Update on the case of a former marine who was arrested for wearing an 'Occupy Everything' jacket while touring the Supreme Court building in Washington last year.
Video of the arrest is below.
A Florida man deserved to be arrested inside the Supreme Court building last year for wearing a jacket painted with “Occupy Everything,” and is lucky he was only apprehended on unlawful entry charges, the Department of Justice says.
The DOJ assertion was made in a legal filing in response to a lawsuit brought by Fitzgerald Scott, who is seeking $1 million in damages for his January 2012 arrest inside the Supreme Court building. He also wants his arrest record expunged.
What’s more, the authorities said the former Marine’s claim that he was protected by the First Amendment bolsters the government’s position (.pdf) because the Supreme Court building’s public interior is a First Amendment-free zone.
Fitzgerald was not disturbing anybody, but was repeatedly told by court staff to leave the building or remove the coat. Inside, Fitzgerald was handcuffed and arrested for unlawful entry as he was viewing an exhibit on slavery.
Here is the District of Columbia’s ‘unlawful entry’ statute:
Any person who, without lawful authority, shall enter, or attempt to enter, any public building, or other property, or part of such building, or other property, against the will of the lawful occupant or of the person lawfully in charge thereof or his or her agent, or being therein or thereon, without lawful authority to remain therein or thereon shall refuse to quit the same on the demand of the lawful occupant, or of the person lawfully in charge thereof or his or her agent, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine of not more than $1,000, imprisonment for not more than 6 months, or both.
Prosecutors eventually dismissed the charges, and he sued. (.pdf)
To be sure, the courts have upheld convictions of those wearing inappropriate clothing inside the high court’s building — once in 2011 for individuals wearing orange shirts that said “Shut Down Guantanamo” and in 2007 for protesters wearing orange jump suits and black hoods — all in violation of the so-called “Display Clause.”
The Obama administration said Wednesday that Scott could also have been arrested and charged with violating the Display Clause, which makes it “unlawful to parade, stand, or move in processions or assemblages in the Supreme Court Building or grounds, or to display in the Building and grounds a flag, banner, or device designed or adapted to bring into public notice a party, organization, or movement.”
Video of the arrest (Jan. 20, 2012):
Man arrested for wearing Occupy jacket at Supreme Court.
Here is how Fitzgerald described the arrest on Youtube:
"To clarify, since many people seem to think we were staging some sort of one man protest inside the supreme court, we were NOT PROTESTING! We were very quietly and respectfully walking around the building after going through security during open hours. He was wearing the jacket upon entry, and he was wearing the jacket when one cop decided to make a big stink about it. That is all, there was no mic checking, no hollering, no signs, no "parading" and absolutely no protesting whatsoever inside the building."
Recall that the Supreme Court Building has special status, arguably as a First Amendment free-zone. And although the charges were dropped against last year's jacket wearer - - - Fitzgerald Scott - - - he brought suit in the United States District Court for the District of Columbia.
In its memorandum supporting its motion to dismiss,the United States Attorney's office includes this intriguing point heading: "The Fact that Plaintiff’s Jacket Conveyed a Message Only Reinforces the Conclusion that There Was Probable Cause for the Arrest." Essentially, the government argues that the "message" does not support a First Amendment claim of political speech targeted because of its content, but instead is a "concession" under 40 U.S.C. § 6135, prohibiting the display of items designed to bring notice to an organization or movement within the United States Supreme Court building. Recall that the Supreme Court has upheld the constitutionality of §6135.
While it seems that Scott has an uphill battle under the current precedent, his battle is certainly a reminder of Justice Thurgood's Marshall observation that the Supreme Court occupies an ironic position with regard to the First Amendment.
Shortly before the arrest.
Photo - Envios/Flickr