On The Front Lines

Rutherford Institute Rebuts Justice Department's View That the Government Can Restrict First Amendment Religious Activity in Supreme Court Plaza

WASHINGTON, DC  — Rebutting the Justice Department’s assertion that the government can dictate where people can engage in religious activity, attorneys for The Rutherford Institute have asked the U.S. District Court for the District of Columbia to reject the government’s motion to dismiss the lawsuit challenging the Supreme Court’s prohibition on First Amendment activities on its own front porch.

The lawsuit, Payden-Travers v. Talkin, contends that the government’s restrictions on expressive activity in the plaza fronting the U.S. Supreme Court violate the Religious Freedom Restoration Act. The Supreme Court issued the ban on expressive activity in response to a June 2013 ruling in another lawsuit, Hodge v. Talkin, also filed by Rutherford Institute attorneys, challenging a 60-year-old statute banning expressive activities on the Supreme Court plaza. The federal district court declared the 60-year-old statute to be “unreasonable, substantially overbroad, and irreconcilable with the First Amendment.” In May 2016, the Supreme Court upheld its own ban on expressive activity in Hodge.

In challenging the Court’s prohibitions on expressive activity as they relate to religious expression, Rutherford Institute attorneys argue the plaza prohibition violates the Religious Freedom Restoration Act, which says the government must have a compelling interest in order to intrude on someone’s religious liberty, and it must do so in the least restrictive way. Affiliate attorney Jeffrey Light is assisting The Rutherford Institute with the First Amendment lawsuit.

“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.,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “However, for the U.S. Supreme Court to overtly prohibit expressive activity on its grounds shows exactly how perverse our so-called system of justice has become.”

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, tourists conversations, and filming of scenes for movies. Nevertheless, a 60-year-old statute broadly made 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, thereby banning expressive activity on the Supreme Court plaza.

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 by silently standing on the plaza with a sign protesting police brutality. 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.

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Case History

September 01, 2016: Justice Dept. Insists Government Can Dictate Where People Can Engage in Religious Activity, Asks Court to Dismiss RFRA Lawsuit Over SCOTUS Plaza

November 04, 2013: Rutherford Institute Challenges U.S. Supreme Court's Ban on Expressive Activities, Files First Amendment Lawsuit on Behalf of Political Activists