Congress has long forbidden demonstrations at the Court. In 1983 the Court held that statute unconstitutional as to the sidewalks in United States v. Grace. The law has continued to be enforced as to the grounds. Earlier this week, a federal district judge found it unconstitutional as to the grounds as well. The Court swiftly reacted with this revised regulation:
This regulation is issued under the authority of 40 U.S.C. § 6102 to protect the Supreme Court building and grounds, and persons and property thereon, and to maintain suitable order and decorum within the Supreme Court building and grounds. Any person who fails to comply with this regulation may be subject to a fine and/or imprisonment pursuant to 40 U.S.C. § 6137. This regulation does not apply on the perimeter sidewalks on the Supreme Court grounds. The Supreme Court may also make exceptions to this regulation for activities related to its official functions.
No person shall engage in a demonstration within the Supreme Court building and grounds. The term "demonstration" includes demonstrations, picketing, speechmaking, marching, holding vigils or religious services and all other like forms of conduct that involve 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 or onlookers. The term does not include casual use by visitors or tourists that is not reasonably likely to attract a crowd or onlookers.
Approved and Effective June 13, 2013
The casual use unlikely to draw a crowd exception is to deal with a perceived overbreadth problem. Adam Liptak has this story in the NYT.
John W. Whitehead, the president of the Rutherford Institute, which represents Mr. Hodge, said the new regulation was disturbing.
"Facing a fine or imprisonment because one man demonstrates in front of the Supreme Court," he said, "is repugnant to the First Amendment."
Nonsense. The Grace case says he can demonstrate in front of the Supreme Court. He just has to stay on the sidewalk. Seems like a reasonable "place" limitation to me.
What next? A First Amendment right to hold the protest in the courtroom itself while oral arguments are going on?