ANTI-DEATH PENALTY PROTEST CASE Appealed to US Supreme Court
Thirty years after the execution of Gary Gilmore, the first person executed following the reinstatement of the death penalty in the United States following the Gregg v Georgia decision of the US Supreme Court, nine concerned citizens from New York, North Carolina, South Carolina, Virginia, Kansas and Vermont were arrested at the U.S. Supreme Court on January 17, 2007. The group peacefully and visibly called for an immediate cessation of all executions in the United States. They unfurled a 30-foot banner that read “STOP EXECUTIONS!” on the plaza of the US Supreme Court. All participants were jailed for more than 30 hours before being released by a Superior Court judge late the following day. Eight defendants continued their message of abolition at a bench trial on June 28, 2008 where they were found guilty of holding a banner on the grounds of the United States Supreme Court, in violation of US Federal Statute § 40 USC 6135, and sentenced to time served.
Six of the defendants, Brian Buckley, Anna Shockley, Ron Kaz, Thomas Muther, along
with Jack Payden-Travers and Rachel Lawler, appealed their convictions. Appellant
Lawler worked with the group’s attorney advisor, Mark Goldstone – a highly-regarded
First Amendment lawyer based in DC, in drafting the appeal brief that was filed in 2008.
Oral arguments were set to be heard on November 24, 2009 where appellants were to challenge their convictions based upon several issues under the First Amendment of the United States Constitution.
Pro se appellants Jack Payden-Travers and Rachel Lawler were scheduled to argue the case in front of the DC Court of Appeals. But their 30-minute oral hearing was cancelled when the clerk of the DC Court of Appeals realized that the appellants would be arguing their own case rather than being represented by an attorney, and so the defendants were further denied their right to defend their case directly to the court.
Without being able to speak on their own behalf, their convictions were upheld by the DC Court of Appeals on December 16, 2010. As a result, the six defendants have filed a Petition for Writ of Certiorari which is the mechanism by which their appeal may be considered by the US Supreme Court. The petition asks the Supreme Court of the United States to declare the statute forbidding “the people” from petitioning on the plaza of the Court unconstitutional under the First Amendment to the Constitution of the United States of America.
grounds of the United States Supreme Court and does so because appellants, out of
conscience, brought a clear and effective message against the death penalty to the nation’s attention, which they believe they had every right to do under the constitutional guarantees of freedom of speech, freedom of assembly and freedom to petition their government for a redress of grievances.
MEDIA: photographs, videos, and prior coverage of the event, arrest, and trial can be
found at http://www.abolition.org/
On the Court’s marble plaza, lawyers and advocates on both sides of the Wal-Mart v. Dukes civil rights case were holding forth for news media cameras and microphones at an impromptu press conference. A few feet away, on the public sidewalk, advocates for paycheck fairness for women at Wal-Mart were chanting slogans.
But under federal law, if the demonstrators had climbed the steps from the sidewalk onto the marble plaza itself, they would have probably been arrested, even as the press conference continued.
Solo practitioner Mark Goldstone of Bethesda, Md. sees a fairness issue in that fact of life, and it is one of the points he has made in a petition before the Court in Lawler v. United States.
The petition challenges a decision by the D.C. Court of Appeals that upheld the conviction of nine anti-death penalty protesters on the marble plaza of the Court in January 2007. They were arrested under 40 U.S.C. Sec. 6135, which makes it a crime to “parade, stand, or move in processions or assemblages” in the Supreme Court building or on its grounds. While waiting on line on the plaza to attend oral arguments, the defendants stepped out of line and unfurled a banner that said “STOP EXECUTIONS.”
The law itself is overly broad, Goldstone asserts, creating an unnecessary and unconstitutional “First Amendment-Free Zone” at the nation’s highest court. But he adds that the Court’s allowance of some First Amendment activities – like press conferences – on the marble plaza, while barring peaceful demonstrators in the same place, “illustrates the arbitrary manner in which Court administrators enforce the statute, by permitting speech they deem acceptable to be voiced on the plaza but excluding other types of speech they view with disfavor.”
In addition, Goldstone’s petition invokes the Court’s March 2 decision in Snyder v. Phelps, which gave First Amendment protection to virulent and controversial protests near funerals of U.S. soldiers “at a public place adjacent to a public street.” Goldstone wrote, “The First Amendment rights of the petitioners, who merely unfurled a banner opposing the death penalty in a public area, deserve no less protection.”
Goldstone, who has been defending protesters in Washington for more than 25 years, said the Snyder decision gave him new hope that “we can win now.”
The justices have dealt with the issue of demonstrations in front of the Court before, in a 1983 ruling United States v. Grace. By a 7-2 vote, the Court struck down the law insofar as it barred demonstrations on the public sidewalk in front of the building. But it left the rest of the law, prohibiting demonstrations on Court grounds, undisturbed.
In the decision, the Court noted that one of the stated purposes of the law restricting protests near the Supreme Court was to keep the public from gaining the perception that the justices can be swayed by public demonstrations. “Courts are not subject to lobbying, judges do not entertain visitors in their chambers for the purpose of urging that cases be resolved one way or another, and they do not and should not respond to parades, picketing, or pressure groups,” Justice Byron White wrote for the Court. But he said that purpose was not served by banning protests on the public sidewalk in front of the Court, which is traditionally an open public forum.
Goldstone argues that this stated purpose of the law is “insufficient to justify the blanket prohibition,” and could also feed the perception that “the Court requires special protection from protesters because it is somehow uniquely vulnerable to public pressure.” He notes that demonstrations are permitted on comparable grounds across the street at the U.S. Capitol.
“Why is the Supreme Court any different?” Goldstone said in an interview. “The First Amendment doesn’t say you can just petition two branches of government.”
The Court’s security concerns, Goldstone said, are adequately protected by other laws such as 18 U.S.C. Sec. 1507, which outlaws obstructing or interfering with the administration of justice.
Even if the Court declines to strike down the law, Goldstone says in his brief, Court police have “an affirmative obligation” to tell demonstrators, before arresting them, that they could comply with the law by moving their protest to the public sidewalk.
“The Supreme Court stands as a special and unique institution in American life,” Goldstone wrote. “It stands as the symbolic and substantive guarantor of this country’s right to free expression enshrined in the First Amendment … A requirement that the Supreme Court police advise demonstrators where their First Amendment rights may lawfully be expressed would not burden police officers.”
Tony Mauro can be contacted at email@example.com.