CVC construction delays impact of First Amendment court ruling

The Hill ^ | June 5, 2002 | Sarita Chourey

[tgslTakoma]

Bulldozers and dump trucks will have the final say on the placement of protestors outside the Capitol, court rulings notwithstanding.

Last week a three-member federal appeals court unanimously struck down a ban on demonstrations on the sidewalk leading to the House and Senate steps. But the ruling is effectively moot during construction of the massive, $368 million Capitol Visitor Center (CVC).

Though civil rights groups hailed the ruling as a victory, Capitol construction will delay its implementation.

Tom Fontana, spokesman for the CVC, confirmed that accessibility to the sidewalk would be reduced more on the House side than on the Senate side.

“The First Amendment has once again yielded to physical reality,” said Arthur Spitzer, legal director for the American Civil Liberties Union (ACLU) National Capitol Area and the attorney who first launched the lawsuit that resulted in the ruling. Much of the East Front of the Capitol is a construction zone for the building of the CVC and, for the most part members of the public are not permitted into that area as a safety measure.

“It is ironic that after several years of litigation, the ruling is made right at this time, when construction has taken over the area,” said Spitzer.

But though the exact sidewalk the court ruled on is off-limits due to construction, Spitzer said the reasoning behind the decision should extend to all sidewalks on the Capitol grounds.

“Capitol Police would be hard-pressed to come up with an excuse for not letting picketers and people with leaflets from using them,” said Spitzer.

Lt. Dan Nichols, U.S. Capitol Police spokesman, stated that the ruling “underscores the difficulty we have balancing people’s right of access to elected representatives and their right to petition the US Congress for redress of grievances. This is complicated by legitimate security concerns we have with protecting the complex and those who work and visit it.”

However, any decision to appeal the ruling would have to be made with the solicitor general in the Justice Department, said Spitzer. The appealing party would have 90 days to ask the Supreme Court to review the case.

“The ACLU doesn’t argue that picketers should get to use an area if a particular spot is closed for utility work. The law is clear in that respect, and we don’t disagree. It’s true for a crime scene. When police put up yellow tape, anyone who wants to can exercise his First Amendment rights, he just has to stay outside the tape,” said Spitzer.

“In a few years, the plaza will be reopened and First Amendment activity will resume,” added Spitzer.

D.C. Federal Appeals Judge David Tatel ruled that the pedestrian sidewalk extends around the Capitol, giving pedestrians access to the front of the building.

In 1997 New York artist Robert Lederman was arrested while distributing leaflets outside the Capitol. Represented by Spitzer, he was later acquitted and sued for damages from various parties. Last week’s court decision also ruled that the two officers enjoyed “qualified immunity” and were protected from the lawsuit.

“We’re pleased the ruling showed that our officers acted appropriately, but clearly this is an issue we will have to reexamine,” said Nichols.