Saturday, January 21, 2012
The video below is entitled "Man Arrested for Wearing Occupy Jacket at Supreme Court" (h/t Virginia Wilber) and the title seems accurate. Although we don't have a good view of the jacket, the officer clearly refers to it (and asks the wearer to remove it); the officer also states that the prohibition is not based on an ordinance, but on the U.S. Code.
As we've previously discussed, two federal statutes applying to the Supreme Court Building prohibit the "display therein any flag, banner, or device designed or adapted to bring into public notice a party, organization, or movement."
Students of the First Amendment will recall Paul Robert Cohen's famous "Fuck The Draft" jacket worn in the corridors of a Los Angeles courthouse. The Supreme Court in Cohen v. California (1971) reversed Cohen's conviction and held that California "may not, consistently with the First and Fourteenth Amendments, make the simple public display here involved of this single four-letter expletive a criminal offense." However, the Court's opinion added that the expletive was " "the only arguably sustainable rationale for the conviction." Thus, Cohen is focused on the expletive rather than the content. Yet perhaps ironically, Cohen's jacket would nevertheless be excluded by officers enforcing the Supreme Court policies - - - U.S. Code provisions - - - governing words on jackets.
Just as Justice Harlan began his opinion in Cohen by noting that the "case may seem at first blush too inconsequential to find its way into our books, but the issue it presents is of no small constitutional significance," the specific arrests for jacket-wearers may seem trivial. Yet as otherwise allowed First Amendment expressions in and at the Supreme Court Building continue, the Supreme Court Building's status as a First Amendment-free zone might again be appropriate for review.