Left: John Nassif, circled in yellow, inside the U.S. Capitol on Jan. 6, 2021 (DOJ). Right: The U.S. Supreme Court on Wednesday, Jan. 19, 2022, in Washington, D.C. (AP Photo/Mariam Zuhaib)
Much in the way that the Supreme Court threw a stick of dynamite into Jan. 6 rioter convictions and prosecutions with its decision in Fischer v. United States, a similar situation involving another law used to prosecute rioters may present itself now that one man has filed a writ of certiorari to the Supreme Court asking justices to reconsider his conviction.
The man in question is John Nassif, a 57-year-old from Florida who was arrested in 2021 and then convicted in 2022 on charges that he entered and remained on restricted grounds at the U.S. Capitol. He was also convicted of other misdemeanors, including disorderly and disruptive conduct in a restricted building, violent entry in a Capitol building and parading and demonstrating or picketing in a Capitol building. He was sentenced to seven months in prison — prosecutors wanted 10 to 16 months — served his time and was released in January. Nassif meanwhile had appealed his conviction and has argued at length that the charge of parading and picketing in particular was overbroad and unconstitutional.
The judge who convicted Nassif at a bench trial, U.S. District Judge John Bates, an appointee of former President George W. Bush, rejected Nassif’s attempt to dismiss the parading charge pretrial.
He found that historically, courts had 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 noted that the Supreme Court itself previously identified only three types of public property for First Amendment analysis: the traditional public forum, like streets or parks; a designated public forum; and the nonpublic forum.
With his motion, Bates wrote, Nassif would have the court only focus on the words “parade, demonstrate and picket” in the statute instead of the six operative words that follow it: “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 “in order to permit Congress peaceably to carry out its lawmaking responsibilities and to permit citizens to bring their concerns to their legislators.”
When Nassif took his case to the U.S. Court of Appeals for the District of Columbia and tried to unwind the parading, picketing or demonstrating charge, he was, once again, unpersuasive.
In its ruling in April, a three-judge appellate of U.S. Circuit Judges Cornelia Pillard, Robert Wilkins — both Barack Obama appointees — and Bradley Garcia, appointed by Joe Biden, emphasized that Nassif’s arguments ignored the strict regulations the public must typically observe in order to access the Capitol.
While Nassif never argued that his conduct in the Capitol on Jan. 6 was protected, nor did he say he received insufficient notice that his conduct was prohibited, the appeals court found that he did incorrectly contend 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 claimed that the Capitol Rotunda, for example, was an open forum intended for assembly, but the appeals court found there was not strong enough evidence to support this. Hearings, meetings, lobbying sessions and the like that take place in the Capitol are, for example, not always open to the public and moreover, physical entry points to the Capitol are not all open to the public. Items must be subjected to inspection, appointments for visitors must be made, and security screenings are also required, to name but a few examples.
To support his arguments, Nassif referred the appeals court to 1934 civil rights sit-ins at whites-only restaurants within the Capitol as well protests in the 1990s inside of the building in support of the Americans with Disabilities Act.
But the court was succinct: two examples over 90 years does not a convincing argument make. Neither example, Pillard wrote, involved an “intentional choice by the government to open the Capitol as a public forum.”
There may be a future case that finds a designated public forum somewhere inside the Capitol, she said, but the record at present supported no such characterization and further 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 officers must prioritize safeguarding lawmakers, not policing pickets or demonstrations.
“To be sure, ‘[t]he fundamental function of a legislature in a democratic society assumes accessibility to [public] opinion. But the interest in a workplace where legislators and staff may do their jobs undisturbed by parades, pickets, or demonstrations comports with accessibility and is plainly legitimate,” Pillard wrote.
But inside of this same ruling, a window for Nassif to exploit in future arguments remains open. Contrary to Pillard’s position that nothing on the record supported the notion that the Capitol, specifically, the interior Rotunda, was a place for demonstrating, are a series of rulings that Nassif insists do refer to it as such.
Nassif argued that in the 1993 case Berg v. United States, for example, the appellate court had dubbed the Rotunda a “unique situs for demonstration activity.”
But Pillard pushed back, saying that Nassif’s use of that statement seemed “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 agree to grant Nassif’s writ of certiorari request. It can take months for the case to be primed for argument and typically it’s a minimum of three months, as noted by the website SCOTUSblog.
Should the high court deny Nassif’s writ, the lower court’s ruling will stand and his fight will end. If the justices take the case, however, a potential new cluster of problems for the Justice Department will open. So far, more than 1,450 people have been charged in connection with the Capitol attack and among the most common charge and conviction is the illegal parading and picketing misdemeanor. According to the Justice Department, almost 500 people have been sentenced under Section 5104(e)(2)(G).
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