The D.C. Circuit Court of Appeals has ruled 2-1 that the U.S. Capitol Police Board cannot ban public demonstrations on the Capitol's Eastern Steps based on a lack of congressional sponsorship. Writing for the majority, Judge Neomi Rao declared the restriction an unconstitutional First Amendment violation that gives lawmakers arbitrary gatekeeping power over free speech. However, the court vacated a lower court's universal injunction, remanding the case to tailor relief specifically to plaintiff Reverend Patrick J. Mahoney.
The Court's Decision on the Ban
- ▪The U.S. Court of Appeals for the District of Columbia Circuit ruled 2-1 on September 22, 2026, that the U.S. Capitol Police Board's ban on unsponsored demonstrations on the Capitol's Eastern Steps is unconstitutional.
- ▪U.S. Circuit Judge Neomi Rao wrote the majority opinion in Patrick Mahoney's case, joined by U.S. Circuit Judge Karen Henderson, while Senior U.S. Circuit Judge Judith Rogers dissented in part, arguing the Capitol's Eastern Steps are a traditional public forum
- ▪The D.C. Circuit panel ruled that the Eastern Steps of the U.S. Capitol are a nonpublic forum, partially reversing a lower court ruling that had designated them a traditional public forum.
Ruling on the Universal Injunction
- ▪The D.C. Circuit vacated Chief U.S. District Judge James Boasberg's universal injunction against the Capitol Police Board's demonstration ban on the Eastern Steps, citing Supreme Court precedent in Trump v. CASA that limits universal equitable relief
- ▪The D.C. Circuit remanded Mahoney v. U.S. Capitol Police Board to the U.S. District Court for the District of Columbia to fashion a narrower injunction specifically tailored to plaintiff Patrick Mahoney's case
The Plaintiff and Lawsuit Origin
- ▪Patrick Mahoney was represented at the lower court by Harmeet Dhillon, founder of the Center for American Liberty and current head of the Department of Justice's Civil Rights Division.
- ▪Reverend Patrick J. Mahoney, a Presbyterian minister, initiated the lawsuit after being denied a permit to hold a September 11, 2021 prayer vigil on the Eastern Steps of the U.S. Capitol.
Arbitrary speech restrictions
- ▪The D.C. Circuit ruled the Capitol Police Board regulations unreasonable because an individual's right to demonstrate cannot turn on the arbitrary discretion of members of Congress acting as gatekeepers, leaving those without political power unable to secure support.
- ▪Judge Neomi Rao wrote that regulations granting the government arbitrary control over who may speak invite the suppression of disfavored viewpoints and undermine the First Amendment's core protections.
Capitol steps demonstration rules
- ▪Prior to the September 11, 2001 terrorist attacks, the Eastern Steps of the U.S. Capitol were open to the public, including for demonstration activity.
- ▪Adopted in February 2025 under rules originating after the September 11, 2001 terrorist attacks, the Capitol Police Board regulations banned Eastern Steps demonstrations unless a member of Congress sponsored them in their official capacity and attended in full.
Objections to limited injunctions
- ▪Mark Trammell, CEO of the Center for American Liberty, criticized the D.C. Circuit's decision in Mahoney v. U.S. Capitol Police Board to pare back Judge Boasberg's universal injunction, stating Mahoney's legal team is evaluating options including seeking a rehearing
- ▪Mark Trammell argued that limiting First Amendment relief to individual litigants ignores decades of precedent and makes filing lawsuits the only way to enjoy constitutional freedoms.
Story comments
Loading comments…