“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. It includes judges nominated in both his first and second terms.
What’s at stake in this case?
A minister challenged federal regulations that ban public demonstrations on the Eastern Steps of the U.S. Capitol unless sponsored by a member of Congress.
What happened in this case?
Although the area had previously been open to the public for many years, federal rules after September 11 banned public demonstrations on the Eastern Steps of the Capitol except where sponsored by a member of Congress. Reverend Patrick Mahoney, who had organized some 40 prayer vigils and protests in that area since the 1980s, filed a federal lawsuit challenging the rules as violating the First Amendent. A district court judge agreed that the rules violated the First Amendment and issued an injunction against any enforcement of them. The U.S. Capitol Police Board appealed.
Trump DC Circuit judge Neomi Rao issued a 2-1 decision in September in Mahoney v US Capitol Police Board that partly upheld but partly reversed the decision below. Joined by George HW Bush judge Karen Henderson, Rao ruled that although the area in question should be considered a nonpublic forum, it was improper to condition Rev. Mahoney’s right to demonstrate there on his getting approval from a member of Congress. She also reversed the broad injunction against the rules, however, claiming it “exceeded” the district court’s authority. Clinton judge Judith Rogers dissented.
Why did Judge Rogers dissent?
Rogers agreed with the majority that the “selective exception” for members of Congress was improper, but she strongly disagreed with the limited nature of the First Amendment violation and relief found by Rao. In particular, Judge Rogers explained, the district court was correct that the Eastern Steps are a traditional public forum where speech should not be restricted, and the rules at issue are not “narrowly tailored” to satisfy First Amendment scrutiny. She agreed that the district court should consider carefully the scope and content of its injunction in light of Supreme Court precedent, but she made clear that the very limited scope suggested by Rao violated established precedent.
Why is this decision harmful?
Although Trump judge Rao’s decision permits First Amendent activity on the Eastern Steps by Rev. Mahoney, its narrow scope severely limits the constitutional protection it provides to other people. It also sets troubling precedent on important First Amendment issues, including what constitutes a traditional public forum and narrowly tailored restrictions, particularly in the DC Circuit. In addition, the decision illustrates the importance of our federal courts to health, welfare and justice and the significance of having fair-minded judges on the federal bench.