BOB: And I’m Bob Garfield. Americans have a first Amendment right to protest. In 2011, for instance, the Supreme Court upheld the right of Westboro Baptist Church picketers to spew hateful allegations at the funeral of a soldier killed in the line of duty in Iraq. And just this past June, the Court struck down a Massachusetts law that created protest-free zones around abortion clinics.The court has often determined that free speech is sacrosanct -- except, evidently, when it’s in the justices’ backyard. Late last month, the US Court of Appeals for the District of Columbia heard the arguments of the Supreme Court Marshall seeking to uphold a 1949 law that bars political protesters from the Court’s plaza. The Marshal is appealing a lower court’s decision to uphold the first amendment right of a student arrested there for holding a sign protesting police brutality. At least one federal judge didn’t buy the argument that the student’s protest was political.

TAPE: Justice Henderson: “Well, what he says is the US Government allows police to illegally murder and brutalize African-American and Hispanic people. I don't see a political party there I don't see an organization there. There may be a movement there”

BOB: Adam Liptak has recently written on the case for the New York Times. Adam, welcome back to OTM.

LIPTAK: A couple of years ago a University of Maryland student named Eric Hodge decided he wanted to stand on the plaza. The vast marble with fountains and benches that 300,000 people a year visit and where a sign protesting police brutality. He was arrested. They dropped the charges for him agreeing to not come back for 6 months. But he did want to come back so he sued and challenged the 1949 law. And won in the district court. The district court said that this idea that this entire plaza in front of the Supreme Court is a free speech free zone violates the first amendment. A Supreme Court official appealed. And just last month the federal appeals court in Washington heard arguments.

BOB: SO after this lower court handed its decision tha Supreme Court came down and propagated these regs that seemed to double down on the 1949 law. Why?

LIPTAK: As a practical matter, once the law was struck down by the lower court, protests could have started the next day unless the court took action. Now, there's been a separate lawsuit agains the new regs but the larger message here is that the court really does care that people not be protesting on the plaza. Some reasons for that come to mind. Which might be security concerns. You want to make sure people can get in and out of the court. But those same concerns appeared outside of abortion clinics, but the court said address those problems specifically but don't have a general all purpose ban on speech. The court's main argument is two-fold. One, that the prostests would influence the justices. And that's a little hard for me to get. I don't think people with signs are going to change the course of American jurisprudence. And if they do, I don't know why the signs people do carry everyday on the sidewalk in front of the sidewalk wouldn't do the same thing. The court as says it's fears that people would think the justices are susceptible to influence by outside forces. If they allowed protests on the plaza and I guess I'll let others evaluate that arguments.

BOB: What strikes me as being ironic about that and maybe ieven a bit hypocratical is that in its landmark Citizens United decision this very coreurt ruled that the public is perfectly of figuring out the political intentions of paid political advertising no matter who the sponsers were. And yet the court doesn't seem to trust the public to offer the same level of what you called skeptical discernmyn when it comes to the court viewing protests outside their chambers.

LIPTAK: The classic theory of the First Amendment is that it's a marketplace of ideas where citizens of democracy can be trusted to sort and sift and evaluate and make sense of the messages they hear. And the best idea will win. And if that's good enough in the context of a barrage of political ads in elections season calculated to mislead people you would think it would be good enough theory to support the idea that people could see protestors on the Supreme Court plaza without jumping to the conclusion that the justices will be influenced by those signs.

BOB: Just reminds me for all of the world of those folks who let's say vote for a bond issue improving the electrical grid but then freak out when the high tension right-of-ways go thru their backyard. Isn't what's good for the goose supposed to be good for the gander?

LIPTAK: I got some messages on Twitter and elsewhere saying that this is a classic example of NIMBY - of not in my backyard. I think that a commonsense of understanding of free speech values would seem to indicate that this vast open space plaza visited by so many people every year might be a place where they could exercise their constitutional rights in front of the building that houses the people charged with enforcing their Constitutional rights.

BOB: Now the Hodge case has been ruled on in federal court. Is it headed inevitability for the Supreme Court or that other case that you mentioned and if one or both of them should arrive their, can the justice not but recuse themselves.

LIPTAK: If the law is upheld by the lower courts, I think that's the end of it. If struck down it probably does go the Supreme Court which will be like Christmas for people covering the Supreme Court. As for whether they have to recuse themselves we have an example. There was a challenge to the constitutionality of the law in 1983. And the court sat and said they're going to split the baby as it were, they're going to say protests are OK on sidewalks but suggested that they were not OK on the plaza. So last time around the justice's didn't feel a need to recuse themselves.

BOB: It's probably worth observing that though in certain political matters we've come to expect 5-4 decisions in the favor of the conservative wing of the court. THe conservative wing of the court has also been right at the heart of other free speech decisions. They've been rather purist about it. So if there is a political split within the court my guess it doesn't break down along the usual suspects.

LIPTAK: The military protest case, I think it was 8-1 with just Alito dissenting. The abortion protest case, although the justices differed on the rationale was unanimous that on some of these issues, some of these classic free speech issues robustly and all by unanimously votes together. So I'm not sure this particular issue breaks down on ideology.

BOB: Which makes me ask you actually the question I wanted to ask you first. ANd that is whaaat? I just don't understand how this could be. Can you?

LIPTAK: I've told you everything I know.

BOB: All right, Adam. Merry Christmas.

LIPTAK: And to you Bob.

BOB: Adam Liptak covers the Supreme Court for The New York Times.