A federal court on April 9 rejected an appeal from a man convicted over the Jan. 6, 2021, breach of the U.S. Capitol.
John Nassif had argued one of the laws he was convicted of violating was unconstitutionally overbroad and vague. The law prohibits “parading, demonstrating, or picketing in a Capitol building.”
Mr. Nassif, who both parties agree went inside the Capitol on Jan. 6 but did not carry out any violent acts, told the U.S. Circuit Court for the District of Columbia that the law “is overbroad because it prohibits a substantial amount of constitutionally protected speech” in the Capitol, despite some Capitol buildings containing portions open to the public.
U.S. District Judge John Bates, an appointee of former President George W. Bush who convicted and sentenced Mr. Nassif, said that the law applies to all “organized conduct advocating a viewpoint” in a Capitol building.
“A ban on all organized conduct expressing a viewpoint within the publicly accessible portions of the Capitol Buildings is impermissible under the First Amendment to the United States Constitution. A statute whose plain language criminalizes all such expression might be expected in an authoritarian regime. It cannot stand in the United States of America,” Mr. Nassif said in his appeal.
Government lawyers countered by saying the law only covers demonstrations “that would tend to disrupt the orderly business of Congress.” Even if Capitol buildings are public forums, they said, “the statute would pass constitutional muster as a reasonable time, place, and manner restriction narrowly tailored to serve the compelling government interest of ensuring that the activities of Congress can proceed without disruption.”
The appeals court sided with the government.
First, the judges ruled that while Capitol grounds and sidewalks surrounding the Capitol are public forums, Capitol buildings, based on the current body of evidence, are not.
The restrictions in the law are also viewpoint-neutral, according to the new ruling. The sole remaining factor in determining whether they are constitutional is whether they are reasonable.
“Congress reasonably decided that parades, pickets, or demonstrations inside the Capitol buildings would interfere with those buildings’ intended use. After all, congressmembers and their staffs require secure and quiet places to work on legislative proposals and meet with colleagues and constituents. They need to traverse the Capitol halls to attend committee hearings and legislative sessions. And Capitol Police officers must prioritize safeguarding the building and protecting the individuals who work therein—not policing pickets and demonstrations,” Judge Pillard wrote.
Mr. Nassif had argued the law covered all kinds of demonstrations, and the judges said that “a categorical prohibition on all expressive activity within Capitol buildings would likely not pass constitutional muster even under the relaxed standard applicable to a nonpublic forum.” But the law only bars demonstration in the context of picketing and parade, which only covers actions that are “purposefully expressive and designed to attract notice,” Judge Pillard wrote, quoting from an earlier ruling.
The part of the appeal asserting the law is unconstitutionally vague was not considered because judges said the law “clearly proscribed his own conduct” and court precedent means he can’t press a vagueness claim in that situation.
Judge Pillard, appointed by former President Barack Obama, was joined by Circuit Judges Robert Wilkins, also appointed by President Obama, and Bradley Garcia, appointed by President Joe Biden.
The U.S. Attorney’s Office for the District of Columbia declined to comment.
A lawyer for Mr. Nassif did not respond to a request for comment.
Mr. Nassif was sentenced in 2023 to seven months of incarceration followed by 12 months of supervised release.
According to court documents, Mr. Nassif went into the Capitol on Jan. 6 after shouting as people pushed against law enforcement officers, “keep fighting!” He stayed inside for about 20 minutes. Judge Bates said there was “no evidence he engaged in violence himself, to his credit, or that he encouraged others to be violent.”
Mr. Nassif chose to go to trial rather than plead guilty. He opted for a bench trial. Judge Bates convicted him on all four charges.
Mr. Nassif argued in his appeal that the judge wrongly penalized him for going to trial, quoting the judge as saying he was “penalized for going to trial in terms of acceptance of responsibility.”
The appeals court also rejected that argument, saying the court properly noted that Mr. Nassif had not accepted responsibility, so was not afforded a downward adjustment to the range of prison time to which he could be sentenced.
“It is clear from the record, including the sentencing transcript, that the district court did not increase Nassif’s sentence as a penalty for his exercise of his trial right,” Judge Pillard wrote. “The court permissibly gave Nassif ‘less of a benefit than [it] would have allowed an otherwise identical defendant who showed greater acceptance of responsibility’ and who did not testify falsely on the stand.”
