A Florida man charged with unlawfully "parading" during the Jan. 6 riot at the Capitol asked the Supreme Court this week to hear his appeal, a move that could affect more than 400 cases surrounding the riot if they decide to hear the case.
The Supreme Court just last month dealt a blow to the Justice Department after it narrowed the scope of how the Department of Justice can apply an obstruction statute prosecutors used to charge more than 120 defendants who participated in the Jan. 6 riot. Now, 57-year-old John Nassif is seeking to appeal his conviction on a more common charge levied against defendants for parading and picketing inside the building, according to a new filing.
Nassif, who was convicted of other misdemeanors, including disorderly and disruptive conduct in a restricted building and violent entry in a Capitol building, was sentenced to seven months in prison despite prosecutors asking for 10 to 16 months. He has since been released, though his public defenders say there are urgent questions about the application of his charge under Section 5104(e)(2)(G), which makes it a crime to willfully and knowingly "parade, demonstrate, or picket in any of the Capitol Buildings."
U.S District Judge John Bates, an appointee of former President George W. Bush, previously rejected Nassif's effort to dismiss the parading charge pretrial, finding that courts had ruled the Capitol is a "nonpublic forum" where the government may "limit First Amendment activities so long as the restrictions are 'reasonable in light of the purpose of the forum and are viewpoint neutral.'"
When the matter reached the U.S. District Court for the D.C. Circuit, a three-judge panel composed of Judge Cornelia Pillard and Robert Wilkins, both former President Barack Obama appointees, and Bradley Garcia, appointed by President Joe Biden, found that Nassif's counsel incorrectly argued that the parading and picketing statute was "so unclear that it is entirely invalid and cannot be applied to anyone, including him."
Nassif's petition states that there is a conflict between how the D.C. Circuit and the D.C. Court of Appeals view the legality of demonstrations in the Capitol building. The D.C. Court of Appeals has held that the Capitol Rotunda is a public forum where speech restrictions must be narrowly tailored. The D.C. Circuit, however, classified the Capitol Buildings as a nonpublic forum, allowing broader restrictions.
The panel came to its determination by citing cases such as Bynum v. U.S. Capitol Police Board (2000) and Lederman v. United States (2002), which classify the Capitol buildings as nonpublic forums. This classification, supported by the Supreme Court rulings in Cornelius v. NAACP Legal Defense and Educational Fund (1985) and United States v. Kokinda (1990), allows for reasonable and viewpoint-neutral restrictions on speech to maintain order and security within these buildings.
But in cases such as Wheelock v. United States (1988) and Hasty v. United States (1995), the D.C. Court of Appeals determined that peaceful demonstrations and symbolic expressions should be protected, provided they do not significantly disrupt congressional activities.
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The Supreme Court requires approval from four out of the nine justices to grant a case to hear oral arguments on the merits, and it could take months for the justices to determine whether to take up the case. Two legal experts who spoke to the Washington Examiner expressed some doubts about the likelihood of justices wading back into disputes over the contentious riot after ruling on the United States v. Fischer case in June. That ruling elevated the burden of proof needed for the DOJ to prosecute defendants for obstructing an official proceeding.
There have been more than 1,450 people charged in connection to the Jan. 6 riot, and the most common charge is the illegal parading and picketing misdemeanor. More than 460 people are facing such charges, according to the DOJ.
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