BERYL A. HOWELL, District Judge.
Following his arrest for violation of 40 U.S.C. § 6135 for wearing a sign while standing "quietly and peacefully" on the Supreme Court plaza, the plaintiff, Harold Hodge, Jr., brought this lawsuit to challenge the constitutionality of that statute under the First and Fifth Amendments "on its face and as applied to his desired activities," which include returning to the Supreme Court plaza to "engage in peaceful, non-disruptive political speech and expression." Amended Complaint ("Am. Compl."), ECF No. 8, ¶¶ 1, 20, 28. The defendants — Pamela Talkin, Marshal of the United States Supreme Court, and Ronald Machen, Jr., U.S. Attorney for the District of Columbia, in their official capacities — have moved to dismiss the complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Alternatively, they have moved for summary judgment pursuant to Federal Rule of Civil Procedure 56(a). Defs.' Mot. to Dismiss or in the Alternative, for Summ. J. ("Defs.' Mot."), ECF No. 14. For the reasons explained below, the defendants' motion is denied because the Court finds the challenged statute unconstitutional under the First Amendment. Summary judgment will therefore be entered for the plaintiff pursuant to Federal Rule of Civil Procedure 56(f).
The plaintiff, as noted, has been arrested for violating the statute he now challenges on constitutional grounds. Set forth below is pertinent factual and legal background to evaluate his claim and the pending motion.
The plaintiff, Harold Hodge, Jr., is a citizen of Maryland and a full time-student
On February 4, 2011, the plaintiff was charged in an information filed in the Superior Court for the District of Columbia by the U.S. Attorney for the District of Columbia with violating 40 U.S.C. § 6135. Am. Compl. ¶ 25. The information alleged specifically that the plaintiff "`did unlawfully parade, stand, or move in processions or assemblages in the Supreme Court Building or grounds, or to [sic] display in the Building and grounds a flag, banner, or device designed or adapted to bring into public notice a party, organization, or movement.'" Am. Compl. ¶ 25 (quoting Information). The plaintiff and the government reached an agreement, pursuant to which the charge under 40 U.S.C. § 6135 would be dropped if the plaintiff stayed away from the Supreme Court Building and grounds for six months. Am. Compl. ¶ 26. The plaintiff complied with the agreement, and, on September 14, 2011, the charge under 40 U.S.C. § 6135 was dismissed. Am. Compl. ¶ 27.
On January 23, 2012, the plaintiff filed this lawsuit challenging the constitutionality of 40 U.S.C. § 6135.
The challenged statute, 40 U.S.C. § 6135, provides in full that:
40 U.S.C. § 6135. The statute is comprised of two clauses: first, the "Assemblages Clause," which provides that "[i]t is unlawful to parade, stand, or move in processions or assemblages in the Supreme Court Building or grounds," and, second, the "Display Clause," which makes it unlawful "to display in the Building and grounds a flag, banner, or device designed or adapted to bring into public notice a party, organization, or movement." 40 U.S.C. § 6135. The plaintiff was charged with violating both clauses of the statute. See Am. Compl. ¶ 25.
The Court's "Building and grounds" referenced in the statute include the Supreme Court Building as well as the grounds extending to the curbs of four streets, namely "the east curb of First Street Northeast, between Maryland Avenue Northeast and East Capitol Street[,]" "the south curb of Maryland Avenue Northeast, between First Street Northeast and Second Street Northeast[,]" "the west curb of Second Street Northeast, between Maryland Avenue Northeast and East Capitol Street[,]" and "the north curb of East Capitol Street between First Street Northeast and Second Street Northeast[.]" 40 U.S.C. § 6101(b)(1). Violations of section 6135, which may be prosecuted in the United States District Court for the District of Columbia or the Superior Court of the District of Columbia, are subject to a fine or imprisonment for "not more than 60 days, or both[,]" except if "public
A review of the history of the challenged statute and the case law addressing its constitutionality is necessary to set the plaintiff's instant challenge in context. The statute was enacted in 1949 and originally codified at 40 U.S.C. § 13k. The bill introducing the statute was "patterned very largely after the law which authorized special guards to police the Capitol grounds." S. Rep. No. 81-719, 1949 U.S.C.C.A.N. 1827, 1828 (1949). Thus, the Court first briefly examines the statute promulgated to govern the policing of the Capitol grounds, 40 U.S.C. § 193g.
From 1810 until 1935, the Supreme Court was housed in the United States Capitol Building. See Architect of the Capitol, Old Supreme Court Chamber, http://www.aoc.gov/capitol-buildings/old-supreme-court-chamber (last visited June 10, 2013). During that period, in 1882, Congress enacted legislation "to regulate the use of the Capitol Grounds," then including the Supreme Court, and "to prevent the occurrence near it of such disturbances as are incident to the ordinary use of public streets and places[.]" 22 Stat. 126 (1882); see also 13 Cong. Rec. 1949 (1882) (statement of Morrill) (stating that the bill to regulate the use of the Capitol Grounds was necessary because "[c]onstant damage is committed on the Capitol, pieces of the bronze doors are stolen, ink is strewed from the bottom to the top of the stairs, plants are stolen from the grounds in large numbers, shrubs and trees are injured" and "I believe there can be no objection to giving the police court some chance to prevent the constant mutilation of the Capitol and of the trees and shrubs and grounds around about it"). The legislation included, in section 6, essentially the same language that would, more than a half century later, appear in 40 U.S.C. § 6135 and its predecessor statute, 40 U.S.C. § 13k:
22 Stat. 127 (1882) (hereinafter, "Capitol Grounds statute"). From 1882 until 1969, there were "several recodifications, and various changes in and additions to the surrounding statutory provisions relating
In the 1960s and 1970s, this nearly century-old Capitol Grounds statute was subject to scrutiny both by the D.C. Court of Appeals, which imposed a limiting construction on the statute,
In 1970, the D.C. Court of Appeals affirmed the judgment of the Chief Judge of what was then the D.C. Court of General Sessions, who imposed a limiting construction on the Capitol Grounds statute. In that case, the appellees, who refused to leave the East Capitol steps after being ordered to do so by the Capitol police, had moved to dismiss the charging informations on grounds that § 9-124 of the D.C. Code, or 40 U.S.C. § 193g, was unconstitutional. The trial court acknowledged "the overbroad scope of § 9-124[,]" but nevertheless found "sufficient basis in legislative and other materials" to limit its scope. United States v. Nicholson, 263 A.2d 56, 57 (D.C.1970). Specifically, the trial court limited the statute "to the imposition of criminal punishment for acts or conduct which interferes [sic] with the orderly processes of the Congress, or with the safety of individual legislators, staff members, visitors, or tourists, or their right to be free from intimidation, undue pressure, noise, or inconvenience." Id. (internal quotation marks omitted). Limited in that manner, the trial court found the statute constitutional, while simultaneously concluding that the facts did not justify convictions based on this limited construction of the statute. Id. The D.C. Court of Appeals affirmed the dismissal of the informations for failure to state an offense. Id.; Jeannette Rankin Brigade v. Chief of Capitol Police, 342 F.Supp. 575, 580 (D.D.C.1972) ("Jeannette Rankin Brigade II") (quoting the D.C. Court of General Sessions as further explaining that "[i]t is appropriate, therefore, under the statute, to bar or order from the Capitol, any group which is noisy, violent, armed, or disorderly in behavior, any group which has a purpose to interfere with the processes of Congress, any member of Congress, congressional employee, visitor or tourist; and any group which damages any part of the building, shrubbery, or plant life" (citation omitted)).
Two years later, in 1972, a three judge panel of the District Court for the District of Columbia, including two D.C. Circuit judges, reviewed a complaint by a coalition of women against the Vietnam War, challenging the validity of the Capitol Grounds statute, 40 U.S.C. § 193g, under the First and Fifth Amendments. Jeannette Rankin Brigade II, 342 F.Supp. at 577-78. In that case, the defendants "assure[d]" the panel that, although they disagreed with the Nicholson interpretation of the statute, they had nonetheless adhered to that interpretation of the statute in enforcing it. Id. at 580. The panel refused to embrace the Nicholson limiting construction, however, nor the government's argument that, inter alia, the statute should "not be read literally as forbidding all assemblages, but. . . should be taken as providing that there may be no assemblages larger than 15 in number[,]" id. at 586,
The panel in Jeannette Rankin Brigade II reflected that "[t]he local courts of the District of Columbia have . . . felt unable to recognize [the constitutional propriety of the statute] without putting a substantial gloss upon Section 193g by an expansive interpretation of its terms," but refused the invitation to adopt this construction or create a limiting construction of its own that could save the statute's constitutionality. Jeannette Rankin Brigade II, 342 F.Supp. at 586. The panel also discussed failed attempts in
As noted, the immediate predecessor to the challenged statute was 40 U.S.C. § 13k, which was introduced as part of a bill intended "to provide positive statutory authority for the policing of the Supreme Court Building and grounds, defining the exact territorial limits thereof, authorizing the appointment of special police, and defining their duties and powers." S. Rep. No. 81-719, 1949 U.S.C.C.A.N. 1827, 1828 (1949). This legislation had become necessary because, although the Supreme Court had occupied its own building since 1935, from 1935 until 1948, the Supreme Court Building and grounds were policed under the authority of the District of Columbia's government. Id. In 1948, however, the
The legislation for the Supreme Court Building and grounds defined the territory covered and provided for regulations governing "[v]arious acts, such as sale of goods in the building, display of advertising, soliciting alms, injury to the building or grounds, discharging of firearms, making speeches, parading or picketing." S. Rep. No. 81-719, 1949 U.S.C.C.A.N. 1827, 1828 (1949). The legislation, inter alia, authorized the Marshal of the Supreme Court "to restrict and regulate travel and occupancy of the building and adjacent grounds and to prescribe rules and regulations for the protection of said premises and the maintenance of order and decorum." Id. The Senate Report accompanying the legislation noted that "[i]n keeping with the dignity which should surround the Supreme Court of the United States and the building and grounds which house it, the committee feel [sic] that this legislation should be enacted promptly." Id. The House Report also noted the urgency of enacting the legislation, explaining that "[u]nless the authority requested in this bill is provided at this session of Congress, the guards of the Supreme Court will have no authority as special policemen to make arrests for offenses committed in the Supreme Court or grounds after November 1, 1949[,]" and noting that "[i]t is the belief of the Committee on the Judiciary that in keeping with the dignity of the highest Court in the land, provision should be made for the policing of its building and grounds similar to that which is made for the U.S. Capitol." H.R. Rep. No. 81-814, at 2 (1949).
Section 6 of the legislation contained the prohibition that would later be codified at 40 U.S.C. § 13k. The House Report accompanying the legislation summarized section 6, stating that it "prohibits parades or displaying of any flag or banner designed to bring into public notice any party, organization or movement[,]" and that the section was "based upon the law relating to the Capitol Buildings and Grounds." H.R. Rep. No. 81-814, at 3 (1949). As enacted, 40 U.S.C. § 13k is nearly identical to the challenged statute, providing in full:
Pub. L. No. 81-250, § 6, 63 Stat. 616, 617 (1949) (codified at 40 U.S.C. § 13k).
18 U.S.C. § 1507 (1976) (quoted in Grace I, 665 F.2d at 1203).
In its decision, the D.C. Circuit analogized the challenged statute with the "similarly worded" statute governing the policing of the Capitol Building and grounds. The Circuit pointed out that the three judge panel in Jeannette Rankin Brigade II, 342 F.Supp. at 585, had "unequivocally stated, `[the] desire of Congress, if such there be, to function in the `serenity' of a `park-like setting' is fundamentally at odds with the principles of the First Amendment.'" Grace I, 665 F.2d at 1204 (quoting Jeannette Rankin Brigade II, 342 F.Supp. at 585). Acknowledging the different institutions that were the focus of the Capitol Grounds statute and the precursor to the challenged statute, the Circuit nevertheless found the constitutional infirmity the same, explaining that, "while the Capitol and Supreme Court buildings house different government entities, justifying different restrictions on free expression,. . . an interest in `the glorification of a form of government through visual enhancement of its public buildings' can no more justify an absolute prohibition of free expression on the Supreme Court grounds than on the grounds of the United States Capitol." Id. (no citation provided). The Circuit further explained that:
Id. The Circuit went so far as to emphasize that "we believe that it would be tragic if the grounds of the Supreme Court, unquestionably the greatest protector of First Amendment rights, stood as an island of silence in which those rights could never be exercised in any form." Id. at
Following the D.C. Circuit's clear rejection as facially unconstitutional of the precursor to the challenged statute, the Supreme Court took a narrower approach to its review of the statute. By contrast to the D.C. Circuit, which held the entire statute unconstitutional, the Supreme Court limited its review to the Display Clause as the plaintiffs were threatened with arrest only for violation of that clause. United States v. Grace, 461 U.S. 171, 175, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983) (hereinafter, "Grace II").
The Supreme Court echoed the D.C. Circuit's decision in part, however, and expressed the view that, while "[w]e do not denigrate the necessity to protect persons and property or to maintain proper order and decorum within the Supreme Court grounds, . . . we do question whether a total ban on carrying a flag, banner, or device on the public sidewalks substantially serves these purposes." Id. Indeed, finding that "[a] total ban on that conduct is no more necessary for the maintenance of peace and tranquility on the public sidewalks surrounding the building than on any other sidewalks in the city[,]" the Supreme Court found the Display Clause unconstitutional as applied to the public sidewalks surrounding the Supreme Court. Id. at 182-84, 103 S.Ct. 1702 (explaining that "this is not to say that those sidewalks, like other sidewalks, are not subject to reasonable time, place, and manner restrictions, either by statute or by regulations"). The Supreme Court thus "affirmed" the judgment of the D.C. Circuit "to the extent indicated by [its] opinion" with respect to the Display Clause as applied to the sidewalks surrounding the Court, and "otherwise vacated" the D.C. Circuit's decision without reaching the broader questions of the facial constitutionality of the Display Clause or the statute as a whole. Id. at 184, 103 S.Ct. 1702.
Following the Supreme Court's decision in Grace II, the statute was recodified in 2002 at 40 U.S.C. § 6135 with only minor stylistic changes as part of the revision of Title 40 of the United States Code. See Pub. L. No. 107-217, § 1, 116 Stat. 1183 (2002); H.R. Rep. No. 107-479, at 1-3, reprinted at 2002 U.S.C.C.A.N. 827, 828-29 ("Although changes are made in language, no substantive changes in the law are made."); Defs.' Mem. in Supp. of Defs.' Mot. to Dismiss or in the Alternative, for Summ. J., ECF No. 14 ("Defs.' Mem."), at 5 n. 1. After 2004, prosecutions under the statute may occur in the District Court for the District of Columbia in addition to the Superior Court of the District of Columbia, where any prosecutions before 2004 took place. See 40 U.S.C. § 6137(b); Declaration of Timothy Dolan ("Dolan Decl."), ECF No. 14-1, ¶ 8.
The Supreme Court's decision in Grace II focused only on the constitutionality of the Display Clause in 40 U.S.C. § 13k as applied to the sidewalks surrounding the Supreme Court's grounds, but left unresolved the facial constitutionality of the Display Clause and Assemblages Clause. In a series of subsequent cases, the D.C. Court of Appeals has examined both the Assemblages Clause and the Display Clause of 40 U.S.C. § 13k, and its successor, 40 U.S.C. § 6135, and found both clauses to be constitutional. A review of the decisions, which are not binding on this Court, underscores the extent to which the local courts have struggled to save the challenged statute from constitutional challenge. As with the Capitol Grounds statute, "[t]he local courts of the District of Columbia have. . . felt unable to recognize [the constitutional propriety of the statute] without putting a substantial gloss upon [the statute] by an expansive interpretation of its terms." Jeannette Rankin Brigade II, 342 F.Supp. at 585.
At the outset, the government acknowledges, and the D.C. Court of Appeals "recognized[,]" that "the literal language of section 6135 may be read to prohibit any type of group activity on the Court grounds, including congregation on the plaza by groups of tourist[s], or even by Court employees." Defs.' Mem. at 7 (emphasis added). Rather than declare the statute, or at least the Assemblages Clause, unconstitutional, however, the D.C. Court of Appeals instead imposed a limiting construction upon the Assemblages Clause to "save it from any possible constitutional challenge." Id. Thus, the D.C. Court of Appeals has found the clause constitutional in challenges brought over the last two decades only by adopting a limiting construction of the Assemblages Clause. Notably, in these decisions, the D.C. Court of Appeals has not grappled with the panel decision in Jeannette Rankin Brigade II regarding the ineffectiveness of a limiting construction to cure the constitutional defects in the closely analogous Capitol Grounds statute, 40 U.S.C. § 193g, nor the D.C. Circuit's similar discussion in Grace I regarding 40 U.S.C. § 13k.
By contrast to the Assemblages Clause, the local courts have not expressly adopted a limiting construction of the Display Clause. Yet, the local courts' opinions examining the Display Clause follow a long line of cases upholding the constitutionality of the Assemblages Clause, and the statute, because of the limiting construction of the Assemblages Clause.
Indeed, while not binding on this Court, the government urges this Court to accept the D.C. Court of Appeals' limiting construction of the Assemblages Clause before undertaking its constitutional analysis of the statute. See, e.g., Defs.' Mem. at 20-21 (arguing that "[b]ecause there have never been any prosecutions under the statute in federal court, this is, for all practical purposes, the definitive judicial construction of the statute" and asserting that "the District of Columbia courts have had no difficulty in determining that, limited in this way, the statute is not overly broad because it only prohibits the types of activity that are consistent with the legitimate interests it is intended to address" (citation omitted)). This Court thus briefly reviews how the local D.C. courts have construed and limited this statute.
The Court first addresses the Assemblages Clause cases. In United States v. Wall, 521 A.2d 1140, 1142 (D.C.1987), the D.C. Court of Appeals reversed a decision by the trial court that, while Wall's conduct
The D.C. Court of Appeals next examined the Assemblages Clause in Pearson v. United States, 581 A.2d 347 (D.C.1990). There, the court considered whether, as the appellants contended, recent Supreme Court precedent following Wall — namely Ward v. Rock Against Racism, 491 U.S. 781, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989), Frisby v. Schultz, 487 U.S. 474, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988), and Boos v. Barry, 485 U.S. 312, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988) — meant that section 13k (as well as a separate, related regulation) were "far broader than necessary to achieve any legitimate governmental objectives and consequently fail to meet the narrowly tailored standard." Pearson, 581 A.2d at 351 (internal quotation marks omitted). The Pearson court concluded that none of these intervening cases altered the court's analysis regarding the constitutionality of the Assemblages Clause. See id. at 354-55. The court acknowledged, in response to the appellants' overbreadth claim, that "[s]uch an absolute ban on any group activity is not supported by the government's legitimate and important interests in protecting the integrity of the Court, preventing the appearance of judicial bias, and safeguarding the Court grounds and personnel." Id. at 356-57 (footnotes omitted). Nevertheless, the court confirmed that the Assemblages Clause is, as the Pearson trial court and the Wall court had found, "susceptible to a narrowing construction, confining the scope of the clause to protection of `the [Supreme Court] building and grounds and
Following Pearson, the D.C. Court of Appeals again examined the Assemblages Clause, holding expressly in Bonowitz v. United States, 741 A.2d 18, 22 (D.C.1999), that "the Supreme Court plaza is a nonpublic forum" because of the Supreme Court's "selective process of allowing only certain classes of speakers access to the plaza and requiring individual members of these classes to obtain advance permission[.]" Relying on the "two primary purposes" of section 13k, as articulated in Wall — "to permit the unimpeded access and egress of litigants and visitors to the Court, and to preserve the appearance of the Court as a body not swayed by external influence," id. at 23, — the Court of Appeals again found that "`13k's prohibition on processions and assemblages in the plaza area and main entrance steps of the Supreme Court is reasonable'" and viewpoint neutral. Id. (quoting Wall, 521 A.2d at 1144). Furthermore, relying on Pearson's limiting construction of the Assemblages Clause, the Court of Appeals rejected the appellants' argument that the statute was unconstitutionally vague. See id.
The D.C. Court of Appeals, as noted, has also addressed the Display Clause. In Potts v. United States, 919 A.2d 1127 (D.C. 2007), for example, without relying on the limiting construction used to save the Assemblages Clause from unconstitutionality, the D.C. Court of Appeals found the Display Clause constitutional on its face and as applied to the appellants, who were part of a small group of protestors at the Supreme Court plaza. The court also, inter alia, rejected the appellants' claim that the Display Clause was unconstitutionally
As this discussion reveals, the D.C. courts have for decades affirmed convictions under the challenged statute but without delving deeper into constitutional analysis than did the decisions in Wall and Pearson. Rather, later D.C. decisions have simply followed in line with Wall and Pearson in upholding the statute from constitutional challenge. Yet, those earlier decisions, as noted, failed to engage fully with the reasoning of the D.C. Circuit's decision in Grace I, which, even if vacated in part, provided a persuasive analysis. They likewise failed to grapple at any length with the panel's decision in Jeannette Rankin Brigade II, and the fate of the closely analogous Capitol Grounds statute.
Other restrictions related to the Supreme Court Building and grounds have also been subject to constitutional scrutiny in this jurisdiction. In 2000, in Mahoney v. Lewis, a district court rejected plaintiffs' challenge to the constitutionality of Regulation Six, promulgated by the Marshal of the Supreme Court, pursuant to 40 U.S.C. § 131. See Mahoney v. Lewis, No. 00-1325, 2000 U.S. Dist. LEXIS 10348 (D.D.C. June 23, 2000), aff'd, No. 00-5341, 2001 U.S. App. LEXIS 4014 (D.C.Cir. Feb. 23, 2001). This regulation sets forth restrictions on the size, composition, and number of signs used to protest and picket outside of the Supreme Court.
The plaintiff's challenge relates to enforcement of 40 U.S.C. § 6135 on the plaza area outside of the Supreme Court building. Thus, a brief description of the plaza is necessary. The Supreme Court plaza is oval in shape and approximately 252 feet in length from North to South at the largest
The plaza is "open to the public 24 hours a day, except under special circumstances when it is closed by the Marshal," and "[t]he public is free to enter and leave the Supreme Court plaza at all hours." Am. Compl. ¶ 13. Besides its function as a working office building for the Justices of the Supreme Court, and their staff, as well as other Court employees, the Supreme Court attracts numerous tourists, and, in 2011, for example, was host to 340,000 visitors. Dolan Decl. ¶ 2. There is "no gate" or "fence" separating the plaza from other parts of the Supreme Court grounds, Am. Compl. ¶ 14, which "include the area within the curbs of the four streets surrounding the Court, i.e., First Street, N.E.; Maryland Avenue, N.E.; Second Street, N.E.; and East Capitol Street," Dolan Decl. ¶ 3 (citing 40 U.S.C. § 6101(b)).
Pursuant to 40 U.S.C. § 6121, the Marshal of the Supreme Court and the Supreme Court Police have the authority, inter alia, "to police the Supreme Court Building and grounds and adjacent streets to protect individuals and property" and "to protect — (A) the Chief Justice, any Associate Justice of the Supreme Court, and any official guest of the Supreme Court; and (B) any officer or employee of the Supreme Court while that officer or employee is performing official duties[.]" Under the authority of 40 U.S.C. § 6135, as limited by case law, the Supreme Court Police have distinguished between the types of activities permitted on the plaza and those permitted on the surrounding sidewalks. Specifically, "demonstrations or other types of expressive activity" on the plaza that are deemed violative of the challenged statute are not permitted. Defs.' Facts ¶¶ 5-6; Dolan Decl. ¶ 7.
While the plaintiff states that the "Supreme Court plaza has historically been used for First Amendment activities," Am. Compl. ¶ 12, the Deputy Chief of the Supreme Court Police disputes this characterization and explains that "some form of expressive activity is allowed on the Supreme
If the Supreme Court Police determine that individuals or groups are in violation of section 6135, the police "inform them of the violation and of the fact that they will be arrested if they do not discontinue their conduct or leave the plaza." Defs.' Facts ¶ 7; Dolan Decl. ¶ 7. The Deputy Chief of the Supreme Court Police explains that "[t]ypically, multiple warnings are given to ensure that the individuals understand that their conduct is illegal and have the opportunity to conform their conduct to the law." Dolan Decl. ¶ 7; Defs.' Facts ¶ 7. The Supreme Court Police "have employed substantially this same practice" over the last twenty-five years. Dolan Decl. ¶ 7.
Sidewalks surrounding the Supreme Court grounds do not fall within these limitations, because the Supreme Court has held that the Supreme Court's perimeter sidewalks are a public forum and that section 6135's restrictions "are unconstitutional as applied to those sidewalks." Dolan Decl. ¶ 5 (citing Grace II, 461 U.S. 171, 103 S.Ct. 1702). Accordingly, the Supreme Court Police "do not enforce section 6135 on the perimeter sidewalks[,]" and "[v]arious forms of demonstrations and protest regularly occur on the perimeter sidewalk directly in front of the Court." Dolan Decl. ¶ 5; Defs.' Facts ¶ 4. If the Supreme Court Police are in contact "with representatives of organizations planning to protest at the Court, those individuals are typically informed that they have the right to demonstrate on the sidewalk, but not elsewhere at the Court." Dolan Decl. ¶ 5.
It is against this backdrop, where the challenged statute and its precursors have already been subject to extensive scrutiny and notable disfavor, that the plaintiff brings his constitutional challenge.
Since the Court relies on materials outside the pleadings to resolve the plaintiff's claim, the Court applies the standard for summary judgment. Specifically, the Court has relied upon Deputy Chief Dolan's declaration describing the Supreme Court plaza and the enforcement policies and practices of the Supreme Court police in connection with the challenged statute. Federal Rule of Civil Procedure 56 provides that summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED.R.CIV.P. 56(a). The burden is on the moving party to demonstrate that there is an "absence of a genuine issue of material fact" in dispute. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In ruling on a motion for summary judgment,
The Court is only required to consider the materials explicitly cited by the parties, but may on its own accord consider "other materials in the record." FED.R.CIV.P. 56(c)(3). For a factual dispute to be "genuine," Estate of Parsons, 651 F.3d at 123, the nonmoving party must establish more than "[t]he mere existence of a scintilla of evidence" in support of its position, Anderson, 477 U.S. at 252, 106 S.Ct. 2505, and cannot simply rely on allegations or conclusory statements, see Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999). Rather, the nonmoving party must present specific facts that would enable a reasonable jury to find in its favor. See Anderson, 477 U.S. at 250, 106 S.Ct. 2505. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50, 106 S.Ct. 2505 (citations omitted).
While the only pending motion was filed by the defendants, and there is no pending motion filed by the plaintiff, since there are no genuine issues of material fact, and the defendant believes the record before the Court is "adequate" for this Court to resolve a facial challenge, see Tr. at 50-51 ("This is a facial challenge, and the record before the [C]ourt is adequate. . . . [W]e don't need discovery."), the Court shall exercise its authority to resolve this matter on the defendants' motion. See FED.R.CIV.P. 56(f) ("After giving notice and a reasonable time to respond, the court may: (1) grant summary judgment for a nonmovant"). Pursuant to Federal Rule of Civil Procedure 56(f), the Court provided the parties notice and a reasonable time to respond as to "why the Court should not grant summary judgment to the nonmoving plaintiff, who has not moved for summary judgment, under Federal Rule of Civil Procedure 56(f) if there is no genuine dispute of fact on a given claim." Minute Order (May 22, 2013). As the plaintiff indicates correctly, the defendants have previously "argued that the record is `adequate' and [have] pointed to no adjudicative facts that are in dispute." Pl.'s Resp. to Defs.' Resp. to the Court's Order to Show Cause, ECF No. 24 ("Pl.'s Resp."), at 5-6.
The plaintiff challenges 40 U.S.C. § 6135 both on its face and as applied. In his Amended Complaint, he raises five claims. Specifically, he claims that both the Assemblages Clause and Display Clause of the statute (1) are facially unconstitutional under the First Amendment (Count I), (2) are overbroad and violate the First and Fifth Amendments (Count II), and (3) are unconstitutional under the First and Fifth Amendments because they are void for vagueness (Count III). The plaintiff also claims that the Display Clause of the statute is unconstitutional (4) under the First Amendment, because, as applied, it "discriminates in favor of corporate speech and against political speech," and "discriminates in favor of speech supportive of the United States government and the Supreme Court and against speech critical of the United States government and the Supreme Court," (Count IV), and (5) under the Fifth Amendment because, as applied, "it discriminates in favor of [the] United States government, litigants before the Supreme Court, and their attorneys, as speakers, and against private citizens as speakers." (Count V). Am. Compl. at 8-9.
In moving to dismiss the claim or, in the alternative, for summary judgment, the defendants argue, inter alia, that because the Supreme Court plaza is a "nonpublic forum" under First Amendment forum analysis, restrictions on speech activity must only be "reasonable and content-neutral," criteria the statute easily satisfies under the limiting construction adopted by the D.C. Court of Appeals in Pearson v. United States, 581 A.2d 347 (D.C.1990). See Defs.' Mem. at 1, 17-29. For the reasons explained below, the Court disagrees, rejects the defendants' invitation to accept the D.C. Court of Appeals' limiting construction, or to create its own, and finds the statute unconstitutional as unreasonable and overbroad under the First Amendment, and void.
As a preliminary matter, the Court must address the scope of the plaintiff's challenge to the statute at issue and the plaintiff's standing to raise these claims. While neither of the parties explicitly addressed these issues in their briefs, the defendants suggested at oral argument that "[i]t might be possible" for the Court to "construe the complaint" to find that the plaintiff does not have standing to raise a claim
The government's suggestion at oral argument that the plaintiff may lack standing to challenge the Assemblages Clause and that the Court limit its review to the Display Clause as the Supreme Court did in Grace II, see Tr. at 19, must be rejected for at least two reasons. First, unlike in Grace II, the plaintiff here was formally charged in the Information with violation of the statute as a whole, and the plaintiff has expressed his intent to return with a group to assemble on the plaza in violation of the Assemblages Clause. See Am. Compl. ¶ 29 ("In addition to wearing a sign while on the Supreme Court Plaza as he did before, Mr. Hodge also desires to return to the plaza area in front of the Supreme Court building and picket, hand out leaflets, sing, chant, and make speeches, either by himself or with a group of like-minded individuals."). His challenge to the constitutionality of the statute as a whole is therefore properly before the Court. See, e.g., Lederman v. United States, 291 F.3d 36, 41 (D.C.Cir.2002) (plaintiff had standing to challenge entire regulation given his arrest for leafleting and his "intent to return . . . to engage in other expressive activity[,]" through which he "established a `distinct and palpable' threat of future and `direct injury' — arrest" (quoting Meese v. Keene, 481 U.S. 465, 472, 107 S.Ct. 1862, 95 L.Ed.2d 415 (1987))).
These facts are notably in contrast to the facts underlying the Supreme Court's decision in Grace II to limit its review to the Display Clause of the statute. There, the plaintiffs had not been arrested or charged, but only threatened with arrest; each was threatened with arrest on separate days while handing out leaflets or wearing a sign alone, and only on the sidewalk in front of the Supreme Court. The Supreme Court clarified that while the D.C. Circuit "purport[ed] to hold § 13k unconstitutional on its face," that decision "must be read as limited" to the Display Clause because "[e]ach appellee appeared individually on the public sidewalks to engage in expressive activity, and it goes without saying that the threat of arrest to which each appellee was subjected was for violating the prohibition against the display of a `banner or device.'" Id. at 175 & n. 5, 103 S.Ct. 1702. Absent a formal charging instrument specifying the precise clause of the statute that the plaintiffs were accused of violating, the Supreme Court cabined its review to the precise facts underlying the constitutional challenge, which the Court found limited to enforcement of the Display Clause on the sidewalks surrounding the Supreme Court. Id. at 183, 103 S.Ct. 1702.
Second, the expressive activities prohibited by the Assemblages Clause and Display Clause are related, or "intertwined," and require the same analysis. See, e.g.,
The First Amendment provides, in relevant part, that "Congress shall make no law . . . abridging the freedom of speech . . . or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." First Amendment freedoms "are delicate and vulnerable, as well as supremely precious in our society." NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963). Thus, the Supreme Court has warned that "[b]ecause First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity." Id. Nonetheless, "[n]othing in the Constitution requires the Government freely to grant access to all who wish to exercise their right to free speech on every type of Government property without regard to the nature of the property or to the disruption that might be caused by the speaker's activities." Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 799-800, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985). Acknowledging that the government, "`no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated,'" id. at 800, 105 S.Ct. 3439 (quoting Greer v. Spock, 424 U.S. 828, 836, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976)), the Supreme Court "has adopted a forum analysis as a means of determining when the Government's interest in limiting the use of its property to its intended purpose outweighs the interest of those wishing to use the property for other purposes[,]" id. Consequently, the defendants urge the Court to conduct a forum analysis of the Supreme Court plaza as the threshold issue in evaluating the constitutionality of the statute, and to find "that the Supreme Court plaza is a nonpublic forum under First Amendment analysis." Defs.' Reply at 2.
In conducting a forum analysis, the Court "proceed[s] in three steps: first, determining whether the First Amendment protects the speech at issue, then identifying the nature of the forum, and finally assessing whether the [government's] justifications for restricting . . . speech `satisfy the requisite standard.'" Mahoney v. Doe, 642 F.3d 1112, 1116 (D.C.Cir.2011) (quoting Cornelius, 473 U.S. at 797, 105 S.Ct. 3439). For purposes of this analysis, government property is divided into three categories — traditional public forum, designated public forum, and nonpublic forum. Id. The category "determines what types of restrictions will be permissible" on that property. Initiative & Referendum Inst. v. U.S. Postal Serv., 685 F.3d 1066, 1070 (D.C.Cir.2012) (hereinafter, "Initiative & Referendum Inst. II"). First, a traditional public forum, such as a public street or park, is government property "that has `by long tradition or by government fiat. . . been devoted to assembly and debate.'" Id. (quoting Perry Educ. Ass'n v. Perry Local Educators'
Thus, if the Court concludes that the Supreme Court plaza is a "nonpublic forum," as the defendants urge, "it is . . . black-letter law that . . . the government. . . can exclude speakers on the basis of their subject matter, so long as the distinctions drawn are viewpoint neutral and reasonable in light of the purpose served by the forum." Davenport v. Wash. Educ. Ass'n, 551 U.S. 177, 188-89, 127 S.Ct. 2372, 168 L.Ed.2d 71 (2007). As a nonpublic forum, the government would have the most leeway in limiting access to the plaza for otherwise protected expressive activity. Indeed, "[l]imitations on expressive activity conducted on this last category of property must survive only a much more limited review" than would be the case for public or designated public fora. Int'l Soc'y for Krishna Consciousness v. Lee, 505 U.S. 672, 678, 112 S.Ct. 2701, 120 L.Ed.2d 541 (1992).
In contrast, the plaintiff argues that the Court should not allow "forum analysis to trump traditional principles of First Amendment jurisprudence where, as here, the restriction at issue is an absolute ban on a broad category of protected speech, rather than a narrow time, place, or manner regulation." Pl.'s Opp'n to Defs.' Mot. to Dismiss or in the Alternative, for Summ. J. ("Pl.'s Opp'n"), ECF No. 15, at 4. In this regard, the plaintiff echoes the view that "courts must apply categories such as `government speech,' `public forums,' `limited public forums,' and `nonpublic forums' with an eye toward their purposes — lest we turn `free speech' doctrine into a jurisprudence of labels." Pleasant Grove City, 555 U.S. at 484, 129 S.Ct. 1125 (Breyer, J., concurring). "Consequently,
As a preliminary matter, this Court must "determin[e] whether the First Amendment protects the speech at issue." Mahoney, 642 F.3d at 1116 (citing Cornelius, 473 U.S. at 797, 105 S.Ct. 3439). In this case, the plaintiff stood on the Supreme Court plaza with a sign reflecting a message that the U.S. government sanctions the adverse treatment of "African Americans and Hispanic People" in order "to engage in expression on a political matter of public interest and importance and to raise public awareness about" this issue. Am. Compl. ¶ 18. "There is no doubt that as a general matter peaceful picketing[,]" as the Court will construe the plaintiff's standing with a sign, is an "expressive activit[y] involving `speech' protected by the First Amendment." Grace II, 461 U.S. at 176, 103 S.Ct. 1702 (collecting cases). Moreover, the message reflected on the plaintiff's sign was speech addressing a matter of public concern, which "occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection." Snyder, 131 S.Ct. at 1215 (quoting Connick v. Myers, 461 U.S. 138, 145, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) (internal quotations marks omitted)) (holding that the First Amendment affords such speech special protection because "speech concerning public affairs is more than self-expression; it is the essence of self-government" (quoting Garrison v. Louisiana, 379 U.S. 64, 74-75, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964) (internal quotations omitted)).
The Court next turns to "identifying the nature of the forum" at issue. Mahoney, 642 F.3d at 1116 (citing Cornelius, 473 U.S. at 797, 105 S.Ct. 3439). The defendants, as noted, vehemently urge the Court to follow the lead of the D.C. Court of Appeals and conclude that the Supreme Court plaza is a "nonpublic forum," which would permit the government to place restrictions on expressive activity so long as the restriction is "reasonable" and "viewpoint neutral." Defs.' Mem. at 17. The defendants advance five separate arguments in support of their contention that "[t]he policies and historical usage of the Supreme Court plaza make clear that it is a nonpublic forum, as the District of Columbia Court of Appeals has consistently found." Id. at 11. First, the defendants highlight the history of the Supreme Court plaza, and point out that the Supreme Court plaza has not been used for assembly, communication between citizens, and the discussion of public questions since at least 1949 when 40 U.S.C. § 13k was enacted. Id. at 12. Moreover, the defendants argue that the two instances when the Supreme Court allows limited expression on the Supreme Court plaza — first, when attorneys and parties in a case before the Court are permitted to address the media after oral argument in the case, and, second, when the Supreme Court allows filmmakers to film on the plaza — "do not alter [the plaza's] character as a nonpublic forum, since they are a far cry from the type of demonstration in which [the plaintiff] in this case was engaged." Id. at
The plaintiff, by contrast, warns of the "limited utility" of forum analysis. Pl.'s Opp'n at 3 (quoting Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 815 n. 32, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984)). In particular, the plaintiff urges the Court to reject the "circular logic" that could be created by relying on the statute's ban on expressive activity, which has worked effectively over the past 60 years to squelch such activity on the Supreme Court plaza, to "constitute a reason in itself for determining that a forum is nonpublic." Pl.'s Opp'n at 3. The plaintiff argues that the Court should "eschew the use of the labels `public' or `nonpublic' in order to avoid addressing the question of whether the legislation is supported by a sufficient governmental interest which outweighs the public's First Amendment rights." Id. at 4. If the Court does engage in forum analysis, however, the plaintiff argues that the plaza is either a traditional or designated public forum "[b]ased on its history, uses, status, and characteristics." Id. at 6-7. Moreover, the plaintiff argues that even if the plaza is considered "a nonpublic forum or not a forum at all," the statute is still facially unconstitutional. Id. at 14, 30.
The Court assumes, without deciding, that the Supreme Court plaza is a nonpublic forum. The defendants' arguments that the plaza is a nonpublic forum "because traditionally it has not been a place of public assembly, communication and discourse,
"The reasonableness of the Government's restriction of access to a nonpublic forum must be assessed in the light of the purpose of the forum and all the surrounding circumstances." Cornelius, 473 U.S. at 809, 105 S.Ct. 3439. "The First Amendment does not forbid a viewpoint-neutral exclusion of speakers who would disrupt a nonpublic forum and hinder its effectiveness for its intended purpose." Id. at 811, 105 S.Ct. 3439. In assessing whether a regulation is reasonable, the Court must examine whether "it is consistent with the government's legitimate interest in maintaining the property for its dedicated use." Initiative & Referendum Inst. II, 685 F.3d at 1073; see also Greer, 424 U.S. at 836, 96 S.Ct. 1211 ("`The State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated.'" (citation omitted)). In this regard, the restriction "`need only be reasonable; it need not be the most reasonable or the only reasonable limitation.'" Id. (quoting Cornelius, 473 U.S. at 808, 105 S.Ct. 3439).
Here, the defendants argue that the statute is plainly a "reasonable limitation on speech" because it is based on "two significant interests that are furthered by the statute[,]" namely, first, "permitting the unimpeded ingress and egress of visitors to the Court," and, second, "preserving the appearance of the Court as a body not swayed by external influence." Defs.' Mem. at 18. The defendants point to the D.C. Court of Appeals' recognition of these two significant government interests in finding the statute reasonable, and argue that this Court should as well. Defs.' Mem. at 18-19.
The Court disagrees. First, the Court does not find that an interest in allowing "unimpeded ingress and egress" of visitors to the Court is a sufficiently significant interest to justify the absolute prohibition on expressive activity on the plaza enshrined in the two clauses of the statute. The statute encompasses not only a ban on activity that actually impedes ingress and egress, and/or is intended to impede ingress and egress, but also bans a variety of other unobtrusive actions ranging from the assembling of groups of two or more individuals on a bench on one side of the
Second, the Court is also not convinced that the statute furthers the second "significant" government interest proffered by the defendants, namely "preserving the appearance of the Court as a body not swayed by external influence." Defs.' Mem. at 18. In support of their argument that section 6135 furthers this interest, and is thus reasonable, the defendants indicate that the "Supreme Court has explained that a state `has a legitimate interest in protecting its judicial system from the pressures which picketing near a courthouse might create.'" Id. (quoting Cox II, 379 U.S. at 562, 85 S.Ct. 476). But the challenged statute, which is plainly distinguishable from the statute at issue in Cox II because, for example, it does not include an intent requirement, not only covers people assembling on the plaza for picketing but also people assembling for any other reason, and with no intention of picketing or exerting any influence on the Supreme Court. It is hard to imagine how tourists assembling on the plaza wearing t-shirts bearing their school's seal, for example, could possibly create the appearance of a judicial system vulnerable to outside pressure. While there may be a legitimate interest in protecting the decorum of the judiciary, the challenged statute is not a reasonable way to further that interest.
As the D.C. Circuit concluded decades ago, "[w]hile public expression that has an intent to influence the administration of justice may be restricted, . . . . Congress has accomplished that result with a more narrowly drawn statute, 18 U.S.C. § 1507, that is fully applicable to the Supreme Court grounds." Grace I, 665 F.2d at 1194 (citation omitted). The D.C. Circuit in Grace I was "unable to find any other significant governmental interest to justify the absolute prohibition of all expressive conduct contained in section 13k," id., and thus held this precursor statute to 40 U.S.C. § 6135 "unconstitutional and void," id. Even assuming the plaza is a nonpublic forum, where "the government need not adopt the most narrowly tailored means available," Initiative & Referendum Inst. II, 685 F.3d at 1073, this Court believes that the D.C. Circuit's reasoning in Grace I is still instructive, and finds that none of the asserted governmental interests justifies the absolute ban on expressive activity enshrined in the statute, regardless of whether this area, which members of the public are free to visit, is considered a public or nonpublic forum. See, e.g., Grace II, 461 U.S. at 184, 103 S.Ct. 1702 (Marshall, J.) (concurring in part and dissenting in part) (concluding that 40 U.S.C. § 13k is unconstitutional on its face and noting that "[w]hen a citizen is in a place where he has
"The First Amendment does not forbid a viewpoint-neutral exclusion of speakers who would disrupt a nonpublic forum and hinder its effectiveness for its intended purpose." Cornelius, 473 U.S. at 811, 105 S.Ct. 3439. Yet, it cannot possibly be consistent with the First Amendment for the government to so broadly prohibit expression in virtually any form in front of a courthouse, even the Supreme Court, in the name of concerns about "ingress and egress" and "preserving the appearance of the Court as a body not swayed by external influence." Thus, even accepting the defendants' argument that the Supreme Court plaza is a nonpublic forum, "in light of the purpose of the forum and all the surrounding circumstances," id. at 809, 105 S.Ct. 3439, the Court finds the statute unreasonable as untethered to any legitimate government interest or purpose. As explained in more detail below, the statute is also substantially overbroad, and not susceptible to a limiting instruction, and thus unconstitutional on its face and void as applied to the Supreme Court plaza.
It is worth pausing here to address the extent to which this Court is bound by the D.C. Circuit's decision in Grace I, and the decision of the three judge panel in Jeannette Rankin Brigade II, which was summarily affirmed by the Supreme Court. In both cases, as explained supra, the panels found the language of the challenged statute — in the form of the precursor to the Supreme Court statute and in the form of the Capitol Grounds statute, respectively — unconstitutional. While both of these panels were clear in their disdain for the broad prohibition on expressive activity enshrined in the language of this statute, the Supreme Court in Grace II (1) limited its own holding to the Display Clause as applied to the sidewalks surrounding the Supreme Court, even though it had earlier summarily affirmed the panel's decision in Jeannette Rankin Brigade II, declaring void the entire Capitol Grounds statute, and (2) affirmed the D.C. Circuit's Grace I decision only to the extent that it held the Display Clause unconstitutional as applied to the sidewalks surrounding the Supreme Court, and otherwise vacated the decision. See Grace II, 461 U.S. at 183-84, 103 S.Ct. 1702. Notably, however, in declining to reach the facial constitutionality of the statute, the Supreme Court did not reverse as wrong any of the D.C. Circuit's reasoning in Grace I. In light of this guidance from the Supreme Court, this Court finds that it is not bound by the D.C. Circuit's opinion in Grace I, nor the Supreme Court's summary affirmance of the three judge panel in Jeannette Rankin Brigade, related to a similar but different statute. Nevertheless, this Court finds the reasoning in these decisions persuasive and instructive
The challenged statute fails not only the forum analysis test as an unreasonably over-broad restriction on expressive activity, even in a nonpublic forum, to further the dual governmental interests of unobstructed access to, and the maintenance of order and decorum at, the Supreme Court plaza, but also "`a second type of facial challenge,' whereby a law may be invalidated as overbroad if `a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep.'" United States v. Stevens, 559 U.S. 460, 130 S.Ct. 1577, 1591-92, 176 L.Ed.2d 435 (2010) (quoting Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 n. 6, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008)); Initiative & Referendum Inst. I, 417 F.3d at 1312-13 (explaining that the "overbroad" analysis is "the rule for facial challenges brought under the First Amendment"). Such a showing "`suffices to invalidate all enforcement of that law.'" Initiative & Referendum Inst. I, 417 F.3d at 1313 (quoting Virginia v. Hicks, 539 U.S. 113, 118-19, 123 S.Ct. 2191, 156 L.Ed.2d 148 (2003)).
To prevail on a facial overbreadth theory under the First Amendment, "particularly where conduct and not merely speech is involved," a plaintiff must show that a challenged law prohibits a "real" and "substantial" amount of protected free speech, "judged in relation to the statute's plainly legitimate sweep," "until and unless a limiting construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to constitutionally protected expression." Broadrick v. Oklahoma, 413 U.S. 601, 613, 615, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); see also Members of City Council of Los Angeles, 466 U.S. at 796, 800-01, 104 S.Ct. 2118 (acknowledging that "[t]he concept of `substantial overbreadth' is not readily reduced to an exact definition[,]" but it generally requires "a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court"); Erznoznik v. Jacksonville, 422 U.S. 205, 216, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975) (since invalidation may result in unnecessary interference with a state regulatory program, "a state statute should not be deemed facially invalid unless it is not readily subject to a narrowing construction by the state courts").
The Supreme Court has "provided this expansive remedy out of concern that the threat of enforcement of an overbroad law may deter or `chill' constitutionally protected speech — especially when the overbroad statute imposes criminal sanctions." Virginia, 539 U.S. at 119, 123 S.Ct. 2191; see also Bd. of Airport Comm'rs v. Jews for Jesus, Inc., 482 U.S. 569, 574, 107 S.Ct. 2568, 96 L.Ed.2d 500 (1987) ("Under the First Amendment overbreadth doctrine, an individual whose own speech or conduct may be prohibited is permitted to challenge a statute on its face `because it also threatens others not before the court — those who desire to engage in legally protected expression but who may refrain from doing so rather than risk prosecution or undertake to have the law declared partially invalid.'" (citation omitted)). When people "choose simply to abstain from protected speech" to avoid the risk of criminal penalties, the harm is not only to themselves "but society as a whole, which is deprived of an uninhibited marketplace of ideas." Virginia, 539 U.S. at 119, 123 S.Ct. 2191.
Here, the plaintiff seeks a judgment that, inter alia, both clauses of the statute are unconstitutional on their face as overbroad under the First Amendment. See Am. Compl., Count II.
The Court's "`first step in overbreadth analysis is to construe the challenged statute'" for "`it is impossible to determine whether a statute reaches too far without first knowing what the statute covers.'" Stevens, 130 S.Ct. at 1587 (quoting United States v. Williams, 553 U.S. 285, 293, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008)). The Court then considers "whether the statute, as [the Court has] construed it, criminalizes a substantial amount of protected expressive activity." Williams, 553 U.S. at 297, 128 S.Ct. 1830. Proceeding in this manner, the Court examines the Assemblages Clause and the Display Clause in turn and, as explained below, "read[s] [the statute] to create criminal prohibition of alarming breadth." Stevens, 130 S.Ct. at 1588. The Court then explains how this analysis is consistent with the Supreme Court's decision in Grace II as well as decisions of the D.C. Court of Appeals.
First, with respect to the Assemblages Clause, the defendants essentially concede
Similarly, with respect to the Display Clause, the Court finds the clause substantially overbroad. This clause applies, for example, to the distribution of pamphlets, a ban the D.C. Circuit emphatically concluded in Initiative & Referendum Institute I "is unconstitutional even [in] nonpublic forums." 417 F.3d at 1315; see also id. (noting that the U.S. Postal Service "does not even attempt to defend the regulation if it is construed as applying to pure solicitation"). The defendants argue with respect to the Display Clause that there is "no risk that the Display Clause will punish activity which is not `contrary to the government's legitimate interests' in `sheltering and insulating the judiciary from the appearance of political influence.'" Defs.' Mem. at 20. Yet, the government essentially conceded at oral argument that the challenged statute would prohibit, for example, a group of tourists assembling on the Supreme Court plaza, who are all wearing t-shirts "in order to bring into public notice their particular organization, church group, whatever group it may be, [or] school group[.]" Tr. at 24-27 (government counsel responding affirmatively to this Court's hypothetical about whether the challenged statute would cover a group of tourists wearing t-shirts on the Supreme Court plaza, and acknowledging that the Supreme Court police "might approach the kind of group you described in general terms and ask them to move along" but urging the Court not to entertain such hypotheticals in this lawsuit); see also Grace I, 665 F.2d at 1194 n. 2 ("Indeed,
This Court's finding that the statute is substantially overbroad is consistent both with the Supreme Court's decision in Grace II and the Assemblages Clause cases from the D.C. Court of Appeals. While the Grace II Court limited its analysis to the question before the Court, namely the right of the appellees to use the public sidewalks surrounding the Court for expressive activities prohibited under the Display Clause, the Court's decision in no way precludes a finding that the statute is unconstitutional on its face. See Ayotte v. Planned Parenthood, 546 U.S. 320, 329-30, 126 S.Ct. 961, 163 L.Ed.2d 812 (2006) (explaining that the Grace II Court "crafted a narrow remedy . . . striking down a statute banning expressive displays only as it applied to public sidewalks near the Supreme Court but not as it applied to the Supreme Court Building itself"). Indeed, while the Supreme Court only made a holding on a narrow issue, the majority opinion suggested a broader skepticism about the Display Clause. The Court noted, for example, that "[b]ased on its provisions and legislative history, it is fair to say that the purpose of the Act was to provide for the protection of the building and grounds and of the persons and property therein, as well as the maintenance of proper order and decorum." Grace II, 461 U.S. at 182, 103 S.Ct. 1702. While the Court did not "denigrate" those purposes, the Court "question[ed] whether a total ban on carrying a flag, banner, or device on the public sidewalks substantially serves these purposes." Id. The Court noted, for example, that there was "no suggestion . . . that appellees' activities in any way obstructed the sidewalks or access to the building, threatened injury to any person or property, or in any way interfered with the orderly administration of the building or other parts of the grounds." Id. The same can be said for the analogous facts before this Court, with the significant difference being only that the
Furthermore, Justice Marshall's partial concurrence and dissent in Grace II, concluding that "40 U.S.C. § 13k is plainly unconstitutional on its face[,]" id. at 185, 103 S.Ct. 1702, was prescient in observing that "[s]ince the continuing existence of the statute will inevitably have a chilling effect on freedom of expression, there is no virtue in deciding its constitutionality on a piecemeal basis[,]" id. at 184, 103 S.Ct. 1702 (Marshall, J.) (concurring in part and dissenting in part); see id. (explaining that "[w]hen a citizen is in a place where he has every right to be, he cannot be denied the opportunity to express his views simply because the Government has not chosen to designate the area as a forum for public discussion" (internal citation and quotation marks omitted)). Where the chilling of speech has persisted over many years, just as Justice Marshall feared, this Court is compelled to rule this overbroad statute facially unconstitutional, as the D.C. Circuit plainly intended to do over thirty years ago in Grace I. See Grace I, 665 F.2d at 1194 (finding 40 U.S.C. § 13k "repugnant to the First Amendment").
This Court's decision is also consistent with the decisions of the D.C. Court of Appeals regarding the Assemblages Clause. In those cases, as noted, the D.C. Court of Appeals recognized the overbreadth of the clause and relied on a limiting construction in order to "save" the statute from constitutional challenge. Defs.' Mem. at 7. Indeed, tellingly, the Pearson court observed that "[s]uch an absolute ban on any group activity is not supported by the government's legitimate and important interests in protecting the integrity of the Court, preventing the appearance of judicial bias, and safeguarding the Court grounds and personnel." Pearson, 581 A.2d at 356-57 (footnotes omitted). This Court agrees.
The Court next turns to the defendants' argument that any overbreadth concerns about the statute may be cured by adopting the limiting construction imposed on the Assemblages Clause by the District of Columbia courts. The Court is cognizant that "making distinctions in a murky constitutional context, or where line-drawing is inherently complex, may call for a `far more serious invasion of the legislative domain' than we ought to undertake[,]" Ayotte, 546 U.S. at 330, 126 S.Ct. 961, and that "[f]acial challenges are disfavored[,]" Wash. State Grange, 552 U.S. at 450, 128 S.Ct. 1184. Nevertheless, for the reasons explained below, the Court finds that the statute is not susceptible to a limiting construction.
The Supreme Court has counseled that "[g]enerally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem. We prefer, for example, to enjoin only the unconstitutional applications of a statute while leaving other applications in force, or to sever its problematic portions while leaving the remainder intact[.]" Ayotte, 546 U.S. at 328-29, 126 S.Ct. 961 (citations omitted). "When a federal court is dealing with a federal statute challenged as overbroad, it should . . . construe the statute to avoid constitutional problems, if the statute is subject to such a limiting construction." New York v. Ferber, 458 U.S. 747, 769 n. 24, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). Indeed, "[a] limiting construction that is `fairly' possible can save a regulation from facial invalidation." Initiative & Referendum Inst. I, 417 F.3d at 1316 (quoting Bd. of Airport Comm'rs, 482 U.S. at 575, 107 S.Ct. 2568). There are limits, however, to the judicial power to provide a
The defendants concede that the D.C. Court of Appeals "recognized" that "the literal language of section 6135 may be read to prohibit any type of group activity on the Court grounds, including congregation on the plaza by groups of tourists, or even by Court employees." Defs.' Mem. at 7. Thus, in order to "save" the clause "from any possible constitutional challenge," id., the D.C. Court of Appeals held that the statute was "susceptible to a narrowing construction, confining the scope of the clause to protection of `the [Supreme Court] building and grounds and of persons and property within, as well as the maintenance of proper order and decorum,' and `to preserve the appearance of the Court as a body not swayed by external influence.'" Pearson, 581 A.2d at 357 (internal citation omitted) (quoting Grace II, 461 U.S. at 182-83, 103 S.Ct. 1702 and Wall, 521 A.2d at 1144); see also Bonowitz v. United States, 741 A.2d 18, 22-23 (D.C. 1999) (finding section 13k restrictions reasonable "in light of the plaza's two primary purposes: `to permit the unimpeded access and egress of litigants and visitors to the Court, and to preserve the appearance of the Court as a body not swayed by external influence'" (quoting Wall, 521 A.2d at 1144)); Defs.' Mem. at 20 (noting that "the District of Columbia courts have adopted a narrowing construction of the Assemblages Clause precisely in order to avoid possible overbreadth concerns that would arise from application of the literal language of the statute").
In prodding this Court to adopt this limiting construction, which the defendants emphasize is "for all practical purposes, the definitive judicial construction of the statute,"
The Court does not find the defendants' arguments in support of adopting a limiting construction convincing for several reasons. First, the limiting construction imposed by the D.C. Court of Appeals is not rooted in the plain language of the statute. Again, the statute reads in full:
40 U.S.C. § 6135. The Pearson court reached out to slim legislative history and beyond the actual words of the statute to narrow the meaning of the statute to "protection of `the [Supreme Court] building and grounds and of persons and property
Second, the limited legislative history of the challenged statute, including that of its predecessor statute (40 U.S.C. § 13k) and the Capitol Grounds statute (40 U.S.C. § 193g), simply does not provide a sufficient basis for the limiting construction imposed by the D.C. Court of Appeals. When Congress promulgated 40 U.S.C § 13k it was primarily focused on extending the blanket prohibitions on assemblages and displays that had long been in place at the United States Capitol. See, e.g., 95 Cong. Rec. 8962 (1949) (statement of Rep. Celler) (noting that "all this
Indeed, a ban on expressive activity in front of the Supreme Court could be seen as consistent with, for example, a state's interest in "protecting its judicial system from the pressures which picketing near a courthouse might create." Cox II, 379 U.S. at 562, 85 S.Ct. 476. While the Supreme Court in Cox II upheld a Louisiana statute modeled after 18 U.S.C. § 1507, and intended to enshrine that interest, the statute there is easily distinguishable from the overbroad statute here, in part, because it included a clear intent requirement. See LA.REV.STAT. ANN. § 14:401 (Cum. Supp. 1962) ("[w]hoever, with the intent of interfering with, obstructing, or impeding the administration of justice, or with the intent of influencing any judge, juror, witness, or court officer, in the discharge of his duty . . .") (cited in Cox II, 379 U.S. at 560, 85 S.Ct. 476); see also United States v. Carter, 717 F.2d 1216, 1218 n. 4 (8th Cir. 1983) (noting that the "crucial difference between [40 U.S.C. § 13k] and 18 U.S.C. § 1507 [on which the Louisiana statute was based] is precisely the element of intent" and that 40 U.S.C. § 13k "did not require, as an element of the crime there defined, that the defendant intend to interfere with the administration of justice or to influence any judge or juror" and that, instead, "[i]t attempted to make criminal the simple display of a flag, banner, or device of a certain type, whether or not the defendant wished to influence the courts or obstruct the administration of justice"). Furthermore, the Supreme Court in Cox II repeatedly emphasized that the statute it upheld was "a precise, narrowly drawn regulatory statute which proscribes certain specific behavior." Cox II, 379 U.S. at 562, 85 S.Ct. 476 (noting that "[a] State may adopt safeguards necessary and appropriate to assure that the administration of justice at all stages is free from outside control and influence" and that "[a] narrowly drawn statute such as the one under review is obviously a safeguard both necessary and appropriate to vindicate the State's interest in assuring justice under law"); see also id. at 567, 85 S.Ct. 476 (explaining that "[a]bsent an appropriately drawn and applicable statute, entirely different considerations would apply"). The narrowness of that Louisiana statute and 18 U.S.C. § 1507 on which it was based are in sharp contrast to the challenged statute here.
Third, the Court finds unavailing the defendants' assertion that the conclusion that the "limiting construction is not overly broad follows directly from Oberwetter." Defs.' Supplemental Br. at 6. That argument is not only unavailing, but also itself underscores the overbreadth of the challenged statute. At issue in Oberwetter, a case involving expressive dancing at night at the Jefferson Memorial, was a National Park Service regulation prohibiting demonstrations without a permit. As the defendants explain, the term "demonstrations" in that regulation included the following:
Oberwetter v. Hilliard, 639 F.3d 545, 550 (D.C.Cir.2011) (quoting 36 C.F.R. § 7.96(g)(1)(i) (2010)) (cited in Defs.' Supplemental Br. at 6-7). The definition also expressly excludes "casual park use by visitors or tourists that is not reasonably likely to attract a crowd or onlookers." 36 C.F.R. § 7.96(g)(1)(i).
The defendants analogize that regulation to section 6135 and posit that the D.C. Circuit in that case had "`little trouble' determining that the prohibition on demonstrations was both viewpoint neutral and reasonable, and was therefore consistent with the First Amendment." Defs.' Supplemental Br. at 7 (quoting Oberwetter, 639 F.3d at 553). The defendants then argue that "[i]f the Assemblages Clause of section 6135 is similarly construed to prohibit demonstrations, picketing and other forms of group expressive activity," pursuant to the Pearson limiting construction, "then Oberwetter dictates that the limitation is consistent with the First Amendment." Id. Plainly, however, the statute here, with or without the D.C. Court of Appeals' limiting construction, does not include a requirement that the prohibited conduct have "the effect, intent or propensity to draw a crowd or onlookers" as did the regulation at issue in Oberwetter. Instead, the challenged statute contains no intent requirement, no requirement that the conduct produce a particular result, and no suggestion that the prohibited conduct must be of a nature that would "draw a crowd or onlookers." The challenged statute is thus easily distinguishable from the regulation reviewed in Oberwetter.
Fourth, First Amendment restrictions that carry criminal penalties also carry a heightened risk of chilling speech. Indeed, the Supreme Court has emphasized that "the `severity of criminal sanctions may well cause speakers to remain silent rather than communicate even arguably unlawful words, ideas, and images.'" Initiative & Referendum Inst. I, 417 F.3d at 1318 (emphasis in original) (quoting Reno v. ACLU, 521 U.S. 844, 872, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997)). In balancing these tensions, this Court is especially wary of adopting a limiting construction that allows an overbroad statute carrying criminal penalties to remain enforceable with the concomitant risk of chilling expressive activity, particularly when more narrowly drawn statutes, including statutes and regulations already in place, may serve the purposes of protecting the safety of the Justices, Court personnel and the public, and avoiding obstructed access to the Supreme Court. The defendants point out that the Supreme Court police enforce the challenged statute only within the limits of the D.C. Court of Appeals' construction, see Defs.' Statement of Material Facts Not in Dispute ("Defs.' Facts"), ECF No. 23, at 6; Dolan Decl. ¶ 7, but this point is weak support for their argument that this Court should adopt the D.C. Court of Appeals' narrowing construction. While the Court does not doubt the good faith efforts of the Court police to exercise their discretion within constitutional boundaries, "[w]e would not uphold an unconstitutional statute merely because the Government promised to use it responsibly." United States v. Stevens, 559 U.S. 460, 130 S.Ct. 1577, 1591, 176 L.Ed.2d 435 (2010).
Third, and relatedly, if the Court were to rewrite this statute — for example, to impose on it an "intent" requirement that does not currently exist, or to limit the statute's reach to activity that actually impedes on ingress and egress, or to impose on the statute a definition of the kind of activity that gives the appearance of a judiciary swayed by external influence — the Court would be encroaching significantly on Congress's role and creating purposes for a statute that are not self-evident from the history or the plain language of the statute. The Supreme Court has cautioned against judicially-drafted limiting constructions that amount to a re-write of the law since "doing so would constitute a serious invasion of the legislative domain and sharply diminish Congress's incentive to draft a narrowly tailored law in the first place." Stevens, 130 S.Ct. at 1591-92 (internal quotation marks and citations omitted). The defendants cite Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 841, 106 S.Ct. 3245, 92 L.Ed.2d 675 (1986), for the proposition that "[a]lthough this Court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute . . . or judicially rewriting it." Defs.' Reply at 1 (internal quotation marks omitted). Yet, the defendants are essentially asking that this Court accept the District of Columbia courts' judicial rewriting of the statute, or create its own.
As the D.C. Circuit found over thirty years ago in Grace I, and as a three judge panel of this court, affirmed by the Supreme Court, found with respect to the nearly identical statute governing the policing of the U.S. Capitol in Jeannette Rankin Brigade II, the challenged statute is "repugnant to the First Amendment." Grace I, 665 F.2d at 1194; Jeannette Rankin Brigade II, 342 F.Supp. at 587, aff'd, 409 U.S. 972, 93 S.Ct. 311, 34 L.Ed.2d 236 (1972) (characterizing the statute governing
For the reasons discussed above, the defendants' motion for summary judgment is denied. The challenged statute — 40 U.S.C. § 6135 — is unconstitutional and void under the First Amendment, and, therefore, summary judgment is granted to the plaintiff on that basis. An appropriate Order will accompany this opinion.
The statute has remained substantively the same over the years, including the provision of an exception ("except as hereinafter provided in . . .") for suspension of prohibitions for "occasions of national interest." Compare D.C. Code § 9-124 (1967) with D.C. Code § 10-503.17 (2013).
40 U.S.C. § 5104(f). Section 5106, which is referenced in the text of 40 U.S.C. § 5104(f), provides for the suspension of the prohibitions "[t]o allow the observance in the United States Capitol Grounds of occasions of national interest becoming the cognizance and entertainment of Congress[.]" 40 U.S.C. § 5106(a).
Mahoney v. Lewis, 2000 U.S. Dist. LEXIS 10348, at *2-4.
