NO. 11-5073

In theIn theIn theIn theIn the

Supreme Court of the United StatesSupreme Court of the United StatesSupreme Court of the United StatesSupreme Court of the United StatesSupreme Court of the United States

EDWARD F. KINANE, et al.,Petitioners,

v.

UNITED STATES OF AMERICA, Respondents.

On Petition for Writ of Certiorari to theDistrict of Columbia Court of Appeals

PETITION FOR WRIT OF CERTIORARI

MARK L. GOLDSTONE, ESQ.D.C. BAR NO. 394135 Counsel of Record9419 SPRUCE TREE CIRCLE

BETHESDA, MD 20814(301) 530-6612mglaw@comcast.net

Attorney for Petitioners(Appointed by the Court)

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

October 2011

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QUESTIONS PRESENTED

Whether 40 U.S.C. § 6135 is inconsistent with theprinciples of the First Amendment and void on its faceas it prohibits all expressive conduct unrelated to anybusiness of the Supreme Court throughout theSupreme Court building and grounds; or in thealternative, whether the First Amendment’s protectionof free speech, peaceable assembly, and petitioning thegovernment for redress, and the Due Processrequirement that a criminal statute give fair notice,demand that the Supreme Court Police inform personsdisplaying signs and kneeling on the Supreme Courtsteps in alleged violation of 40 U.S.C. § 6135 that thesidewalk just a few yards away abutting the SupremeCourt’s grounds is an available, alternative and lawfullocation to exercise their First Amendment rights.

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PARTIES TO THE PROCEEDINGS

The Petitioners are Edward F. Kinane, ElizabethAdams, Maria Allwine, Edward Bloomer, ChrisBrandt, Gerald Breen, Kirk Brown, Ken Buttigan,Ashley Casale, Edward Courtney, Susan Crane,Matthew Daloisio, Ellen Davidson, Thomas Feagley,Christine Gaunt, Nancy Gowen, Ellen Graves, CherylHogan, Emmett Jarrett, Tarak Kauff, MalachyKilbride, Arthur Laffin, Linda Le Tendre, Paul Magno,Joe Morton, Timothy Nolan, William Pickard, ClaireShaffer-Duffy, William Streit, Brad Taylor, BrianTerrell, Eve Tetaz, Carmen Trotta and Patricia “Paki”Wieland , (hereafter cited as “Kinane”), the Defendantsand Defendants-Appellants in the Courts below. TheRespondent is the United States of America.

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TABLE OF CONTENTSPAGE

Questions Presented . . . . . . . . . . . . . . . . . . . . . . . . . i

Parties to the Proceedings . . . . . . . . . . . . . . . . . . . ii

Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . v

Petition for Writ of Certiorari . . . . . . . . . . . . . . . . . 1

Opinions Below . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Constitutional Provisions and Statutes . . . . . . . . . 1

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . 2

Reasons for Granting the Petition . . . . . . . . . . . . . 5

A. The U.S. Supreme Court’s Status as aUnique Venue for Free Expression must BePreserved . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

B. Section 6135 of 40 U.S.C. isUnconstitutionally Overbroad . . . . . . . . . . . 6

1. Section 6135 Impermissibly Bans AllExpression . . . . . . . . . . . . . . . . . . . . . . . . 8

2. Section 6135 Encourages Arbitrary andDiscriminatory Enforcement Based onPolitical Expression . . . . . . . . . . . . . . . 10

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3. Section 6135 Impermissibly Banned theRight to Free Assembly and to Petition aBranch of Government . . . . . . . . . . . . . 11

4. Section 6135 Impermissibly Imposes anAbsolute “Time, Place, and Manner”Restriction . . . . . . . . . . . . . . . . . . . . . . . 12

C. The Supreme Court Police Have anAffirmative Obligation to InformDemonstrators That Protesting Is LawfulJust a Few Yards Away on the Sidewalk . 15

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Appendix

Appendix A: District of Columbia Court ofAppeals,Opinion,(Jan. 20, 2011) . . . . . . . . . . . . . . 1a

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TABLE OF AUTHORITIESPAGE

CASES

Bd. of Airport Comm’rs of City of Los Angeles v.Jews for Jesus, Inc., 482 U.S. 569, 107 S.Ct. 2568, 966 L.Ed. 2d 500(1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

BE & K Constr. Co. v. NLRB, 536 U.S. 516, 122 S.Ct. 2390, 153 L.Ed.2d 499(2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Bonowitz v. United States, 741 A.2d 18 (D.C. 1999) . . . . . . . . . . . . 10, 13, 20

Boykin v. Ala., 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274(1969) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830(1973). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Clark v. Community for Non-Violence, 468 U.S. 288, 104 S.Ct. 3065, 82 L.Ed.2d 211(1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Colautti v. Franklin, 439 U.S. 379, 99 S.Ct. 675, 58 L.Ed.2d 596(1979) . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 16, 17

Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.,472 U.S. 749, 105 S.Ct. 2939, 86 L.Ed.2d 598(1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12

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Grace v. Burger, 665 F.2d 1193 (D.C. Cir. 1981) . . . 6, 7, 12, 13, 15

Iowa v. Tovar, 541 U.S. 77, 124 S.Ct. 1379, 158 L.Ed.2d 209(2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Kinane, et. al. v. United States, 12 A.3d 23 (D.C. 2011) . . . . . . . . . . . . . . . . . . . . 4

Lawler v. United States, 10 A.2d 122 (D.C. 2010) . . . . . . . . . . . . . . . . . 7, 8

Miranda v. Ariz., 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694(1966) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686(1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972) . . . . . . . . . . . . . . . . . . . 11

Pearson v. United States, 581 A.2d 347 (D.C. 1990) . . . . . . . . . . . . . . . . . 20

Potts v. United States, 919 A.2d 1127 (D.C. 2007) . . . . . . . . . . . . . . 7, 19

Snyder v. Phelps, 562 U.S. ____, 131 S.Ct. 1207, __ L.Ed. 2d. ___(2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

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Tinker v. Des Moines Independent CommunitySchool District, 393 U.S. 503 (1969) . . . . . . . . . . . . . . . . . . . . . . 9

United States v. Grace, 461 U.S. 171, 103 S.Ct. 1702, 75 L.Ed.2d 736(1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

United States v. Wall, 521 A.2d. 1140 (D.C. 1987) . . . . . . . . . . . . . 7, 20

Virginia v. Hicks, 539 U.S. 113, 123 S.Ct. 2191, 156 L.Ed. 148(2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

CONSTITUTION

First Amendment . . . . . . . . . . . . . . . . . . . . . . passim

Fifth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . 19

Sixth Amendment . . . . . . . . . . . . . . . . . . . . . . . . 19

STATUTES

18 U.S.C. § 1507 . . . . . . . . . . . . . . . . . . . . . . . . . . 14

28 U.S.C. § 1257(a) . . . . . . . . . . . . . . . . . . . . . . . . . 1

40 U.S.C. § 13k . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 6

40 U.S.C. § 6134 . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

40 U.S.C. § 6135 . . . . . . . . . . . . . . . . . . . . . . . passim

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PETITION FOR WRIT OF CERTIORARI

Edward F. Kinane and his 33 co-defendantsrespectfully petition for a writ of certiorari to reviewthe judgment of the District of Columbia Court ofAppeals.

OPINIONS BELOW

The opinion of the District of Columbia Court ofAppeals is reported at 12 A. 3d 23 (D.C. 2011) and isreprinted in the Appendix A to the Petition (“Pet.App.”) at p. 22.

JURISDICTION

The Court of Appeals entered its judgment onJanuary 20, 2011. This Court has jurisdiction toreview the decision of the Court of Appeals under28 U.S.C. § 1257(a).

CONSTITUTIONAL PROVISIONS AND STATUTES

Following are the Constitutional provisions andstatutes involved in the case:

The First Amendment to the U.S. Constitutionprovides in pertinent part:

Congress shall make no law… abridging thefreedom of speech… or the right of the peoplepeaceably to assemble, and to petition thegovernment for a redress of grievances.

40 U.S.C. § 13k states in full:

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It shall be unlawful to parade, stand, or move inprocessions or assemblages in the SupremeCourt Building or grounds, or to display thereinany flag, banner, or device designed or adaptedto bring into public notice a party, organization,or movement.

40 U.S.C. § 6135 states in full:

It is unlawful to parade, stand, or move inprocessions or assemblages in the SupremeCourt Building or grounds, or to display in theBuilding and grounds a flag, banner, or devicedesigned or adapted to bring into public noticea party, organization, or movement.

STATEMENT OF THE CASE

Edward F. Kinane and his 33 co-defendants werecharged by information on January 11, 2008, alongwith a total of 80 arrestees in total, with one count ofviolating 40 U.S.C. § 6135, which prohibits parades,assemblages, and displays of flags and banners in theSupreme Court building and on the Supreme Courtgrounds. A count of illegal “chanting” in violation of 40U.S.C. Sec. 6134 was dismissed by the Governmentprior to trial, as to all but two arrestees, and thatcharge was dismissed by the Government at trialagainst those two arrestees.

On the afternoon of January 11, 2008, a large groupof people (100-150) gathered in front of the SupremeCourt and demonstrated their opposition to the UnitedStates prison facility in Guantanamo Bay, Cuba. Theygathered in front of the Supreme Court to “give voiceto the prisoners in Guantanamo who have no voice”

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and for prisoners who are “forced to kneel” and do nothave the right to stand up for themselves. The groupdemonstrated on behalf of all the Guantanamodetainees and also on behalf of specific individualsdetained there. From the large group, twenty-sevendemonstrators left the public sidewalk and walkedonto the Supreme Court plaza to the second set ofsteps leading to the main doors of the Supreme Court.From the public sidewalk, there is a set of eight stepsthat lead to a landing approximately thirty yards long,that is referred to as the “Supreme Court plaza.” Theplaza connects to a second set of steps and these thirtysix steps lead to the main entrance of the SupremeCourt. At the time of this demonstration this was themain entrance, but subsequently this entrance hasbeen closed to the public. One of the demonstratorsinvited the demonstrators to “kneel” and thedemonstrators, who were wearing orange prison jumpsuits, knelt on the steps. Some demonstrators hadsigns that urged the closure of Guantanamo prison,such as “Shut Down Guantanamo.”

A Supreme Court police officer warned the groupthree times that they were in violation of the UnitedStates Code, and that they would be arrested if theydid not leave the plaza. The demonstrators continuedtheir First Amendment activity and did not leave theplaza and were all placed under arrest. After theinitial group kneeled at the steps, one individual leftthe public sidewalk and joined the group. Anotherindividual joined the group with a sign that read “Shutdown Guantanamo” and knelt down at the base of thesteps. These individuals were warned to leave thePlaza and were also arrested. Another group of sevendemonstrators (two standing, five kneeling) walked upto the plaza with a banner that read “Shut Down

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Guantanamo” and they were warned to leave the Plazaand were arrested.

In addition to the demonstrations outside,approximately forty-five individuals gathered in theUpper Great Hall of the first floor of the SupremeCourt building. Some were chanting or singing, whilekneeling shoulder to shoulder with arms interlocked.Many wore orange t-shirts that read, “Shut DownGuantanamo” and some demonstrators wore orangejump suits and some wore black hoods. There was ablack banner that read “Close Guantanamo.” Thekneeling protesters were warned that they would bearrested if they did not desist, and they continued withtheir activities and were arrested.

No Supreme Court police officer ever told theappellants—either those demonstrating Outside (TheOutside Demonstrators) or those demonstrating inside(The Inside Demonstrators)—that it was lawful todemonstrate on the nearby Supreme Court sidewalk.

After a four-day non-jury trial on May 27-30, 2008Judge Wendell Gardner of the Superior Court of theDistrict of Columbia found all 34 appellants guilty ascharged (The Court granted one defendant’s motion forjudgment of acquittal) and sentenced them to differingterms of jail time, probation, a stay-away order andvarious payments to the Victims of CrimeCompensation Fund. The District of Columbia Courtof Appeals issued an opinion January 20, 2011affirming the convictions. Kinane, et al. v. UnitedStates, 12 A.3d 23 (D.C. 2011).

On appeal Petitioners raised the same issues aspresented before the trial judge – that the broad

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language of 40 U.S.C. § 6135 plainly clashes with theFirst Amendment; and in the alternative, if the statutewas held constitutional, the Supreme Court Policenevertheless had an affirmative obligation beforearresting individuals to inform those individuals ofareas nearby on Supreme Court property whereprotest was lawful.

REASONS FOR GRANTING THE PETITION

A. The U.S. Supreme Court’s Status as a UniqueVenue for Free Expression must Be Preserved

The Supreme Court stands as a special and uniqueinstitution in American life. It stands as the symbolicand substantive guarantor of this country’s right tofree expression enshrined in the First Amendment tothe Constitution, defending a breadth of rights uniquein the world. Section 6135 of 40 U.S.C. impermissiblyintrudes on those inalienable constitutional rights.

The conduct of the Supreme Court police officersempowered to protect the Court is far moreconsequential than the acts of any other U.S. lawenforcement agency. Unlike any other court in thecountry, thousands of people venture to the SupremeCourt to visit, to witness oral argument, or voice theiropinion and demonstrate their beliefs. That they couldbe deterred from that right, or arrested for expressingthat right, merely because the police failed to tell themthat the sidewalk was an acceptable venue besmirchesthe very principle of free expression.

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B. Section 6135 of 40 U.S.C. is UnconstitutionallyOverbroad

In United States v. Grace, 461 U.S. 171, 103 S.Ct.1702, 75 L.Ed.2d 736 (1983), this Court made clearthat 40 U.S.C. 6135’s (previously cited as 13k)1 broadprohibition against expressive activity did not apply toconduct occurring on the public sidewalks abutting theSupreme Court’s grounds. Grace limited itself toaddressing public expression on the public sidewalkand left unresolved the issue of whether section 6135was constitutionally invalid in its entirety, as theDistrict Court had earlier held. Grace v. Burger, 665F.2d 1193 (D.C. Cir. 1981).

Petitioners now ask this Court to address thatquestion so as to resolve a conflict between a federaldistrict court’s ruling that section 6135 is

1 40 U.S.C. § 6135, in its present form, was enacted in 2002 aspart of a general revision of Title 40 of the United States Code.See Pub. L. No. 107-217, § 1, 116 Stat. 1183 (2002). Section 6135provides in its entirety:

It is unlawful to parade, stand, or move in processions orassemblages 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 noticea party, organization, or movement.

The predecessor statute, 40 U.S.C. § 13k (2000), which section6135 replaced, stated:

It shall be unlawful to parade, stand, or move inprocessions or assemblages in the Supreme CourtBuilding or grounds, or to display therein any flag,banner, or device designed or adapted to bring into publicnotice a party, organization, or movement.

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unconstitutional and subsequent decisions by theDistrict of Columbia Court of Appeals insisting that acomplete First Amendment ban on the Supreme CourtPlaza is lawful.

40 U.S.C. § 6135 states:

“It is unlawful to parade, stand, or move inprocessions or assemblages in the SupremeCourt Building or grounds, or to display in theBuilding and grounds a flag, banner, or devicedesigned or adapted to bring into public noticea party, organization, or movement.”

In Grace v. Burger, the District Court stated thatsection 6135 was “repugnant to the First Amendmentof the Constitution,” and that no “significantgovernmental interests” existed “to justify the absoluteprohibition of all expressive conduct maintained insection [6135],” and held the statue was“unconstitutional and void.” Grace, 665 F.2d at 1194.Despite the District Court’s clear language, the D.C.Court of Appeals persists in wrongly holding that theSupreme Court Plaza is a non-public forum for FirstAmendment purposes. See Lawler v. United States, 10A.2d 122 (D.C. 2010), quoting Potts v. United States,919 A.2d 1127, 1129 (D.C. 2007); United States v. Wall,521 A.2d. 1140, 1144 (D.C. 1987). Although JusticeMarshall explicitly ruled section 6135unconstitutional, Grace, 461 U.S. at 184 (J. Marshallconcur and dissent), the majority of the Court neitheraffirmed nor reversed the District Court’s holding thatsection 6135 in toto was unconstitutional and nevervalidated the statute’s authority to ban all publicspeech on the Plaza. Id. at 175 fn.5. Nonetheless, theD.C. Court of Appeals wrongly claims that this Court’s

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decision in United States v. Grace banned all publicexpression on the Supreme Court Plaza. Lawler, 10A.2d at 125. This Court is the only venue in which thismisinterpretation can be corrected.

1. Section 6135 Impermissibly Bans AllExpression

Section 6135 of 40 U.S.C. creates an overbroad andunconstitutional “First Amendment Free Zone” of thetype struck down by the Supreme Court in the past.See Bd. of Airport Comm’rs of City of Los Angeles v.Jews for Jesus, Inc., 482 U.S. 569, 574 (1987). There,the Board of Airport Commissioners adopted aresolution declaring that the airport terminal area “isnot open for First Amendment activities by anyindividual and/or entity.” Id. at 570-71. The Courtaffirmed the lower court’s determination that theresolution was unconstitutionally overbroad because it“reaches the universe of expressive activity … byprohibiting all protected expression…” Id. at 574.(emphasis in original). The Court observed that theresolution not only reached individuals passing outreligious leaflets, “it prohibits even talking andreading, or the wearing of campaign buttons orsymbolic clothing. Under such a sweeping ban,virtually every individual who enters LAX may befound to violate the resolution by engaging in some‘First Amendment activit[y].’” Id. at 574-75.

Section 6135 is remarkably similar to the LAXresolution as it too prohibits virtually any activity onthe Supreme Court Plaza. The statute makes unlawfulmerely “to parade, stand, or move in processions orassemblages” on the Plaza as well as the expressiveconduct of displaying on Supreme Court grounds “a

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flag, banner, or device designed or adapted to bringinto public notice a party, organization, or movement.”The statute plainly prohibits conduct regardless ofwhether it carries a message or not.

The late Justice Thurgood Marshall correctlycondemned such a blanket prohibition of FirstAmendment rights merely because the venue of theprotests was the Supreme Court when he wrote inGrace:

“Visitors to this Court do not lose their FirstAmendment rights at the edge of the sidewalksany more than “students or teachers shed theirconstitutional rights to freedom of speech orexpression at the schoolhouse gate.” Tinker v.Des Moines Independent Community SchoolDistrict, 393 U.S. 503, 506 (1969). Since thecontinuing existence of the statute willinevitably have a chilling effect on freedom ofexpression, there is no virtue in deciding itsconstitutionality on a piecemeal basis. I see noreason why the premises of this Court should beexempt from this basic principle. It would beironic indeed if an exception to the Constitutionwere to be recognized for the very institutionthat has the chief responsibility for protectingconstitutional rights. I would apply to thepremises of this Court the same principle thatthis Court has applied to other public places. Viewed in this light, 40 U.S.C. [6135] is plainlyunconstitutional on its face. The statute is nota reasonable regulation of time, place, andmanner, for it applies at all times, covers theentire premises, and, as interpreted by theCourt, proscribes even the handing out of a

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leaflet and, presumably, the wearing of acampaign button as well. First Amendmentfreedoms “are delicate and vulnerable,” and“[t]he threat of sanctions may deter theirexercise almost as potently as the actualapplication of sanctions.” I would not leavevisitors to this Court subject to the continuingthreat of imprisonment if they dare to exercisetheir First Amendment rights once inside thesidewalks.”

Grace, 461 U.S. at 185 (Marshall, J., concurring anddissenting in part). Petitioner’s conduct is preciselythe type of conduct that Justice Marshall envisionedmust be protected.

2. Section 6135 Encourages Arbitrary andDiscriminatory Enforcement Based onPolitical Expression

The ban on speech on the Plaza is not absolute. Select speakers are permitted access to the Plaza toexpress their First Amendment rights by way ofholding press conferences that are called “pressavailabilities” by the Supreme Court’s PublicInformation office. Bonowitz v. United States, 741A.2d 18, 22 (D.C. 1999). The Supreme Court Policeonly arrested the Petitioners, failing to enforce thestatute against all of the other “violators” on thegrounds that day. This discrepancy illustrates thearbitrary manner in which Court administratorsenforce the statute, by permitting speech they deemacceptable to be voiced on the Plaza but excludingother types of speech they view with disfavor. Thus,the statute encourages arbitrary and discriminatoryenforcement of those who exercise their First

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Amendment rights, and should be held void. SeeColautti v. Franklin, 439 U.S. 379, 390-91 (1979),citing Papachristou v. City of Jacksonville, 405 U.S.156, 167, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972)(vagrancy ordinance offering no standards governingthe exercise of the discretion impermissibly permittedand encouraged an arbitrary and discriminatoryenforcement of the law).

3. Section 6135 Impermissibly Banned theRight to Free Assembly and to Petition aBranch of Government

The First Amendment explicitly forbids Congressfrom abridging a citizen’s right to free speech,peaceable assembly, and to petition the government.U.S. Const., Am. I. The Petitioners were peaceablydemonstrating on the Supreme Court Plaza and steps,as well as inside the building in the hallway of theUpper Great Hall, petitioning a branch of governmentto “Shut down Guantanamo.” Because the Petitionerswere attempting to exercise their “most precious” rightto petition a branch of government for redress, theywere not required under the primacy of the FirstAmendment to comply with the officers’ warning todesist from violating the facially unconstitutionalstatute. BE & K Constr. Co. v. NLRB, 536 U.S. 516,524-25 (2002) (internal quotations and citationsomitted). The First Amendment reflects our “profoundnational commitment to the principle that debate onpublic issues should be uninhibited, robust, and wide-open.” New York Times Co. v. Sullivan, 376 U.S. 254,270 (1964). A citizen’s right to speak on matters ofpublic concern “‘is more than self-expression; it is theessence of self-government.’” Dun & Bradstreet, Inc. v.Greenmoss Builders, Inc., 472 U.S. 749, 759 (1985)

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(citation omitted). “[S]peech on public issues occupiesthe highest rung of the hierarchy of First Amendmentvalues.” Id. (citation and internal quotation marksomitted).

That the Petitioners chose the U.S. Supreme Courtas its venue to assemble and petition a branch ofgovernment does not mitigate against their FirstAmendment protections. Whether the Supreme CourtPlaza, steps and inside hallways will stand as “FirstAmendment Free Zones” is an important question thatdeserves review by this Court, at a unique time inworld history where the rights of peaceful protesters tochallenge government actions from Egypt to Tunisia toLibya, to our own United States, is much debated.

4. Section 6135 Impermissibly Imposes anAbsolute “Time, Place, and Manner”Restriction

It is well recognized that “time, place, and manner”restrictions may be imposed on First Amendmentconduct in public spaces. Clark v. Community for Non-Violence, 468 U.S. 288, 293 (1984). But as the DistrictCourt in Grace v. Burger pointed out, the statute

… prohibits all expressive conduct in theSupreme Court building and on the SupremeCourt grounds. The statutory prohibitionapplies whether or not the message conveyedconcerning any matter pending before theCourt; public expression is also banned nomatter what effect is intended or produced bythe message. The statute applies whether ornot the Court is in session … we are notconcerned with a narrow regulation that

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governs the time, place and manner ofexpression, or solely protects the efficientfunctioning of the physical structure. Thestatute, as construed, flatly prohibits allexpressive conduct.

Grace, 665 F.2d at 1202.

In the instant case, the District of Columbia Courtof Appeals incorrectly held that protecting the public’sperception of the Court trumped the First Amendmentrights of the protestors. See, Appendix A, page 7.

Preservation of the dignity and decorum of theSupreme Court is a legitimate government interest,but that concern alone is insufficient to justify theblanket prohibition on all expression that section 6135commands. Grace, 665 F.2d at 1204. The interest indignity and decorum at the Court is not unconditional;this interest must be administered fairly and withoutregard to the content of an individual’s message: IfCourt administrators do not consider raucous andpartisan press conferences on the Plaza offensive tothe Court’s civility or decorum or sense of impartiality,the same must be said for peaceful protestors on thePlaza. Bonowitz, 741 A2d. at 22.

A similar government interest exists to insure thatthe public does not conclude that a court’s decision wasthe product of intimidation from rowdy demonstrationson the Supreme Court Plaza or steps. But the broadlanguage of section 6135 is not limited to expressionsthat may improperly influence the Court; it prohibitsall conduct regardless of its content, and regardless ofthe likelihood that the Justices will see or hear thedemonstration, let alone be influenced by it.

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An existing statute currently protects the Court,and other courts, from legitimate concerns of threatsand intimidation to its functioning as a Court. Section1507 of Title 18 of the U.S.C. reads:

Whoever, with the intent of interfering with,obstructing, or impeding the administration ofjustice, or with the intent of influencing anyjudge, juror, witness, or court officer, in thedischarge of his duty, pickets or parades in ornear a building housing a court of the UnitedStates, or in or near a building or residenceoccupied or used by such judge, juror, witness,or court officer, or with such intent uses anysound-truck or similar device or resorts to anyother demonstration in or near any suchbuilding or residence, shall be fined under thistitle or imprisoned not more than one year, orboth. Nothing in this section shall interfere withor prevent the exercise by any court of theUnited States of its power to punish forcontempt.

Section 1507, as it should, effectively silencesobstructive demonstrations and prevents fromoccurring events that the public could properlyperceive as improperly influencing the Justices. Section 1507 is a valid and proper law and makes thesection 6135 which is much broader, both superfluousand irrelevant.

A legitimate requirement exists to insure the freeegress and ingress to the Supreme Court buildingthrough the Plaza and steps. Section 6135 fails tomeet that goal, and egress and ingress was not anissue in the case at bar (there was no dispute that

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Appellants were not blocking free access to the Courtor Plaza). It appears that the statute was enforcedhere solely to assure the Court’s “dignity.” See Grace,665 F.2d at 1203 n.17. But these legislative goals arenot so great that all First Amendment rights on thePlaza must “give way to other compelling needs ofsociety.” Broadrick v. Oklahoma, 413 U.S. 601, 612-615, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973).

Even if the Court determines that section 6135contains some legitimate purpose, it cannot be deniedthat the statute’s overbreadth is “real” and punishes a“substantial” amount of protected free speech. Id. at615. In such a circumstance, this Court has instructedthat “all enforcement of the statute” is invalid “‘untiland unless a limiting construction or partialinvalidation so narrows it as to remove the seemingthreat or deterrence to constitutionally protectedexpression.’” Virginia v. Hicks, 539 U.S. 113, 119-20,123 S.Ct. 2191, 156 L.Ed. 148 (2003) (internal citesomitted), quoting Broadrick, 413 U.S. at 613. Whethersection 6135’s absolute ban on all protected speech inthe Plaza or steps, except for individuals selected bythe Supreme Court’s Information Office to holdpartisan press conferences on the Plaza or individualswhose conduct is not deemed offensive by the SupremeCourt police, is valid is an important Constitutionalquestion deserving of this Court’s attention.

C. The Supreme Court Police Have anAffirmative Obligation to InformDemonstrators That Protesting Is Lawful Justa Few Yards Away on the Sidewalk

If this Court would not find 40 U.S.C. § 6135 to beunconstitutional on its face, the Petitioners’

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convictions nonetheless infringed their due processand First Amendment rights. The statute here isinvalid as it proscribes core First Amendment rights ata public place where people gather, congregate andwhere a person of common intelligence would almostcertainly assume those rights exist. See Colautti, 439U.S. at 390 (“As a matter of due process, a criminalstatute that fails to give a person of ordinaryintelligence fair notice that his contemplated conductis forbidden by the statute, or is so indefinite that itencourages arbitrary and erratic arrests andconvictions, is void for vagueness” (internal quotationsand citations omitted). That is “especially true” wherethe statute prohibits “the exercise of constitutionallyprotected rights.” Id. at 391.

Because the extraordinarily broad language of 40U.S.C. § 6135 plainly clashes with the FirstAmendment, and because it is so arbitrarily enforcedby the Supreme Court Police when it arrestedPetitioners and not nearby by-standers, Due Processmandates that Petitioners at least receive notice ofalternative areas where their right to expression mightlawfully be exercised.

The simple publishing of 40 U.S.C. § 6135 in thelaw books, with no signage or postings at the Plaza,does not provide fair notice – the average personshould assume the law is void and does not prohibitnon-violent First Amendment expressive activity atthe Supreme Court Plaza. This is especially truebecause, assuming the Petitioners knew of andunderstood the statute, they would have alsounderstood that everyone else in line on the plaza orwalking on the plaza or steps was violating the samelaw by standing or moving in a procession waiting to,

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or entering the Court. 40 U.S.C. § 6135, then, fails toprovide fair notice to the average person that theconduct is validly forbidden, and invites arbitraryenforcement. See Colautti, 439 U.S. at 390-91. Forboth reasons, the Petitioners convictions violated dueprocess and infringed their First Amendment rights. Id. This court should vacate them.

In affirming Petitioner’s convictions under 40U.S.C. § 6135, the District of Columbia Court ofAppeals failed to substantively address the Petitioners’argument that the Supreme Court Police violated theirFirst Amendment rights by arresting them forkneeling or holding a sign or a banner on the SupremeCourt Plaza or steps without informing them that theycould legally demonstrate on the sidewalk just a fewyards away, in front of the Supreme Court. Essentially, the court of appeals held that because ithad previously affirmed convictions of persons whohad not received affirmative notification of nearbyalternate means before arrest at the Supreme Court,and it does not require such notifications in othercircumstances, it would uphold these convictions. Inso doing, the court of appeals ignored the compellingcircumstances of these demonstrations—thePetitioners were arrested in a public area, under acriminal statute prohibiting conduct protected by theplain language of the First Amendment—and theimportant question of whether Due Process requiresspecial notification in such circumstances. Thatquestion deserves review in this Court.

This Court recently affirmed the First Amendmentrights of an extremist religious sect to, in JusticeAlito’s words, launch a “vicious verbal assault” onfamily members’ mourning at the funeral of their son

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who was killed in Iraq. Snyder v. Phelps, 562 U.S.____ , 131 S.Ct. 1207, 1222, __ L.Ed. 2d. __ (2011) (J.Alito, Dissent). The Court majority upheld their rightto carry signs proclaiming “Thank God for DeadSoldiers” by explaining that the group “conducted itspicketing peacefully on matters of public concern at apublic place adjacent to a public street. Such spaceoccupies a ‘special position in terms of FirstAmendment protection.’” Snyder, 562 U.S. ____. 131S.Ct. at 1218, quoting United States v. Grace, 461 U.S.171, 180 (1983). The First Amendment rights of thePetitioners, who merely knelt on the Supreme Courtsteps or held a sign or a banner opposing Guantanamoin public areas, deserve no less protection.

Further, unless or until this Court holds 40 U.S.C.§ 6135 unconstitutional on its face, this Court shouldrequire the Supreme Court Police to inform individualsin technical violation of the statute that they maylawfully exercise their First Amendment rights on thesidewalk just a few yards away, in front of theSupreme Court in order to enforce it. This due processrequirement flows from the law’s absolute prohibitionof First Amendment activity. Where a criminal lawthreatens a Constitutional right, the due processdemand of fair notice is most important.

There are at least three reasons why the SupremeCourt Police should be required to direct protestors onthe Plaza or steps to a nearby lawful location on thesidewalk. First, the burden would be minimal: theyneed only tell demonstrators to move a few yards awayand to demonstrate on the adjacent public sidewalk.Had the police done the decent thing and alertedPetitioners that they could exercise their preciousrights by merely moving a few yards away to the

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sidewalk abutting the Supreme Court’s grounds, theywould have then had fair notice that they couldexercise their First Amendment rights in a meaningfulway—that is, still directed at and visibly associatedwith the Supreme Court.

Second, this Court has previously createdsafeguards to protect Constitutional rights. See, e.g.,Iowa v. Tovar, 541 U.S. 77 (2004) (describing what the6th Amendment requires a trial court to tell defendantbefore it can accept waiver of counsel); Boykin v. Ala.,395 U.S. 238 (1969) (requiring that the record reflectknowing and voluntary guilty plea on due processgrounds); Miranda v. Ariz., 384 U.S. 436 (1966)(requiring police to provide warnings to protect FifthAmendment rights). Here, Due Process commands theSupreme Court Police to alert individuals that thesidewalk in front of the Supreme Court is an availablealternate means for them to exercise their FirstAmendment rights, prior to issuing warnings andmaking arrests.

A review of relevant case law reveals that the policeroutinely tell protesters where they could go tolawfully protest. The problem is that such police adviceis inconsistently given, resulting in situations, such asthe one Petitioners’ found themselves in, where someprotestors received significantly less notice than wasgiven to other protesters. In Grace, a Court policeofficer approached Grace and informed her that shewould have to go across the street if she wished todisplay the sign; she left the Plaza and went to thesidewalk. 461 U.S. at 174. The police in Potts v. UnitedStates, 919 A.2d 1127 (D.C. 2007) repeatedly asked agroup of people on the Supreme Court steps who wereprotesting the mistreatment of prisoners at the Abu

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Ghraib and the Guantanamo Bay prisons to return tothe sidewalk before they arrested them; Pearson v.United States, 581 A.2d 347 (D.C. 1990), the police setup barricades in front of the Plaza, clearly demarkingfor anti-abortion demonstrators where lawfuldemonstrations could take place; United States v.Wall, 521 A.2d 1140 (D.C. 1987), the police told anti-abortion protestors they would be arrested if they didnot return to the sidewalk. In Bonowitz the Police readfrom a card with the language of the statute on it. Inall these cases, common sense directed the SupremeCourt Police to point out lawful areas where protestscould occur; unfortunately for the First Amendmentrights of Petitioners, such proper procedure andadmonition are not uniform among the police.

Finally, preserving the Supreme Court’s status asa unique venue for Free Expression compels therequirement that the Supreme Court police advisedemonstrators where their First Amendment rightsmay lawfully be expressed. Such an obligation wouldnot be overly burdensome to the police officers whenbalanced against First Amendment requirements. Theadvisement would be far less burdensome than thefour day criminal prosecution of demonstrators whowere arrested and processed through the criminaljustice system merely because they were not informedof a lawful demonstration site a few yards away.

CONCLUSION

The Petitioners’ convictions for kneeling on thepublic steps or holding a sign or a banner on the publicplaza or kneeling and chanting in a hallway inside theGreat Hall at the United States Supreme Courtviolated their Due Process and First Amendment

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rights. For the foregoing reasons and any others thatmay appear to this Court, Petitioners respectfullyrequest that the Court grant this petition for a writ ofcertiorari.

Mark L. Goldstone, Esq. D.C. Bar No. 394135 Counsel of Record9419 Spruce Tree CircleBethesda, MD 20814(301) 530-6612 mglaw@comcast.net

Attorney for Petitioners(Appointed by the Court)