Protestors arrested on steps of Supreme Court file petition for cert arguing that statute criminalizing protests on SCOTUS steps is unconstitutional?

October 20th, 2011

HuffPo has the story here, and the petition for cert here. Here is the question presented:

Whether 40 U.S.C. § 6135 is inconsistent with the principles of the First Amendment and void on its face as it prohibits all expressive conduct unrelated to any business of the Supreme Court throughout the Supreme Court building and grounds; or in the alternative, whether the First Amendment’s protection of free speech, peaceable assembly, and petitioning the government for redress, and the Due Process requirement that a criminal statute give fair notice, demand that the Supreme Court Police inform persons displaying signs and kneeling on the Supreme Court steps in alleged violation of 40 U.S.C. § 6135 that the sidewalk just a few yards away abutting the Supreme Court’s grounds is an available, alternative and lawful location to exercise their First Amendment rights.

This argument has absolutely zero chance of getting four votes for cert, but I would not be surprised if Breyer, and maybe Ginsburg dissent from denial of cert, much like they did on the Court’s decision to close the doors.