Thursday, June 13, 2013
Presumably reacting to the decision of Judge Beryl Howell declaring the Supreme Court protest-ban statute, 40 USC §6135, unconstitutional which we discussed yesterday, the Court has issued a new policy, "Regulation Seven" (h/t Lyle Denniston).
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.
Approved and Effective June 13, 2013
Importantly, the regulation addresses several of the issues Judge Howell found relevant in her decision. First, it emphasizes "conduct" rather than simply wearing a t-shirt with a slogan or carrying a sign. However, the regulation does seem to include "speechmaking" in this broad category of "like forms of conduct." Second, the regulation requires this conduct as "reasonably likely to draw a crowd or onlookers." This emphasizes the effect, but also implies some sort of intent requirement in the "reasonably likely." Third, the regulation specifically excludes the "casual use by visitors or tourists." This would presumably exclude the t-shirt wearing preschoolers that Judge Howell referenced in her opinion, as well as the solitary person arrested for wearing a jacket that bore the phrase "Occupy Everything."
Nevertheless, the Supreme Court's reservation for itself of making exceptions and the remaining prohibition of expression of "views" could certainly prompt serious First Amendment challenges to the regulation.
As for the statute and its constitutionality, this narrower regulation may indicate some level of agreement with a conclusion that 40 USC §6135 is overbroad and unreasonable.