The U.S. Court of Appeals for the D.C. Circuit held that federal regulations barring ordinary citizens from demonstrating on the Eastern Steps of the U.S. Capitol unless sponsored by a member of Congress are unconstitutional. The case, Mahoney v. U.S. Capitol Police Board, arose after a minister sought to pray and demonstrate on the steps. The three-judge panel unanimously agreed the rules could not stand, but split on why.
Judge Rao's majority opinion, joined by Judge Henderson, assumed the Eastern Steps are a nonpublic forum but still found the regulations unreasonable. The problem was that access to a public space for speech turned on the unbridled discretion of individual members of Congress. The government may reserve the steps for entry and exit, but it may not privilege congressional-sponsored demonstrations over others. In the court's view, the government cannot give one side a free hand while silencing the other.
The disagreement concerned remedy and forum status. The district court had issued a universal injunction, which the majority said exceeded its authority under Trump v. CASA, so it vacated that injunction and remanded. Senior Judge Rogers dissented in reasoning, arguing the Eastern Steps are a traditional public forum and the regulations are not narrowly tailored to security interests. Despite the narrower remedy, the D.C. Circuit's precedential decision effectively prevents the Capitol Police from enforcing the existing rules against anyone, not just Mahoney.