‘Whose house?' Congress’ house, appeals court rules, rejecting Jan. 6 defendant’s challenge

When John Nassif surged into the Capitol on Jan. 6, 2021, he was among the hundreds chanting “Whose house? Our house!”

But that’s not exactly true, a federal appeals court countered Tuesday, rejecting Nassif’s challenge to his conviction for “demonstrating” inside the Capitol and ruling that the building itself — as opposed to the spacious parkland outside — is not legally a “public forum” for protest activity.

The ruling by a three-judge panel of the D.C. Circuit Court of Appeals upholds a statute that criminalizes “parading, picketing or demonstrating in a Capitol building,” a law that has been used against hundreds of Jan. 6 defendants who breached the building that day.

“The record before us contains no evidence that Congress intended to open any portion of the Capitol buildings as a public forum for assembly and discourse,” the panel wrote in a unanimous 27-page ruling.

“To be sure, expressive activity by people other than members and staff happens every day in the Capitol buildings—in constituent meetings, lobbying sessions, committee hearings, and the like,” the judges continued. “But the communications that take place in the Capitol are typically ‘scheduled and controlled by Senators or Representatives, and they may or may not be open to observation or (less frequently) participation by the public.’”

The ruling is a victory for the Justice Department amid a string of challenges and setbacks related to the statutes it has deployed against Jan. 6 defendants. The Supreme Court is set to hear arguments next week in a case that could upend hundreds of Jan. 6 felony prosecutions for obstructing Congress’ proceedings that day, and several federal district court judges have recently rejected prosecutors’ view of another key misdemeanor charge: entering or remaining on the restricted grounds of the Capitol.

Nassif was convicted in 2022 of that charge — as well as three other misdemeanors — for joining the mob that breached the building, and he completed his seven-month sentence in January.

Nassif, 57, of Winter Springs, Florida, argued that the law prohibiting parading and picketing was unconstitutional because the Capitol building, including its historic rotunda, is traditionally open to the public and therefore cannot significantly restrict demonstration activity. But the court rejected that contention, concluding that because the building is actually Congress’ workplace — and was designed primarily for legislating — Congress is well within its power to prohibit activity that might disrupt its job.

“Inviting myriad parades, demonstrations, and pickets inside the Capitol buildings would disrupt the very legislative process that the buildings are designed to accommodate,” Judge Cornelia Pillard wrote for the three-judge panel.

All three judges who heard the appeal were appointed by Democratic presidents: Pillard was picked by Barack Obama, and Bradley Garcia and Michelle Childs were appointed by President Joe Biden.

Pillard noted that entry to the Capitol is “strictly regulated” and that members of the public typically must reserve a tour and face security screening before entering. Those restrictions, the court said, underscore that the Capitol is not “generally open for use by members of the public to voice whatever concerns they may have — much less to use for protests, pickets, or demonstrations.”

The appeals panel also rejected Nassif’s argument that the law in question — passed in 1967 to address a spike in disruptive actions inside the Capitol — was too vague and swept in too much First Amendment activity to pass constitutional muster.

The federal court of appeals ruling issued Tuesday appears to be in some tension with decisions reached in the 1980s and 1990s by the appeals court that oversees Washington’s local courts, the District of Columbia Court of Appeals, which appeared to endorse the notion that protests regularly take place in the Capitol Rotunda. Several such rulings refer to the rotunda as a “unique situs for demonstration activity.”

Pillard dismissed the significance of those opinions, saying they seem “to derive more from an imprecise daisy chain of reasoning than from a considered assessment of the Capitol Rotunda’s history.”

Nassif was convicted following a bench trial by U.S. District Court Judge John Bates, an appointee of President George W. Bush. Bates also rejected Nassif’s argument that the anti-parading statute violates the First Amendment.

Nassif can ask the full bench of the D.C. Circuit to revisit his appeal or petition the Supreme Court for review.