TRI In The News

Supreme Court’s First Amendment Hypocrisy

July 10, 2014

THE SUPREME Court’s reverence for the First Amendment would ring truer if justices applied the same standard to their own surroundings.

In June, the court unanimously rejected the Massachusetts abortion clinic buffer zone law on grounds that it restricts free speech on a public sidewalk. Yet, as other media outlets have reported, the court selectively enforces a protest-free zone in its own backyard — or more precisely, on its plaza.

The law allowing that should also be tossed.

In January 2011, Harold Hodge, a 46-year-old African-American, was arrested after he stood silently in front of the Supreme Court building, wearing a sign around his neck that said, “The US Gov. Allows Police to Illegally Murder and Brutalize African Americans and Hispanic People.”

“He was standing all by himself, on a snowy day,” said John Whitehead, a constitutional lawyer and president of the Rutherford Institute, a nonprofit civil liberties organization based in Charlottesville, Va., which represents Hodge in a suit challenging the statute that bans expressive activity on the Supreme Court plaza. It does not apply to the public sidewalk between the court and the Capitol.

According to The New York Times, lawyers representing the Supreme Court’s marshal, who is the defendant in the case, argued that a protest-free zone is needed to allow “unimpeded ingress and egress of visitors to the court.” That is exactly the goal of women seeking entrance to reproductive health care clinics.

A federal district court judge sided with Hodge, writing that “the absolute prohibition on expressive activity in the statute is unreasonable, substantially overbroad, and irreconcilable with the First Amendment.” The law, wrote the judge, was “unconstitutional and void as applied to the Supreme Court plaza.”

In response, the marshal for the Supreme Court, with the approval of Chief Justice John Roberts, issued “even more strident regulations,” according to the Rutherford Institute. The updated regulation bans “demonstrations, picketing, speechmaking, marching, holding vigils or religious services, and all other forms of conduct that involved the communication or expression of views or grievances, engaged in by one or more persons the conduct of which is reasonably likely to draw a crowd of onlookers.” After the new regulation was established, the Rutherford Institute filed a second lawsuit on behalf of seven political activists; it is also pending.

To the Supreme Court, it all comes down to the difference between a public sidewalk and a plaza — which is owned by the government, which is owned by the people.

The Massachusetts buffer zone decision turns on the “special position” held by public sidewalks, which should offer an “uninhibited marketplace of ideas.” In that setting, writes Roberts, the government should restrain from restricting expression “because of its message, its ideas, its subject matter, or its content.”

In the buffer zone opinion, Roberts also writes that states and cities can’t take “the extreme step” of closing public sidewalks to those who want to have “quiet conversations” with women walking to abortion clinics.

Yet Hodge was arrested for the quietest of “speech’’ — wearing a sign around his neck.

Whitehead also notes that the plaza’s protest-free zone is not always enforced. What the justices don’t like, he said, are “the Harold Hodges of the world . . . it’s viewpoint discrimination.” If Massachusetts can’t do that outside an abortion clinic, why can the Supreme Court do it?

In September, Hodge’s case is scheduled to go before the US Court of Appeals. The Supreme Court would be the next stop. Whitehead said he found the courts’ ruling in the Massachusetts buffer zone case “bizarre” given the court’s own buffer zone.

Bizarre it is — and more.

“It’s the height of hypocrisy that the Supreme Court, while insisting on a ‘robust’ First Amendment, restricts not only the SCOTUS protest area — reasonably termed, I would think, a ‘buffer zone’ — but prohibits cameras and recorders in the courtroom,” observes First Amendment lawyer Harvey Silverglate. “Just because the justices wear long black robes, they seem to think it’s OK to drape a robe or a curtain around the entire building and its perimeter,” added Silverglate, who agrees with the court’s underlying rationale for striking down the Massachusetts law, but believes justices should look in the mirror when it comes to muzzling speech.

According to the Supreme Court, the First Amendment reigns supreme on a public sidewalk. But on its plaza, the justices reign supreme.