## Facts

- Mitchell N. Potts, Peter J. Perry, and David H. Barrows participated in a protest at the United States Supreme Court on February 9, 2005, objecting to detainee mistreatment and the appointment of Alberto Gonzales as Attorney General.
- Potts wore a black hood; Barrows wore an orange jumpsuit and a black hood; Perry held a sign reading “no taxes for war or torture.”
- The protest began on the public sidewalk; the defendants then moved up steps onto the Supreme Court plaza (Supreme Court grounds).
- Supreme Court Police repeatedly directed the defendants to return to the sidewalk and arrested them when they refused.
- The defendants were charged with violating 40 U.S.C. § 6135, which prohibits on Supreme Court grounds the display of certain banners or devices “designed or adapted to bring into public notice a party, organization, or movement.”
- After a bench trial in D.C. Superior Court, the defendants were convicted and appealed.

## Issues

1. Whether the D.C. Superior Court had jurisdiction to prosecute violations of 40 U.S.C. § 6135 committed on Supreme Court grounds.
2. Whether 40 U.S.C. § 6135 violates the First Amendment on its face.
3. Whether applying § 6135 to the defendants’ protest activities on the Supreme Court plaza violated the First Amendment.
4. Whether the evidence was sufficient and the trial court’s factual findings were clearly erroneous.

## Decision

- The D.C. Court of Appeals affirmed the convictions.
- The court held that D.C. Superior Court had jurisdiction to try § 6135 offenses.
- The court upheld § 6135 as facially constitutional.
- The court held § 6135 constitutional as applied to the defendants’ conduct on the Supreme Court plaza after repeated police directions to return to the sidewalk.
- The court rejected challenges to the trial court’s findings and found the evidence sufficient to support the convictions.

## Legal Principles

- Congress authorized prosecution of § 6135 violations in D.C. Superior Court as well as in federal district court, and Superior Court jurisdiction also extends to criminal cases under laws applicable exclusively to the District of Columbia, including regulations limited to Supreme Court grounds.
- The Supreme Court plaza is a nonpublic forum; speech restrictions there are permissible if they are reasonable in light of the property’s purpose and not an effort to suppress expression because of disagreement with the speaker’s viewpoint.
- A restriction aimed at preventing displays that publicize any “party, organization, or movement” on Supreme Court grounds may be treated as viewpoint neutral and reasonable to preserve order, decorum, and the appearance of judicial impartiality and independence.
- Applying § 6135 to expressive devices displayed on the plaza, while leaving open expression from the public sidewalk, can be consistent with the First Amendment in a nonpublic forum.

## Conclusion

The court affirmed the defendants’ § 6135 convictions, holding that D.C. Superior Court had jurisdiction and that the statute, as a reasonable and viewpoint-neutral limit on expressive displays on the nonpublic Supreme Court plaza, was constitutional both facially and as applied, with sufficient evidence supporting the trial court’s findings.


Potts v. United States, 919 A.2d 1127 (D.C. 2007)