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.

As Judge Rao explained, it would be permissible to reserve the Eastern Steps as a means of entering and exiting the Capitol building, but it is not permissible for the government to privilege those demonstrations endorsed or supported by members of Congress over those that are not.

"[T]he government has no authority to license one side to fight freestyle, while forbidding the other to fight at all." Mahoney v. Babbitt, 105 F.3d 1452, 1454 (D.C. Cir. 1997). As applied to the Eastern Steps, the Traffic Regulations are unreasonable because members may not exercise unbridled discretion over which individuals may speak on the Steps of the Capitol.

On the question of remedy, Judge Rao noted that the district court should not have entered a universal injunction under Trump v. CASA, as such an injunction exceeded the district court's remedial authority. Note, however, that as a consequence of the D.C. Circuit's decision, the government is effectively precluded from barring anyone from demonstrating on the Eastern Steps under existing regulations. This is because the D.C. Circuit's decision (unlike that of the district court) has precedential effect and dictates an equivalent outcome in any and all future suits brought against the Capitol Police challenging the enforcement of the existing rules. As with most challenges brought against agency regulations, the practical effect of a victory against the federal government in the D.C. Circuit is nearly always universal (a point I expanded on here).

Senior Judge Rogers dissented from Judge Rao's opinion, largely on the reasoning, as her opinion would also bar the Capitol Police from enforcing its regulations against Mahoney. Judge Rogers would have affirmed the district court's conclusions that the Eastern Steps are a traditional public forum (as opposed to a nonpublic forum) and that the regulations in question are not narrowly tailored to serve the government's asserted security interests.

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