There's no free speech in front of the U.S. Supreme Court — or so says the U.S. Court of Appeals for the D.C. Circuit, which on Friday upheld a 1949 law that says you can't assemble or display signs on the plaza in front of the courthouse.
The decision contradicted a 2002 ruling by the same court that allowed free speech on the grounds of the U.S. Capitol, across the street. It rested on a combination of architectural analysis and insistence that judges and courts should be more insulated from the public than politicians.
Architecture is beside the point. The Supreme Court frequently decides high-profile, politicized cases with no single correct legal answer. It stands for free speech. Limiting speech on the plaza is not just a legal mistake. It's a symbolic one.
The appeals court said the plaza wasn't a public forum. It emphasized that the plaza forms an integrated architectural whole with the steps and the courthouse building as designed by Cass Gilbert. The opinion even quoted a statement by Justice Stephen Breyer to the effect that the building's plan "leads visitors along a carefully choreographed, climbing path that ultimately leads to the courtroom itself."
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Today, for security reasons, visitors actually can't use the front door to the court. But that really doesn't matter. The point is that architectural coherence isn't a good measure of whether a space is public.
A case in point is the grounds of the Capitol, designed by Frederick Law Olmsted to be integrated with the Capitol. Yet in the 2002 case Lederman v. U.S., the D.C. Circuit ruled that the Capitol grounds constituted a public forum and struck down no-demonstration zones there. The court distinguished the Capitol grounds from the Supreme Court plaza by citing a statement made by the Supreme Court this past April in a case called Williams-Yulee v. Florida Bar to the effect that "judges are not politicians."
The Supreme Court made this point in the course of upholding a Florida rule that prohibited candidates for judicial office from soliciting contributions directly. But limiting the free speech of judges because they aren't politicians is a very different thing from limiting the free speech of the public near the courthouse on the ground that judges needn't be responsive to public opinion.
Protesters outside the Supreme Court aren't primarily trying to influence what goes on inside. They're participating in the national conversation that arises around Supreme Court arguments and decisions. They go to the plaza in part because the television cameras go there. The television cameras go there because the Supreme Court is where the story is.
Having held that the plaza is a nonpublic forum, the D.C. Circuit went on to rule that restricting assembly and protest signs there was reasonable. The true function of the plaza is to create an open public space in front of the people's court where the people can congregate. And like it or not, in a democracy, the people don't always show order or decorum. It isn't reasonable to block the public from speaking or gathering in a place where it's already allowed to be. This message is the opposite of what the court should be communicating to the public. The Supreme Court probably won't overturn the judgment or even take the case. But it should.