Members of Congress often hold demonstrations on the Eastern Steps of the U.S. Capitol building. Ordinary citizens, however, are barred from holding demonstrations on those same steps without congressional sponsorship. This selective limitation is unacceptable under the First Amendment, even conceding that the Eastern Steps are a nonpublic forum. So concluded the U.S. Court of Appeals for the D.C. Circuit today in Mahoney v. U.S. Capitol Police Board.
Although all three judges on the panel agreed the regulations were impermissible, they disagreed on the rationale. Judge Rao, joined by Judge Henderson, wrote for the court. Her opinion begins:
Federal regulations prohibit the public from demonstrating on the Eastern Steps of the United States Capitol unless sponsored by a member of Congress. A minister seeking to pray and demonstrate on the Steps brought a First Amendment challenge to these regulations. The district court granted summary judgment for the minister and universally enjoined enforcement of the regulations.
Although the Eastern Steps are a nonpublic forum, the regulations are not reasonable because an individual's right to demonstrate outside the Capitol cannot turn on the discretion of a member of Congress. The universal injunction, however, exceeded the district court's equitable authority. We therefore affirm the grant of summary judgment for Mahoney on his First Amendment claim but vacate the injunction and remand for the district court to determine the appropriate scope of relief.
