The Supreme Court doesn’t want to hear your free speech

The First Amendment is strong medicine, the Supreme Court keeps telling us, and it even requires vulnerable people to listen to things they do not want to hear.
Chief Justice John G. Roberts Jr. explained this in 2011 to the father of a fallen soldier who had to endure a hateful protest while he tried to lay his son to rest. The First Amendment, the chief justice said, protects “even hurtful speech on public issues to ensure that we do not stifle public debate.”
In June, Chief Justice Roberts told women seeking abortions essentially the same thing in a decision striking down buffer zones around clinics in Massachusetts. “Vital First Amendment interests,” he said, required women to hear from opponents of abortion in the fraught moments before they entered those clinics.
But the Supreme Court’s devotion to the First Amendment has its limits. It stops at the edge of the grand marble plaza outside its own courthouse.
That vast and inviting space, with its benches and fountains, seems better suited to public debate than a military funeral or the sidewalk outside an abortion clinic. But the court insists on banning free speech on the plaza. Court police officers have been known to instruct visitors to remove small buttons bearing political messages.
Last year, a federal judge struck down the law that bans protests on the plaza, calling it “irreconcilable with the First Amendment.” Pamela Talkin, the marshal of the Supreme Court, appealed the decision, and last month, a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit heard arguments.
The case involves Harold H. Hodge Jr., a student from Maryland who was arrested on the plaza in 2011. His crime was wearing a sign that read, “U.S. Gov. Allows Police to Illegally Murder and Brutalize African Americans and Hispanic People.”
Such a statement, on a topic of urgent public interest, would seem to be precisely what the First Amendment was intended to protect. Then again, a Supreme Court police officer once threatened a woman with arrest for displaying a sign bearing the verbatim text of the First Amendment.
The law invoked by the officers, enacted in 1949, bars “processions or assemblages” or the display of “a flag, banner or device designed or adapted to bring into public notice a party, organization or movement” in the Supreme Court building or on its grounds.
The Supreme Court addressed the law in 1983, in United States v. Grace, ruling that it could not be applied to demonstrations on the public sidewalks around the court. Since then, the sidewalks, which are broad and set off by stairs from the plaza, have been regularly used for protests of all kinds.
But the First Amendment vanishes when concrete turns to marble, Justice Department lawyers representing Ms. Talkin told the appeals court. Their primary argument for the distinction was a curious one.
“Demonstrations outside courthouses might give rise to actual or apparent efforts to subject judicial officers to improper influence,” they said in a brief.
The idea that the justices would actually be swayed by protest signs on the plaza borders on the silly. If they were susceptible to that sort of influence, there would be no reason to think that signs on the sidewalk would be less effective.
That leaves the question of public perception. In the 1983 decision, the court said the law might be justified by a desire to prevent the public from thinking “that the Supreme Court is subject to outside influence.”
The fear here is not that the justices would in fact respond to protests, but that people would mistakenly think they did. That is not a flattering view of the populace.
It is also at odds with one of the core messages of the Citizens United decision, which assumed that people in a democracy would respond with skeptical discernment to the political messages that bombard them before elections.
We honor the First Amendment, Justice Anthony M. Kennedy wrote for the majority, by allowing everyone to speak and “entrusting the people to judge what is true and what is false.”
The Supreme Court is not even particularly consistent in how it treats speech on its plaza.
In a sworn statement in 2012, Timothy Dolan, deputy chief of the Supreme Court’s police force, conceded that “the court allows attorneys and parties in cases that have been argued to address the media on the plaza immediately following argument.” The court also occasionally permits “commercial or professional filming on the plaza,” he said.
It seems that people with power or connections can use the plaza. Mr. Hodge, who sought to call attention to police brutality, cannot.
Justice Thurgood Marshall, who knew something about the power of protests, dissented in the 1983 case. “Visitors to this court,” he wrote, “do not lose their First Amendment rights at the edge of the sidewalks.”
He died in 1993, long before the court fully established the double standard requiring grieving parents and distraught women to experience the gale force of the First Amendment while shielding the justices from its slightest breeze. But Justice Marshall seemed to sense where things were heading.
“It would be ironic indeed,” he said, “if an exception to the Constitution were to be recognized for the very institution that has the chief responsibility for protecting constitutional rights.”

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