Tuesday, October 14, 2014

SCOTUS's First Amendment NIMBYism

Yesterday, The NYTimes's Adam Liptak reviewed SCOTUS's supreme hypocrisy on the First Amendment. Liptak observes that SCOTUS has upheld the right of lunatics to protest military funerals Unknownand the rights of anti-abortion protesters to approach abortion clinics. Yet, SCOTUS's own stoop is too close for the First Amendment to mean anything. Liptak writes:

[T]he Supreme Court’s devotion to the First Amendment has its limits. It stops at the edge of the grand marble plaza outside its own courthouse.


That vast and inviting space, with its benches and fountains, seems better suited to public debate than a military funeral or the sidewalk outside an abortion clinic. But the court insists on banning free speech on the plaza. Court police officers have been known to instruct visitors to remove small buttons bearing political messages.

Speech activities are relegated to the sidewalk around the court -- where ostensibly messages are less influential. 

Fortunately, as Liptak reports, SCOTUS soon may have an opportunity to reconsider whether to allow speech in front of the court. The D.C. appeals court recently heard arguments in a case arising after Capitol police ordered a man to remove his "U.S. Gov. Allows Police to Illegally Murder and Brutalize African Americans and Hispanic People" button. The government is appealing a lower court decision striking down the speech-restricted zone as “irreconcilable with the First Amendment.” As Liptak notes:

Such a statement [as that on the man's button] , on a topic of urgent public interest, would seem to be precisely what the First Amendment was intended to protect. Then again, a Supreme Court police officer once threatened a woman with arrest for displaying a sign bearing the verbatim text of the First Amendment.


The Supreme Court addressed the law in 1983, in United States v. Grace, ruling that it could not be applied to demonstrations on the public sidewalks around the court. Since then, the sidewalks, which are broad and set off by stairs from the plaza, have been regularly used for protests of all kinds.


But the First Amendment vanishes when concrete turns to marble, Justice Department lawyers representing Ms. Talkin told the appeals court. 

The government argues that extending First Amendment rights to the plaza might affect cases before the Court.  

“Demonstrations outside courthouses might give rise to actual or apparent efforts to subject judicial officers to improper influence,” they said in a brief.

That is, the government argues that SCOTUS justices are not so firm of principle as to be free from the overwhelming power of loud voices and poster boards. By moving protesters down the stairs from the plaza to the sidewalk around the court, protesters can protest while the Court's high but unprincipled minds can quietly contemplate the most important legal questions of our day. Yes, it's pathetic. 


First Amendment, Freedom of Assembly, Freedom of Speech | Permalink


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