d 1145
• Parties: Harold H. HODGE, Jr., Appellee v. Pamela TALKIN, Marshal of the United States Supreme Court, and Vincent H. Cohen, Jr., Esquire, in his Official Capacity as Acting United States Attorney, Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

799 F.3d 1145

Harold H. HODGE, Jr., Appellee

v.Pamela TALKIN, Marshal of the United States Supreme Court, and Vincent H. Cohen, Jr., Esquire, in his Official Capacity as Acting United States Attorney, Appellants.

No. 13–5250.

United States Court of Appeals, District of Columbia Circuit.

Argued Sept. 23, 2014.

Decided Aug. 28, 2015.

Rehearing En Banc Denied Nov. 3, 2015.

Beth S. Brinkmann, Attorney, U.S. Department of Justice, argued the cause for appellants.

On the briefs were Stuart F. Delery, Assistant Attorney General, Ronald C. Machen, Jr., U.S. Attorney, and Michael S. Raab and Daniel Tenny, Attorneys. Jane M. Lyons, Assistant U.S. Attorney, entered an appearance.

Jeffrey L. Light argued the cause and filed the brief for appellee.

Arthur B. Spitzer was on the brief for amicus curiae American Civil Liberties Union of the National Capital Area in support of appellee.

Before: HENDERSON and SRINIVASAN, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion

Opinion for the Court filed by Circuit Judge SRINIVASAN.

SRINIVASAN, Circuit Judge:

For more than sixty-five years, a federal statute has restricted the public's conduct of expressive activity within the building and grounds of the Supreme Court. The law contains two prohibitions within the same sentence. The first makes it unlawful “to parade, stand, or move in processions or assemblages in the Supreme Court Building or grounds” (the Assemblages Clause). The second makes it unlawful “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” (the Display Clause). 40 U.S.C. § 6135. The statute defines the Supreme Court “grounds” to extend to the public sidewalks forming the perimeter of the city block that houses the Court.

In United States v. Grace, 461 U.S. 171, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983), the Supreme Court held the statute's Display Clause unconstitutional as applied to the sidewalks at the edge of the grounds. The Court found “nothing to indicate to the public that these sidewalks are part of the Supreme Court grounds” or that they “are in any way different from other public sidewalks in the city.” Id. at 183, 103 S.Ct. 1702. Like other public sidewalks, consequently, the sidewalks surrounding the Court qualify as a “public forum” for First Amendment purposes, an area in which “the government's ability to permissibly restrict expressive conduct is very limited.” Id. at 177, 179–80, 103 S.Ct. 1702. But the Court left for another day the constitutionality of the statute's application to the rest of the grounds, including the Court's plaza: the elevated marble terrace running from the front sidewalk to the staircase that ascends to the Court's main doors.

We confront that issue today. The plaintiff in this case, Harold Hodge, Jr., seeks to picket, leaflet, and make speeches in the Supreme Court plaza, with the aim of conveying to the Court and the public what he describes as “political messages” about the Court's decisions. Hodge claims that the statute's Assemblages and Display Clauses, by restricting his intended activities, violate his rights under the First Amendment. The district court, persuaded by his arguments, declared the statute unconstitutional in all its applications to the Court's plaza. We disagree and conclude that the Assemblages and Display Clauses may be constitutionally enforced in the plaza.

In marked contrast to the perimeter sidewalks considered in Grace, the Supreme Court plaza distinctively “indicate[s] to the public”—by its materials, design, and demarcation from the surrounding area—that it is very much a “part of the Supreme Court grounds.” Id. at 183, 103 S.Ct. 1702. The plaza has been described as the opening stage of “a carefully choreographed, climbing path that ultimately ends at the courtroom itself.” Statement Concerning the Supreme Court's Front Entrance, 2009 J. Sup.Ct. U.S. 831, 831 (2010) (Breyer, J.). For that reason, the Court's plaza—unlike the surrounding public sidewalks, but like the courthouse it fronts—is a “nonpublic forum,” an area not traditionally kept open for expressive activity by the public. The government retains substantially greater leeway to limit expressive conduct in such an area and to preserve the property for its intended purposes: here, as the actual and symbolic entryway to the nation's highest court and the judicial business conducted within it.

Under the lenient First Amendment standards applicable to nonpublic forums, the government can impose reasonable restrictions on speech as long as it refrains from suppressing particular viewpoints. Neither the Assemblages Clause nor the Display Clause targets specific viewpoints. They ban demonstrations applauding the Court's actions no less than demonstrations denouncing them. And both clauses reasonably relate to the government's long-recognized interests in preserving decorum in the area of a courthouse and in assuring the appearance (and actuality) of a judiciary uninfluenced by public opinion and pressure. The Supreme Court recently, in its just-completed Term, strongly reinforced the latter interest's vitality, along with the government's considerable latitude to secure its realization even through speech-restrictive measures. Williams–Yulee v. Fla. Bar, ––– U.S. ––––, 135 S.Ct. 1656, 191 L.Ed.2d 570 (2015). The statute's reasonableness is reinforced by the availability of an alternative site for expressive activity in the immediate vicinity: the sidewalk area directly in front of the Court's plaza. We therefore uphold the statute's constitutionality.

I.

A.

The federal statute in issue, 40 U.S.C. § 6135, makes it unlawful “to parade, 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.” Congress enacted the statute in 1949. See Act of Aug. 18, 1949, ch. 49, 63 Stat. 616, 617 (1949) (current version at 40 U.S.C. § 6135 ) (originally codified at id. § 13k). Another provision defines “the Supreme Court grounds” to extend to the curbs of the four streets fixing the boundary of the city block in which the Court is situated. 40 U.S.C. § 6101(b). The statute thus encompasses “not only the building,” but also “the plaza and surrounding promenade, lawn area, and steps,” together with “[t]he sidewalks comprising the outer boundaries of the Court grounds.” Grace, 461 U.S. at 179, 103 S.Ct. 1702.

The front of the Supreme Court grounds, from the street to the building, appears as follows (according to the record in this case and sources of which we take judicial notice, see Fed.R.Evid. 201(b) ; Oberwetter v. Hilliard, 639 F.3d 545, 552 n. 4 (D.C.Cir.2011) ). The Court's main entrance faces west towards First Street Northeast, across which sits the United States Capitol. Eight marble steps, flanked on either side by marble candelabra, ascend from the concrete sidewalk along First Street Northeast to the Court's elevated marble plaza: an oval terrace that is 252 feet long (at the largest part of the oval) and 98 feet wide (inclusive of the front eight steps). Decl. of Timothy Dolan, Deputy Chief of the Supreme Court Police, ¶ 6 (Dolan Decl.) (J.A. 17–18). The terrace is “paved in gray and white marble” in “a pattern of alternating circles and squares similar to that of the floor of the Roman Pantheon.” Fred J. Maroon & Suzy Maroon, The Supreme Court of the United States 36 (1996). The plaza contains two fountains, two flagpoles, and six marble benches. Another thirty-six steps lead from the plaza to the building's portico and “the magnificent bronze doors that are the main entrance into the building.” Id. at 38. A low marble wall surrounds the plaza and also encircles the rest of the building. And the plaza's white marble matches the marble that makes up the low wall, the two staircases, the fountains, and the building's façade and columns. Pamela Scott & Antoinette J. Lee, Buildings of the District of Columbia 138 (1993).

Supreme Court Building, Architect of the Capitol, http://www.aoc.gov/capitol-buildings/supreme-court-building (last visited Aug. 20, 2015).

B.

Prior challenges to § 6135 and related provisions form the legal backdrop for the case we consider today. Section 6135's restrictions on expressive activity in the Supreme Court grounds mirror a parallel statute restricting the same activity in the grounds of the United States Capitol. See 40 U.S.C. § 5104(f) (originally codified at id. § 193g). The statute applicable to the Capitol became the subject of a constitutional challenge in Jeannette Rankin Brigade v. Chief of Capitol Police, 342 F.Supp. 575 (D.D.C.1972). There, a three-judge court declared the statute unconstitutional under the First and Fifth Amendments, enjoining the Capitol Police from enforcing it. Id. at 587–88. The court ruled that the government's interest in maintaining decorum failed to justify a ban on political demonstrations outside the building housing the nation's elected representatives. Id. at 585. The Supreme Court summarily affirmed. Chief of the Capitol Police v. Jeannette Rankin Brigade, 409 U.S. 972, 93 S.Ct. 311, 34 L.Ed.2d 236 (1972).

A few years later, the statute applicable to the Supreme Court grounds also came under attack in the courts. The plaintiffs, Mary Grace and Thaddeus Zywicki, experienced run-ins with the Supreme Court Police when engaged in expressive activity on the public sidewalk fronting the Court along First Street. Grace, 461 U.S. at 173–74, 103 S.Ct. 1702. Zywicki had distributed written material to passersby on multiple occasions, including articles calling for the removal of unfit judges and handbills discussing human rights in Central American countries. Id. Grace had stood on the sidewalk holding a sign displaying the text of the First Amendment. Id. at 174, 103 S.Ct. 1702. The district court declined to reach the merits of...