[00:00:00] Speaker 03:
Case number 23-3069, United States of America versus John Marrone, the seat.

[00:00:07] Speaker 03:
Ms.

[00:00:07] Speaker 03:
Fusil for appellant, Mr. Cahill for appellate.

[00:00:18] Speaker 00:
Good morning, you may proceed when you're ready.

[00:00:21] Speaker 01:
Good morning, Your Honors, and may it please the Court.

[00:00:23] Speaker 01:
My name is Melissa Fussell, and I represent Mr. Nasif.

[00:00:27] Speaker 01:
The First Amendment issue is before the Court because in 1967, driven by a desire to stamp out civil rights protests, Congress hastily passed legislation banning, parading, picketing, and demonstrating in the Capitol buildings.

[00:00:39] Speaker 01:
over objections that lack the authority to constitutionally do so.

[00:00:43] Speaker 01:
That law, now 5104E2G, is both unconstitutionally vague and overbroad.

[00:00:49] Speaker 01:
First, E2G is unconstitutionally vague.

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Its uncertain meaning chills free exercise and invites arbitrary enforcement.

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The government has exploited E2G's ambiguity by selectively advancing contradictory interpretations.

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This past May, opposing a motion for acquittal in United States versus Ballinger, the government argued that E2G should be construed literally to include even non-disruptive expression like silent reproachful presence or just simply showing up at the focal point of a person's beliefs.

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But below, it adopted a contrary position, demonstrating means engaging in disruptive conduct.

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And now, the government argues that E2G prohibits demonstrating of the type that would intend to disrupt the orderly business of Congress.

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It doesn't tell us what it means by the type of disruption, how general that is, what that might include, whether that refers to topic or time or number of people.

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And it doesn't tell us what it means by the orderly business of Congress, although it apparently means something that takes place when Congress is not in session.

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It doesn't tell us whether a minimal disruption is sufficient, or what even it means by disruption, something more extreme like an obstruction or an impediment, or just simply a distraction.

[00:02:05] Speaker 00:
Ms.

[00:02:05] Speaker 00:
Fussell, what if we read demonstrate in the context of a prohibition on picketing, parading, and demonstrating?

[00:02:15] Speaker 00:
to denote showing up at the Capitol for the purpose of expressing support or disapproval for an identified action or point of view.

[00:02:27] Speaker 00:
So the reason for being there to bear witness to one's objection or support, why isn't that the most natural reading?

[00:02:40] Speaker 00:
And in what way does that conflict with the government's position here?

[00:02:45] Speaker 01:
Yes, your honor.

[00:02:46] Speaker 01:
So if I understand the way you've defined it correctly, I think that's exactly what it means to show up at the Capitol buildings with the intention of expressing some kind of viewpoint.

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And I think that's blatantly unconstitutional.

[00:03:03] Speaker 01:
So the government, the interpretation of the government advanced most recently, and we'll have to see what interpretation they advanced today, but it was that it prohibits demonstrating of the type that would tend to disrupt the orderly business of Congress.

[00:03:19] Speaker 01:
The definition, your honor supply didn't have any kind of component like that would tend to disrupt.

[00:03:25] Speaker 00:
So I'm not sure that I read the government's position to define, demonstrate as what would tend to, but more that that's their description of the interest behind this provision.

[00:03:38] Speaker 00:
So they do have, as you point out ably in your brief, there's already a prohibition on acting disruptively in the capital.

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The Capitol has a lot of visitors throughout the year, and even more so, Washington DC has thousands of demonstrations every year.

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Why is it not constitutionally permissible for the Congress to maintain the internal areas of its buildings?

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as non-public fora and to prohibit an additional category of visitors, people who are not there for other purposes, but would only be there because they wanted that to be a stage for their picket protest or demonstration.

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And simply to say that the capacity would be really strained if we opened

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for that kind of activity.

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And so there's a tendency, we can't say, we're not turning our interest on every single one of these being disruptive, nor honestly could they, because they allow similar sized groups for other purposes.

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But it's reasonable for them to say this category of activity, which people are constitutionally entitled to engage in outside, just would overwhelm the ability

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of the Congress to do its work if we invited that in.

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Why isn't that constitutionally tenable?

[00:05:10] Speaker 01:
Yes, Your Honor.

[00:05:12] Speaker 01:
So as a threshold matter, we would argue that portions of the capital billions are public forum, but even in a non-public forum, the prohibition must be reasonable in light of the purpose served by the forum.

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It's not enough to be rationally related to a legitimate government interest, as this court made clear in Price v. Garland.

[00:05:29] Speaker 00:
What if it's not a public forum at all?

[00:05:33] Speaker 01:
Yes, Your Honor.

[00:05:34] Speaker 01:
So if it's not a public forum at all, then it still must be reasonable in light of the purpose served by the forum.

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And it's not enough for it to just have a rational relationship to a legitimate government interest.

[00:05:42] Speaker 00:
Well, if it's reasonable in light of the purpose of the forum, which is to conduct the business of Congress, and we know that were it opened to parading, picketing, or demonstration, it would be very high demand for that use.

[00:05:58] Speaker 00:
Why, as a matter of security, of potential for disruption, crowding, why isn't that enough of a governmental interest?

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Yes, Your Honor.

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And again, it's important that it's reasonable in light of the purpose served by the forum, which is legislating.

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So the function of the forum, even if it's a non-public forum, demands access to the people that elected our members of Congress.

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So demonstrating is really essential to the purpose of the forum.

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And so we're not saying that Congress doesn't have the ability to regulate crowd control or that they can't limit the number of people in an area at a certain time or that they can't limit noise.

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Of course they can limit those things.

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However, as the Supreme Court said in Minnesota Voters Alliance versus Manski, the government has to be able to articulate some sensible basis for what stays in versus what comes out.

[00:06:58] Speaker 05:
But you can petition the government without parading, picketing, or demonstrating.

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Right.

[00:07:06] Speaker 01:
Correct, Your Honor.

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There are other ways to petition the government.

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However, the fact that you can use your First Amendment rights in one place is not a basis the Supreme Court has said.

[00:07:15] Speaker 05:
No, I'm saying you can petition the government inside the Capitol building by meeting and speaking with the legislators or their staff without parading, picketing or demonstrating.

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respectfully, your honor, it's not at all clear that that's the case.

[00:07:33] Speaker 05:
So the government opportunistic you're telling me that this statute keeps a lobbyists or keeps a farmer from Iowa from going into the capital and speaking to staffers.

[00:07:50] Speaker 01:
Well, Your Honor, if the government's argument in the United States versus Ballinger is to believe, yes, they argue that demonstrating need not be organized or an outward conveyance of view, and that it includes even silent and reproachful presence, as well as merely showing up at a place that was the focal points of their beliefs, regardless of how quiet or peaceful they are.

[00:08:12] Speaker 00:
Can you read it in the... Sorry, I didn't mean to interrupt.

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You can finish.

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So if we read it as demonstration being akin to picketing or parading and to exclude, as Judge Wilkins suggests, people who are there to meet with people by appointment to present views and that kind of thing, then

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then we're really saying people who are there only for the purpose of standing, bearing witness, even silently, yes, but that sort of create this additional population, additional reason to visit the Capitol.

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If that's what the statute is aimed at, then I'm not sure I see your rebuttal point to that.

[00:09:09] Speaker 01:
Your honor, our point is that banning that would be unconstitutional because it's not reasonable to single out First Amendment expression, peaceful, quiet, non-disruptive First Amendment expression in particular, for the sole basis that it's First Amendment expression.

[00:09:24] Speaker 01:
So to hear the government tell it, as long as Congress is not in session,

[00:09:28] Speaker 01:
a person can engage in all manner of disruptive conduct in the Capitol buildings as long as they don't engage in First Amendment expression while doing it.

[00:09:35] Speaker 01:
And it sounds like the definition that your honors are offering is that if you come for the specific purpose of expressing yourself and making your views heard, that that's illegal.

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And that simply cannot be the case under the Constitution.

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That wouldn't be reasonable in any forum.

[00:09:51] Speaker 04:
So you're focusing on the most

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extreme, maybe minimal is the better word, minimal version of demonstrations in your responses to these questions, right?

[00:10:03] Speaker 04:
But this statute would prohibit not just the quiet person, maybe holding up a fist, but also all other forms of demonstration.

[00:10:12] Speaker 04:
And when we're doing a reasonableness analysis, not narrow tailoring, if you assume it's a non-public forum, why is that type of

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over inclusiveness, a constitutional problem.

[00:10:25] Speaker 04:
Isn't that exactly the difference between reasonableness and narrow tailoring?

[00:10:30] Speaker 01:
Respectfully, no, Your Honor.

[00:10:32] Speaker 01:
So the government in its briefing approaches it as something like a rational basis review, which is different.

[00:10:40] Speaker 01:
So reasonable in light of the purpose served by the forum, the Supreme Court has said you have to be able to articulate why.

[00:10:47] Speaker 01:
Give a reason why.

[00:10:48] Speaker 01:
You're not banning this, but you are banning that.

[00:10:52] Speaker 01:
And so

[00:10:54] Speaker 01:
It's not reasonable if your concern is preventing disruptions of the orderly business of Congress.

[00:11:00] Speaker 01:
It's not reasonable to say we're only going to punish the First Amendment expression that does that.

[00:11:06] Speaker 01:
We're going to permit all manner of other disruptions as long as Congress... There's a separate statute that prohibits disruption.

[00:11:13] Speaker 01:
Correct, Your Honor, but as the government points out in its brief, that only applies while Congress is in session.

[00:11:18] Speaker 01:
So the government has argued that there's a gap in the statutory scheme.

[00:11:24] Speaker 01:
While Congress is in session, subsection D prohibits disruptive conduct, but while Congress is not in session,

[00:11:31] Speaker 01:
then there is nothing in that specific statute to prevent any kind of disruption and that's where the need, the government argues, for the demonstrating provision comes in.

[00:11:44] Speaker 01:
However, if Congress is aiming to prevent disruptive conduct and they're concerned with Congress being able to do other kinds of orally business,

[00:11:55] Speaker 01:
It is not sensible at all to only punish the types of disruptive conduct that the Supreme Court says are worth protecting in spite of their risk for disruption and maybe even because of, because as the Supreme Court has made clear repeatedly, the free exercise of speech is most important sometimes when it creates a condition of unrest or when it questions people's beliefs.

[00:12:23] Speaker 01:
Even going into the Capitol buildings, if you go into that visitor center, there are signs explaining how you can participate in your democracy.

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And one of the things that it invites you to do is to come to Congress

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and talk to your congressperson and make your views heard.

[00:12:42] Speaker 01:
A statute that might prohibit that, and at least some of the government's interpretations as along with the Capitol Police's interpretations and even the definition of demonstrating elsewhere in the DC code, at least suggests that that would be prohibited.

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And that type of chilling of free exercise is unreasonable.

[00:13:00] Speaker 05:
I think where you're losing me is that if,

[00:13:04] Speaker 05:
The choice is between demonstrating on the sidewalk outside of the Capitol or demonstrating inside the Capitol building.

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If you give that to 100 different groups that seek to come to Washington and demonstrate, 100 out of 100 would pick demonstrating inside the Capitol building.

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And I think that

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At least where I see your argument running into a problem under a reasonableness analysis is that isn't it reasonable for Congress to just conclude we can't get our work done if they're going to be

[00:13:54] Speaker 05:
you know, dozens, if not hundreds of demonstrations occurring in the halls in everywhere every day on a daily basis.

[00:14:07] Speaker 01:
So your honor,

[00:14:09] Speaker 01:
I would say that's not a reasonable way of preventing that kind of disruption.

[00:14:15] Speaker 01:
So what would be a reasonable way, perhaps a permitting scheme, much like they have for the Capitol grounds elsewhere, we're not arguing that you just need to open the floodgates and let anyone who wants to have some sort of large protest in the rotunda go through.

[00:14:30] Speaker 01:
Of course, that's not the case.

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But what we're saying is that this statute doesn't offer any kind of guidance.

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The government can't decide what it means.

[00:14:38] Speaker 01:
The Capitol Police can't decide what it means.

[00:14:40] Speaker 01:
And district courts can't decide what it means.

[00:14:41] Speaker 01:
No one can figure it out.

[00:14:43] Speaker 01:
So as it stands, then anyone who wants... We can tell them what it means today.

[00:14:48] Speaker 01:
Well, your honor, if the court can ascertain the meeting, then that's absolutely correct.

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However, what the court is not permitted to do is rewrite the statute.

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If there's not a basis for concluding that there's some kind of narrower meeting than what everyone else has advanced, then the court can't rewrite the statute.

[00:15:06] Speaker 01:
Regardless, there are of course reasonable ways to limit that kind of activity in the Capitol building, but here it would appear, and the government has argued in other cases, opportunistically that it would reach even a lone person walking into the Capitol and silently having a reproachful presence there.

[00:15:25] Speaker 01:
So that's absolutely not reasonable.

[00:15:28] Speaker 05:
Can I just ask a procedural question?

[00:15:33] Speaker 05:
It appears that you concede in your brief, I think it's at page 15, that you did not make the argument below that the Capitol buildings indoors were a public forum.

[00:15:48] Speaker 05:
And you didn't make the argument in your opening brief that they are a public forum.

[00:15:55] Speaker 05:
Am I right about those two things?

[00:15:58] Speaker 01:
Could you repeat the second one that we didn't make the argument in our opening brief?

[00:16:02] Speaker 05:
Yeah, I don't see where you ever argued that they were a public forum or an explain how they were a public forum.

[00:16:11] Speaker 01:
And so your honor, I believe that we did.

[00:16:14] Speaker 01:
Yes.

[00:16:14] Speaker 01:
On page 15, the traditionally publicly accessible portions of the capital grounds are public form and the government failed to meet its burden of showing otherwise.

[00:16:22] Speaker 05:
And we specifically mentioned I misspoke.

[00:16:26] Speaker 05:
I guess my point is, is that you didn't argue below, right?

[00:16:30] Speaker 01:
Correct, your honor.

[00:16:31] Speaker 01:
And that's

[00:16:34] Speaker 05:
And you didn't seek to present any evidence or make any record on that point below.

[00:16:41] Speaker 05:
Am I right about that?

[00:16:42] Speaker 01:
That's correct, Your Honor.

[00:16:43] Speaker 01:
Okay.

[00:16:45] Speaker 01:
And the reason why is because, so one is the government's burden.

[00:16:49] Speaker 05:
So we... Why is it the government's burden?

[00:16:51] Speaker 05:
We presume the statute is unconstitutional.

[00:16:54] Speaker 05:
You have the burden of showing that it's either vague or overbroad.

[00:16:57] Speaker 05:
So wouldn't part of that burden be to show that it's a public forum rather than a non-public forum?

[00:17:04] Speaker 01:
Your honor, this circuit, this court said in Laterman that the government bears the burden of showing, one, that it's a public or non-public form, and two, the tailoring or the reasonable relationship.

[00:17:15] Speaker 05:
And the government has considered... That's on a motion to dismiss, where the government has the burden of establishing that it's entitled to a motion to dismiss, right?

[00:17:25] Speaker 01:
Your honor, respectfully, no, the Lederman case wasn't talking about the burden on a motion to dismiss.

[00:17:29] Speaker 01:
They were talking about the burden in the forum analysis, which the government has conceded that it does bear the burden of proving the constitutionality.

[00:17:36] Speaker 05:
All right, but it was in the context of the government making a motion to dismiss in a civil case.

[00:17:40] Speaker 01:
That's correct.

[00:17:42] Speaker 00:
However, there were perhaps more specific to Lederman where it's a traditional

[00:17:53] Speaker 00:
public forum rather than a limited or designated public forum, that's established.

[00:17:58] Speaker 00:
And if there's some restriction on that, you know, a particular part of sidewalk or street, then it's the government's burden.

[00:18:04] Speaker 00:
But my understanding is that it's always been the plaintiff's burden, at least to come forward with a reason to think that a designated or limited public forum is in fact so designated or so limited.

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And it may be by tradition or custom, it may be by

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specific declaration, but there has to be some reason that the person who's subject to the law believes that it's been opened.

[00:18:30] Speaker 00:
So I actually think that, I mean, I'd be interested in any precedent or authority that you have on that, but my understanding of the cases is that it is actually the burden of the member of the public who's subject to the law in that context.

[00:18:45] Speaker 01:
Your Honor, we haven't seen any authority saying that, and the government hasn't cited any, so I can't speak to that, but I can say that the Supreme Court has held that when the government bears strict speech, it bears the burden of proving the constitutionality of its actions.

[00:19:03] Speaker 01:
That's United States versus Playboy, an entertainment group.

[00:19:07] Speaker 01:
But regardless of who bears the burden, the reason the forum analysis was not addressed below is because frankly, we don't think that is the appropriate analysis at all.

[00:19:17] Speaker 01:
We don't think that that's necessary to reach under the overbreath analysis, which we recognize that we do bear the burden on.

[00:19:24] Speaker 01:
The government did not address directly the forum analysis either, other than some brief sites to cases that mentioned it.

[00:19:32] Speaker 01:
It was not something that was at issue at the motion to dismiss stage below.

[00:19:38] Speaker 00:
So are you saying that you're willing to rest your case on the assumption that it's not a designated or limited public forum, but that it's a non-public forum, but in your view it is still a constitutional violation?

[00:19:52] Speaker 01:
So, Your Honor, we would not concede that it's not a public, that we think there are large portions of it that do meet the public forum standard.

[00:20:00] Speaker 01:
They're publicly accessible.

[00:20:01] Speaker 01:
They were traditionally designed as a meeting place like the Rotunda.

[00:20:04] Speaker 01:
They were historically used as those things and people have been allowed to express themselves.

[00:20:07] Speaker 01:
However, yes, even in a non-public forum, we believe that it's unconstitutional because it's not reasonably related to the purpose of the forum, which is legislating or representing the interests of the people of the United States.

[00:20:21] Speaker 04:
You said that

[00:20:22] Speaker 04:
at least some portions were historically used for public gathering and discussion.

[00:20:29] Speaker 04:
Is there evidence of that in the record?

[00:20:32] Speaker 01:
Not in the record, Your Honor, because again, it did not come up below the government, neither we nor the government already did.

[00:20:40] Speaker 01:
It was about over breath until the district court made that decision.

[00:20:43] Speaker 01:
However, we would be happy to provide supplemental briefing on that matter if the court decides.

[00:20:50] Speaker 01:
I think certain things

[00:20:52] Speaker 01:
You know, the court could certainly take judicial notice of such as the fact that the rotunda was designed to be a public meeting place that, you know, it's just kind of historical information about the capital that we think the court could take judicial notice of.

[00:21:05] Speaker 04:
Can I ask a methodological question about, you mentioned how the forum analysis and over-breath interrelate.

[00:21:13] Speaker 04:
And one view is that under the over-breadth doctrine, it's your burden to come forward and show that a substantial number of applications are unconstitutional, right?

[00:21:24] Speaker 04:
And then how can we answer whether any application is unconstitutional without doing the forum analysis?

[00:21:33] Speaker 04:
Aren't they inextricably connected here?

[00:21:36] Speaker 01:
Yes, Your Honor, that's a very good question.

[00:21:38] Speaker 01:
And, you know, we exhaustively searched the case law for a good answer on this, and unfortunately I don't think there is one.

[00:21:45] Speaker 01:
There are cases that go straight over breath, there are cases that incorporate the public forum analysis into the over breath analysis, and it's further confusing because there are cases that say the government bears the burden on the forum analysis, but yet we bear the burden on over breath.

[00:22:00] Speaker 01:
Still, I think most of the time they have, really probably all the time they have the same answer.

[00:22:07] Speaker 01:
I think whether you're asking whether it's overbroad because it shows substantial amount of speech or whether it's reasonable in light of the purpose served by the forum, I think those answers are pretty much always going to be the same.

[00:22:20] Speaker 01:
So I don't know that the relationship has an impact on the decision.

[00:22:27] Speaker 01:
But unfortunately, I don't think the case law provides a good answer for what exactly that interrelationship is.

[00:22:34] Speaker 01:
And we'll also say that I think here in a facial challenge, the forum analysis is very clumsy because we have all of these different, the Capitol building is a broad location.

[00:22:47] Speaker 01:
We have many different locations.

[00:22:48] Speaker 01:
And in a facial challenge, we can't ask where

[00:22:51] Speaker 01:
what specific portion we're talking about, and the public forum analysis kind of demands that we do.

[00:22:58] Speaker 01:
So when you have this broad location with all these different forums, it makes that analysis unclear.

[00:23:04] Speaker 01:
If you find that one part is a public forum, do you apply that analysis?

[00:23:07] Speaker 01:
Do you apply non-public forum analysis?

[00:23:11] Speaker 01:
So that's a long explanation.

[00:23:13] Speaker 00:
I have a question just going to your sentencing argument.

[00:23:18] Speaker 00:
I believe that there was a chart that you submitted to Judge Bates as part of your sentencing argument comparing different cases in support of the argument that there was a penalty for going to trial.

[00:23:34] Speaker 00:
I don't think that that's in the record.

[00:23:38] Speaker 01:
Your Honor, we could certainly provide the court with that.

[00:23:41] Speaker 00:
If it would like in terms of the nature of the cases included on the chart did the I don't know if you if you know that standing here but to the guilty plea comparator cases have the same calculated guideline range as the range calculated for Mr.

[00:24:00] Speaker 00:
Is it Nassif or Nassif?

[00:24:02] Speaker 01:
Mr. Nassif, your honour, and standing here, I don't want to say one way or the other.

[00:24:08] Speaker 01:
I'm not totally sure, but we can certainly provide the court with supplemental briefing on that if that's important to the court.

[00:24:15] Speaker 04:
I have a question about your vagueness argument.

[00:24:18] Speaker 04:
My understanding is that your arguments below and here are essentially facial challenges to the statute.

[00:24:26] Speaker 04:
They're about the outer limits of what it covers and not about Mr. Nassif's conduct in particular in this case.

[00:24:34] Speaker 04:
Is that right?

[00:24:35] Speaker 01:
Yes, your honor.

[00:24:36] Speaker 01:
They're both facial challenges.

[00:24:38] Speaker 04:
OK.

[00:24:38] Speaker 04:
And so I realize the government didn't cite this case, and this will be a question I have for them.

[00:24:44] Speaker 04:
But the Supreme Court held in a case called Holder versus Humanitarian Law Project that someone whose conduct is clearly prescribed cannot complain of the vagueness of the laws applied to the conduct of others.

[00:24:58] Speaker 04:
And that's just a basic application of the general principle that you don't get to rely on the rights of others.

[00:25:05] Speaker 04:
And I'm just curious if you, again, realizing it wasn't cited in the briefs, if you have a response to why that doesn't foreclose your vagueness claim here.

[00:25:13] Speaker 01:
Yes, your honor.

[00:25:14] Speaker 01:
There are a couple of reasons.

[00:25:16] Speaker 01:
One, there's some question after Demiah and Johnson, which Johnson was cited in our brief, whether that still applies.

[00:25:26] Speaker 01:
So there's some circuit court cases that say that it was dicta.

[00:25:30] Speaker 01:
The other thing is that this circuit has made clear that that Holder versus Humanitarian Law Project is not controlling whenever we're talking about anything other than fair notice.

[00:25:43] Speaker 01:
So if fair notice is at issue, then there's a question of, well, can one person who did have fair notice complain about fair notice as applied to others?

[00:25:53] Speaker 01:
However, in the First Amendment context, whenever you're dealing with chilling effect as it relates to vagueness,

[00:25:59] Speaker 01:
Or whenever you're dealing with arbitrary enforcement, which is our primary position here, that holder versus humanitarian law project language would not apply here, would not reach us.

[00:26:10] Speaker 04:
Okay, so that's the Act Now case.

[00:26:12] Speaker 04:
That case involved a pre-enforcement challenge, and it explained essentially you can't really conceive of an as-applied, standardless enforcement challenge.

[00:26:24] Speaker 04:
in the context of a of a pre-enforcement challenge.

[00:26:28] Speaker 04:
But you can very much conceive of what that would look like here, right?

[00:26:32] Speaker 04:
Mr. Nassif would say, it is so unclear whether my conduct was a demonstration that I was subject to the discretionary whims of the government.

[00:26:44] Speaker 04:
And that argument

[00:26:47] Speaker 04:
would be the sort of as applied analogy to what Holder seems to require.

[00:26:53] Speaker 04:
And I'm just troubled by the fact it doesn't seem like we have that kind of argument here.

[00:26:57] Speaker 01:
Yes, Your Honor.

[00:26:58] Speaker 01:
So although the Act Now case was a pre-enforcement challenge, what really I think the reasoning is getting at is that it is fundamentally different to talk about fair notice and arbitrary enforcement.

[00:27:11] Speaker 01:
And that's especially true in the First Amendment context.

[00:27:14] Speaker 01:
Because the main concern there is that it's going to have a chilling effect on others.

[00:27:20] Speaker 01:
And here, where you have the government just shifting its position at almost every turn, I mean at every stage in this case, they have changed it to something different.

[00:27:29] Speaker 01:
And where you have the Capitol Police having these vague broad definitions that they kind of turn on a dime when they need to,

[00:27:37] Speaker 01:
That, you know, is just manifestly arbitrary.

[00:27:41] Speaker 01:
And it certainly would lead to a chilling effect in arbitrary enforcement.

[00:27:44] Speaker 01:
So I think, even though I do understand your Honor's concern about, you know, not being an as-applied concern here, I think that the reasoning in the Act Now case, and I think also in D.C.

[00:27:57] Speaker 01:
District Court case, United States versus Ague, I don't know if I'm pronouncing that right.

[00:28:01] Speaker 01:
I think it was Judge Pillard's opinion.

[00:28:03] Speaker 00:
So, Ms.

[00:28:04] Speaker 00:
Fussell, we will give you some time for rebuttal.

[00:28:08] Speaker 01:
Thank you, Your Honor.

[00:28:19] Speaker 00:
Good morning, Mr. Cahill.

[00:28:20] Speaker 02:
Good morning, Your Honors.

[00:28:22] Speaker 02:
May I proceed?

[00:28:26] Speaker 02:
Timothy Cahill for the United States.

[00:28:28] Speaker 03:
May I please the court

[00:28:30] Speaker 03:
I'd just like to begin by addressing and rebutting a point that came up repeatedly during Appellant's argument, this idea that the government has made inconsistent representations on its position.

[00:28:39] Speaker 03:
We submit that that simply isn't supported by the records in the cases below.

[00:28:43] Speaker 03:
I would point out that in the Ballinger case, which was cited multiple times, the dispute was about whether or not conduct had to be, quote, loud or destructive.

[00:28:51] Speaker 03:
in order to violate the statute, and the government's position was that it was not.

[00:28:55] Speaker 03:
That is not inconsistent with the position we've taken here or elsewhere.

[00:28:59] Speaker 03:
And many of the other claims of inconsistencies are based on conflating what we submit are two completely discrete types of elements.

[00:29:06] Speaker 03:
One is the perspective question of the nature of conduct, whether or not it is of the nature to tend to disrupt.

[00:29:13] Speaker 03:
The second is a retrospective question, whether it requires proof of an actual disruption.

[00:29:18] Speaker 03:
I would note that one of the statutes that Mr. Nassif was convicted of, 1752A2, requires proof of both of those things.

[00:29:27] Speaker 03:
The 5104 misdemeanor statutes do not.

[00:29:31] Speaker 03:
And so a lot of the claims of inconsistency are based on cherry picking statements that relate to different elements in different statutes.

[00:29:38] Speaker 03:
I wanted to clear that up before moving on to some of the other arguments.

[00:29:42] Speaker 00:
How does the government understand the meaning of disrupt, just as a matter of statutory text in context?

[00:29:52] Speaker 03:
So to clarify, Your Honor, do you have?

[00:29:54] Speaker 00:
I'm sorry, not disrupt, demonstrate.

[00:29:56] Speaker 00:
I'm sorry.

[00:29:56] Speaker 00:
I misspoke.

[00:29:57] Speaker 03:
Certainly, Your Honor.

[00:29:58] Speaker 03:
So we believe that both the text of this statute and the legislative history support reading demonstrate in this statute as referring to demonstrations that would tend to disrupt the orderly business of Congress.

[00:30:09] Speaker 03:
And we would point to the Bronstein case.

[00:30:12] Speaker 03:
I recognize that that was a vagueness challenge.

[00:30:14] Speaker 03:
But in terms of statutory interpretation, it's highly instructive here.

[00:30:17] Speaker 03:
involved the question of the meaning of the word oration and also the word harangue in the context of the Supreme Court's buildings and grounds.

[00:30:26] Speaker 03:
And this court looked in the text just like doing a statutory interpretation to three sources.

[00:30:32] Speaker 03:
One were the surrounding statutory terms, which here in the actual provision at issue include parading and picketing, which informs what demonstrate means.

[00:30:41] Speaker 03:
And that also

[00:30:43] Speaker 03:
is relevant that in the surrounding provisions, there's prohibitions on loud, threatening, or abusive language.

[00:30:50] Speaker 03:
I would note that that exact phrase was also present in the statute at issue in Bronstein, and this court pointed to it as evidence that the statute was concerned with disruptive conduct.

[00:31:01] Speaker 03:
In Bronstein, this court also looked at the title of the statute as informing the context.

[00:31:05] Speaker 03:
Here, the title of the statute is Violent Entry and Disorderly Conduct.

[00:31:09] Speaker 03:
It looked at the limited, oh, I'm sorry, Your Honor.

[00:31:12] Speaker 03:
Oh, I thought you were about to speak.

[00:31:13] Speaker 03:
I apologize.

[00:31:15] Speaker 03:
It also looked at the limited location where the statute applied, in that case just the Supreme Court's buildings and grounds, here just the interiors of the Capitol buildings.

[00:31:23] Speaker 03:
So for all of those reasons, just applying ordinary principles of statutory interpretation, we believe that that would be the proper way to interpret the scope of the statute.

[00:31:32] Speaker 00:
So what would be the operative facts that would allow a member of the public to know that something is a demonstration that

[00:31:41] Speaker 00:
tends to disrupt.

[00:31:42] Speaker 00:
Is it noise level?

[00:31:43] Speaker 00:
Is it size of the group?

[00:31:45] Speaker 00:
Is it something else?

[00:31:46] Speaker 00:
If I want to go with four friends and hold a quiet vigil standing to the side of any business being conducted, passing through the rotunda, is that a demonstration that's prohibited or not?

[00:32:03] Speaker 03:
So I would submit that on its face that would appear not to be prohibited, but it's all very context dependent.

[00:32:09] Speaker 03:
If that was happening in the doorway of a congressperson's office, maybe it would be.

[00:32:14] Speaker 03:
But that's a factually specific question that in the first instance could be determined by a judge or a jury.

[00:32:20] Speaker 03:
I would note that

[00:32:21] Speaker 03:
In the 5104 cases that have gone to jury trials, the government has proposed and oftentimes jointly proposed with the defense jury instructions that have defined the term demonstrate in just this way.

[00:32:34] Speaker 03:
And in any statute at its margins, there's going to be factual determinations as to whether or not the terms of that statute apply.

[00:32:42] Speaker 03:
If there are particular cases or particular circumstances where a conviction raises concerns about whether it's infringing, going too far to infringe on constitutional rights, that's where as applied challenges come in.

[00:32:55] Speaker 00:
Well, we also have a notice problem or at least a question raised about it.

[00:32:59] Speaker 00:
And so what is the difference between conduct that would tend to disrupt and conduct that disrupts?

[00:33:06] Speaker 00:
And I understand that, as you said, conceptually one is a prospective assessment, but

[00:33:13] Speaker 00:
Again, if I'm someone who wants to decide whether my planned action is covered, how am I supposed to know what tends to disrupt?

[00:33:26] Speaker 00:
Especially if I've not spent a lot of time in the Capitol.

[00:33:29] Speaker 03:
Understood, Your Honor.

[00:33:31] Speaker 03:
So, I mean, I would point in that context to this Court's similar assessment of a very similar question in Bronstein.

[00:33:38] Speaker 00:
And in Bronstein, the Court determined that it was determinable conduct because even though... An oration or a harangue in the chamber is, of the Supreme Court, is so much clearer, in my view, than what you're presenting here.

[00:33:53] Speaker 03:
I don't think so, Your Honor, not in the sense of the key interpretive principle that the court applied in Bronstein and the key phrase that the court applied in Bronstein was to tend to disrupt the court's operations.

[00:34:05] Speaker 03:
So if the question is what would tend to disrupt the court's operations, I think that is susceptible to the same sort of notice and provides the same sort of notice.

[00:34:16] Speaker 03:
Especially given that the case law is clear that when considering vagueness challenges, it's not an unconstitutional infirmity to have an imprecise standard that might be applied differently by reasonable jurists, that might even be applied differently by reasonable fact-finders.

[00:34:33] Speaker 03:
It's only infirm unconstitutionally for vagueness if there's no standard at all.

[00:34:38] Speaker 03:
And that isn't the case here.

[00:34:40] Speaker 00:
So is there an understanding of the term demonstrate within the statute that doesn't depend on tendency to disrupt as the defining feature?

[00:34:59] Speaker 00:
And I guess I also relatedly have a question of whether you would apply tending to disrupt individually or to the category

[00:35:08] Speaker 00:
activities, and I take it you're saying individually to each proposed entry and activity, but the only way you think it's reasonable to read demonstrating context.

[00:35:25] Speaker 03:
We would submit that, again, as a matter of standard statutory interpretive principles, just as this court applied in Bronstein, based upon surrounding terms, title,

[00:35:36] Speaker 03:
And even in this case, if the court finds it ambiguous, look into the legislative history.

[00:35:40] Speaker 04:
Well, I think, counsel, just on that, another interpretive principle is that when Congress uses a word in one place but not another, we won't read it in.

[00:35:49] Speaker 04:
And it strikes me that you are essentially saying that this should be read to say parade, picket, or disorderly demonstrate.

[00:35:57] Speaker 04:
That's how you get to tend to disrupt, correct?

[00:36:00] Speaker 03:
I don't think so, your honor, just because it

[00:36:05] Speaker 03:
Disorderly conduct is a long-standing legal term of art.

[00:36:09] Speaker 03:
And so, for instance, it's used in subsection D to refer to a broader category of disorderly conduct.

[00:36:15] Speaker 03:
We are reading the word demonstrate in the context of a statute that, in all of its sub-provisions, describes types of disorderly conduct, even within the same sub-provision, describes inherently types of disorderly conduct, like picketing and parading, as reading the term demonstrate

[00:36:30] Speaker 03:
to be akin to the types of conduct that are prohibited within the same sub-provision and within the preceding sub-provisions.

[00:36:39] Speaker 00:
I take it the government would not embrace a reading of the statute that understood demonstrate as presenting oneself in a place

[00:36:53] Speaker 00:
for the purpose of expressing support or disapproval of an identified action or viewpoint.

[00:36:58] Speaker 00:
In other words, another reason to be in the Capitol that is not to visit or meet or tour or otherwise.

[00:37:11] Speaker 03:
We would submit that the statute does not encompass that broad a definition of demonstrate.

[00:37:17] Speaker 03:
That's our interpretation of the statute.

[00:37:20] Speaker 00:
That seems broader to you.

[00:37:23] Speaker 03:
Then, a demonstration that would tend to disrupt the orderly business of Congress?

[00:37:27] Speaker 03:
I would say so, yes.

[00:37:33] Speaker 05:
I guess a related question is, the conduct at issue in Bynum was a group that was undertaking prayer in the Capitol.

[00:37:43] Speaker 05:
and they were advised that even silent prayer in statutory, statutory hall was not permitted because that was a demonstration.

[00:37:57] Speaker 05:
Is that the correct interpretation of the statute of this subsection?

[00:38:02] Speaker 05:
The courts reading in Bynum?

[00:38:04] Speaker 05:
No, no, if if that's what the Capitol police officer told Reverend Bynum and in his group.

[00:38:13] Speaker 05:
Is that a correct interpretation of 5104e2g?

[00:38:18] Speaker 03:
So Your Honor, at this point, I would say no.

[00:38:20] Speaker 03:
I mean, the government in this case is embracing Judge Friedman's description of the scope of that statute in Bynum, which he found to be constitutionally sound.

[00:38:28] Speaker 03:
What Judge Friedman objected to was the Capitol Police regulation that encompassed the silent prayer.

[00:38:33] Speaker 03:
And I would note, Your Honor, I know that in the briefing, the appellants have relied on current capital regulations to argue that they haven't changed.

[00:38:41] Speaker 03:
But I would point out that the part of the capital regulations that have been cited are actually regulations concerning demonstrations that are demonstration activity that is permitted on the ground.

[00:38:53] Speaker 03:
So if you look further in the same capital police regulations, I think page A59, it actually describes the Bynum decision.

[00:38:59] Speaker 03:
describes the holding of the Bynum decision and advises that demonstrations inside the Capitol don't violate this statute unless they're disruptive.

[00:39:09] Speaker 03:
So if we're looking at the Capitol police regulations as informing the plausibility of certain hypotheticals and the likelihood of enforcement, it actually cuts against appellants claims.

[00:39:19] Speaker 00:
Unless they're disruptive or tend to disrupt?

[00:39:22] Speaker 03:
I think it just uses the word disruptive.

[00:39:24] Speaker 03:
I would point that in Judge Freedman's decision in Bynum, he uses the phrase would disrupt.

[00:39:31] Speaker 03:
He phrases it as a prospective test, which is the same phrasing that this court used.

[00:39:36] Speaker 03:
And again, we would submit an analogous context in Bronstein.

[00:39:39] Speaker 03:
It's referred to tending disrupt, threatening to disrupt.

[00:39:43] Speaker 03:
That is historically how, for instance, Black's law dictionary defines disorderly conduct as tending to disturb the peace.

[00:39:52] Speaker 00:
That's helpful.

[00:39:53] Speaker 00:
I had understood Ms.

[00:39:55] Speaker 00:
Fussell to make an argument that the government's interest in the anti-parading, picketing, and demonstrating statute is impugned by the fact that the disruption statute only applies when Congress is in session.

[00:40:13] Speaker 00:
What do we make of that?

[00:40:13] Speaker 00:
So this applies when Congress is not in session?

[00:40:18] Speaker 03:
It's reasonable your honor because of the other specific narrowing features of this provision as compared to subsection D which is the broader disorderly and disruptive conduct provision.

[00:40:31] Speaker 03:
This provision only applies inside the Capitol building within the actual

[00:40:35] Speaker 03:
building, and also only applies to the particular types of identified disruptive conduct.

[00:40:41] Speaker 03:
And in related cases, the District of Columbia Court of Appeals has recognized, and would submit as just a matter of common sense, even when Congress is not holding a specific proceeding or a specific hearing, there is business of Congress being conducted inside the building, inside the offices of Congress people who are meeting with staffers, meeting with other Congress people, having discussions.

[00:41:02] Speaker 03:
And that's why this statute,

[00:41:05] Speaker 03:
is specific to inside the Capitol building.

[00:41:08] Speaker 03:
The broader provision that applies all the way in the exterior grounds requires a higher showing, requires an intent even to disrupt an act of proceeding of Congress, an act of session, an act of meeting, an act of hearing.

[00:41:22] Speaker 04:
Council, we've understandably focused on the statutory interpretation question, but I understood your briefs to argue, your brief to argue

[00:41:30] Speaker 04:
that we actually don't need to resolve the statutory interpretation issue in this case, at least to resolve the First Amendment question.

[00:41:36] Speaker 04:
Is that right?

[00:41:37] Speaker 04:
That's the government's position?

[00:41:38] Speaker 03:
That's correct, and I understand

[00:41:40] Speaker 03:
Logically and logistically, oftentimes that's the first step in this analysis, but we would submit it's not ultimately necessary.

[00:41:46] Speaker 03:
And if the court agrees, then it could affirm simply by saying that under either interpretation, the statute passes constitutional monster.

[00:41:53] Speaker 04:
And then just briefly on the vagueness issue, I raised the Holder case.

[00:41:58] Speaker 04:
Does the government have a position on whether that bars the claim here?

[00:42:02] Speaker 03:
I mean, we haven't briefed that case, Your Honor, so I wouldn't be relying on it here.

[00:42:06] Speaker 03:
I would point that we did in our brief.

[00:42:08] Speaker 03:
I know it is not an identical concept, but I would say it touches on some of the same concerns.

[00:42:12] Speaker 03:
We did cite Hill v. Colorado for the principle that speculation about possible vagueness and hypothetical situations before the court will not support a facial attack on a statute when it is clearly valid in the majority of its intended applications.

[00:42:26] Speaker 03:
And I recognize that's not an identical principle, but we would submit that on that ground as well.

[00:42:32] Speaker 03:
For somewhat analogous reasons, the vagueness challenge here should fail.

[00:42:39] Speaker 03:
For those reasons and for the reasons outlined in our brief, especially with respect to the sentencing claims as well, we would ask that the court affirm the judgment of the district court.

[00:42:48] Speaker 03:
I'm sorry, Your Honor.

[00:42:49] Speaker 00:
I'm sorry.

[00:42:50] Speaker 00:
I wanted to ask you if you had a view on the burden on the forum.

[00:42:53] Speaker 03:
So, Your Honor, the broader point that the government has to support

[00:43:02] Speaker 03:
a restriction on speech as constitutional is what the government didn't contest.

[00:43:05] Speaker 03:
This idea that there's an evidentiary burden on forum, we did dispute in our brief.

[00:43:09] Speaker 03:
And in leader minute, it makes very clear that the court's reference to some sort of evidentiary burden is because the very specific forum at issue there was a sidewalk.

[00:43:20] Speaker 03:
And the court held that there's a strong presumption that a sidewalk is a public forum unless the government has proven otherwise, that there's some specialized use for that sidewalk.

[00:43:29] Speaker 03:
There was no indication that that applies elsewhere.

[00:43:31] Speaker 00:
Right, so my reading of cases like Stewart versus DC Armory, which wasn't cited in the briefing, 863 F.

[00:43:39] Speaker 00:
2nd, 1013, is that the forum doctrine does, the limited public forum doctrine involves a factual inquiry, and that in that case, we thought that that inquiry needed to be dealt into, and that that would be the burden on the challenger of the law.

[00:44:01] Speaker 00:
Do you have any reason to think that's not the right?

[00:44:03] Speaker 03:
There's no reason to think that that is inaccurate, your honor.

[00:44:06] Speaker 03:
No.

[00:44:11] Speaker 03:
Thank you for the questions.

[00:44:13] Speaker 03:
Thank you, your honor.

[00:44:17] Speaker 00:
It's possible.

[00:44:18] Speaker 00:
Give you two minutes for rebuttal.

[00:44:32] Speaker 01:
Thank you, Your Honors.

[00:44:34] Speaker 01:
And I know there's been some question about burden and forum, but I want to reiterate again that our position is that Congress directly targeted and criminalized First Amendment speech in the publicly accessible buildings that make up our seat of government.

[00:44:48] Speaker 01:
And we say that that is unconstitutional, regardless of the analysis that applies.

[00:44:54] Speaker 01:
I want to address the fact that the government indicated that its positions have been consistent.

[00:45:02] Speaker 01:
We ask the court to look again at the Ballinger case.

[00:45:06] Speaker 01:
It is extremely an important point, I think, here, because when the government is opposing a motion for acquittal or there's a dispute as to sufficiency of the evidence, they say, no, no, no, this doesn't mean disruptive conduct.

[00:45:21] Speaker 01:
Even showing up is enough.

[00:45:22] Speaker 01:
We don't have to show anything like that.

[00:45:24] Speaker 01:
And then when the validity of the statute hangs in the balance, the government says,

[00:45:29] Speaker 01:
Oh, well, of course disruptive conduct is required or conduct that would tend to disrupt, which I don't know if the court understands the difference between those after the government's argument.

[00:45:40] Speaker 01:
But I certainly don't.

[00:45:43] Speaker 01:
Now, as the government pointed out, I think the only way to evaluate their standard is that this context-specific standard is with a lot of discretion on the part of the Capitol police officers.

[00:45:59] Speaker 01:
This isn't in the briefs, because this is the first time that the government has indicated that the Capitol Police wouldn't enforce their regulation as written.

[00:46:08] Speaker 01:
And they brought up the fact that Bynum was mentioned.

[00:46:11] Speaker 01:
And it was in the Capitol Police regulations in a summary of constitutional challenges at the end.

[00:46:17] Speaker 01:
But this past June, the Capitol Police stopped a group of children from singing the national anthem in the Capitol building, telling them their song, which was invited by a member of Congress, was a prohibited demonstration.

[00:46:28] Speaker 01:
To quote the Capitol Police's official statement on the matter, here is the truth, demonstrations are not allowed in the U.S.

[00:46:34] Speaker 01:
Capitol.

[00:46:36] Speaker 01:
I submit respectfully that whatever instruction the government has really advanced today, that's the truth.

[00:46:42] Speaker 01:
Demonstrations are not allowed in the U.S.

[00:46:44] Speaker 01:
Capitol, no matter how peaceful, quiet, or vital to our self-government they are.

[00:46:49] Speaker 01:
If there are no questions.

[00:46:49] Speaker 00:
Thank you, Ms.

[00:46:50] Speaker 00:
Fussell.

[00:46:50] Speaker 00:
The case is submitted.

[00:46:51] Speaker 01:
Thank you, Your Honor.