Inset: Neomi Rao appears before the Senate Judiciary Committee for her confirmation hearing, on Capitol Hill in Washington, Tuesday, Feb. 5, 2019 (AP Photo/J. Scott Applewhite). Background: President Donald Trump speaks with reporters before departing on Marine One from the South Lawn of the White House, Thursday, April 16, 2026, in Washington (AP Photo/Manuel Balce Ceneta).
The steps of the U.S. Capitol could be open to demonstrators, a federal court of appeals ruled in a limited opinion on Tuesday.
The U.S. Court of Appeals for the D.C. Circuit ruled that demonstrators must have equal access to the eastern steps of the national seat of legislative government as others — leaving the reach of the decision in the hands of a district court on remand.
"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, a Donald Trump appointee, wrote in the opinion.
The ruling is not an outright victory for the plaintiff in the case because it deems the eastern steps a "nonpublic forum."
The U.S. Supreme Court's public forum doctrine centers around the notion that certain places — either physical or digital — have, by tradition or practice, been used for First Amendment purposes and should remain free of government interference. Under high court jurisprudence, there are four major types of forums: traditional or quintessential, designated, limited, and nonpublic.
Under First Amendment jurisprudence, the government has broad authority to regulate speech in a nonpublic forum. Still, such regulations must remain reasonable and viewpoint-neutral.
In the case before the appellate panel, the regulations at issue — Capitol Police Board traffic rules — were found not to be reasonable.
Under the rules, a member of Congress is both exempt from the regulations and has the power to effectively immunize the public.
That is, a member of Congress can extend their personal exception and sponsor a public demonstration on the eastern steps.
But such a rule does not pass constitutional muster, Rao reasons.
"We hold that the Traffic Regulations as applied to the Eastern Steps are unreasonable because of the Member Exception," the opinion reads.
The ruling elaborates:
The Board justifies the demonstration restrictions as necessary to allow the safe passage of members and staff into and out of the Capitol. Despite this safety rationale, however, the Board permits even large public demonstrations when sponsored by a member of Congress. If a particular cause garners the support of a member, demonstrations are allowed. Individuals and groups that lack the political power to secure a member's support are out of luck.
"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 goes on. "This type of preferential treatment on the Steps of the Capitol is unreasonable."
In ruling for the plaintiff, the panel found the regulations "broadly restrict expressive activity" in a physical area that is "part of a wider American tradition of public speech near legislatures."
This history, as well as the "surrounding circumstances" of the steps, "compel a relatively probing review" of the regulations, Rao says.
The court declines to define this standard of review but fashions it in line with a landmark high court precedent from 1965 that holds 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 opinion continues. "Because the protection of unpopular speech and advocacy is central to the First Amendment, we cannot leave it to the selective enforcement of members."
The Tuesday ruling poses a direct legal challenge for the 45th and 47th president as he seeks to ban several media outlets from the White House in the name of combating so-called "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."