Constitution Check: Who has a right to speak up in the Supreme Court?

Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at the issue of protesters inside the Supreme Court’s court room possibly facing criminal contempt charges.

THE STATEMENTS AT ISSUE:

“We rise to reclaim our democracy! One person one vote! Overturn Citizens United! One person one vote!”

– Shouts by protesting spectators on Wednesday as the Supreme Court assembled on the bench for public hearings.   Five individuals were removed from the court chamber, to face possible prosecution for disrupting the day’s proceedings. Later, a group known as “99rise,” which is short for “the 99 percent” whose slogan is “Together, We Rise,” claimed that its members staged the protest.

“Anyone else wishing to speak is admonished that it is within the power of this court to punish such conduct with criminal contempt.”

– Chief Justice John G. Roberts, Jr., after the protests began in the back of the court’s chamber. After the protestors had been taken away, the court went ahead with the day’s official business, hearing two cases on bankruptcy law.

WE CHECKED THE CONSTITUTION, AND…

Staging a verbal protest inside the Supreme Court’s chamber when the Justices are in session is not, constitutionally speaking, as serious an offense as shouting fire in a crowded theater – the classic illustration that the court has used for the kind of public speech that is totally unprotected by the First Amendment. But the First Amendment does not shield protesters who disrupt the court from at least minor criminal charges, and perhaps an order not to return to the court’s chamber.

Any court does have the inherent authority to punish for contempt, and it even can do so immediately if that is necessary to enable the court to do its work. The Supreme Court only once in its history has convicted an individual of criminal contempt. It did so in 1909 in the case of U.S, v. Shipp, after holding the trial itself (the only criminal trial ever in the highest court). A Tennessee sheriff was convicted after he had allowed a mob to lynch a jailed black prisoner even after the Supreme Court had ruled in favor of that prisoner’s rights.

That case, of course, involved far more egregious conduct than standing up in the back of the Supreme Court chamber to call out protests against prior court rulings. That is the kind of demonstrations the Supreme Court has had in recent years.

Twice this year alone, in January and April, as anniversaries approached of decisions by the Justices allowing more money into political campaigns, a group known as “99rise” has sent demonstrators into the court’s public sessions.   When the court’s members enter, the protesters stand up and shout out, or even sing, their objections. They are promptly removed.

On its website, “99rise” proclaims: “We are building a nationwide movement to get big money out of American politics through non-violent action. It’s time to reclaim our democracy. Will you join us?” The group offers to provide volunteers with training in civil disobedience. It does not advocate violence.

One of the group’s main targets is the court’s 2010 decision in Citizens United v. Federal Election Commission, which broadly expanded the constitutional right of corporations (and labor unions) to spend their internal funds to promote political candidates.   Near the anniversary of that decision this past January, “99rise” sent a small group into the court and carried out a protest very similar to the one that it staged again on Wednesday.

When the individuals involved in the earlier case were actually put on trial, for violations of fairly minor crimes of civil disobedience, each of the members received a jail sentence of just one day. A judge had initially sentenced them to five days in jail, but changed her mind and cut that down to one day.

The Supreme Court, in the recent incidents, does not act on its own to carry out punishment. It refers the matters to federal or local prosecutors in Washington, D.C., and the cases then move forward in a local criminal court.

 

It is within the Supreme Court’s power, however, as the Chief Justice said on Wednesday, to escalate the reaction to such protests by pressing for criminal contempt charges. It is unclear at this point whether the Chief Justice was signaling just such a strategy when he warned the demonstrators against continuing their actions in the chamber.

 

It is highly doubtful that the court itself would take direct action against protesters. But, in referring such cases to prosecutors, the court takes a chance that only minor offenses will be charged, and those may turn out not to be much of a deterrent to staging future protests. (In fact, Wednesday’s protest did result in the same kind of low-level charges as were leveled after the January protests.)

 

There is no way for anyone outside the court to know whether the Justices have been talking among themselves about taking more energetic action to try to promote decorum in their proceedings. But Wednesday did mark the first time that the Chief Justice had raised the prospect of criminal contempt, a serious charge that, upon conviction, could lead to a term of years in prison. Unlike a charge of “civil contempt,” which can result in jailing that lasts only until the offending action is ended, criminal contempt almost certainly will lead to punishment upon conviction.   Chief Justice Roberts no doubt is fully aware of the difference, and appears to have chosen his words carefully on Wednesday.

 

Traditionally, the Supreme Court has been slow to anger about protests on its grounds or even inside the chamber, but the apparent rise of frequency in protests lately may be more irritating than past incidents have been taken to be.