This case began in 1997 when we defended artist Robert Lederman, who was arrested for leafleting on a sidewalk at the foot of the Capitol steps on Arts Advocacy Day. A Superior Court Commissioner ruled that the regulation prohibiting demonstration activity in that general area was unconstitutional. But the government did not appeal, and a Commissioner’s decision does not act as legal precedent that guides further decisions.
We filed this civil suit in federal court in 1999 seeking an injunction prohibiting the regulation’s enforcement and damages for our client’s arrest. In March 2000, the district court ruled that the regulation was unconstitutional and permanently enjoined its enforcement.
The Capitol Police then amended their regulation to include a specific ban on leafleting in the area adjacent to the Capitol. We challenged this new ban, and in March 2001 the district court reaffirmed that the sidewalk below the Capitol steps is a traditional public forum and held the amended regulation unconstitutional, but did not enjoin enforcement of the new regulation.
After September 11 happened, the government defended the regulations as an anti-terrorism measure, on appeal, arguing that in the wake of 9/11, the courts should not second-guess the Capitol Police about security. But in May 2002 the court of appeals firmly “reject[ed] 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 court agreed that the Capitol grounds are a traditional public forum and that the restrictions on leafleting were unconstitutional. The government did not seek Supreme Court review.
On remand, the district court in July 2003 enjoined enforcement of the anti-leafleting regulation anywhere on the Capitol grounds. After the court denied a motion to dismiss our claim against the District of Columbia, we settled that claim for $10,000 in 2008.
