United States v. Bronstein

849 F.3d 1101

UNITED STATES of America, Appellant

v.David BRONSTEIN, et al., Appellees

No. 16-3003

United States Court of Appeals, District of Columbia Circuit.

Argued December 12, 2016

Decided March 3, 2017

Daniel J. Lenerz, Assistant U.S. Attorney, U.S. Attorney's Office, argued the cause for Appellant. With him on the briefs were Elizabeth Trosman, John P. Mannarino, and James M. Perez, Assistant U.S. Attorneys.

A. J. Kramer, Federal Public Defender, argued the cause and filed the brief for Appellees.

Before: Brown and Srinivasan, Circuit Judges, and Williams, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge Brown.

As we recently said, "[f]or more than sixty-five years, a federal statute has restricted the public's conduct of expressive activity within the building and grounds of the Supreme Court." Hodge v. Talkin , 799 F.3d 1145, 1149 (D.C. Cir. 2015). The statute at issue in Hodge —a fraternal twin of the one at issue here, see, e.g. , S. REP. NO. 81-719, at 1828 (1949)—was challenged under the Constitution's void-for-vagueness doctrine. We rejected that claim. See 799 F.3d at 1171–73. Now, we consider whether portions of its statutory sibling are unconstitutionally vague.

The statute here is 40 U.S.C. § 6134. Entitled "Firearms, fireworks, speeches, and objectionable language in the Supreme Court Building and grounds," it provides:

It is unlawful to discharge a firearm, firework or explosive, set fire to a combustible, make a harangue or oration, or utter loud, threatening, or abusive language in the Supreme Court Building or grounds.

Id. The district court below held the terms "harangue" and "oration" unconstitutionally vague. United States v. Bronstein , 151 F.Supp.3d 31, 41–44 (D.D.C. 2015).

The district court concluded that, for constitutional purposes, "harangues" and "orations" do not exist as such—they "cannot be determined without reference to subjective perceptions and individual sensitivities." See, e.g. , id. at 42 (referring to "harangue"); see also id. at 42 n.9, 44. The vagueness analysis, however, is objective. It turns on the tools of statutory interpretation.

Employing the tools of statutory interpretation, we hold 40 U.S.C. § 6134 gives a core meaning to both "harangue" and "oration." This core meaning is delivering speeches of various kinds to persons within the Supreme Court's building and grounds, in a manner that threatens to disturb the operations and decorum of the Court. In the context of the Supreme Court's building and grounds, the terms' core meaning proscribes determinable conduct. Thus, the district court erred in striking the terms as void for vagueness.

I.Factual Background¹

Appellees spent April Fools Day of 2015 interrupting an oral argument session of the U.S. Supreme Court. Before argument began, all of the Appellees were seated within the courtroom, and all of them must have heard the following announcement from a Supreme Court police officer:

Welcome to the Supreme Court of the United States. During today's oral arguments it is important that you remain seated and silent. When the first case breaks, please remain silent. If you are remaining for the second case, remain seated. If you are leaving, silently exit the Courtroom.... Please alert one of the police officers if you observe anything suspicious, and in the event of an emergency, please remain calm and follow the directions of a police officer. Thank you.

Bronstein , 151 F.Supp.3d at 34–35 (emphasis added). None of these repeated admonitions to remain seated and silent deterred Appellees, however.

After the Supreme Court's Marshal gaveled the Court into session and "audience members to their seats, ... only one member of the audience," Appellee Belinda Rodriguez, "remained standing." Id. at 35. She raised her arm into the air and said, "We rise to demand democracy. One person, one vote!" Id. After Supreme Court police removed Appellee Rodriguez from the courtroom, Appellee Matthew Kresling stood up and said, "We rise to ... Money is not speech. One person, one vote!" Id. Then, upon Kresling's removal, Appellee Yasmina Mrabet raised an arm in the air while saying, "Justices, is it not your duty to protect our right to self-government? The first ... overturn Citizens United . One person, one vote!" Id. Upon Mrabet's restraint and removal, Appellee Richard Saffle stood and stated, "Justices, is it not your job to ensure free, fair elections?" Id. Like his cohorts, he too was restrained and removed from the courtroom by police. Id. After Saffle's disruption, Chief Justice Roberts warned the remaining audience members that "[a]nyone else interested in talking will be admonished that it's within the authority of this Court to punish such disturbances by criminal contempt." Id. Nevertheless, Appellee David Bronstein began singing "immediately" after the Chief Justice's warning. Id. Bronstein sang, "We who believe in freedom shall not rest; we who believe in freedom shall not rest." Id. Bronstein, too, was removed and restrained. Id. All of the Appellees were placed under arrest and subsequently transported to a U.S. Capitol Police station. Id. In total, the Appellees' spectacle "lasted approximately two to four minutes." Id.

Two days later, the U.S. Attorney's Office charged Appellees with violations of: (1) 18 U.S.C. § 1507² (Count One); and (2) 40 U.S.C. § 6134 (Count Two), the statute quoted above. See 151 F. Supp. 3d at 35. Appellees moved to dismiss Count Two, claiming 40 U.S.C. § 6134 is facially unconstitutional. See id. at 36. Count Two charged Appellees with violating the statute's prohibitions on "mak[ing] a harangue or oration ... in the Supreme Court Building," and "utter[ing] loud ... language in the Supreme Court Building." See id. at 35.³ The Appellees' motion to dismiss Count Two alleged, inter alia ,⁴ the Due Process Clause of the Fifth Amendment to the U.S. Constitution renders § 6134's prohibitions on "mak [ing] a harangue or oration" and "utter[ing] loud ... language" unconstitutionally vague. See id. at 36.

II.Proceedings Below

After an oral hearing on the motion, the district court issued an order and accompanying opinion granting in part and denying in part the Appellees' motion to dismiss. The district court first considered whether "loud" in § 6134 was unconstitutionally vague. The district court did not strike "loud" as unconstitutionally vague; it adopted a narrowing construction. Id. at 41. Under the district court's reading, "[t]he Government may prosecute Defendants for having ‘utter[ed] loud ... language in the Supreme Court Building,’ but only insofar as their utterances disturbed or tended to disturb the normal operations of the U.S. Supreme Court."⁵ Id. The district court gave neither "harangue" nor "oration" a narrowing construction. Rather, the district court struck these words from § 6134 as unconstitutionally vague. See id. at 44. The Government appealed the district court's decision.

III.Standard of Review

Whether "harangue" or "oration" is unconstitutionally vague within § 6134 involves only "pure questions of law." See Hodge , 799 F.3d at 1171. As such, our review is de novo . Id. at 1155. The vagueness inquiry implicates a number of interpretive principles. Explaining them here will help illuminate our interpretation of § 6134.

A law is vague when "it fails to give ordinary people fair notice of the conduct it punishes, or [is] so standardless that it invites arbitrary enforcement." Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 2556, 192 L.Ed.2d 569 (2015). The void-for-vagueness doctrine "developed from the rule of construction that penal statutes are to be construed strictly in favor of the accused." Note, Indefinite Criteria of Definiteness in Statutes , 45 HARV. L. REV. 160, 160 n.2 (1931). The doctrine grew to take on constitutional status, allowing a court to not merely "save" an indefinite statute with judicial construction, but to strike the statute as unconstitutional when its vagueness transgressed the guarantees of the Due Process Clause within the Fifth and Fourteenth Amendments. See generally Anthony G. Amsterdam, Note, The Void-for-Vagueness Doctrine in the Supreme Court , 109 U. PA. L. REV. 67 (1960) (analyzing the myriad constitutional values and issues of judicial administration informing the void-for-vagueness doctrine's use); see also id. at 75 ("[T]he doctrine of unconstitutional indefiniteness has been used by the Supreme Court almost invariably for the creation of an insulating buffer zone of added protection at the peripheries of several of the Bill of Rights freedoms.").

Consistent with its origins, a statute's vagueness is either susceptible to judicial construction or is void for vagueness based on the application of traditional rules for statutory interpretation. See Bouie v. Columbia , 378 U.S. 347, 355 n.5, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964) ("The determination whether a criminal statute provides fair warning of its prohibitions must be made on the basis of the statute itself and other pertinent law, rather than on the basis of an ad hoc appraisal of the subjective expectations of particular defendants."); see also United States v. Williams , 553 U.S. 285, 306, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008) (explaining terms void for vagueness lack "statutory definitions, narrowing context, or settled legal meanings"). These rules "consistently favor [ ] that interpretation of legislation which supports its constitutionality." See Screws v. United States , 325 U.S. 91, 98, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945). "Only if no construction can save the Act from this claim of unconstitutionality are we willing to" strike the statute. Id. at 100, 65 S.Ct. 1031. To be clear, this is no legislative giveaway. By limiting construction to "the statute itself and other pertinent law, rather than ... ad hoc appraisal," see Bouie , 378 U.S. at 355 n.5, 84 S.Ct. 1697, the doctrine spurns attempts to save a statute from unconstitutional vagueness based on "...