The following editorial appeared in today's Washington Post:
In striking down a ban on demonstrations in parts of the Capitol grounds, the District of Columbia Circuit Court of Appeals has issued a pointed reminder that some values -- even after Sept. 11 -- should not be blithely sacrificed in the name of security. The 30-year-old ban, which prohibits all demonstrations on the sidewalk of the Capitol's east front, long predated the attacks. So did the litigation challenging it, litigation that began when Capitol Police arrested an artist named Robert Lederman for distributing leaflets in the no-demonstration zone in 1997. But after Sept. 11, security concerns infused the case -- with the government arguing, in effect, that it should have added latitude to prohibit demonstrations out of fear of terrorism. The unanimous panel of the court, fortunately, was having none of it.
Writing for the court, Judge David Tatel rejected "the proposition that demonstrators of any stripe pose a greater security risk to the Capitol building and its occupants than do pedestrians, who may come and go anonymously, travel in groups of any size, carry any number of bags and boxes, and linger as long as they please." The government is free to regulate the size and manner of protests, the court ruled. But to ban demonstrations outright from a public place is not a narrowly tailored restriction. It is, wrote Judge Tatel, quoting another case, "a serious loss to speech . . . for a disproportionately small governmental gain."
Judge Laurence Silberman wrote separately to note that, while he agreed that binding case law required the ban to fall, his reading of case law suggests that the Supreme Court would be more open to the government's arguments than it has been in the past. And since, he noted with a dig at the justices, the high court "rarely considers itself bound by the reasoning of its prior opinions," the government might still prevail on further appeal. We hope not. Nearly everyone is prepared to make sacrifices in the name of security. But the sacrifices have to be reasonable and plausibly related to real threats. The Capitol has a large police force devoted to its protection. And as the court made clear, those guardians have ample authority to prevent inconvenience to members of Congress and protect them and their staffs without prohibiting demonstrations wholesale. The Capitol, as the court put it, is "a centerpiece of democracy." Even when that democracy is at war, peaceful political expression ought not to be driven from the Capitol's doors.
Brainerd Dispatch ©2013. All Rights Reserved.