Appeals Court Finds Capitol Police Protest Rules Unconstitutional

The U.S. Court of Appeals for the District of Columbia Circuit held that the Capitol Police Board’s policy limiting demonstrations on the Capitol’s eastern steps to events sponsored by members of Congress violates the First Amendment. In a 2-1 decision, the majority opinion, written by Judge Neomi Rao—a Trump appointee—characterized the steps as a “nonpublic forum” but emphasized that any regulation there must be viewpoint-neutral and not arbitrary. Rao wrote that allowing only law-maker-backed gatherings gives Congress “arbitrary control” over speech and threatens core First Amendment protections. The panel did not order the steps opened; instead, it remanded the case to the U.S. District Court for the District of Columbia for a narrower injunction. The decision is a partial victory for plaintiff Patrick Mahoney, a Presbyterian minister who sued after being denied a permit for a 20th-anniversary prayer vigil for the attacks.

Roll CallProtest Limits on Capitol Steps Infringe Free Speech, Court Says

The contested rules were adopted after the terrorist attacks and require congressional sponsorship for any public demonstration on the eastern steps. Mahoney’s lawsuit, filed in August 2021, challenged the policy as an unconstitutional gate-keeping mechanism. The district court had previously ruled the steps a public forum, striking down the restrictions. The appellate court reversed that finding on the forum classification but agreed that the specific limitations overstep permissible regulation.

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The Capitol Police declined to comment on the ruling. Judge **Judith W. The dissent underscores a broader view that the steps have a long history of public protest.

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• “These steps unfold above the bases in broad cascading marble terraces that readily serve as speaking platforms and places for congregating, rather than steps solely dedicated to entering and exiting a building,” — Judith Rogers, senior judge

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