By Michael Macagnone, CQ-Roll Call
WASHINGTON — A federal appeals court in Washington on Tuesday threw out rules restricting protesters from the steps of the U.S. Capitol, finding that they violated the free speech rights of demonstrators.
The 2-1 decision from the U.S. Court of Appeals for the District of Columbia Circuit found that U.S. Capitol Police Board restrictions on demonstrations on the Capitol’s eastern steps violate the Constitution. Under rules adopted in the wake of 9/11, most demonstrations are banned with exceptions for those sponsored by members of Congress.
Judge Neomi Rao, in an opinion for the two-judge majority, wrote that the steps are a “nonpublic forum” and any restrictions on free speech there must be neutral to any particular viewpoint and not arbitrary. Rao wrote that because members of Congress effectively control access to the steps, that is arbitrary.
“A regulation that grants the government arbitrary control over who may speak invites the suppression of disfavored viewpoints and undermines the First Amendment’s core protections,” Rao wrote.
The panel did not order the police to open the stairs, but sent the case back down to the U.S. District Court for the District of Columbia, where it has simmered for years.
Representatives for the U.S. Capitol Police did not respond to requests for comment on the ruling.
The ruling is a victory for plaintiff Patrick Mahoney, a minister who was arrested in 2021 for holding a protest on the Capitol steps. He brought the case arguing the restrictions violated his free speech rights.
The lower court initially ruled in Mahoney’s favor, finding the steps were a fully public forum with a history of protests and the restrictions were unconstitutional. But Rao’s two-judge majority found that while the steps were a nonpublic forum which can have some restrictions on demonstrations, the USCP rules went too far.
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Judge Judith W. Rogers of the appellate court dissented, arguing for a more broad ruling against the USCP rules.
Rogers wrote that the majority too narrowly focused on the use of the steps as an entrance and exit for members of Congress rather than the long history of protests there.
“These steps unfold above the bases in broad cascading marble terraces that readily serve as speaking platforms and places for congregating, rather than steps solely dedicated to entering and exiting a building,” Rogers wrote.
Nina Heller contributed to this report.
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