Free speech and the high court: Its own no-protest regulations at issue

The Supreme Court says a 35-foot no-protest zone around clinics that perform abortions is unconstitutional. Left unsaid in the 30-page ruling issued Thursday in a Massachusetts case was that the court itself has tight restrictions on where those seeking to assert their free speech rights can and cannot go.

And like the case they just decided, the rules at the marble-lined high court have also been the subject of lawsuits.

The grounds outside the building -- across the street from the U.S. Capitol -- have long been a place for assemblies, rallies, and other "expressive events."

But exactly just what can be said and where the public can assert its First Amendment rights have long been a source of contention.

A year ago, after losing a federal lawsuit filed by a protester, high court officials issued new rule, clarifying a 60-year-old law blocking any demonstrations on court property, including the marbled plaza that serves as the dramatic gateway to the building itself.

"The term demonstration includes 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," says the revised Regulation 7, which was effective June 13, 2013.

"The term does not include casual use by visitors or tourists that is not reasonably likely to attract a crowd or onlookers."

The comparison was not lost on several bloggers, legal analysts, and by some abortion rights groups.

NARAL Pro Choice America had earlier showed an aerial shot of the Supreme Court, with a graphic revealing that the 35-foot buffer zone adopted by Massachusetts at clinics is but a fraction of the court's oval-shaped exterior plaza, where protests are also banned. The plaza extends about 250 feet from the base of the courthouse steps to the sidewalk, and is open 24 hours a day. The building itself keeps normal business hours, and is closed weekends to the public.

"The justices didn't have to look too far for examples of other buffer zones raising constitutional concerns," said Stephen Vladeck, a constitutional law professor at American University.

"But unlike Massachusetts, which will likely respond to today's decision simply by adopting a smaller buffer going forward, the justices' response was in the other direction -- to prohibit all demonstrations of any kind on the Supreme Court's grounds other than those 'not reasonably likely to attract a crowd.' In other words, the justices are telling Massachusetts to prohibit less speech, when their reaction to the same problem on the court's own grounds was to prohibit more."

But unlike the state case -- where the buffer zone at the clinic in Boston included the entire sidewalk-- the court's no-protest zone only includes the grounds itself. Demonstrations are freely allowed on the public sidewalk, and protesters of one sort or another gather on almost a daily basis.

Several people were on hand Thursday, and more are expected Monday for the court's final public session before the summer recess.

The court changes followed a federal judge's ruling tossing out as unconstitutional the previous anti-demonstration rules.

Judge Beryl Howell said those laws were overly broad and vague, and could implicate any "group activity" on the grounds, including students wearing T-shirts with the name of their school, or tourists gathering on the plaza for a group photo.

Federal law gives individual buildings and agencies, including courts, discretion to set their own security and access procedures.

Harold Hodge, Jr., had challenged the regulations in court. The Maryland college student was arrested in February 2011 for silently carrying an anti-racism sign on the plaza, although court records show he did so peacefully.

A court police officer approached Hodge and three times asked him to leave the plaza, but he refused. He was then handcuffed and taken into custody. The charges were dropped after Hodge agreed not to return to the court for six months. He later sued, claiming his free speech rights were being violated and that he had a right to protest on government property.

A Virginia-based civil rights group, the Rutherford Institute, defended Hodge in his case.

The group's president, John Whitehead, told CNN the high court's rules set by its marshal's office were "repugnant" to the guarantees enshrined in the Constitution.

The government appealed the judge's ruling and a federal appeals court in Washington will hear oral arguments in the case in September.

Protests, rallies, speeches, and marches in front of the court often number in the hundreds of people, and are traditionally held on the public sidewalk on First Street, NE, between the court and the Capitol. Demonstrators gathered for days during the 2000 Bush v. Gore case over the disputed outcome of the presidential election.

And those on both sides of the abortion debate rally yearly in front of the court on the January anniversary of Roe v. Wade decision.

The Supreme Court had no comment on how Thursday's ruling on abortion clinics would affect its own regulations.