* * First Amendment Does Not Exempt the Supreme Court
- J.A.I.L. News Journal
Los Angeles, California June 10, 2002First Amendment Right of Petition Does Not Exempt The Supreme Court"The First Amendment, last time I looked, guarantees the right '... to petition the government.' It doesn't say you can only petition two-thirds of the government."
--Attorney Mark Goldstone, Bethesda, MD.
Supreme Court MonitorCAPITOL STEPSTony Mauro
American Lawyer Media
A decision by the U.S. Court of Appeals for the D.C. Circuit on May 31 expanded the free speech zone for demonstrations at the U.S. Capitol. At the same time, the decision sharpened the First Amendment contrast between Congress and the Supreme Court just a few hundred feet away.
At the Supreme Court, protests are allowed on the public sidewalk in front of the Court, but not on the marble plaza or steps leading up to the Court.
At the Capitol, the tradition has been the opposite; no demonstrations on the sidewalk ringing the Capitol within the Capitol grounds, but they are permitted on the center steps of the Capitol's East Front.
In the D.C. Circuit's decision in Lederman v. United States, a three-judge panel ruled that the ban on demonstrating on the Capitol sidewalk violated the First Amendment. The case was brought by New York artist Robert Lederman, who was arrested on the sidewalk at the foot of the Senate steps by Capitol Police officers in 1997 after he refused to stop distributing leaflets on artists' rights.
Noting that the entire Capitol grounds has long been regarded as a public forum, the opinion by Judge David Tatel said that the government had failed to demonstrate why protests should be banned on the sidewalk or why demonstrators there should be treated differently from the tourists, joggers, and others who use the sidewalk.
"A single leafleteer standing on the East Front sidewalk will no more likely block traffic or threaten security than will photographers, star-struck tourists and landscape painters complete with easels," Tatel wrote. Also on the panel were Judges Harry Edwards and Laurence Silberman.
Will the warm glow of the Lederman decision radiate over to the Supreme Court? One lawyer who closely read the ruling with that question in mind is Mark Goldstone, a Bethesda, Md., solo practitioner who represents Abe Bonowitz and six other demonstrators arrested for protesting capital punishment on the Court steps in January. They face trial on June 27, and several of the defendants are challenging their arrest on First Amendment grounds.
Goldstone's view after reading the decision is that "the Lederman case helps us generally, but not specifically. Anytime you have a decision upholding public access to public places, it is a victory for us."
But as Goldstone points out, a different line of cases governs the First Amendment balance at the Supreme Court. The 1983 decision in United States v. Grace -- which was cited in Lederman -- avoided the issue of whether Supreme Court grounds are a public forum, but struck down the part of a federal law that prohibited demonstrations even on the public sidewalk around the Court.
The Grace opinion also noted, without disapproval, the government's rationale for restricting demonstrations at the Court more severely than demonstrations elsewhere: namely, that the public should not be allowed to get the idea that the Supreme Court can be influenced or lobbied by the public in the same way as the other branches. That rationale lingers today, and has led to the dismissal of First Amendment challenges to arrests of demonstrators at the Court. The Lederman ruling does nothing to weaken that argument.
"There's probably not much carry-over," agrees Art Spitzer, legal director of the American Civil Liberties Union's Washington, D.C., office. Spitzer was part of Lederman's winning legal team, led by Neal Goldfarb, of counsel at Oblon, Spivak, McClelland, Maier & Neustadt, an intellectual property firm in Arlington, Va. Goldfarb, while calling the Lederman ruling a "great First Amendment victory," also thinks "this decision doesn't help" the Supreme Court protesters.
Goldstone's only hope is that Lederman gives his argument more momentum, enabling him to convince federal judges that the courts-are-special argument is specious. "The First Amendment, last time I looked, guarantees the right ... to petition the government.' It doesn't say you can only petition two-thirds of the government."
Tony Mauro is Supreme Court correspondent for American Lawyer Media andLegal Times. Mauro can be reached at tmauro@....
Thanks to Terri Lynn Day, AJIC CA. J.A.I.L., for sending this article.
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