Protest Attire at the Supreme Court: Prohibiting it is Now Unconstitutional

You could be arrested for being at the United States Supreme Court and wearing a t-shirt that proclaims you support Occupy or one that says you support the Tea Party or one that says you don’t support either group, or even wearing a black armband or a button.  This is because  a federal statute, 40 USC §6135 provides:

It is 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.

In an unprecedented ruling today, a federal district judge has held the statute unconstitutional under the First Amendment.  In her 68 page opinion in Hodge v. Talkin, Judge Beryl Howell ruled that the statute does not reasonably accomplish the Government’s stated interests and that it is overbroad.  Indeed, she wrote, it could be applied to a group of preschoolers wearing their school shirts!

She rejected precedent that had upheld the statute and refused to construe it with limitations that might render it constitutional.

800px-You_are_here_-_T-shirtThis is an important opinion that could mean that the Supreme Court plaza is no longer a no-free-speech zone.  As many have noted, including Justice Thurgood Marshall in a dissenting and concurring opinion upholding a portion of the precursor statute, it was  “ironic” that the institution charged with upholding the First Amendment seemingly exempted itself.

My more extensive analysis is available over at the Constitutional Law Professors Blog here.


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