By Zoe Tillman, From Legal Times

Lawyer Jeffrey Light argues high court “harangue” and “loud” language ban violates First Amendment.
Can a whisper be disruptive? When does speech become loud? A federal district judge in Washington considered those questions on Tuesday in a constitutional challenge to a ban on protest activity at the U.S. Supreme Court.
Five protesters charged with disrupting Supreme Court arguments on April 1 are challenging a law that bans certain types of disruptions and demonstrations inside and outside of the court. U.S. District Judge Christopher Cooper was skeptical that the protesters could challenge sections of the law they weren’t being prosecuted for—provisions, for example, that deal with conduct outside the court.
The protesters were accused of violating two sections of the law that prohibit a “harangue or oration” or other “loud” language. Cooper seemed interested in the “harangue” element. When Assistant U.S. Attorney Angela George explained that the government defined a “harangue” as “forceful or angry speech,” Cooper asked how a harangue, divorced from loudness concerns, could be disruptive. What about an angry whisper, for instance?
George said the court should focus on the government’s broader interest in regulating conduct at the Supreme Court. It was unlikely that a whisper was aimed at influencing the justices, she said.
Jeffrey Light.
Besides the “harangue” law, which is specific to the Supreme Court, the protesters were also charged under a law that bans picketing or parading to interfere with or obstruct the administration of justice, which can apply to other courts. They did not raise a constitutional challenge to that charge. Four of the five protesters are prepared to take the case to trial, Jeffrey Light (left), a lawyer for the demonstrators, told Cooper. The fifth defendant is considering a plea deal.
Light argued the Supreme Court-specific law was too vague. It gave police too much discretion to decide what was “loud,” he said. Light also said the protesters should be able to challenge sections of the law that they weren’t charged with, such as a prohibition on “abusive” language and certain conduct on the grounds outside the court. The protesters could vindicate the rights of others who would be affected by the law, he said.
Cooper said he was having a “tough time” with the argument that the protesters could challenge pieces of the law they weren’t being prosecuted for. Although the charging documents referenced the “abusive” language section of the law and conduct on the court grounds, George told the judge that the government would only prosecute the harangue and loud-language elements, and only in relation to the protesters’ activity inside the courtroom. The government intends to file revised charging documents to reflect that.
The judge noted that in two earlier Supreme Court protest cases—United States v. Grace, a 1983 decision by the Supreme Court, and Hodge v. Talkin, decided this year by the U.S. Court of Appeals for the D.C. Circuit—the courts limited their analysis to the charged conduct.
Light, who regularly represents protesters, argued in the D.C. Circuit in the Hodge case, which challenged restrictions on protest activity on the plaza in front of the Supreme Court. In August, the D.C. Circuit upheld a prohibition on demonstrations and displays on the plaza, reversing a lower court judge who struck down the ban.
IMAGE: U.S. Supreme Court. June 29, 2015. Photo: Diego M. Radzinschi/NLJ
For more on this story go to: http://www.nationallawjournal.com/legaltimes/id=1202738512226/Supreme-Court-Protesters-Take-First-Amendment-Challenge-to-Court#ixzz3nEFNtSoK