## Facts

- A federal statute, 40 U.S.C. § 6135, bars (1) parades, processions, and assemblages and (2) certain flags, banners, or devices on Supreme Court “building and grounds,” a term that includes some surrounding areas.
- Prior Supreme Court precedent held the statute’s display ban unconstitutional as applied to the public sidewalks around the Court because those sidewalks function as a public forum.
- Harold H. Hodge, Jr. sought to picket, leaflet, and give speeches on the Supreme Court plaza—an elevated marble terrace directly in front of the Court’s main entrance—to convey political messages about the Court’s decisions.
- Hodge had previously been arrested on the plaza for holding a sign criticizing government and police conduct.
- Hodge filed suit seeking declaratory and injunctive relief, arguing § 6135 violated the First Amendment as applied to expressive activity on the plaza.
- The district court granted summary judgment for Hodge, declared § 6135 unconstitutional as applied to the plaza, and enjoined enforcement there.
- Government officials appealed.

## Issues

1. How should the Supreme Court plaza be classified for First Amendment forum analysis (public, designated public, limited public, or nonpublic forum)?
2. If the plaza is not a public forum, are § 6135’s Assemblages and Display Clauses nevertheless unconstitutional as applied to expressive activity on the plaza?
3. Are the statute’s restrictions on the plaza viewpoint-neutral and reasonable in light of the forum’s purpose, including concerns about courthouse decorum and judicial independence?
4. Is § 6135 invalid on the plaza due to overbreadth or vagueness?

## Decision

- The court of appeals reversed the district court’s judgment and vacated the declaration and injunction barring enforcement on the plaza.
- The Supreme Court plaza was held to be a nonpublic forum.
- Applying nonpublic-forum standards, the court held § 6135’s Assemblages and Display Clauses are viewpoint-neutral and reasonable as applied to the plaza.
- The court rejected overbreadth and vagueness challenges to the statute in this context.
- The ruling was limited to the plaza and did not alter the treatment of perimeter sidewalks as public forums.

## Legal Principles

- Forum classification turns on the property’s traditional use and the government’s intended purpose for the space; a ceremonial entrance area tied closely to a courthouse may be a nonpublic forum.
- In a nonpublic forum, the government may restrict speech if the restrictions are viewpoint-neutral and reasonable in light of the forum’s purpose; strict scrutiny and narrow tailoring are not required.
- A prohibition aimed at categories of conduct (e.g., parades/processions/assemblages or specified forms of display) is viewpoint-neutral when it does not favor or disfavor particular ideologies or messages.
- Protecting courthouse decorum and preserving the appearance and reality of an independent judiciary are legitimate governmental interests supporting reasonable limits on expressive activity near a courthouse entrance.
- The availability of nearby public-forum locations for expression can support a finding that restrictions in an adjacent nonpublic forum are reasonable.
- Longstanding statutory terms with a clear core meaning, applied in a consistent context, can defeat vagueness and overbreadth claims as applied.

## Conclusion

The court held that the Supreme Court plaza is a nonpublic forum and that Congress may enforce § 6135’s bans on assemblages and specified displays in that area because the restrictions are viewpoint-neutral and reasonable to preserve courthouse decorum and judicial independence, while leaving alternative avenues for expression on nearby public sidewalks.


Hodge v. Talkin, 799 F.3d 1145 (D.C. Cir. 2015)