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The First Amendment’s right to freedom of expression doesn’t apply on the steps or marble plaza outside the Supreme Court building, according to a D.C. Court of Appeals ruling released last week that upheld the convictions of three protesters. In February 2005, police arrested three men on the Court steps who were “protesting the mistreatment of prisoners at the Abu Ghraib and Guantanamo Bay prisons and the appointment of Alberto Gonzales as attorney general,” the opinion states. One protester was wearing an orange jumpsuit and a black hood, another wore a black hood, and the third unfurled a banner reading “No Taxes for War or Torture.” The protesters ignored orders from Supreme Court Police to leave the steps and go back to the sidewalk or be arrested. Citing one of its own precedents, the appeals court found “the Supreme Court plaza is a nonpublic forum.” There is no freedom of expression violation as long as Supreme Court officials treat all protesters the same regardless of their causes, the opinion states. The 1983 Supreme Court decision in United States v. Grace struck down a ban on protests on the sidewalk outside the Court. But the Court noted, without disapproval, the government’s rationale for prohibiting protests on the steps and plaza as reasonable to allow unimpeded access to the building and to preserve the appearance that the Supreme Court isn’t swayed by external influences. Ironically, Mary Grace, the appellee in the case, was just carrying a sign displaying the text of the First Amendment.
Brendan Smith can be contacted at [email protected].

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