Freedom of Association and Assembly / Protests, Political Expression
Microtech Contracting Corp. v. Mason Tenders District Council of Greater New York
Closed Mixed Outcome
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In January 2011, college student Harold Hodge walked into the U.S. Supreme Court plaza and stood 100 feet away from the building’s front doors. He held a sign that read: “The U.S. Gov. Allows Police To Illegally Murder And Brutalize African Americans And Hispanic People.” After refusing to leave the plaza for violating federal law, a Supreme Court police officer arrested Hodge. Under the federal statute 40 U.S.C. § 6135, it is unlawful “to display in the Building and grounds [of the Supreme Court] a flag, banner, or device designed or adapted to bring into public notice a party, organization, or movement.”
In January 2012, Hodge filed an action in the District Court for the District of Columbia, claiming that the statute violated his First Amendment right to free speech. The court agreed and declared the statute unconstitutional in its applications to the Supreme Court plaza. The government appealed the decision to the U.S. Court of Appeals for District of Columbia. The Court reversed the district court’s judgment. It ruled that the Supreme Court plaza is a non-public forum and that Section 6135 as applied to the plaza in limiting expressive conduct was reasonable in serving the government’s legitimate interests of “maintaining the decorum and order befitting courthouses generally and the nation’s highest court in particular” and promoting “the appearance and actuality of [the] Court whose deliberations are immune to public opinion and invulnerable to public pressure.”
On January 28, 2011, college student Harold Hodge walked into the U.S. Supreme Court plaza and stood approximately 100 feet away from the courthouse’s front doors. He then held a sign that read: “The U.S. Gov. Allows Police To Illegally Murder and Brutalize African Americans And Hispanic People.” A police officer of the Supreme Court warned him that he was violating federal law. After declining to leave the plaza, the officer arrested him. On February 04, 2011, he was charged with violating the federal statute 40 U.S.C. § 6135. In September 2011, the government dismissed the charge in exchange for his promise to stay away from the Supreme Court grounds for six months.
In January 2012, Hodge brought a federal claim in the U.S. District Court for the District of Columbia. He challenged the constitutionality of the federal statute under the First and Fifth Amendments to the U.S. Constitution, alleging that the law infringed his right to free speech by deterring him from engaging in peaceful political expressions within the Supreme Court plaza.
Section 6135 of federal law regulates speech within the building and grounds of the Supreme Court. It is comprised of two distinct clauses: Its Assemblages Clause makes it unlawful “to parade, stand, or move in processions or assemblages in the Supreme Court Building or grounds.” The second clause, referred to as the Display Clause, prohibits individuals from displaying “in the Building and grounds a flag, banner, or device designed or adapted to bring into public notice a party, organization, or movement.” Hodge argued before the district court that both clauses should be declared unconstitutional for impermissibly restricting free speech, and for being vague and overbroad.
The district court invalidated the statute under the First Amendment. It found it unnecessary to categorize the Supreme Court plaza as a public or non-public forum and even if the court were to consider the plaza as a non-public forum, Section 6135’s absolute ban on speech was “unreasonable.” Hodge v. Talkin, 949 F. Supp. 2d 152, 183 (D.D.C. 2013). Specifically, the court held that the statute could not be considered as a reasonable measure to effectuate the government’s legitimate interest in protecting the independency of the judicial system and in particular, preserving the appearance of the Supreme Court as the highest court of the country not influenced by external pressures. The court also invalidated the statute as applied to both Assemblages and Display Clauses for being unreasonably overbroad as its enforcement could result in prohibiting substantial amount of protected speech. The court, however, declined to render a ruling on Hodge’s constitutional challenge of vagueness concerning the statute.
Accordingly, the district court granted Hodge’s motion for summary judgment and declared Section 6135 unconstitutional as applied to the Supreme Court plaza on the grounds that its absolute prohibition on expressive conduct was “unreasonable, substantially overbroad, and irreconcilable with the First Amendment.”
Subsequently, the government appealed the district court’s grant of summary judgment to the U.S. Court of Appeals for the District of Columbia Circuit.
Judge Srinivasan delivered the opinion of the U.S. Court of Appeals for District of Columbia Circuit.
The first issue for the Court was whether Hodge had standing to challenge the constitutionality of Section 6135 in its entirety. It ruled that he had standing to question the Display Clause because he was arrested and charged for displaying a political sign and indicated his desire to do so again in future. As to the Assemblages Clause, the government argued that he lacked standing because he did not violate the clause and his desire to hand out leaflets and make political speeches in future was speculative. The Court disagreed and held that “Hodge’s articulation of his intentions” was sufficient to establish his standing to challenge the clause.
With regard to the merits of his constitutional challenges to Section 6135, the Court first addressed the main question of whether the law’s specific application to the Supreme Court plaza impressibly limits the First Amendment right to free speech. Because the statute merely regulates place and manner of speech within a public property, the Court first had to determine whether the plaza is a public or non-public forum (forum analysis). According to the Court, a non-public forum, as compared to public forums, such as streets, sidewalks, and parks, “is not by tradition or designation a forum for public communication,” and the government can impose reasonable limitations on speech “as long as it refrains from suppressing particular viewpoints.” The Court concluded that the plaza is a non-public forum for purposes of the First Amendment analysis. It referred to the case of United States v. Grace, 461 U.S. 171 (1983), in which the Supreme Court held that Section 6135’s Display Clause was unconstitutional as applied to the sidewalks at the edge of the grounds leading to the plaza. The Supreme Court reasoned that the sidewalks are not different from any other public sidewalks and that there is “nothing to indicate to the public that [they] are part of the Supreme Court grounds.” Aligned with this reasoning, the Court of Appeals ruled that the plaza is a non-public forum, in contrast with the perimeter sidewalks. It found that “[t]he plaza’s appearance and design vividly manifest its architectural integration with the Supreme Court building, as well as its separation from the perimeter sidewalks and surrounding area,” and indeed, the government is allowed to impose reasonable measures against all manner of expressive conduct.
Then, the Court considered whether Section 6135’s restrictive measures are in fact reasonable in light of the First Amendment protections. Restrictions on non-public forums “need only be reasonable, as long as [they are] not an effort to suppress the speaker’s activity due to disagreement with the speaker’s view.” Applying the rule to the plaza, the Court found that both Assemblages and Display Clauses “operate without regard to the communication’s viewpoint.” As to whether the clauses are reasonable in light of the government’s interest in preserving the courthouse for its intended purposes, the Court ruled that the statute as specifically applied to the plaza reasonably serves the government’s two legitimate interests: “maintaining the decorum and order befitting courthouses generally and the nation’s highest court in particular” and promoting “the appearance and actuality of [the] Court whose deliberations are immune to public opinion and invulnerable to public pressure.”
In response to Hodge’s overbreath claim that the enforcement of the statute has a chilling effect of suppressing protected speech, the Court first noted that the Assemblages Clause only applies to expressive conduct “designed to attract notice” and that it does not prohibit “every instance in which a group of persons stands or moves together in the Supreme Court plaza.” Similarly, it found that the scope of the Display Clause is limited to brandishing an object, such as a flag or banner “for the purpose of causing others to take note of it.”
The last issue before the Court was whether Section 6135 is unconstitutionally vague. Having found that the Assemblages Clause’s reach is only limited to expressive conduct, the Court rejected Hodge’s vagueness claim that the clause affords too much discretion to law enforcement. With regard to the Display Clause, it relied on the Supreme Court’s ruling in United States v. Williams, 553 U.S. 285, 304 that the clause’s language “does not fail[ ] to provide a person of ordinary intelligence fair notice of what is prohibited.”
Based on the foregoing analysis, the Court of Appeals for District of Columbia Circuit concluded that Section 6135 as applied to the Supreme Court plaza is constitutional. It accordingly reversed the judgment of the district court.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Even though the Court of Appeals’ decision affirmed that the federal statute 40 U.S.C. § 6135 is constitutional in its application of limiting expressive conduct within the Supreme Court plaza, such limitation can be regarded as permissible under the relevant international human rights principle, mainly under the exception of protecting “national security or of public order or of public health or morals.” In addition, given the limited scope of the statute, it is plausible to conclude that it does not place the First Amendment right to free speech in jeopardy.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Reversed by the U.S. Court of Appeals’ in Hodge v. Talkin, 2015 WL 5058322 (D.C. Cir. 2015)
The U.S. Supreme Court held the sidewalks surrounding the courthouse is a public forum for purposes of the First Amendment.
The Supreme Court affirmed the lower court’s ruling that the federal statute 40 U.S.C. § 5104(f) was unconstitutional as applied to limiting political demonstrations outside of the building housing the nation’s elected representatives.
The government “must respect the open character” of a public forum.
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