Inset: Neomi Rao appears before the Senate Judiciary Committee during her confirmation hearing on Capitol Hill in Washington, Tuesday, Feb. 5, 2019 (AP Photo/J. Scott Applewhite). Background: President Donald Trump talks with reporters before boarding Marine One on the White House South Lawn, Thursday, April 16, 2026, in Washington (AP Photo/Manuel Balce Ceneta).
Demonstrators may eventually be allowed to gather on the U.S. Capitol’s eastern steps after a federal appeals court issued a narrowly tailored ruling Tuesday.
The U.S. Court of Appeals for the D.C. Circuit determined that protesters must receive the same access to the eastern steps as other members of the public. The precise scope of that ruling, however, will be decided by a district court when the case returns there.
“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, who was appointed by Donald Trump, wrote in the opinion.
The decision does not give the plaintiff an unqualified victory. The panel classified the eastern steps as a “nonpublic forum,” a designation that gives the government greater authority to regulate speech.
The Supreme Court’s public forum doctrine recognizes that some locations — including physical spaces and, in certain cases, digital platforms — have traditionally served as venues for First Amendment activity. Under Supreme Court precedent, forums generally fall into four categories: traditional or quintessential, designated, limited and nonpublic.
Although officials have considerable latitude to control speech in a nonpublic forum, any restrictions must still be reasonable and applied without favoring or disfavoring particular viewpoints.
The appellate panel concluded that the Capitol Police Board’s traffic regulations, as applied to the eastern steps, failed that test of reasonableness.
The disputed rules exempt members of Congress while also allowing lawmakers to effectively open the same exemption to members of the public.
In practice, a lawmaker can use that personal exception to sponsor a demonstration on the eastern steps, making the event permissible under the regulations.
Judge Rao concluded that this arrangement cannot withstand constitutional scrutiny.
“We hold that the Traffic Regulations as applied to the Eastern Steps are unreasonable because of the Member Exception,” the court’s opinion states.
The panel explained its reasoning in detail:
The Board argues that limits on demonstrations are needed to ensure that lawmakers and congressional employees can safely enter and leave the Capitol. Yet the rules permit even large protests when a member of Congress sponsors them. As a result, a cause backed by a lawmaker can proceed, while individuals and organizations without the political influence to obtain that support are effectively shut out.
“While the Regulations do not discriminate on the basis of viewpoint, only demonstrations favored by a current member of Congress will be permitted,” the opinion states. “This type of preferential treatment on the Steps of the Capitol is unreasonable.”
The panel ruled for the plaintiff, finding that the regulations impose sweeping limits on expressive activity in a location connected to the country’s longstanding tradition of public protest near legislative institutions.
That history, along with the physical and political circumstances surrounding the Capitol steps, requires courts to examine the restrictions with particular care, Rao wrote.
The judges did not formally name the level of scrutiny they applied. Instead, they shaped their analysis around a landmark 1965 Supreme Court precedent holding 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 court continued. “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 significant legal complication for the 45th and 47th president as he attempts to bar several media organizations from the White House while arguing that the move is necessary to fight what he calls “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.”
The post 1st Amendment ruling from Trump-appointed judge on demonstrator access to Capitol steps offers stark warning for Trump’s proposed White House media ban first appeared on Law & Crime.
