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Lazenby: Supreme First Amendment Hypocrisy

In the middle of the month in which its decisions for the year are handed down, the Supreme Court of the United States (SCOTUS) promulgated a new rule yesterday banning protests on its grounds, only two days after a broader anti-demostration law was declared unconstitutional by a federal judge. Earlier…

In the middle of the month in which its decisions for the year are handed down, the Supreme Court of the United States (SCOTUS) promulgated a new rule yesterday banning protests on its grounds, only two days after a broader anti-demostration law was declared unconstitutional by a federal judge.

Earlier this week, U.S. district court judge Beryl Howell threw out a 1949 federal law making it a crime to “parade, stand, or move in processions or assemblages,” or to display a “flag, banner, or device designed or adapted to bring into public notice a party, organization, or movement,” at the Supreme Court’s building or on its grounds. A challenge to that law was brought by Harold Hodge Jr., who was arrested on the Supreme Court plaza in January 2011 while wearing a sign that criticized police treatment of blacks and Hispanics.

The charge against Hodge was later dismissed after he agreed to stay away from the court and its grounds for six months, but he chose to challenge the law that got him arrested in the first place with assistance from the Rutherford Institute, an organization that describes itself as dedicated to the defense of civil liberties and human rights. In defending the 1949 law, the court argued that it was necessary to ensure the ability of people to enter and leave the building and for “preserving the appearance of the Court as a body not swayed by external influence.”

In her ruling, however, Judge Howell called this law “unreasonable” and “substantially overbroad.” She said there were ways to accomplish the court’s desire to maintain order without such a broad statute, noting that a Washington, D.C. law allows law enforcement officials to prevent protesters from blocking the entrance to buildings.

“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,” the judge wrote in ruling the law unconstitutional. The First Amendment to the Constitution protects “the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

The judge’s order refers only to the Supreme Court plaza – which is where Hodge was arrested – not the courthouse itself or its other grounds.

The Court’s new regulation, the timing of which was obviously prompted by Judge Howell’s decision, can be found on its website as approved and effective June 13, 2013. It reads in full:

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.

Thus, the new rule appears to circumvent Judge Howell’s decision, making the large marble plaza in front of the court off-limits to protesters again, as it is part of the court’s “grounds.” In fact, John Whitehead, the president of the Rutherford Institute said that the court’s new regulation was “repugnant” to the Constitution and vowed to challenge it. Hodge, the original petitioner, also said he would return to the court’s plaza to protest.

I find the assertion that Supreme Court’s need “to maintain suitable order and decorum” trumps American citizens’ constitutional right to peaceably assemble and protest to be absurd. The high court is the place where the constitutionality of the laws passed by Congress is determined. It is an essential part of our federal system of checks and balances and the place of last redress for those who have complaints against our government. It is reasonable to assume, then, that citizens on both sides of an issue will gather to express their opinions on issues that are understandably fraught with emotion as cases regarding our basic rights as Americans are argued there and decisions are handed down.

The rights guaranteed in the First Amendment are not absolute, as the courts have held, but in this case there are already mechanisms in place to ensure that suitable decorum is maintained. Americans have a right to peaceably assemble and protest. Anyone who breaks a law in the process of such a protest can be arrested, and, as Judge Howell noted in her opinion striking down the 1949 law, the D.C. police are already authorized to arrest anyone who attempts to block the entrance to the court.

The court’s argument that it needs protesters to stay away in an effort to maintain an air of impartiality is equally absurd. The top nine legal scholars in the nation who work in a heavily guarded building are no more likely to be swayed by people picketing outside that building than they are by the evening news, which they are not prohibited from watching as they pen their opinions. To argue that they must sequester themselves from any signs of dissent in order to appear to the public to not be unduly influenced by a group of people carrying a banner or wearing matching t-shirts is ridiculous.

With this new rule, the Supreme Court has essentially told Americans who care enough about an issue to come from hundreds of miles away to exercise their constitutional right to peacefully express their opinion in public that they are not welcome to do so on the grounds of the highest court in the land. This is a right that Americans have fought and died for, and it is a right that we criticize other countries, such as Turkey and China, for denying to their citizens.

The court’s large marble plaza and the steps leading up to it aren’t just pieces of real estate. They are public symbols of American jurisprudence, and if we are to remain faithful to the principles of free speech and assembly therein, we must allow protesters to use those public grounds to peacefully express their opinions – we must not relegate them to the sidewalk.

amy lazenby

Amy Lazenby is the associate opinion editor at FITSNews. She is a wife, mother of three and small business owner with her husband who splits her time between South Carolina and Georgia. Follow her on Twitter @Mrs_Laz or email her at amy@fitsnews.com.

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59 comments

Frank Pytel June 14, 2013 at 12:22 pm

“…no more likely to be swayed by people picketing outside that building than they are by the evening news, which they are not prohibited from watching as they pen their opinions.”
I could not have possibly said it better Mrs. Lazenby. Bravo!!

Reply
GrandTango June 14, 2013 at 12:22 pm

A US President is using the IRS to target non-leftist political enemies…

Until that is mitigated (and Obama is punished)…NOTHING liberals have to say MATTERS…

You have NO right to complain about any violation by the courts or the law, until you abide by the law…You are FILTHY in Corruption..and acting like you are an authority will only be accepted by the Ignorant and Stupid….

Reply
Frank Pytel June 14, 2013 at 12:22 pm

“…no more likely to be swayed by people picketing outside that building than they are by the evening news, which they are not prohibited from watching as they pen their opinions.”
I could not have possibly said it better Mrs. Lazenby. Bravo!!

Reply
? June 14, 2013 at 12:43 pm

The magic scroll has lost its fairy dust! (plagiarized, but funny none the less)

Reply
Curious June 14, 2013 at 2:49 pm

Yeah, a little more each day…

Reply
? June 14, 2013 at 12:43 pm

The magic scroll has lost its fairy dust! (plagiarized, but funny none the less)

Reply
Curious June 14, 2013 at 2:49 pm

Yeah, a little more each day…

Reply
Philip Branton June 14, 2013 at 1:13 pm

** meanwhile over at Wil Folks TARROT Card parlor **

Mrs Folks: Wow….what a great article by Amy. BRAVO..! I wish my husband had hired her years ago this article is so instructional and educational…!!

Amy Lazenby : Yes, I know…..its just took me a few minutes to whip this out..!

Tarrot Reader: I see dark clouds….

Mrs Folks:….. Really..!?

Amy: Clouds to the left of me, smoke to the right of me…here I am stuck in the middle with out advertisers…!!

Ghost of “Tara”: …..Yeah, all I see is a lot of hot air ….and ugly shoes..!! Amy, you need to get real and tell your readers just exactly how to squeeze some Judicial “juice” right here in the comment section of FITSNEWS. Amy, you have guts; but idiots have GUTS too..! Amy, are you smart enough to understand how to find out how a Supreme Court Judge spends his time in church…or NOT..?? How could that be used against him or her in a court of LAW..? Its women like you who caused the outbreak of war between the states in the first place..!!

Jenny Sanford: ….Will someone read Amy’s Tarrot cards…??

Nancy Mace:……well, Jenny, lets see here. Ah..yes….yes….oh dear….oh no……I had no idea…!!

Amy: ….What….what….WHAT..?? (scream)

Nancy Mace………if a comment can steer an advertiser then how can an advertiser steer campaign slush to fund a politician who appoints or confirms a judge….you idiot..!!

Amy: …I had no idea…?

Ghost of “Tara”: ……stuff it missy…..do you know how to “ask” your concerned readers to do anything except go stand on a street corner and get arrested for the evening NEWS…??

Nancy Mace: ….yeah, Amy, what donors to Tim Scott or Mark Sanford or Robert Ford are tied to companies who do WHAT for the Supreme Court building cleaning contract..!! We wonder if Amy has ever been told the story of Jericho..?

Jenny Sanford:…….hmm, we wonder if those troops who surrounded Jericho in the Bible would be wearing uniforms like NASCAR drivers to ..earn MONEY..??

Amy:……..I don’t understand?

Mrs Wil Folks:……..My husband may have made a mistake by hiring you then…@!

Reply
Nölff June 14, 2013 at 2:09 pm

We get it. You don’t like the site. You don’t like Amy and you don’t like Will. Trust me; we get it.

Reply
Getting Old June 14, 2013 at 3:46 pm

Now if he would just go away… I know FITS allows all comments, but sometimes it would be nice if he screened out the weirdos. Oh well, free speech.

Reply
Philip Branton June 14, 2013 at 1:13 pm

** meanwhile over at Wil Folks TARROT Card parlor **

Mrs Folks: Wow….what a great article by Amy. BRAVO..! I wish my husband had hired her years ago this article is so instructional and educational…!!

Amy Lazenby : Yes, I know…..its just took me a few minutes to whip this out..!

Tarrot Reader: I see dark clouds….

Mrs Folks:….. Really..!?

Amy: Clouds to the left of me, smoke to the right of me…here I am stuck in the middle with out advertisers…!!

Ghost of “Tara”: …..Yeah, all I see is a lot of hot air ….and ugly shoes..!! Amy, you need to get real and tell your readers just exactly how to squeeze some Judicial “juice” right here in the comment section of FITSNEWS. Amy, you have guts; but idiots have GUTS too..! Amy, are you smart enough to understand how to find out how a Supreme Court Judge spends his time in church…or NOT..?? How could that be used against him or her in a court of LAW..? Its women like you who caused the outbreak of war between the states in the first place..!!

Jenny Sanford: ….Will someone read Amy’s Tarrot cards…??

Nancy Mace:……well, Jenny, lets see here. Ah..yes….yes….oh dear….oh no……I had no idea…!!

Amy: ….What….what….WHAT..?? (scream)

Nancy Mace………if a comment can steer an advertiser then how can an advertiser steer campaign slush to fund a politician who appoints or confirms a judge….you idiot..!!

Amy: …I had no idea…?

Ghost of “Tara”: ……stuff it missy…..do you know how to “ask” your concerned readers to do anything except go stand on a street corner and get arrested for the evening NEWS…??

Nancy Mace: ….yeah, Amy, what donors to Tim Scott or Mark Sanford or Robert Ford are tied to companies who do WHAT for the Supreme Court building cleaning contract..!! We wonder if Amy has ever been told the story of Jericho..?

Jenny Sanford:…….hmm, we wonder if those troops who surrounded Jericho in the Bible would be wearing uniforms like NASCAR drivers to ..earn MONEY..??

Amy:……..I don’t understand?

Mrs Wil Folks:……..My husband may have made a mistake by hiring you then…@!

Reply
Nölff June 14, 2013 at 2:09 pm

We get it. You don’t like the site. You don’t like Amy and you don’t like Will. Trust me; we get it.

Reply
Getting Old June 14, 2013 at 3:46 pm

Now if he would just go away… I know FITS allows all comments, but sometimes it would be nice if he screened out the weirdos. Oh well, free speech.

Reply
M326 June 14, 2013 at 2:14 pm

Pretty good piece, Amy. I look forward to reading more.

Reply
M326 June 14, 2013 at 2:14 pm

Pretty good piece, Amy. I look forward to reading more.

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Yelsewh June 14, 2013 at 2:20 pm

Is it a slow news day or something? Restrictions on the time, place and manner of speech are perfectly acceptable and are settled law.

Reply
Curious June 14, 2013 at 2:24 pm

Settled. So that’s why the fed judge overturned that law restricting a “place of speech” as unconstitutional just this week, huh?

Reply
Yelsewh June 14, 2013 at 2:38 pm

Restrictions on place of speech are, without quesiton, Constitutional. However, the restrictions must be narrowly tailored and reasonable. The judge threw out the law because it was too broad and, in his opinion, not reasonable. He did not throw it out because the government can’t restrict place of speech. Settled.

Reply
Hmmmm June 14, 2013 at 2:46 pm

Lazenby seems to agree with you that the law is settled in this paragraph, but if the police can arrest anyone who is disruptive, then why does the court feel the need to make a special rule here, and is that rule justified (oh, and the judge was a “she”)?

“The rights guaranteed in the First Amendment are not absolute, as the
courts have held, but in this case there are already mechanisms in place
to ensure that suitable decorum is maintained. Americans have a right
to peaceably assemble and protest. Anyone who breaks a law in the
process of such a protest can be arrested, and, as Judge Howell noted
in her opinion striking down the 1949 law, the D.C. police are already
authorized to arrest anyone who attempts to block the entrance to the
court.”

Reply
Yelsewh June 14, 2013 at 2:51 pm

The rule is justified because the SCOTUS believes that it is justified. That’s pretty much settles it. Sorry about the mistake on the judge’s sex.

Hmmmm June 14, 2013 at 2:54 pm

And SCOTUS never reverses itself, right?

Curious June 14, 2013 at 2:52 pm

“The First Amendment does not guarantee the right to say whatever you want, whenever you want, wherever you want.”

She didn’t say that it does. She said that “The rights guaranteed in the First Amendment are not absolute, as the courts have held…”

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Reading Comprehension June 14, 2013 at 5:33 pm

I believe you missed the author’s point, which was not that free speech can’t be restricted, but that the “plaza” in front of the Supreme Court should not be one of the places in which this type of speech is restricted.

Reply
Yelsewh June 14, 2013 at 2:20 pm

Is it a slow news day or something? Restrictions on the time, place and manner of speech are perfectly acceptable and are settled law.

Reply
Curious June 14, 2013 at 2:24 pm

Settled. So that’s why the fed judge overturned that law restricting a “place of speech” as unconstitutional just this week, huh?

Reply
Yelsewh June 14, 2013 at 2:38 pm

Restrictions on place of speech are, without quesiton, Constitutional. However, the restrictions must be narrowly tailored and reasonable. The judge threw out the law because it was too broad and, in his opinion, not reasonable. He did not throw it out because the government can’t restrict place of speech. Settled.

Edited to add: I hate seeing blog posts like this and the comments on them because they remind me what a miserable job we do of teaching civics in this country. The First Amendment does not guarantee the right to say whatever you want, whenever you want, wherever you want.

Reply
Hmmmm June 14, 2013 at 2:46 pm

Lazenby seems to agree with you that the law is settled in this paragraph, but if the police can arrest anyone who is disruptive, then why does the court feel the need to make a special rule here, and is that rule justified (oh, and the judge was a “she”)?

“The rights guaranteed in the First Amendment are not absolute, as the
courts have held, but in this case there are already mechanisms in place
to ensure that suitable decorum is maintained. Americans have a right
to peaceably assemble and protest. Anyone who breaks a law in the
process of such a protest can be arrested, and, as Judge Howell noted
in her opinion striking down the 1949 law, the D.C. police are already
authorized to arrest anyone who attempts to block the entrance to the
court.”

Reply
Yelsewh June 14, 2013 at 2:51 pm

The rule is justified because the SCOTUS believes that it is justified. That’s pretty much settles it. Sorry about the mistake on the judge’s sex.

Hmmmm June 14, 2013 at 2:54 pm

And SCOTUS never reverses itself, right?

Curious June 14, 2013 at 2:52 pm

“The First Amendment does not guarantee the right to say whatever you want, whenever you want, wherever you want.”

She didn’t say that it does. She said that “The rights guaranteed in the First Amendment are not absolute, as the courts have held…”

Reply
Reading Comprehension June 14, 2013 at 5:33 pm

I believe you missed the author’s point, which was not that free speech can’t be restricted, but that the “plaza” in front of the Supreme Court should not be one of the places in which this type of speech is restricted.

Reply
bugs June 14, 2013 at 3:04 pm

I agree folks have a right to protest, but protests in the Supreme Court plaza should not have any influence on the decisions of the Justices. Their job is to decide based on the facts and the constitution, not of the whims of the mob outside. Perhaps the protests would be more effective outside of the Capitol or the White House.

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Getting Old June 14, 2013 at 4:06 pm

I agree that the protests don’t necessarily sway the judges, but people should be able to protest what they think are unjust laws. That’s what America is all about – the freedom to do that. At least the people who are there to protest care enough to get out and do something. And I totally agree about protesting at the Capitol where the laws are actually made to prevent those laws from passing in the first place.

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bugs June 14, 2013 at 3:04 pm

I agree folks have a right to protest, but protests in the Supreme Court plaza should not have any influence on the decisions of the Justices. Their job is to decide based on the facts and the constitution, not of the whims of the mob outside. Perhaps the protests would be more effective outside of the Capitol or the White House.

Reply
Getting Old June 14, 2013 at 4:06 pm

I agree that the protests don’t necessarily sway the judges, but people should be able to protest what they think are unjust laws. That’s what America is all about – the freedom to do that. At least the people who are there to protest care enough to get out and do something. And I totally agree about protesting at the Capitol where the laws are actually made to prevent those laws from passing in the first place.

Reply
GrandTango June 14, 2013 at 3:09 pm

What has the SCOTUS said about a president using the IRS to target politcal enemies????…
When you can report on something pertinent, you may earn an audience…

Reply
Get On. Fuckin' Plane June 14, 2013 at 5:32 pm

I don’t Mr. Professional Writer. Maybe you should use your grand journalistic abilities and get back to us?

Reply
GrandTango June 14, 2013 at 3:14 pm

What has (will) the SCOTUS said about a president using the IRS to target politcal enemies????…

When you can report on something pertinent, you may earn an audience…

Otherwise, you come across as disingenuious. Not a good characteristic for a writer, especially when so much is going wrong in our country, due to a corrupt government…

Writers must challenge power gone bad. Don’t slime and discredit yourself by co-opting the most hidieous of abuses…

Reply
Watching A Republican Lie June 14, 2013 at 4:07 pm

You and Darrell Issa have no proof of any of this.

Reply
Getting Old June 14, 2013 at 4:23 pm

“Blah blah blah you may earn an audience.”
Looks like she’s already got one.
“Blah blah blah you come across as disingenuous.”
Have you read your own comments lately?
“Writers must challenge power gone bad.”
She just challenged a rule set by the Supreme Court.
The Supreme Court hasn’t said anything about the recent IRS scandal because no one’s brought a case yet. You see, Big T, the Supreme Court can’t rule on something unless a case has made it up through the court system to it – that’s how the system works, my man. Instead of trying to “educate” a good writer based on, wait, what qualifications do you have again? Yeah, instead of trying to educate a good writer who doesn’t happen to be writing about what you want her to write about (and why would she?), why don’t you go back to civics class?

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Curious June 14, 2013 at 4:36 pm

Well done, sir or madame, well done.

Reply
GrandTango June 14, 2013 at 4:49 pm

She’s reporting on SMALL POTATOES…Using the IRS to target politcal enemies is as big a threat to our democracy as Hitler was…

There should be 24-hour OUTRAGE until that hideous scandal is honestly mitigated…

Nothing legally should matter, until the Corruption we’re now being suffocated with is addressed…

Reply
Jon Lovits June 15, 2013 at 12:39 pm

Small potatoes? Is that what your girl calls them?

Reply
GrandTango June 14, 2013 at 4:53 pm

This is like being consumed w/ a land mind, while Nagasaki and Hiroshima are going up…and I think that is this dis-honest “writer’s” attempt…

Reply
shifty henry June 15, 2013 at 9:50 am

“a land mind” — Is this something like having your head stuck in a hole in the ground?

Reply
Radio Show June 15, 2013 at 12:34 pm

I’m gonna go with “Turd” there, Shifty…

Reply
Boz Martin June 14, 2013 at 6:07 pm

Wow. Amy, you’ve bought Big T out of hiding. That’s a good thing. As long as he is spending his time posting his comments to this blog, he can’t act on his hostilities on a large scale anywhere in the state. You have performed a great public service.

Reply
Boz Martin June 14, 2013 at 6:07 pm

Wow. Amy, you’ve bought Big T out of hiding. That’s a good thing. As long as he is spending his time posting his comments to this blog, he can’t act on his hostilities on a large scale anywhere in the state. You have performed a great public service.

Reply
shifty henry June 15, 2013 at 9:57 am

Another saying from my family’s traditions—

“You may not be able to fight City Hall and win, but you can shit on the courthouse steps and leave a big stink!”

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Word June 15, 2013 at 10:21 am

Unless it’s the Supreme Court – then you’ll have to shit on the sidewalk!

Reply
shifty henry June 15, 2013 at 9:57 am

Another saying from my family’s traditions—

“You may not be able to fight City Hall and win, but you can shit on the courthouse steps and leave a big stink!”

Reply
Word June 15, 2013 at 10:21 am

Unless it’s the Supreme Court – then you’ll have to shit on the sidewalk!

Reply

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