Capitol Ban on Protests Nullified.
Appellate Court Opens Sidewalk To Demonstrators.
By Neely Tucker and Spencer S. Hsu.
Washington Post Staff Writers.
Saturday, June 1, 2002; Page A01
A federal appeals court yesterday struck down a 30-year-old ban that keeps protesters from the House and Senate entrances of the Capitol, ruling that security concerns do not outweigh First Amendment rights at a building that is "a centerpiece of our democracy."
A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit unanimously agreed that U.S. Capitol Police regulations violate the right of protesters to gather on the sidewalk on the east side of the Capitol and pass out leaflets or hold signs.
"We declare the entire demonstration ban unconstitutional," Judge David S. Tatel wrote in an opinion also signed by the other panel members, Judge Harry T. Edwards and Senior Judge Laurence H. Silberman.
Tatel ordered a lower court to immediately enter an injunction barring enforcement of the ban. But he also wrote that police have the right to regulate and limit Capitol protests.
"In the atmosphere we live in today, this is a tremendous affirmation of the First Amendment principle," said Robert Lederman, the New York City artist and activist whose 1997 arrest at the Senate entrance sparked the suit, which was filed by the American Civil Liberties Union. "If you can protest on the sidewalk of the Capitol, then you should be able to protest at government buildings around the country."
Del. Eleanor Holmes Norton (D-D.C.), who has called for a national commission to ensure that security needs after the Sept. 11 terrorist attacks do not override public-access concerns, said, "The timing [of the opinion] could not be more important to keeping this city open after 9/11."
The ruling to provide even slightly more public access to a symbolic government building comes as security measures have multiplied around federal Washington, with officials shutting down or restricting access to many buildings and offices.
U.S. Capitol authorities no longer permit easy tourist access to the building and have imposed time-limited tours, reducing the number of visitors to less than half the pre-attack levels. The 202-year-old structure is undergoing construction of a $368 million underground visitors center and a $100 million effort to install metal posts and pop-up street barriers on the area's perimeter.
The two projects are so vast that nearly the entire east side of the Capitol will be a construction zone for at least two years, almost certainly delaying any protests until their completion.
But the appeals panel ruled yesterday that security restrictions can go only so far, even at the seat of the nation's democracy.
U.S. Capitol Police were first ordered to allow at least some protests and demonstrations on the Capitol grounds in a 1972 Supreme Court ruling that said the 60-acre area met the legal definition of a public forum.
The court, however, allowed the agency to regulate protest activity. The policy has evolved over the years and currently limits demonstrations to the center steps of the Capitol's East Front, two grassy patches on the north and south sides of the east Capitol grounds, the lower West Terrace and the West Lawn and adjacent parks. Protesters also can use the sidewalks near congressional office buildings.
All the sites, except the center steps, are several hundred feet from the Capitol building.
No site is more attractive to protesters than the sidewalk and steps that lead to the entrances of the House and Senate chambers, where members of Congress, their staffs, lobbyists and tourists pass each day. But protesters have been banned from passing out leaflets there, holding signs or staging vocal demonstrations. They can only wear expressive T-shirts or buttons.
On a rainy day in spring 1997, Lederman was arrested for handing out leaflets opposing restrictions on New York City sidewalk artists. He had won challenges to parts of the protest ban in D.C. Superior Court and in U.S. District Court, but yesterday's ruling threw out the most basic provisions of the sidewalk ban.
The court rejected the government's warnings of inconvenience and security dangers to lawmakers.
"If this country has learned anything at all from September 11, we learned that the unthinkable can happen, the unimaginable, in fact, can be imagined by someone, and a terrible toll that can stab the heart of our nation can be exacted by a small group of people," assistant U.S. attorneys R. Craig Lawrence and Marina Utgoff Braswell argued in their appellate filings.
Judge Silberman concurred with the court's opinion but noted that case law "betokens a more sympathetic reception to the government's arguments."
John T. Caulfield, general counsel for the Capitol Police Board, a panel made up of the House and Senate sergeants-at-arms and the architect of the Capitol, said government lawyers would evaluate whether to appeal.
"Certainly, the recent security measures are not arbitrary," he said. "The goal of the U.S. Capitol Police has always been to balance security interests with open access to the people, and it is the people's Capitol."
© 2002 The Washington Post Company