You Can Still Protest the Supreme Court

Have faith, Supreme Court rabble-rousers: the highest bench in the United States remains open to protests, speeches, demonstrations, and vigils. You may have to follow a few ground rules, though.

Have faith, Supreme Court rabble-rousers: the highest bench in the United States remains open to protests, speeches, demonstrations, and vigils. You may have to follow a few ground rules, though. In fact, you pretty much have to follow the same rules that were in place before.

On Thursday, Supreme Court officials announced a revised set of rules barring demonstrations — including picketing, speeches, and other kinds of organized gatherings — from taking place on the 252-foot wide marble plaza that separates the Court Building from First Street NE, a north-south road in Washington, D.C. The new set of rules replace an older, more broad, ban on protests in the plaza and Supreme Court grounds that was declared unconstitutional by Washington's U.S. District Court on Wednesday.

The old rules, for the purposes of comparison, made it illegal to "parade, stand, or move in processions or assemblages" at the Supreme Court's building or grounds. Also banned was the display of a "flag, banner, or device designed or adapted to bring into public notice a party, organization, or movement."

The new rules are more specific. They ban "demonstrations" from the plaza, which are defined as "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." But the regulation clarifies that "casual use" of the grounds, particularly of the kind that isn't likely to attract a crowd, is allowed. "This regulation does not apply on the perimeter sidewalks on the Supreme Court grounds," the regulation concludes. In other words, several generations of agitators have staged protests and processions concerning contentious Supreme Court opinions on the sidewalks surrounding the plaza, and it looks like that tradition will continue. 

The decision prompting the rule change stems from a lawsuit filed by Harold Hodge, Jr., who was arrested by Metropolitan police in 2011 for wearing a sign that criticized police officers' treatment of racial minorities. And while it's not clear whether the new rules would have also prompted Hodge's arrest, they are clearly an attempt to address it, even though they seemingly do nothing to answer Hodge's original claim: that he has a right to protest on government property. For one thing, the District Court ruling would have effectively lifted the ban on plaza demonstrations, but not in the Supreme Court building itself. And while the court's ruling objected to the old regulation's "absolute prohibition on expressive activity," the decision is also concerned with just how broadly it could be taken: under the old rules,"students wearing t-shirts with the name of their school," for example, were arguably breaking the law, too, the decision argued.

The timing here isn't surprising: these directives appear at a moment primed for Supreme Court controversy. Within weeks, potentially days, the court's nine Justices will deliver their long-awaited opinions on cases pertaining to the constitutionality of gay marriage, affirmative action, and certain parts of the Voting Rights Act — all of which continue to divide Americans along fairly hard lines. Those on both sides of each issue will have plenty of room — and a lot of legal backing — to say what they mean, as loudly as possible. Just, as always, from the sidewalk.