The Supreme Court moved quickly on Thursday to respond to a recent district judge’s decision that struck down the federal law banning demonstrations on the grounds of the court.
With the approval of Chief Justice John Roberts Jr., court marshal Pamela Talkin promulgated a new regulation that invokes a different law to prohibit "demonstrations" on court grounds. The regulation includes "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." It adds that "casual use by visitors or tourists" is not covered by the regulation.
The new regulation cites 40 U.S.C. 6012, which gives the marshal the authority to issue regulations to protect individuals and property at the court and to maintain "suitable order and decorum."
The wording of both the new regulation and the law under which it was issued appear to be more specific in some ways than the broad prohibition under 40 U.S.C. 6135 that prompted U.S. District Judge Beryl Howell on June 11 to strike down that law on First Amendment grounds.
"The absolute prohibition on expressive activity in the statute  is unreasonable, substantially overbroad, and irreconcilable with the First Amendment," wrote Howell in a 68-page ruling in the case Hodge v. Talkin. In a court filing Thursday morning, the new Supreme Court regulation was submitted to Howell as part of the record in the case.
But at least one lawyer who has represented protesters arrested on court grounds thinks the new regulation is just as overbroad as the law that Howell struck down. "It maybe gets rid of some of the harsher edges," said Mark Goldstone, a Maryland solo practitioner. "But now we will have to find out what a demonstrator is. The court is still prohibiting First Amendment activities on the court plaza. I think Judge Howell will be very disappointed."
Asked if he would challenge the new regulation when it is invoked against a demonstrator, Goldstone said, "Sure." He also said the new development suggests the court is "walking away from Section 6135, and realizing it is unsalvageable."
The law Howell struck down has been invoked to arrest individuals ranging from death penalty protestors to kneeling ministers and Princeton University scholar Cornel West.
The statute makes it illegal to "parade, stand, or move in processions or assemblages in the Supreme Court Building or grounds, or 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."
That language is so broad, Howell found, that it could apply to groups of tourists, court employees, or even a "familiar line of preschool students … holding hands with chaperones, parading on the plaza on their first field trip to the Supreme Court." The new regulation focuses more closely on demonstrations intended to draw attention.
In her ruling Tuesday, Howell specifically mentioned Section 6102 as a law that "does not leave the Supreme Court plaza unprotected." She also cited a local D.C. law that bars obstruction of entrances to public buildings.
The Howell decision came in the case of Harold Hodge Jr., a Maryland resident who was arrested in January, 2011 for standing on the court’s marble plaza while holding a small sign that read "The U.S. Gov. Allows Police To Illegally Murder and Brutalize African Americans And Hispanic People." Court police told Hodge three times that he was in violation of 40 U.S.C. 6135 and he refused to depart.
Hodge was charged with violating the law, but later that year, charges were dropped after he agreed to stay away from the court and its grounds for six months.
In January 2012, Hodge filed a suit in the U.S. District Court for the District of Columbia, stating that he wanted to return to the court to engage in "peaceful, non-disruptive political speech and expression." With the aid of lawyers from the Rutherford Institute, Hodge challenged the constitutionality of the law. Talkin was the named defendant, along with U.S. Attorney Ronald Machen Jr.
Goldstone said the ruling was "the first chink in the armor, the first break we’ve had" in challenging the law, which he said "creates a First Amendment-free zone in an area that is completely open to the public."
But Goldstone was not optimistic that Howell’s ruling would survive an appeal. "The Roberts Court has been good on the First Amendment, but they have a vested interest in this issue," he said. "It’s their own backyard."
University of Georgia School of Law professor Sonja West, a First Amendment expert who once clerked at the Supreme Court, agreed that the justices "clearly have more than a passing interest in what goes on outside their chambers’ window. They also care deeply about protecting the decorum of the Court."
But West predicted the high court would still take the issue seriously — if the case reaches the justices.
"Such an absolute ban on speech is striking. Judge Howell’s opinion is thoughtful and thorough," West said. "It will certainly cause them to think seriously about this law."
Tony Mauro is the U.S. Supreme Court correspondent for The National Law Journal, a Legal affiliate based in New York.