Supreme Court could get on its own case

High court finds itself as defendant in suit testing the limits of free speech.

It is the kind of free-speech case that one might expect to wend its way through the legal system all the way up to the US Supreme Court.

An anti-abortion protester displays a series of large posters depicting in graphic detail the results of a particularly gruesome abortion method. The signs are shocking and offensive to many who walk by on the sidewalk, including busloads of children.

A security official confronts the protester, telling him that he must remove the posters or face arrest because they are in violation of a regulation that limits the size of protest signs.

When the protester says he is unaware of any size limits, he is informed that this particular regulation has just been adopted that same day. The protester refuses to remove his signs, which are confiscated, and the man is led away to jail.

What makes this scenario particularly interesting is that the government agency in question is the Supreme Court itself. As a result of the April 25 encounter, the high court now finds itself in the unusual position of being a defendant in a case that implicates some of the most basic freedoms in the US Constitution.

"Sweeping public speech off the sidewalk to improve the appearance of the court that is supposed to be protecting the right of freedom of speech is the antithesis of the rule of constitutional law," says James Matthew Henderson of the American Center for Law and Justice, which is representing the protester.

LAWYERS for the protester asked a federal judge to strike down the new regulation as a violation of the First Amendment.

Instead, US District Judge Thomas Hogan ruled last month that the new regulation was a reasonable means of maintaining "suitable order and decorum within the Supreme Court building and grounds."

The judge also ruled that there was no evidence to suggest that the high court's new regulation was adopted in an effort to muzzle the abortion protester by disrupting his demonstration.

The protester, the Rev. Patrick Mahoney, has accused the court of engaging in a form of censorship by adopting a regulation that he believes was aimed at undercutting a message court officials found disturbing.

Mr. Henderson has filed a motion asking Judge Hogan to reconsider his earlier ruling. If the judge refuses, Mr. Mahoney and Henderson have the option of taking the case to a federal appeals court panel. After that the case could, in theory, rise to the high court itself.

Some legal analysts say that, in light of similar protest-sign restrictions at the White House and Lafayette Park, the case faces an uphill battle.

The Supreme Court's regulation is nearly identical to the rules applied in Lafayette Park, across the street from the White House, where fixed signs larger than 4 feet by 4 feet are banned. Restrictions in front of the White House bar fixed signs larger than 3 feet by 20 feet. In addition, no fixed signs may be placed in a 20-yard section of sidewalk directly in front of the White House.

Judge Hogan cites these restrictions in his order upholding the Supreme Court restrictions. But it remains unclear whether the Supreme Court's justification for enacting such free-speech restrictions rises to the level of those offered to enact the earlier regulations near the White House.

Art Spitzer of the American Civil Liberties Union was involved in legal challenges to the White House protest-sign restrictions. "The regulation on the White House sidewalk and at Lafayette Park were adopted to protect the safety of the president," says Mr. Spitzer. "They were really done at the request of the Secret Service, who said the large plywood signs could be used as a ramp to run over the [White House] fence, or they were big enough to hide explosives or mortars. We thought it was a little bit far-fetched, but the court wasn't about to second-guess the Secret Service in guarding the president and the White House."

Spitzer says government lawyers "assured us that this was only for the White House and not something they would try to do elsewhere." He adds that now that similar restrictions have spread to the Supreme Court, other agencies may soon follow suit.

"I don't want to sound like I don't care about the security of the Supreme Court, but it is not obvious to me how a restriction on the size of a sign is meaningfully related to security," Spitzer says.

Henderson expresses like concerns. "It looks too much like a court that is uncomfortable with a particular message and makes a rule that shrinks it down to a size that it can live with," he says.

The lawyer says imposing the sign-size restriction is like ordering a newspaper to limit its news coverage to two letter-size sheets of paper. "Once the mechanism is in place to do that with one particularly unpopular view, then the mechanism is in place to do that with any view."

(c) Copyright 2000. The Christian Science Publishing Society