Inset: Neomi Rao testifies before the Senate Judiciary Committee during her confirmation hearing on Capitol Hill in Washington on Tuesday, Feb. 5, 2019 (AP Photo/J. Scott Applewhite). Background: President Donald Trump speaks to reporters before boarding Marine One on the White House South Lawn on Thursday, April 16, 2026, in Washington (AP Photo/Manuel Balce Ceneta).
Demonstrators may be allowed to gather on the steps of the U.S. Capitol after a federal appeals court issued a narrowly drawn ruling Tuesday.
The U.S. Court of Appeals for the D.C. Circuit held that protesters must receive the same access to the Capitol’s eastern steps as other groups. The precise scope of the decision, however, will be determined by a district court when the case returns on remand.
“A regulation that grants the government arbitrary control over who may speak invites the suppression of disfavored viewpoints and undermines the First Amendment’s core protections,” U.S. Circuit Judge Neomi Rao, a Donald Trump appointee, wrote in the opinion.
The decision does not represent a complete victory for the plaintiff. The panel classified the eastern steps as a “nonpublic forum,” a designation that gives the government significant power to regulate speech.
The Supreme Court’s public forum doctrine holds that certain physical or digital spaces have traditionally served as venues for First Amendment activity and therefore warrant protection from government interference. The court generally recognizes four categories: traditional or quintessential public forums, designated forums, limited forums and nonpublic forums.
Although officials have broad discretion to regulate expression in a nonpublic forum, those restrictions must still be reasonable and neutral toward competing viewpoints.
The appellate panel concluded that the Capitol Police Board’s traffic regulations failed that test as applied to demonstrations on the eastern steps.
The rules exempt members of Congress while giving them the ability to effectively exempt members of the public as well.
In practice, a member of Congress can invoke that personal exception and sponsor a public demonstration on the eastern steps.
Rao wrote that this arrangement is constitutionally impermissible.
“We hold that the Traffic Regulations as applied to the Eastern Steps are unreasonable because of the Member Exception,” the opinion states.
The panel explained its reasoning:
The board argues that limits on demonstrations are needed to ensure the safe movement of lawmakers and staff entering and leaving the Capitol. Yet the rules allow even large protests when a member of Congress sponsors them. A cause backed by a lawmaker can proceed, while individuals and groups without sufficient political influence cannot secure the same access.
“While the Regulations do not discriminate on the basis of viewpoint, only demonstrations favored by a current member of Congress will be permitted,” the judges wrote. “This type of preferential treatment on the Steps of the Capitol is unreasonable.”
The panel ruled for the plaintiff, finding that the regulations “broadly restrict expressive activity” in a location that forms part of “a wider American tradition of public speech near legislatures.”
That history, along with the “surrounding circumstances” of the eastern steps, requires what Rao described as “a relatively probing review” of the restrictions.
The court did not specify a precise standard of review. Instead, it aligned its analysis with a landmark high court precedent from 1965, which held that it is “clearly unconstitutional to enable a public official to determine which expressions of view will be permitted.”
“The Exception unreasonably allows members of Congress to serve as gatekeepers of speech on the Eastern Steps,” the opinion says. “Because the protection of unpopular speech and advocacy is central to the First Amendment, we cannot leave it to the selective enforcement of members.”
Tuesday’s ruling also creates a direct legal complication for the 45th and 47th president as he pursues efforts to bar several news organizations from the White House while invoking the fight against so-called “Fake News.”
While the D.C. Circuit has just crafted one of the strongest First Amendment frameworks for a nonpublic forum on record, the White House press room is likely to be considered a designated public forum. In such forums, First Amendment protections are markedly stronger.
In the present case, Rao provided the Capitol Police Board an out that would just as easily comport with the First Amendment.
“Because the Eastern Steps are a nonpublic forum, the Board could prohibit demonstrations altogether, as it has done inside the Capitol,” the opinion reads. “This would preserve the purpose of the Steps as a nonpublic entrance into the Capitol.”
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