A policy established in the aftermath of the Sept. 11, 2001, terror attacks that limited protests on the steps of the U.S. Capitol is unconstitutional, a federal appeals court in Washington ruled Tuesday.
A U.S. Capitol Police rule has for years restricted demonstrations on the building’s East Steps to only allow protests sponsored by a member of Congress. Rev. Patrick Mahoney, a Presbyterian minister in Virginia, challenged the rule in a 2021 lawsuit after being denied access to the area, where he planned to hold a prayer vigil in honor of the 20th anniversary of the terrorist attacks, according to court filings.
The U.S. Court of Appeals for the D.C. Circuit held Tuesday that the Capitol Police Board’s policy infringes on First Amendment free speech protections by offering “preferential treatment” to causes supported by lawmakers. The court concluded that the East Steps of the building are a “nonpublic forum,” meaning the government may pose restrictions, but those limits have to remain “viewpoint neutral” and not let officials exercise discretion over the area’s use.
The current rule “unreasonably allows members of Congress to serve as gatekeepers of speech on the Eastern Steps,” the opinion said. “Because the protection of unpopular speech and advocacy is central to the First Amendment, we cannot leave it to the selective enforcement of members.”
Trending
The appellate court partially reversed a D.C. District Court ruling that designated the Eastern Steps as a public forum, a classification that provides the strongest legal protections for protestors by heavily limiting the types of restrictions that can be imposed. The case will go back to D.C. District Court, which is likely to issue a narrow injunction allowing protests to resume.
The ruling reaffirms longstanding First Amendment precedents in D.C. amid a separate battle over access to the White House grounds that is likely to also make it to the appeals court.
President Donald Trump banned Politico, CNN and MS NOW from the White House last week as retribution for publishing what he called “fake news.” Like the East Steps of the Capitol, White House grounds are considered a nonpublic forum where restrictions to access cannot be viewpoint specific.
“Media Outlets shouldn’t be able to constantly write or report FICTION and LIES,” Trump said in a social media post announcing the ban.
The three news organizations filed a lawsuit in D.C. District Court calling the ban a “blatant violation” of “fundamental constitutional principles.”
In a separate social media post following the lawsuit, Trump called media outlets “Third Rate Clowns” with no credibility. He said that his administration anticipates losing in district court and plans to appeal the ruling when it comes.
Author
