If any place should be available for peaceful, non-disruptive protest, it is the plaza in front of the Supreme Court. Yet, in a recent decision, Hodge v. Talkin (August 28, 2015), the United States Court of Appeals for the District of Columbia Circuit came to exactly the opposite conclusion and upheld a ban on speech activities in the Court's plaza. This is the elevated marble terrace running from the sidewalk in front of the Court to the staircase that ascends to the Court's main doors.

Federal statutes prohibit speech activities on the Supreme Court’s grounds, including the plaza and the sidewalks in front of the building. In United States v. Grace (1983), the Court declared the statutes unconstitutional as applied to the sidewalks in front of the building. But the Court did not decide the question as to whether the First Amendment protected a right to speak on the plaza.

The D.C. Circuit resolved this question by holding that the plaza is a “non-public forum” and therefore speech can be prohibited so long as the law is viewpoint neutral and reasonable. The case involved, Harold Hodge, Jr., who claimed that he sought to picket, leaflet, and make speeches in the Supreme Court plaza about its decisions.

No one disputes that the law can prevent demonstrations or speech activities that would disrupt the Court’s functions. But that was not the government’s defense of the law. Rather, as the court noted, the government made two claims: “First, the government argues that the statute helps maintain the decorum and order befitting courthouses generally and the nation's highest court in particular. Second, the government contends that the statute promotes the appearance and actuality of a Court whose deliberations are immune to public opinion and invulnerable to public pressure.”

Neither of these claims justify restricting speech. As to the former, preserving “order and decorum” could justify restricting speech in any circumstance. Speech is inherently disorderly to those who prefer silence. In Snyder v. Phelps (2011), the Court rejected order and decorum as a sufficient reason to prevent protests at military funerals. Never does the D.C. Circuit explain why order and decorum are more important than expression on the plaza of the Supreme Court.

As for the latter, the court offered no reason why the presence of protests would create the appearance, let alone actuality, of a Court that was deciding cases based on public pressure. The D.C. Circuit relied heavily on the Supreme Court’s recent decision in Williams-Yulee v. Florida State Bar (2015), which upheld a restriction on candidates for judicial office personally soliciting or receiving funds. But Williams-Yulee was about fund raising in campaigns and surely does not stand for the proposition that all speech near or about the courts can be restricted because of the desire to preserve the appearance of judicial neutrality. In fact, the D.C. Circuit’s need to “promote the appearance and actuality of a Court whose deliberations are immune to public pressure” could justify restrictions on speech about the Court everywhere, not just on its plaza.

The D.C. Circuit errs in assuming that people will infer from protests on the plaza that the Supreme Court responds to public pressure. The far more likely inference from the presence of protests is that the Court cares about freedom of speech and that its grounds are a uniquely appropriate place for expression about the Court.

Most of all, the D.C. Circuit erred by ignoring the symbolic importance of the Court as a place for speech activities. The Supreme Court is the nation’s most important guardian of freedom of speech. It is ironic, and even perverse, that the law won’t allow speech in front of the Court’s building. The message is terrible: others in government at all levels need to tolerate speech that disrupts order and decorum, but not the institution responsible for protecting freedom of speech.

The Supreme Court should grant review and reverse the D.C. Circuit. If any place must be available for peaceful protest, it is the plaza in front of the Supreme Court.