UNITED STATES OF AMERICA, ET AL., APPELLANTS V. MARY T. GRACE, ET
AL.

   81-1863

   In The Supreme Court of the United States

   October Term, 1981

   On Appeal from t e United States Court of Appeals for the District
of Columbia Circuit

                       Jurisdictional Statement

                       PARTIES TO THE PROCEEDING

   In addition to the United States, the appellants are Alfred Wong,
Marshal of the Supreme Court of the United States;  James Zagami,
Chief, Supreme Court Police;  and John H. Drexhagen, Officer, Supreme
Court Police.  The appellees are Mary Terese Grace and Thaddeus
Zywicki.  The Chief Justice was named as a defendant in the district
court and as an appellee in the court of appeals.

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Statutory provision involved
   Statement
   The question is substantial
   Conclusion
   Appendix A
   Appendix B
   Appendix C
   Appendix D
   Appendix E

                            OPINIONS BELOW

   The opinion of the court of appeals (App. A, infra, 1a-49a) is
reported at 665 F.2d 1193.  T,e opinion of the district court (App. D,
infra, 56a-68a) is reported at 524 F. Supp. 815.

                             JURISDICTION

   The judgment of the court of appeals (App. B, infra, 50a-51a) was
entered on September 8, 1981, and a petition for rehearing was denied
on November 12, 1981 (App. C, infra, 52a).  A notice of appeal (App.
E, infra, 70a) was filed on December 11, 1981.  On February 2, 1982,
Justice Brennan extended the time for docketing the appeal to and
including April 9, 1982.  The jurisdiction of this Court is invoked
under 28 U.S.C. 1252.  Parker v. Levy, 417 U.S. 733, 742-743 n.10
(1974).

                     STATUTORY PROVISION INVOLVED

   40 U.S.C. 13k provides:

         It shall be unlawful to parade, stand, or move in processions
      or assemblages in the Supreme Court Building or grounds, or to
      display therein any flag, banner, or device designed or adapted
      to bring into public notice any party, organization, or
      movement.

                          QUESTION PRESENTED

   Whether 40 U.S.C. 13k, which prohibits picketing, leafleting, and
demonstrating in the Supreme Court building and on its grounds,
violates the First Amendment.

                               STATEMENT

   40 U.S.C. 13k prohibits the "display (of) * * * any flag, banner,
or divice designed or adapted to bring into public notice any party,
organization, or movement" in the Supreme Court building or on its
grounds.  /1/ The Marshal of the Supreme Court, who supervises the
Supreme Court police in their enforcement of Section 13k (see 40
U.S.C. 13n), interprets it to prohibit all picketing, leafleting, and
demonstrating (App. A, infra, 6a-7a n.7).

   On three occasions between May 1978 and February 1980, appellee
Zywicki stood on the Supreme Court grounds and attempted to distribute
leaflets.  One leaflet concerned the removal of unfit federal judges;
the others discussed Central American politics (App. A, infra, 3a-4a;
App. D, infra, 57a-58a).  Each time, an officer of the Supreme Court
Police advised Zywicki that his conduct was prohibited, and he left
the Supreme Court grounds.  Appellee Grace learned of these events,
and in March 1980 she stood on the Supreme Court grounds with a sign,
approximately four feet by two and one-half feet, that recited the
words of the First Amendment.  Se, too, left the grounds after
receiving a warning from a Supreme Court Police officer (App. A,
infra, 4a;  App. D, infra, 56a-47a).  Two months later, appellees
brought this action in the United States District Court for the
District of Columbia, seeking a declaration that Section 13k is
unconstitutional on its face and an injunction against its enforcement
(App. A, infra, 4a).

   The district court dismissed appellees' complaint, /2/ but a
divided court of appeals reversed and held Section 13k
unconstitutional on its face (App. A, infra, 30a).  The court first
ruled that "whenever the Government denies freedom of expression on
property generally open to the public, the restriction must be
justified by a significant governmental interest -- whet her that
interest derives from the very nature of the property itself, or from
some other source" (id. at 19a).  The court acknowledged that
"(s)ubstantial governmental interests certainly * * * justify
restrictions on picketing and ot er forms of expression in and near
courthouses" (id. at 20a).  It noted the need to protect against
"influence or domination of the judiciary by public pressure," because
"arguments to courts properly are presented in official pleadings * *
* not on placards" (id. at 21a).  Moreover, the court said, Congress
may protect against the danger that the public will mistakenly believe
a judge's decision to have been the result of popular pressure
(ibid.).

   Nevertheless, the court of appeals declared that it "need not
determine the extent to which these concerns are applicable to
proceedings before the United States Supreme Court" because "these
legitimate concerns are fully addressed by 18 U.S.C. 1507" (App. A,
infra, 21a-22a).  Section 1507 provides:

         Whoever, with the intent of interfering with, obstructing, or
      impeding the administration of justice, or with the intent of
      influencing any judge, juror, witness, or court officer, in the
      discharge of his duty, pickets or parades in or near a building
      housing a court of the United States, or in or near a building
      or residence occupied or used by such judge, juror, witness, or
      court officer, or with such intent uses any sound-truck or
      similar device or resorts to any other demonstration in or near
      any such building or residence, shall be fined not more than
      $5,000 or imprisoned not more than one year, or both.

   The court noted (App. A, infra, 23a) that the constitutionality of
a state statute modeled after the bill that became Section 1507 was
upheld in Cox v. Louisiana (Cox II), 379 U.S. 559, 560-567 (1965).
Because of Section 1507, the court of appeals said, it could find no
justification for 40 U.S.C. 13k.

   The court of appeals dismissed the argument that the need to
protect the dignity and decorum of the Supreme Court justified Section
13k.  The court questioned whether these interests could ever justify
a regulation of expression (App. A, infra, 24a).  The court then added
that because "all expressive conduct outside the Supreme Court" could
not be shown "adversely (to) affect the peace and decorum of the
Court," the government's interest in promoting those objectives was
not sufficient to sustain Section 13k (App. A, infra, 25a).

   The court of appeals stated that it did not intend to "suggest that
any individual may picket or leaflet in the Supreme Court building
itself" (App. A, infra, 26a-27a).  But it said that because of the
"all-encompassing terms," the "decades of consistently broad
enforcement," and the "slim legislative history" of Section 13k, it
would not construe the statute more narrowly in order to avoid
constitutional objections (App. A, infra, 28a-29a).  The court
concluded that because Section 13k "prohibits expressive conduct
unrelated to any business of the Supreme Court throughout the Supreme
Court grounds," it is "void on its face" (App. A, infra, 27a).

   Judge MacKinnon dissented from this holding.  He reasoned that the
activities proscribed by Section 13k would, if permitted, "create the
impression * * * in the public's mind that the Supreme Court is
embroiled in or affected by such street pressures and picketing.  Our
tripartite government has a strong interest in sheltering its judicial
branch from the appearance of influence by political forces and all
outside pressures" (App. A, infra, 32a).  Judge MacKinnon also
questioned the majority's suggestion that the restriction imposed by
Section 13k is excessive because it extends beyond matters pending
before the Court, noting that "the subject(s) of on-going public
campaigns and movements" are frequently "potential judicial issues"
that are likely to come before the Court at some time (App. A, infra,
47a).

   Three judges dissented from the court of appeals' denial of a
petition for rehearing with a suggestion for rehearing en banc (App.
C, infra, 53a-55a).

                      THE QUESTION IS SUBSTANTIAL

   The First Amendment permits a content-neutral regulation that
leaves open alternative means of expression and promotes substantial
government interests.  The narrow restriction imposed by 40 U.S.C. 13k
is not based on the content of expression.  In addition, Section 13k
leaves open ample alternative means for appellees and others to
express themselves;  it permits demonstrations and leafleting directly
across the street from the Court, a location that should be
significantly less satisfactory only to those who are attempting to
influence the Court -- and who therefore, under Cox II, supra, have no
right whatever to be near it.  Finally, the court of appeals
acknowledged the government's important interest in protecting against
actions that might create the impression that the Supreme Court can be
swayed by outpourings of popular sentiment.

   Nevertheless, the court invalidated Section 13k because it assumed,
incorrectly and without analysis, that the government's interest is
fully protected by 18 U.S.C. 1507, a statute that prohibits only
actions done with the intent of influencing the Court.  Moreover, the
court of appeals erred in denigrating the government's interest in
preserving certain sites, such as the Supreme Court, as national
monuments that serve purposes "basically incompatible with" the
"manner of expression" in which appellees propose to engage (Grayned
v. City of Rockford, 408 U.S. 104, 116 (1972)).  Because the court of
appeals incorrectly reevaluated Congress' legitimate objectives and
the efficacy of the means Congress chose to attain them, thus
needlessly striking down an Act of Congress that imposes at most a
slight restriction on expression, plenary review by this Court is
warranted.

   1. The Court has "'often approved restrictions (on expressive
activities) * * * that * * * are justified without reference to the
content of the regulated speech, that * * * serve a significant
governmental interest, and that in doing so * * * leave open ample
alternative channels for communication * * * .'" Heffron v.
International Society for Krishna Consciousness, Inc., No. 80-795
(June 22, 1981), slip op. 6-7, quoting Virginia State Board of
Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 771
(1976).  See, e.g., Consolidated Edison Co. v. Public Service
Commission, 447 U.S. 530, 535 (1980);  Grayned v. City of Rockford,
supra.  It is clear that Section 13k is a neutral regulation
"'applicable to all speech irrespective of content'" (Carey v. Brown,
447 U.S. 455, 470 (1980), quoting and adding emphasis to Erznoznik v.
City of Jacksonville, 422 U.S. 205, 209 (1975)).  Section 13k bars all
demonstrating and leafleting on the Supreme Court grounds, whatever
the speaker's message.  The Marshall of the Supreme Court stated in an
affidavit filed in the district court that Section 13k "is enforced
uniformly without regard to (the) message of the expressive conduct."
Neither the district court nor the court of appeals found any evidence
of discriminatory enforcement.  Section 13k therefore presents no
danger that "communication has * * * been prohibited 'merely because
public officials disapprove the speaker's views.'" Consolidated Edison
Co. v. Public Service Commission, supra, 447 U.S. at 536, quoting
Niemotko v. Maryland, 340 U.S. 268, 282 (1951) (Frankfurter, J.,
concurring).

   Moreover, Section 13k does not impose a significant burden on
protected speech.  Section 13k permits speakers to demonstrate
anywhere in the vicinity of the Supreme Court except on the one square
block occupied by the Court itself, and in the Court building.
Section 13k does not apply, for example, to leafleting and picketing
across the street from the Court.  The court of appeals assumed (see
App. A, infra, 24a) -- although appellees did not show -- that
speakers attract less attention across the street than they would on
the Supreme Court grounds.  But especially when a speaker is
addressing a subject unrelated to the Court's business, there is no
reason to believe that any diminution in the attention he receives by
moving across the street is of constitutional significance.  See
United States Postal Service v. Council of Greenburgh Civic
Associations, No. 80-608 (June 25, 1981), slip op. 3 (Brennan, J.,
concurring).  In any event, the Court has made it clear that if the
government imposes a content-neutral regulation on speech, the First
Amendment requires only that it leave open "ample" alternative means
of communication.  A speaker has no absolute right to speak at the
time or place, or in the manner, that attracts the largest audience or
the most attention.  See, e.g., Heffron v. International Society for
Krishna Consciousness, Inc., supra, slip op. 13-14;  Greer v. Spock,
424 U.S. 828, 836 (1976), quoting Adderley v. Florida, 385 U.S. 39, 48
(1966);  Cox v. Louisiana (Cox I), 379 U.S. 536, 554-555 (1965).

   A speaker who is demonstrating in an attempt to influence the Court
may have a strong interest in being as close to the Court as possible.
 See Carey v. Brown, supra, 447 U.S. at 468-469 n.13.  But as the
court of appeals recognized, this interest does not merit
constitutional protection, and 18 U.S.C. 1507 constitutionally
prohibits such a speaker from being near the Court.  Cox II, supra,
379 U.S. at 560-567.  Other speakers who are not addressing the Court
may consider its grounds the most appropriate symbolic backdrop for
their activities.  Even from across the street, however, demonstrators
will be able to take advantage of the connotations of proximity to the
Court.  Thus the court of appeals, while acknowledging that those with
the strongest interest in demonstrating on the Supreme Court grounds
may not do so, invalidated Section 13k in order to protect those who
are not directly petitioning the Court, and whose only interest is in
the somewhat greater attention they may attract, or in having a
marginally more appropriate site for their demonstration.  This is not
a sufficient basis for striking down an Act of Congress.  See United
States Postal Service v. Council of Greenburgh Civic Associations,
supra;  Adderley v. Florida, supra.

   2.a. The court of appeals acknowledged (App. A, infra, 20a-21a)
that the government has unusually strong interests in regulating
picketing and demonstrations near federal courts.  Congress has an
interest, first, in "protecting (the) judicial system from the
pressures which picketing near a courthouse might create.  * * * (A)
legislature has the right to recognize the danger t at some judges * *
* and other courts officials, will be consciously or unconsciously
influenced by demonstrations in or near their courtrooms * * * ." Cox
II, supra, 379 U.S. at 562-565.  Perhaps even more important, so far
as Section 13k is concerned, is the government's interest in
"protect(ing) the judicial process from being misjudged in the minds
of the public" (id. at 565).  A decision rendered shortly after a
large and well-publicized demonstration on the issue involved may be
perceived as a reaction to the demonstration;  Congress "may protect
against the possibility of a conclusion by the public under these
circumstances that the judge's action was in part a product of
intimidation and did not flow only from the fair and orderly working
of the judicial process" (ibid.).  See Greer v. Spock, supra, 424 U.S.
at 839 (government's interest in protecting against the appearance
that the military is involved in politics justifies a restriction on
expressive activities);  United States Civil Service Commission v.
National Association of Letter Carriers, 413 U.S. 548, 565 (1973)
(interest in avoiding the appearance that government employees are
influenced by politics justifies a restriction on expressive
activites).

   The court of appeals did not deny that Section 13k promotes these
substantial interests.  Rather, the court struck down Section 13k
because, it asserted (App. A, infra, 22a), these interests were "fully
addressed" by 18 U.S.C. 1507.  Since the Constitution does not
prohibit Congress from enacting two statutes that address the same
problem in overlapping ways, the court of appeals must have meant that
Section 13k was excessively restrictive because it, unlike Section
1507, was not limited to actions done "with the intent of influencing"
the Court (see App. A, infra, 23a).  But the court did not undertake
to weight the advantages and disadvantages of a specific intent
requirement and did not adequately explain why Section 13k must be
invalidated because it does not include such a requirement.

   The intent requirement in Section 1507 is principally designed to
protect such expression as "picketing to protest the actions of a(n) *
* * official * * * completely unrelated to any judicial proceedings,
who just happen(s) to have an office located in the courthouse
building" (Cox II, supra, 379 U.S. at 567).  Section 13k, however,
applies only to the Supreme Court building, which houses only the
Court and related offices.  Thus the principal reason for an intent
requirement is simply inapplicable to Section 13k.  The court of
appeals also suggested that the "intent of influencing" requirement is
needed so that Section 13k will not restrict demonstrations that are
wholly unrelated to the Court's business, and that therefore do not
implicate Congress' interest in preventing the real or perceived
intimidation of the judiciary.  But such demonstrations are likely to
be relatively few in number, both because the Court deals with a wide
range of issues of public importance and because those interested in
demonstrating about matters unrelated to the Court's work are more
likely to choose other sites inWashington.  In addition, as we have
said, persons involved in demonstrations not addressed to the Court's
work have less of an interest in being on the Supreme Court grounds,
and asking them to move across the street does not have a significant
impact on their First Amendment rights.

   At the same time, limiting Section 13k to demonstrations intended
to influence the Court would have significant costs.  It would
inevitably increase the discretion of enforcement officers and juries,
and would permit the content of a person's speech to be used against
him, as evidence of his intentions (see Cox II, supra, 379 U.S. at
567);  these consequences are surely undesirable, even though Cox II
establishes that they do not make Section 1507 unconstitutional.
Moreover, some demonstrations concerned with a political or social
issue implicated by Supreme Court cases may be seen as influencing the
Court -- and therefore, under Cox II, are properly subject to
regulation -- even though it cannot be shown that the demonstrators
intended to influence the Ocurt.  The court of appeals did not explain
why, given this balance of opposing interests, Congress violated the
Constitution by not limiting Section 13k to demonstrations intended to
influence the Court.

   b. The government also has a substantial interest -- not seriously
considered by the court of appeals -- in dedicating some of its
property to symbolic uses inconsistent with public demonstrations.
There can be no doubt of the government's power to establish monuments
and memorials;  similarly, public buildings and grounds can (and
frequently do) serve symbolic, as well as practical, functions.  The
court of appeals failed to explain why Congress cannot treat the
building and grounds of the nation's highest court as a symbol of the
characteristic virtues of the judicial process -- calm deliberation
and reflection, free from outside pressure and political controversy
-- and to determine that this symbolic mission is "basically
incompatible with" public demonstrations (Grayned v. City of Rockford,
supra, 408 U.S. at 116).  /3/

   It is well established that Congress or a state legislature may
dedicate property to uses that do not permit expression of a certain
form, or even a certain content.  See, e.g., Jones v. North Carolina
Prisoners' Labor Union, Inc., 433 U.S. 119 (1977) (prisons);  Greer v.
Spock, supra (military bases);  Lehman v. City of Shaker Heights, 418
U.S. 298 (1974) (public transportation);  Grayned v. City of Rockford,
supra, 408 U.S. at 116 (libraries);  id. at 117-121 (schools);
Adderley v. Florida, supra (jail grounds).  See also United States
Postal Service v. Council of Greenburgh Civic Associations, supra,
slip op. 14-19;  Heffron v. International Society for Krishna
Consciousness, Inc., supra, slip op. 6-10.  In these cases, the
government's interests in regulating expression were arguably more
tangible than Congress' interest in preserving the symbolic value of
certain public areas and buildings;  but just as esthetic interests
can justify restrictions on speech (Metromedia, Inc. v. City of San
Diego, No. 80-195 (July 2, 1981), slip op. 16, 18 (plurality
opinion)), there can be little doubt that Congress may make the
"necessarily subjective" (id. at 18) judgment that in order to serve
symbolic and other intangible public purposes, certain monuments and
areas require a serenity and decorum that cannot accommodate public
demonstrations.  /4/

   There is no reason to deny Congress the power to treat the nation's
highest court in this fashion.  A different question would be
presented if Congress used its power to preserve symbols and create
monoments in such a way that First Amendment rights were seriously
impaired;  but as we have explained, Section 13k constitutes, at most,
a minimal restriction on expression.  Similarly, Cox II, supra,
establishes that, for First Amendment purposes, courthouse grounds are
not comparable to areas like "streets and parks(,) * * * (which)
immemorially * * * have been used for purposes of assembly,
communicating thoughts between citizens, and discussing public
questions" (Hague v. CIO, 307 U.S. 496, 515 (1939) (opinion of
Roberts, J.)), and where the government's power to limit expression is
therefore more circumscribed (see, e.g., Carey v. Brown, supra, 447
U.S. at 460;  Hudgens v. NLRB, 424 U.S. 507, 515 (1976);  see also A
Quaker Action Group v. Morton, 516 F.2d 717, 725 (D.C. Cir. 1975)
(White House area is a "unique situs" for the exercise of First
Amendment rights)).  Indeed, the Supreme Court building and grounds
are a uniquely appropriate symbol of the "calmness and solemnity of
the courtroom" and of the judicial process (Cox II, supra, 379 U.S. at
583 (opinion of Black, J.)).  See Jeannette Rankin Brigade v. Chief of
Capitol Police, 342 F. Supp. 575, 584 (D.D.C.) (three-judge court),
aff'd, 409 U.S. 972 (1972) (demonstrations on Capital grounds are
permissible although similar demonstrations near a courthouse are not,
because Congress, unlike a court, is appropriately subject to public
opinion).  The court of appeals did not adequately consider this
significant legitimate interest promoted by Section 13k.

   3. Because this case concerns the constitutionality of a statute
that applies only to the Supreme Court building and grounds, and is
enforced by an officer appointed by the Court, the question arises
whether the members of this Court are disqualified from considering
the matter.  Although the situation of the Chief Justice may present
special concerns because he was named as a party in the proceedings
below, we know of no sufficient reason for the other members of the
Court to disqualify themselves, either under the mandatory criteria of
28 U.S.C. 455(b) or because their "impartiality might reasonably be
questioned" (28 U.S.C. 455(a)).  In addition, if all the members of
the Court are disqualified, the judgment below -- which declared an
act of Congress unconstitutional on its face -- apparently must be
affirmed.  28 U.S.C. 2109;  see Sloan v. Nixon, 419 U.S. 958 (1974);
Prichard v. United States, 339 U.S. 974 (1950).  Congress enacted 28
U.S.C. 1252, the statute under which this Court's jurisdiction is
invoked, because it recognized "(t)he importance to the Nation of
prompt determination by the court of last resort of disputed questions
of the constitutionality of acts of the Congress * * * ." H.R. Rep.
No. 212, 75th Cong., 1st Sess. 2 (1937).  Because review by this Court
is therefore "especially important in th(is) case()" (United States v.
Will, 449 U.S. 200, 217 (1980)), we believe that any doubts should be
resolved against disqualification.

                              CONCLUSION

   Probable jurisdiction should be noted.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   J. PAUL MCGRATH

      Assistant Attorney General

   KENNETH S. GELLER

      Deputy Solicitor General

   DAVID A. STRAUSS

      Assistant to the Solicitor General

   ANTHONY J. STEINMEYER

   MARC RICHMAN

   KAREN CZAPANSKIY

      Attorneys

   APRIL 1982

   /1/ The Supreme Court grounds extend to the curb on each side of
the square block on which the Court is situated.  40 U.S.C. 13p.

   /2/ The district court rules that appellees had not exhausted their
administrative remedies (App. D, infra, 65a-68a).  The government did
not suggest this basis for decision to the district court and did not
defend it in the court of appeals.

   /3/ The court of appeals repeatedly referred to Section 13k as a
"total ban" on expression, which of course it is not;  it does not,
for example, prohibit private discussions among persons properly on
the Court grounds.

   /4/ It see s unlikely, for example, that the Constitution requires
Congress to permit demonstrations in national cemeteries.

   Appendix Omitted