A similar situation involving another law used to prosecute rioters may arise now that one man has filed a writ of certiorari with the Supreme Court, asking justices to reconsider his conviction.
The guy in question is John Nassif, a 57-year-old Florida resident who was arrested in 2021 and later convicted in 2022 on charges of entering and remaining on prohibited premises of the United States Capitol. He was also found guilty of various offenses, such as disorderly and disruptive behavior in a restricted building, violent entry into a Capitol building, and marching and demonstrating or picketing in a Capitol building. He was sentenced to seven months in prison—prosecutors wanted ten to sixteen months—served his sentence, and was released in January. Meanwhile, Nassif had challenged his conviction, arguing that the charges of parading and picketing were overbroad and unlawful.
U.S. District Judge John Bates, a former President George W. Bush appointment, denied Nassif’s pretrial motion to dismiss the parading charge.
He discovered that courts have historically ruled that the interior of the Capitol is a “nonpublic forum” where the federal government “may limit First Amendment activities so long as the restrictions are reasonable in light of the purpose of the forum and are viewpoint neutral,” Bates’ opinion explained.
Bates pointed out that the Supreme Court has previously defined just three sorts of public property for First Amendment analysis: typical public forums, such as streets or parks; designated public forums; and nonpublic forums.
According to Bates, Nassif’s motion would have the court focus solely on the words “parade, demonstrate, and picket” in the statute, rather than the six keywords that follow: “in any of the Capitol buildings.”
While the seat of the legislative branch of the federal government “might well be considered to be the heart of the nation’s expressive activity and ideas,” Bates said, it has also long been understood that the expression of ideas comes with limitations “to permit Congress peaceably to carry out its lawmaking responsibilities and to allow citizens to bring their concerns to their legislators.”
When Nassif took his case to the United States Court of Appeals for the District of Columbia in an attempt to overturn the parading, picketing, or demonstrating charge, he was once again unsuccessful.
In its April decision, a three-judge appellate panel of U.S. Circuit Judges Cornelia Pillard, and Robert Wilkins, both Barack Obama appointees, and Bradley Garcia, appointed by Joe Biden, emphasized that Nassif’s arguments ignored the strict regulations that the public must typically follow to gain access to the Capitol.
While Nassif never claimed that his actions in the Capitol on Jan. 6 were protected, nor that he was given insufficient notice that his actions were prohibited, the appeals court determined that he incorrectly claimed that the picketing statute under Section 5104(e)(2)(G) was “so unclear that it is entirely invalid and cannot be applied to anyone, including him.”
Nassif also contended that the Capitol Rotunda, for example, was an open forum intended for assembly, but the appeals court determined that there was insufficient evidence to support this. Hearings, meetings, lobbying sessions, and other activities held in the Capitol are not always open to the public, and physical entry points to the Capitol are not always open. Items must be inspected, visitor appointments must be scheduled, and security inspections are required, to name a few instances.
To back up his case, Nassif cited 1934 civil rights sit-ins at whites-only eateries in the Capitol, as well as 1990s protests inside the building in support of the Americans with Disabilities Act.
But the court was succinct: two cases over 90 years do not constitute a persuasive argument. Pillard argued that neither of the examples featured an “intentional choice by the government to open the Capitol as a public forum.”
There could be a future case that finds a designated public forum somewhere inside the Capitol, she said, but the record so far supports no such characterization, and it was members of Congress who “reasonably decided” that parading, picketing, or demonstrating inside their workplace would interfere with their duties. They also understood that Capitol police personnel should prioritize protecting lawmakers over regulating pickets and demonstrations.
“To be sure, the primary function of a legislature in a democratic society is to be accessible to [public] opinion. However, the desire for a workplace where legislators and staff can perform their duties without being disrupted by parades, pickets, or rallies is consistent with accessibility and acceptable,” Pillard concluded.
However, a loophole in this verdict allows Nassif to use it in future arguments. Contrary to Pillard’s claim that nothing on the record supported the concept that the Capitol, notably the inner Rotunda, was a site for demonstrations, Nassif contends that several rulings do.
Nassif contended that in the 1993 case Berg v. United States, the appellate court referred to the Rotunda as a “unique situs for demonstration activity.”
However, Pillard argued that Nassif’s remark appeared “to derive more from an imprecise daisy chain of reasoning than from a considered assessment of the Capitol Rotunda’s history.”
Oral arguments will be heard if at least four of the nine justices grant Nassif’s writ of certiorari. According to the Lsawandcrime, it might take months to prepare the case for argument, and it usually takes at least three months.
If the high court denies Nassif’s writ, the lower court’s decision will stand, and his fight will be over. If the court accepts the case, a new set of issues for the Justice Department will emerge. So far, more than 1,450 people have been charged in connection with the Capitol attack, with illegal parading and picketing being one of the most common charges and convictions. According to the Justice Department, nearly 500 people have been sentenced under Section 5104(e)(2)(G).