Media gathered outside the U.S. Supreme Court on the day of arguments in the case challenging California's Prop 8 legislation
Media gathered outside the U.S. Supreme Court on the day of arguments in the case challenging California’s Prop 8 legislation (Photo: Diego M. Radzinschi / NLJ)

The media stakeout on the U.S. Supreme Court plaza is a familiar part of argument day in high-profile cases. Lawyers and advocates go before cameras and microphones outside the court as soon as they finish arguing before the justices inside.

Now, that aspect of Supreme Court life is garnering attention itself, in connection with litigation over the constitutionality of a federal law that bans protests on the same marble plaza where the press conferences take place.

In a case challenging that law on First Amendment grounds, the American Civil Liberties Union of the Nation’s Capital is pointing to media gaggles or stakeouts as a fatal sign of inconsistency. The question posed: How can protests be banned, when court officials allow the plaza to be used for other clearly expressive activities protected by the First Amendment?

“Litigants and their advocates gather on the plaza to make their case to the public via the media,” the ACLU’s brief, filed Jan. 31 in the U.S. Court of Appeals for the D.C. Circuit, states. “Rather than seeing the court grounds as a sacred place of silent neutrality, the public is accustomed to images of the court grounds serving as an open forum, featuring this expressive activity.”

The stakeouts, according to the brief, are “part of a choreographed advocacy strategy that is no less expressive” than a demonstration.

The brief was filed in Hodge v. Talkin, pending before the D.C. Circuit. No date has been set for argument.

By highlighting the media stakeouts, does the ACLU run the risk that the court will respond by barring the media from the plaza as well as protesters?

“That would be a shame,” said Art Spitzer, longtime legal director of the ACLU’s affiliate in Washington. “But we hope that the court will realize that it is untenable to allow large media gatherings and nothing else” and will respond by allowing, not banning, media and protesters alike.


In the case before the appeals court, Harold Hodge Jr. was arrested on the plaza in 2011 for wearing a small sign protesting police mistreatment of African-Americans and Hispanics. He was charged under 40 U.S.C. 6135, which bars “processions or assemblages” on Supreme Court grounds, as well as holding banners or devices designed to “bring into public notice” parties, organizations or movements. The charges were ultimately dropped after Hodge agreed to stay away from the court for six months.

Hodge challenged the law nonetheless, as have many past protesters arrested in front of the court. But unlike prior challenges in Washington courts, Hodge won last summer. Judge Beryl Howell of the U.S. District Court for the District of Columbia ruled in June the law was “substantially overbroad and irreconcilable with the First Amendment.”

Soon after the ruling, the court’s marshal, Pamela Talkin, promulgated new rules banning protests based on another statute that allows the court to protect “suitable order and decorum” on court grounds. The new regulations are also under challenge in a separate case. Under either set of rules, protests are allowed on the public sidewalk in front of the court plaza, because of a 1983 Supreme Court decision that said banning protests on the sidewalk was unconstitutional.

But the new ban on protests on the court plaza did not stop the U.S. Depart­ment of Justice from appealing Howell’s decision, in an effort to salvage the old law referring to assemblages and banners.

The Justice Department’s brief in the D.C. Circuit does not mention the court’s allowance of media interviews on the plaza, but it does repeat its main argument that courts — and especially the Supreme Court — are different from other public institutions where protests are allowed.

“It is well established that the government has a legitimate interest in limiting picketing or demonstrating near courthouses,” the government’s brief asserts. “Unlike other parts of government, courts do not make decisions by reference to public opinion.”

The ACLU brief challenges the government’s assertion that courthouses get or deserve special protection, offering numerous examples and color photographs of protests on courthouse grounds around the country.

The brief also includes iconic photographs of the late Thurgood Marshall and others celebrating their civil rights victories in Brown v. Board of Education and Cooper v. Aaron on the steps of the Supreme Court. Also in part of the brief are more recent photos of the winning respondents kissing and raising their arms in victory on the plaza in the gay rights case Hollingsworth v. Perry last year.

“The range of viewpoints expressed on courthouse grounds throughout the country spans the political spectrum,” the ACLU brief states, “and is a testament to the fact that citizens view the ‘courthouse steps’ as an extension of the town square — a place to air their grievances with the judicial system, or the government or society more generally.” As such, the ACLU asserts, the court plaza is a classic public forum where restrictions on expression must be “narrowly tailored to serve a significant government interest.”

Spitzer said he included the color photos — rare for court briefs — because, as the saying goes, “a picture is worth a thousand words. Luckily, they don’t count toward the word limits for briefs.”

Hodge’s lawyer, Jeffrey Light, a Wash­ington solo practitioner, argues the court’s policy is inconsistent because numerous First Amendment activities are allowed on the plaza without being prosecuted under the law.

“During high profile cases, the Supreme Court plaza is indistinguishable from a town square,” Light wrote in his brief, which is supported by the Rutherford Institute. “The presence of demonstrators on the plaza would also be compatible with the operation of the Supreme Court and its appearance as a body not swayed by outside influence. Far from preserving the integrity and dignity of the Court, the statute does the opposite.”

Contact Tony Mauro at