Supreme Court Plaza Is a Free Speech–Free Zone

When
taxes aren’t taxes and private
property isn’t private, it’s nice when
free speech is free—or at least somewhat free.
But while the Supreme Court has been relatively good at upholding
free speech rights lately, those rights apparently don’t extend to
the plaza in front of the courthouse itself.
The New York Times reports:

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.

The ban in question
decrees it unlawful “to parade, stand, or move in processions
or assemblages” or “to display…any flag, banner, or device” that
might bring attention to a group on the grounds of the Supreme
Court. A federal judge
struck down the policy last year, finding the law an
unconstitutional restriction of free speech:

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.”

Jeffrey Light, the plaintiff’s lawyer,
argues that “the plaza part is a public forum and it’s an
absolute ban on First Amendment. The way it is now, even tourists
with messages on their T-shirts could be arrested.”

Hodge isn’t the only one who has been harassed for political
speech. A woman holding a sign with the exact text of the First
Amendment has also been threatened with arrest.

But the marshal of the Supreme Court, Pamela “Shh, No Talking”
Talkin, is fighting the ruling tooth and nail in an appeals court.
According to her lawyers, there ain’t no such thing as free speech
in a marble plaza:

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…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.

Talkin’s brief cited the possibility that “demonstrations
outside courthouses might give rise to actual or apparent efforts
to subject judicial officers to improper influence.” Supreme Court
justices are apparently as delicate and impressionable as
college students these days. The worry about “improper
influence” also unreasonably assumes that our justices aren’t
already
influenced by things
other than the letter of the law.

This might be a small battle in the larger
free speech war. But it bodes ill for First Amendment fighters
when the Supreme Court can’t even consistently apply constitutional
protections on its own doorstep.