- The Washington Times - Monday, November 14, 2016

The nation’s second-highest court heard arguments Monday over where protesters will be allowed to demonstrate along the Inauguration Day parade route — and whether they will be blocked from areas in front of the Trump International Hotel and in Freedom Plaza.

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit seemed to agree that the Presidential Inaugural Committee, the private entity that organizes the event, should be able to reserve some set-aside seats and questioned protesters’ challenge on the placement of private bleachers in those areas.

“Part and parcel with having the event is getting some choice seats,” said Judge Sri Srinivasan. “What’s wrong with having prime seats for a particular event?”

The Answer Coalition, an anti-war activist group, has challenged the National Park Services’ allocation to the committee of swaths of Pennsylvania Avenue for restricted-access bleachers, saying it marginalizes and excludes dissent by preventing public access to what would otherwise be prime demonstration space.

Lawyer Mara Verheyden-Hilliard, who is representing the group through the Partnership for Civil Justice, argued that set-aside seats are already available near the White House and Lafayette Square. She said the protest group has not challenged the set-asides at those locations, noting security concerns.

“Freedom Plaza is unique. It stands significant among all other spaces,” Ms. Verheyden-Hilliard said.

She noted the symbolism and historical significance of the plaza and its physical attributes, which provide a rare open and elevated flat space along Pennsylvania Avenue.

As for the several blocks of Pennsylvania Avenue that the Park Service has sought to set aside for the inaugural committee bleachers, Ms. Verheyden-Hilliard said the allocation includes areas in front of Donald Trump’s luxury hotel, which has taken on new significance since his election.

Judge Cornelia Pillard asked government attorneys to explain what government interest would be advanced by granting all access at Freedom Plaza to the inaugural committee, which distributes tickets for the seats to supporters or sells them to the public.

Assistant U.S. Attorney Marina Braswell said Freedom Plaza provides a prime viewpoint for media outlets, which are granted access to the stands erected by the committee and that, even with the bleachers in place, there is still “ample available space” for demonstrators along the parade route.

“If [the inaugural committee] were given everything with a good view, that would be a problem, right?” said Judge Patricia Ann Millett.

Ms. Braswell argued that other prime viewing spots are open to demonstrators, including John Marshall Park near the federal courthouse, and that much of the sidewalk along Pennsylvania Avenue will remain open to the general public.

The case stems from ongoing litigation that has challenged the appropriation of demonstration space for protesters during presidential inaugurations since 2005. Although Monday’s hearing was more than two months ahead of Mr. Trump’s swearing-in ceremony, there is no indication as to whether the judges will issue a ruling by Jan. 20.

Past court challenges have delivered mixed results for protesters, sometimes enabling them to secure space in Freedom Plaza and other years shoving them aside.

The Answer Coalition opted to appeal its case after being dealt a blow in January, when U.S. District Judge Paul Friedman ruled in favor of the Park Service and the Interior Department. He ruled that the 16 percent of the parade route reserved for the committee — used to provide viewing areas for the president’s ticketed guests, facilities for media outlets as well as portable toilet facilities — constitutes a “modest restriction of the space.”

The judge also found that while the committee is not a government entity, its actions qualify as government, not private, speech and therefore are subject to lesser First Amendment scrutiny.

The D.C. Circuit panel appeared skeptical Monday of the government’s argument that the committee’s actions qualify as government speech. Judge Millett called the argument “odd.”

The judges questioned the scenarios under which attendees’ actions or simply their presence would be interpreted as “government speech,” noting that ticketed seats are deemed open to the general public if they are unclaimed 10 minutes before the start of the parade.

Judge Pillard asked whether a person in the stands who had contributed large amounts of money to the committee and supported the president-elect but disagreed with him on a single issue and chose to protest would be regarded as someone with government speech. Ms. Braswell said that it would.

“If they are just sitting there and saying nothing, they are still interpreted as a government supporter,” Ms. Braswell said.

Asked after Monday’s hearing what level of access would be agreeable to those seeking to demonstrate, Ms. Verheyden-Hilliard said it would require the site being open to all.

“If people could come no matter what, if they want to cheer, if they want to say something different, if they want to just watch, that is the way it should be,” she said. “The bleachers have to be fairly administered, and the space has to be fairly administered.”

• Andrea Noble can be reached at anoble@washingtontimes.com.

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