PD Editorial: Steps away from free public debate

Two years ago, a Sonoma County judge stirred up a healthy debate about speech in public spaces when he handed down new rules prohibiting protests and preaching around the Hall of Justice. This included the corridors, outside walkways and the courthouse steps - and came with fines of up to $1,500.

“The courthouse is designed for the business of providing justice,” Presiding Judge Rene Chouteau said at the time. “It’s not a free-speech forum.”

Fortunately, Chouteau backed down after a number of individuals and groups, including this publication, protested on grounds that, one, there had been little cause for such a restrictive edict and, two, the courthouse steps have long been a revered place of free expression in our nation’s history.

That has been true all the way to the hollowed grounds outside the U.S. Supreme Court, which has often been a hotbed of activity in the hours before and after landmark rulings.

But for reasons the defy reason and tradition, the 20,000-square-foot marble plaza in front of the Supreme Court has, in recent years, been off limits to such free speech - a situation that may now become permanent.

Last week, the U.S. Court of Appeals for the D.C. Circuit ruled unanimously that there is no free speech right in front of the U.S. Supreme Court and that the court can keep demonstrators off the plaza without violating their rights.

“A line must be drawn somewhere along the route from the street to the court’s front entrance. But where?” Judge Sri Srinivasan wrote for the three-judge panel. “Among the options, it is fully reasonable for that line to be fixed at the point one leaves the concrete public sidewalk and enters the marble steps to the court’s plaza.”

The decision reversed a lower court ruling that a prohibition on protests on the plaza unconstitutional. That case involved a student who was arrested in 2011 on the plaza while wearing a sign that criticized police treatment of blacks and Hispanics. When the student sued, a judge found the law prohibiting access to the plaza was too broad.

Friday’s reversal will still allow demonstrations on the sidewalk in front of the court, but it appears to be in direct conflict with a 2002 ruling that protected free speech on the steps of the U.S. Capitol just across the street.

So what is the difference? Neither body is likely to be swayed by the activities that occur outside their stately quarters. Free speech was good enough to be a cornerstone of these structures. Is it now too heavy a burden for the plaza of the U.S. Supreme Court?

Yes, one may be able to better appreciate the architecture of courthouse plazas when they are vacant and cleanly swept. But our system of government was not designed to be appreciated for its form at the expense of function.

The courts last week chose to distance themselves from the often untidy and inconvenient but inherently vital function of raw open-air public discourse - and we fear the chilling effect this could have if courts across the nation follow their lead. We hope they don’t.