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Hodge v. Talkin

United States Court of Appeals, District of Columbia Circuit

August 28, 2015


Argued September 23, 2014.

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Appeal from the United States District Court for the District of Columbia. (No. 1:12-cv-00104).

Beth S. Brinkmann, Attorney, U.S. Department of Justice, argued the cause for appellants.

On the briefs were Stuart F. Delery, Assistant Attorney General, Ronald C. Machen, Jr., U.S. Attorney, and Michael S. Raab and Daniel Tenny, Attorneys. Jane M. Lyons, Assistant U.S. Attorney, entered an appearance.

Jeffrey L. Light argued the cause and filed the brief for appellee.

Arthur B. Spitzer was on the brief for amicus curiae American Civil Liberties Union of the National Capital Area in support of appellee.

Before: HENDERSON and SRINIVASAN, Circuit Judges, and WILLIAMS, Senior Circuit Judge. OPINION filed by Circuit Judge SRINIVASAN.


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Srinivasan, Circuit Judge :

For more than sixty-five years, a federal statute has restricted the public's conduct of expressive activity within the building and grounds of the Supreme Court. The law contains two prohibitions within the same sentence. The first makes it unlawful " to parade, stand, or move in processions or assemblages in the Supreme Court Building or grounds" (the Assemblages Clause). The second makes it unlawful " to display in the Building and grounds a flag, banner, or device designed or adapted to bring into public notice a party, organization, or movement" (the Display Clause). 40 U.S.C. § 6135. The statute defines the Supreme Court " grounds" to extend to the public sidewalks forming the perimeter of the city block that houses the Court.

In United States v. Grace, 461 U.S. 171, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983), the Supreme Court held the statute's Display Clause unconstitutional as applied to the sidewalks at the edge of the grounds. The Court found " nothing to indicate to the public that these sidewalks are part of the Supreme Court grounds" or that they " are in any way different from other public sidewalks in the city." Id. at 183. Like other public sidewalks, consequently, the sidewalks surrounding the Court qualify as a " public forum" for First Amendment purposes, an area in which " the government's ability to permissibly restrict expressive conduct is very limited." Id. at 177, 179-80. But the Court left for another day the constitutionality of the statute's application to the rest of the grounds, including

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the Court's plaza: the elevated marble terrace running from the front sidewalk to the staircase that ascends to the Court's main doors.

We confront that issue today. The plaintiff in this case, Harold Hodge, Jr., seeks to picket, leaflet, and make speeches in the Supreme Court plaza, with the aim of conveying to the Court and the public what he describes as " political messages" about the Court's decisions. Hodge claims that the statute's Assemblages and Display Clauses, by restricting his intended activities, violate his rights under the First Amendment. The district court, persuaded by his arguments, declared the statute unconstitutional in all its applications to the Court's plaza. We disagree and conclude that the Assemblages and Display Clauses may be constitutionally enforced in the plaza.

In marked contrast to the perimeter sidewalks considered in Grace, the Supreme Court plaza distinctively " indicate[s] to the public" --by its materials, design, and demarcation from the surrounding area--that it is very much a " part of the Supreme Court grounds." Id. at 183. The plaza has been described as the opening stage of " a carefully choreographed, climbing path that ultimately ends at the courtroom itself." Statement Concerning the Supreme Court's Front Entrance, 2009 J. S.Ct. U.S. 831, 831 (2010) (Breyer, J.). For that reason, the Court's plaza--unlike the surrounding public sidewalks, but like the courthouse it fronts--is a " nonpublic forum," an area not traditionally kept open for expressive activity by the public. The government retains substantially greater leeway to limit expressive conduct in such an area and to preserve the property for its intended purposes: here, as the actual and symbolic entryway to the nation's highest court and the judicial business conducted within it.

Under the lenient First Amendment standards applicable to nonpublic forums, the government can impose reasonable restrictions on speech as long as it refrains from suppressing particular viewpoints. Neither the Assemblages Clause nor the Display Clause targets specific viewpoints. They ban demonstrations applauding the Court's actions no less than demonstrations denouncing them. And both clauses reasonably relate to the government's long-recognized interests in preserving decorum in the area of a courthouse and in assuring the appearance (and actuality) of a judiciary uninfluenced by public opinion and pressure. The Supreme Court recently, in its just-completed Term, strongly reinforced the latter interest's vitality, along with the government's considerable latitude to secure its realization even through speech-restrictive measures. Williams-Yulee v. Fla. Bar, 135 S.Ct. 1656, 191 L.Ed.2d 570 (2015). The statute's reasonableness is reinforced by the availability of an alternative site for expressive activity in the immediate vicinity: the sidewalk area directly in front of the Court's plaza. We therefore uphold the statute's constitutionality.



The federal statute in issue, 40 U.S.C. § 6135, makes it unlawful " to parade, stand, or move in processions or assemblages in the Supreme Court Building or grounds, or to display in the Building and grounds a flag, banner, or device designed or adapted to bring into public notice a party, organization, or movement." Congress enacted the statute in 1949. See Act of Aug. 18, 1949, ch. 49, 63 Stat. 616, 617 (1949) (current version at 40 U.S.C. § 6135) (originally codified at id. § 13k). Another provision defines " the Supreme Court grounds" to extend to the curbs of the four streets fixing the boundary of the

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city block in which the Court is situated. 40 U.S.C. § 6101(b). The statute thus encompasses " not only the building," but also " the plaza and surrounding promenade, lawn area, and steps," together with " [t]he sidewalks comprising the outer boundaries of the Court grounds." Grace, 461 U.S. at 179.

The front of the Supreme Court grounds, from the street to the building, appears as follows (according to the record in this case and sources of which we take judicial notice, see Fed.R.Evid. 201(b); Oberwetter v. Hilliard, 639 F.3d 545, 552 n.4, 395 U.S.App.D.C. 52 (D.C. Cir. 2011)). The Court's main entrance faces west towards First Street Northeast, across which sits the United States Capitol. Eight marble steps, flanked on either side by marble candelabra, ascend from the concrete sidewalk along First Street Northeast to the Court's elevated marble plaza: an oval terrace that is 252 feet long (at the largest part of the oval) and 98 feet wide (inclusive of the front eight steps). Decl. of Timothy Dolan, Deputy Chief of the Supreme Court Police, ¶ 6 (Dolan Decl.) (J.A. 17-18). The terrace is " paved in gray and white marble" in " a pattern of alternating circles and squares similar to that of the floor of the Roman Pantheon." Fred J. Maroon & Suzy Maroon, The Supreme Court of the United States 36 (1996). The plaza contains two fountains, two flagpoles, and six marble benches. Another thirty-six steps lead from the plaza to the building's portico and " the magnificent bronze doors that are the main entrance into the building." Id. at 38. A low marble wall surrounds the plaza and also encircles the rest of the building. And the plaza's white marble matches the marble that makes up the low wall, the two staircases, the fountains, and the building's faç ade and columns. Pamela Scott & Antoinette J. Lee, Buildings of the District of Columbia 138 (1993).

Supreme Court Building, Architect of the Capitol, (last visited Aug. 20, 2015).

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Prior challenges to § 6135 and related provisions form the legal backdrop for the case we consider today. Section 6135's restrictions on expressive activity in the Supreme Court grounds mirror a parallel statute restricting the same activity in the grounds of the United States Capitol. See 40 U.S.C. § 5104(f) (originally codified at id. § 193g). The statute applicable to the Capitol became the subject of a constitutional challenge in Jeannette Rankin Brigade v. Chief of Capitol Police, 342 F.Supp. 575 (D.D.C. 1972). There, a three-judge court declared the statute unconstitutional under the First and Fifth Amendments, enjoining the Capitol Police from enforcing it. Id. at 587-88. The court ruled that the government's interest in maintaining decorum failed to justify a ban on political demonstrations outside the building housing the nation's elected representatives. Id. at 585. The Supreme Court summarily affirmed. Chief of the Capitol Police v. Jeannette Rankin Brigade, 409 U.S. 972, 93 S.Ct. 311, 34 L.Ed.2d 236 (1972).

A few years later, the statute applicable to the Supreme Court grounds also came under attack in the courts. The plaintiffs, Mary Grace and Thaddeus Zywicki, experienced run-ins with the Supreme Court Police when engaged in expressive activity on the public sidewalk fronting the Court along First Street. Grace, 461 U.S. at 173-74. Zywicki had distributed written material to passersby on multiple occasions, including articles calling for the removal of unfit judges and handbills discussing human rights in Central American countries. Id. Grace had stood on the sidewalk holding a sign displaying the text of the First Amendment. Id. at 174. The district court declined to reach the merits of Grace and Zywicki's suit, Grace v. Burger, 524 F.Supp. 815, 819-20 (D.D.C. 1980); but our court did, declaring the statute unconstitutional on its face in all of its applications to the Court grounds, Grace v. Burger, 665 F.2d 1193, 1205-06, 214 U.S.App.D.C. 375 (D.C. Cir. 1981). The Supreme Court affirmed our judgment in part and vacated it in part. Grace, 461 U.S. at 184. Given the decision's obvious salience to our consideration of this case, we review the Court's analysis in some detail.

Before addressing the merits, the Supreme Court significantly narrowed the case in two ways. First, the Court noted that the conduct giving rise to the challenge--solitary leafleting on Zywicki's part, and solitary sign-holding on Grace's--could violate only the statute's Display Clause, not the Assemblages Clause. Id. at 175. The Court thus understood the decision under review to be confined to the Display Clause. Id. at 175 & n.5. Second, the Court decided, based on the location of Grace's and Zywicki's past conduct, that their " controversy" only concerned the " right to use the public sidewalks surrounding the Court building" to engage in expressive activity. Id. at 175. The Court therefore chose to resolve " only whether the proscriptions of [the statute] are constitutional as applied to the public sidewalks," without addressing the constitutionality of the statute's application to the remainder of the Court's statutorily defined grounds. Id.

The Court then set out to determine the character of the sidewalks in question for purposes of the " forum" taxonomy used to assess the constitutionality of speech restrictions on public property. Under that taxonomy, the Court explained, " 'public places' historically associated with the free exercise of expressive activities, such as streets, sidewalks, and parks, are considered, without more, to be 'public forums.'" Id. at 177. " In such places,

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the government's ability to permissibly restrict expressive conduct is very limited," such that " an absolute prohibition on a particular type of expression will be upheld only if narrowly drawn to accomplish a compelling governmental interest." Id. On the other hand, in public property constituting a " nonpublic forum," the government enjoys significantly greater latitude to regulate expressive activity, including the ability " in some circumstances" to " ban the entry . . . of all persons except those who have legitimate business on the premises." Id. at 178.

Applying those principles to the " sidewalks comprising the outer boundaries of the Court grounds," the Court reasoned that they " are indistinguishable from any other sidewalks in Washington, D.C.," and there is " no reason why they should be treated any differently." Id. at 179. " Sidewalks, of course, are among those areas of public property that traditionally have been held open to the public for expressive activities and are clearly within those areas of public property that may be considered, generally without further inquiry, to be public forum property." Id. With respect to the perimeter sidewalks specifically, the Court observed, there is " no separation, no fence, and no indication whatever to persons stepping from the street to the curb and sidewalks . . . that they have entered some special type of enclave," and " nothing to indicate to the public that these sidewalks are part of the Supreme Court grounds." Id. at 180, 183. " Traditional public forum property" of that variety, the Court explained, " will not lose its historically recognized character for the reason that it abuts government property that has been dedicated to a use other than as a forum for public expression." Id. at 180. The Court therefore held that the " public sidewalks forming the perimeter of the Supreme Court grounds . . . are public forums and should be treated as such for First Amendment purposes." Id.

The Court next assessed the constitutionality of the Display Clause under the heightened standards applicable to public forums. It examined the necessity of the Display Clause's restrictions by reference to two asserted governmental interests: first, the interest in maintaining " proper order and decorum" in the Supreme Court building and grounds and in protecting " persons and property therein" ; and second, the interest in avoiding the " appear[ance] to the public that the Supreme Court is subject to outside influence or that picketing or marching, singly or in groups, is an acceptable or proper way of appealing to or influencing the Supreme Court." Id. at 182-83. The Court did not doubt the importance and legitimacy of those interests. Id. But it found a " total ban" on leafleting and sign-holding on the surrounding public sidewalks unnecessary to promote them. Id. For instance, without any indication " to the public" that the " sidewalks are part of the Supreme Court grounds or are in any way different from other public sidewalks," the Court " doubt[ed] that the public would draw a different inference from a lone picketer carrying a sign on the sidewalks around the building than it would from a similar picket on the sidewalks across the street." Id. at 183. The Court therefore declared the Display Clause unconstitutional as applied to the public sidewalks surrounding the Court, but it vacated our court's invalidation of the statute with regard to the remainder of the grounds. Id. at 183-84.


Although Grace concerned the Display Clause alone, the Supreme Court Police ceased enforcement of both the Display

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and Assemblages Clauses on the perimeter sidewalks. Dolan Decl. ¶ 5 (J.A. 17). The Police have continued to enforce both clauses elsewhere in the Supreme Court building and grounds, including in the Court's plaza. This case arises from the enforcement of the statute in the plaza.

On January 28, 2011, Harold Hodge, Jr., stood in the plaza approximately 100 feet from the building's front doors. Am. Compl. ¶ ¶ 17, 20 (J.A. 10). He hung from his neck a two-by-three-foot sign displaying the words " The U.S. Gov. Allows Police To Illegally Murder And Brutalize African Americans And Hispanic People." Id. ¶ 18 (J.A. 10). After a few minutes, a Supreme Court Police officer approached Hodge and told him he was violating the law. Hodge declined to leave. After three more warnings, the officer arrested him. On February 4, 2011, Hodge was charged with violating 40 U.S.C. § 6135. He entered into an agreement with the government under which he promised to stay away from the Supreme Court grounds for six months in exchange for dismissal of the charge, which occurred in September 2011.

In January 2012, Hodge filed the present action in federal district court. His complaint alleges that he " desires to return to the plaza area . . . and engage in peaceful, non-disruptive political speech and expression in a similar manner to his activity on January 28, 2011." Id. ¶ 28 (J.A. 12). In addition to again wearing a sign, Hodge wishes to " picket, hand out leaflets, sing, chant, and make speeches, either by himself or with a group of like-minded individuals." Id. ¶ 29 (J.A. 12). Hodge says that the " political message that [he] would like to convey would be directed both at the Supreme Court and the general public, and would explain how decisions of the Supreme Court have allowed police misconduct and discrimination against racial minorities to continue." Id. And he states that he desires to engage in those activities " immediately" but is " deterred and chilled" from doing so by " the terms of 40 U.S.C. § 6135" and by his prior arrest and charge. Id. ¶ 30 (J.A. 12).

Hodge's complaint asserts a series of constitutional challenges under the First and Fifth Amendments. First, he claims that the Assemblages and Display Clauses amount to unconstitutional restrictions of speech. Second, he claims that both clauses are overbroad. Finally, he claims that both clauses are unconstitutionally vague. (The complaint also raises claims alleging that the Supreme Court Police selectively enforce the law in a manner favoring certain viewpoints, but the district court did not pass on those claims and Hodge does not press them in this appeal.) As relief, Hodge seeks a declaration of § 6135's invalidity " on its face, and as applied to [Hodge]," and a permanent injunction barring the government defendants (the Marshal of the Supreme Court and the United States Attorney for the District of Columbia) from enforcing the statute against Hodge or others. Id. p. 10 (J.A. 15).

The district court, finding the statute " plainly unconstitutional on its face," granted summary judgment in favor of Hodge. Hodge v. Talkin, 949 F.Supp.2d 152, 176 & n.24 (D.D.C. 2013). In a thorough opinion, the court invalidated the statute under the First Amendment based on two grounds. The court first held that, regardless of whether the Supreme Court plaza is considered a public forum or a nonpublic forum, the statute amounts to an unreasonable restriction of speech as concerns the plaza. Id. at 182-85. Second, the court found the statute unconstitutionally overbroad in light of the potential sweep of its prohibitions. In that regard, the court examined a range of hypothetical applications of the Assemblages and Display Clauses in the plaza which it found to

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be troubling. Id. at 187-89. The court's result was to declare § 6135 " unconstitutional and void as applied to the Supreme Court plaza." Id. at 198. The court declined to reach Hodge's alternative challenges, including his vagueness claim. Id. at 176 n.24.

The government appeals the district court's grant of summary judgment. We review that court's legal determinations de novo. Lederman v. United States, 291 F.3d 36, 41, 351 U.S.App.D.C. 386 (D.C. Cir. 2002).


Before addressing the merits of Hodge's constitutional challenges, we initially assure ourselves of his standing for purposes of satisfying Article III's case-or-controversy requirement. The question is whether he demonstrates an " injury in fact" that is " fairly . . . trace[able]" to the statute's challenged provisions. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

There is no dispute about Hodge's standing to challenge the Display Clause. He has been arrested and charged for displaying a political sign while standing in the plaza, and he would do so again " immediately" if not for his fear of another arrest. Am. Compl. ¶ ¶ 28-30 (J.A. 12). The government does not contest those facts. Given the Supreme Court Police's policy of enforcing § 6135 in the plaza, see Dolan Decl. ¶ 7 (J.A. 18), there is a " substantial risk" of another arrest and charge if Hodge were to act on his stated intentions. That suffices to demonstrate a cognizable injury vis-à-vis the Display Clause. See Susan B. Anthony List v. Driehaus, 134 S.Ct. 2334, 2341, 189 L.Ed.2d 246 (2014).

Hodge's solitary display of a sign, however, did not violate the statute's Assemblages Clause--the prohibition on " parad[ing], stand[ing], or mov[ing] in processions or assemblages." 40 U.S.C. § 6135. The government maintains that the complaint's allegations fail sufficiently to establish Hodge's desire to engage in future conduct that would bring him within that prohibition's scope. The sole allegation bearing on his standing to challenge the Assemblages Clause conveys his desire " to return to the plaza area . . . and picket, hand out leaflets, sing, chant, and make speeches, either by himself or with a group of like-minded individuals." Am. Compl. ¶ 29 (J.A. 12) (emphasis added). The allegation's " either/or" phrasing, the government submits, renders Hodge's future intent to violate the Assemblages Clause unduly speculative: Hodge might return with a group of people, but then again, he might go it alone.

Hodge's articulation of his intentions suffices to establish his standing under our precedents. In Lederman v. United States, we considered a plaintiff's standing to bring a First Amendment challenge to a regulation banning a laundry list of " demonstration activit[ies]" (including " parading, picketing, leafleting, holding vigils, sit-ins, or other expressive conduct or speechmaking" ) in designated " no-demonstration zones" within the Capitol grounds. 291 F.3d at 39. The plaintiff had been arrested and charged after leafleting on the Capitol's East Front sidewalk. Id. at 39-40. In his complaint asserting a facial challenge to the entire regulation, the plaintiff alleged that he " wishe[d] to come to Washington in the future . . . to engage in constitutionally-protected demonstration activity in the no-demonstration zone--including, but not necessarily limited to, leafleting and holding signs." Id. at 40.

Based on the plaintiff's arrest for leafleting and " his intent to return to the Capitol Grounds to engage in other expressive activity," we found that he had standing to challenge the entire regulation. Id. at ...

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