A federal appeals court ruled that U.S. Capitol Police restrictions barring most demonstrations on the Capitol's eastern steps violate the First Amendment, a decision that vindicates a minister arrested five years ago for protesting on the very ground the government tried to close off.
The D.C. Circuit Court of Appeals handed down the 2-1 decision on Tuesday, finding that post-9/11 rules adopted by the U.S. Capitol Police Board gave members of Congress arbitrary power to decide who could and could not speak on the Capitol's front steps. Judge Neomi Rao wrote the majority opinion. Judge Judith W. Rogers dissented, not because she wanted to uphold the restrictions, but because she wanted an even broader ruling against them.
The case centers on Patrick Mahoney, a minister who was arrested in 2021 for holding a protest on the Capitol steps. Mahoney challenged the rules on free-speech grounds, and a lower court agreed with him. Now, after the case simmered for years at the district level and climbed to the appellate bench, a second court has reached the same bottom line: the Capitol Police Board's demonstration ban cannot stand.
Post-9/11 rules handed Congress a veto over who could speak
The restrictions at the heart of the case were adopted by the Capitol Police Board in the wake of the September 11 attacks. Under those rules, most demonstrations on the Capitol's eastern steps were banned outright. The lone exception: protests sponsored by a sitting member of Congress. Everyone else was turned away, or, in Mahoney's case, arrested.
That framework meant a lawmaker could greenlight a rally for a cause the lawmaker supported, while an ordinary citizen with an inconvenient message had no path to the same marble platform. The majority opinion zeroed in on that arrangement.
Judge Rao, writing for the two-judge majority, put the constitutional problem plainly:
"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."
The majority classified the eastern steps as a "nonpublic forum", a legal category that gives the government more leeway to manage access than it would have in a traditional public forum such as a park or sidewalk. But even under that more permissive standard, the court found the Capitol Police Board's rules went too far. Restrictions on speech in a nonpublic forum must still be viewpoint-neutral and not arbitrary. Handing individual members of Congress the power to sponsor, or refuse to sponsor, a demonstration failed that test.
Security at the Capitol has drawn scrutiny from multiple directions in recent years. An armed man was arrested at a Capitol barricade after an officer spotted a handgun in his lap, a reminder that real threats exist alongside peaceful protest. The question the court addressed is whether the government's response to those threats can constitutionally silence lawful speech.
Rogers wanted to go further, not preserve the ban
Judge Rogers, the lone dissenter, did not argue that the Capitol Police Board's restrictions should survive. She argued the opposite, that the majority's reasoning was too narrow and the ruling should have been broader.
Rogers took issue with the majority's classification of the steps as a nonpublic forum, contending that the court focused too much on the steps' function as an entrance and exit for members of Congress and too little on the long history of public demonstrations held there. In her dissent, Rogers described the physical reality of the site:
"These steps unfold above the bases in broad cascading marble terraces that readily serve as speaking platforms and places for congregating, rather than steps solely dedicated to entering and exiting a building."
Had the full court adopted Rogers's view, the eastern steps would have been classified as a traditional public forum, a designation that would have made it far harder for the government to restrict demonstrations there in the future. The majority's narrower "nonpublic forum" label leaves the door open for the Capitol Police Board to craft new, less arbitrary rules on remand.
Mahoney's arrest in 2021 set the legal fight in motion
Mahoney's 2021 arrest for protesting on the Capitol steps launched the litigation. He argued that the restrictions violated his free-speech rights, and the U.S. District Court for the District of Columbia initially agreed. The lower court went further than the appellate majority would later go, finding that the eastern steps were a fully public forum, a space with a tradition of open expression, and that the Capitol Police Board's ban was unconstitutional on those grounds.
The Capitol has been the site of protest-related arrests that raise their own questions about proportionality and enforcement. An Air Force major was arrested at the Capitol during an impeachment protest and faced the prospect of charges well beyond a misdemeanor. That case drew additional scrutiny after the Air Force launched its own investigation into the officer's conduct while in uniform. Each incident sharpens the same underlying tension: where does legitimate security end and suppression of speech begin?
The D.C. Circuit's majority answered that question, at least in part. Even accepting the government's argument that the steps are not a traditional public forum, the panel found the Capitol Police Board's member-of-Congress sponsorship requirement crossed the constitutional line. The restriction was not viewpoint-neutral in practice, because it placed the decision about who could protest in the hands of elected officials with their own political interests.
Capitol Police silent as case heads back to district court
The appellate panel did not order the Capitol Police to immediately open the stairs to demonstrators. Instead, the court remanded the case to the U.S. District Court for the District of Columbia, where the next procedural steps will play out. What those steps look like, whether the Capitol Police Board attempts to draft new, narrower restrictions or whether the district court imposes its own remedy, remains an open question.
The Capitol Police did not respond to requests for comment on the ruling. No public statement from the Capitol Police Board or any member of Congress was reported in connection with the decision.
That silence is worth noting. The rules at issue have been in place for roughly a quarter century. A federal appeals court just told the government those rules are unconstitutional. And the agency responsible for enforcing them had nothing to say.
Capitol security remains a live concern, and no serious person disputes the need for it. Threats against officials are real. A Massachusetts woman who plotted to kill Treasury Secretary Scott Bessent was sentenced to six years in federal prison, a case that underscores the genuine dangers public officials face. But the D.C. Circuit's ruling draws a clear distinction between protecting the Capitol from violence and using security rules to decide which Americans get to exercise their right to speak on its steps.
The First Amendment does not guarantee anyone a platform. But it does guarantee that the government cannot hand politicians a veto over who gets to protest in front of the people's house, and then arrest the ones who show up without permission.
