Free speech advocates told a federal court on Monday that the sidewalk in front of Donald Trump’s luxury hotel in the District and nearby Freedom Plaza should not be shut off to demonstrators during his inaugural parade, which will pass both sites.
Two months before Trump is sworn in as president, an appeals court in the District considered how close protesters can get to the parade along Pennsylvania Avenue.
The case before the U.S. Court of Appeals for the D.C. Circuit was filed long before Trump was elected and is the latest chapter in ongoing litigation over National Park Service regulations that determine the location of Inauguration Day demonstrations.
But challengers said the case has heightened significance at a time when thousands of people already are protesting Trump’s election in cities throughout the country.
“People are coming to Washington, D.C., on Inauguration Day to exercise their free speech rights in opposition to racism, misogyny and bigotry. But the government wants to stage-manage democracy,” said Mara Verheyden-Hilliard, executive director of the nonprofit Partnership for Civil Justice Fund who argued the case on Monday for the ANSWER Coalition (Act Now to Stop War and End Racism).
Government lawyers told the court that the Park Service has long set aside space on the parade route for the incoming president’s organization to plan a day of “national celebration.”
Assistant U.S. Attorney Marina Braswell said that protesters will have “ample prime alternatives” to engage in First Amendment activities along Pennsylvania Avenue on Jan. 20. The government estimates that 84 percent of the sidewalks along the parade route are not off-limits for protest.
The Presidential Inaugural Committee, a private entity, is controlled by the president-elect and responsible for planning most of the inaugural celebration activities, including selling tickets to watch the parade.
The case was heard by three appointees of President Obama — Judges Patricia Millett, Cornelia T.L. Pillard and Sri Srinivasan — who had tough questions for both sides.
The judges seemed skeptical that the president-elect was not entitled to at least a limited amount of reserved seating for friends and supporters.
“It’s their party. It’s their parade. It’s their event,” Millett said.
Verheyden-Hilliard responded that it was not a “private party” and that the Park Service was giving a private, partisan fundraising organization too much control over the location of demonstrations, stifling free speech on public land.
The timing of the court’s decision is uncertain. Verheyden-Hilliard said she hopes the court will rule on the constitutionality of the regulations well in advance of Inauguration Day so that “all people will have equal access to that space.”
Court challenges to the location of inaugural protests have been filed every four years since 2001, with differing results. In 2009, after Obama won the election, protesters from the ANSWER Coalition were allowed to use a portion of Freedom Plaza, which they consider a unique, prime location for demonstrating. Four years later, the inaugural committee said the space was off-limits.
In addition to Freedom Plaza, the current regulations also reserve for the president-elect’s committee the sidewalk in front of Trump International Hotel in the Old Post Office Pavilion in the 1100 block of Pennsylvania Avenue — less than a mile from the White House.
In January, U.S. District Judge Paul Friedman sided with the government, finding that the regulations are a “modest restriction of space” and still left plenty of other locations for protest.
A key issue for the appeals court is whether the actions of the president-elect’s committee equate to “government speech” — or private speech, which would trigger free speech protections under the First Amendment.
Friedman found that the inauguration ceremony and parade are “closely identified in the public mind” with the U.S. government and therefore government speech.
“The government decides who sits in those bleachers,” Braswell said Monday. “The [inauguration committee] is an arm of the president.”
The appeals court judges questioned how the committee’s decisions could be characterized as “government speech” when it is a private entity choosing who sits where along the parade route even before the new president takes office.
Pillard described the characterization of it as “government speech,” a “very strange argument” especially because the ticketed seating opens to the general public if the bleacher seats are not claimed 10 minutes before the parade begins.