UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v. Case No. 1:15-cr-00175 (CRC)
JOSEPH ANTHONY CAPUTO,
Defendant.
MEMORANDUM OPINION
Federal law prohibits individuals from entering the White House grounds and other
restricted areas without the lawful authority to do so. The Government charged Joseph Caputo
with violating a provision of this law, 18 U.S.C. § 1752(a)(1), after he hurdled one of the White
House’s perimeter fences and triggered a lockdown of the entire White House complex. Caputo
seeks dismissal of the sole charge against him. He claims that his escapade constituted symbolic
speech because he scaled the White House fence to highlight flaws in our national security. The
unlawful entry statute, Caputo contends, thus violates the First Amendment both on its face and
as applied to him. Alternatively, Caputo argues that the statute is void for vagueness. These
arguments border on frivolous. Section 1752(a)(1) is facially valid because it does not prohibit
a substantial amount of protected speech. There is, after all, no First Amendment right to
express one’s self in a nonpublic area like the White House. Section 1752(a)(1) is also
constitutional as applied to Caputo’s actions, because the Government is entirely justified in
prohibiting even symbolic breaches of White House security. Finally, the statue is not
unconstitutionally vague, as the unlawfulness of entering the White House grounds without
permission is unambiguous to the average citizen. The Court will therefore deny Caputo’s
motion to dismiss the Information.
I. Background
A. The November 26, 2015 Incident
Joseph Caputo climbed up and over the White House fence on Thanksgiving Day, 2015.
Secret Service officers rushed to stop his ascent but were unsuccessful. Upon landing on the
North Lawn, the government alleges that Caputo ran toward the White House. See Govt.’s
Opp’n Def.’s Mot. Dismiss 2-3 (“Govt.’s Opp’n”). Caputo insists that he immediately
surrendered upon scaling the fence. See Def.’s Mot. Dismiss 1-2. Caputo was swiftly
apprehended regardless, and the intrusion prompted a lockdown of the White House complex.
Govt.’s Opp’n 3. At the time of his arrest, Caputo was wearing the American flag as a cape and
was carrying, among other things, a pocket Constitution. See Def.’s Mot. Dismiss 2; Govt.’s
Opp’n 2. He was unarmed.
B. 18 U.S.C. § 1752(a)(1)
The Government subsequently filed a one-count Information charging Caputo under the
federal unlawful-entry statute, which imposes criminal penalties upon anyone who “knowingly
enters or remains in any restricted building or grounds without lawful authority to do so.” 18
U.S.C. § 1752(a)(1). The statute defines “restricted buildings or grounds” as “any posted,
cordoned off, or otherwise restricted area … of the White House or its grounds, or the Vice
President’s official residence or its grounds.” § 1752(c)(1)(A). Restricted building or grounds
also include those “where the President or other person protected by the Secret Service is or will
be temporarily visiting” and those “so restricted in conjunction with an event designated as a
special event of national significance.” § 1752(c)(1)(B); § 1752(c)(1)(C). In other words, any
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individual who unlawfully enters the White House grounds—or other restricted areas as defined
in the statute—violates the statute.
C. Defendant’s Motion to Dismiss
Caputo moved to dismiss the Information on June 6, 2016. He argues that 18 U.S.C. §
1752(a)(1) violates the First Amendment—both on its face, and as applied to him. Def.’s Mot.
Dismiss 9, 15. In support of his challenge, Caputo maintains that he breached the White House
grounds with the “noble purpose” of “call[ing] attention to various deficiencies in the
Constitution” and the Government’s failure “to pay attention to domestic issues.” Id. 2. These
issues, he claims, are “demonstrated by the Government’s inability to solve a seemingly simple
problem, such as the height of the White House fence.” Id. His caper was “inextricably linked”
to the symbolic point he was making. Id.
Invoking the overbreadth doctrine, he asserts that the statute “places a chilling and self-
censorship effect on speech,” id. at 12, and laments that “[t]he statute, by its very nature, would
prevent all [White House] fence jumping protests seeking to illustrate that the fence was
inadequate.” Def.’s Reply Govt.’s Opp’n 3. Caputo also argues that the law is unconstitutional
because it is a content-based regulation, and cannot survive the requisite level of judicial
scrutiny. Def.’s Mot. Dismiss 16. Finally, Caputo claims the statute is void for vagueness under
the Due Process Clause of the Fifth Amendment. Id. at 13.
The Government responds that § 1752(a)(1) is valid because it regulates conduct, not
speech. See Govt.’s Opp’n 4. But the Government asserts that even if Caputo’s conduct
includes both “nonspeech” and “speech” elements, the challenged statute is still justified by the
Government’s interest in protecting the President and the White House grounds. Id. at 5-6.
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Finally, the Government contests Caputo’s claims that the statute is both content-based and void
for vagueness. Id. at 7-8; 10.
II. Standard of Review
A criminal defendant “may raise by pretrial motion any defense, objection, or request that
the court can determine without a trial on the merits.” Fed. R. Crim. P. 12(b)(1). Pretrial
motions may challenge “a defect in the indictment or information,” as long as “the basis for the
motion is then reasonably available and the motion can be determined without a trial on the
merits.” Fed. R. Crim. P. 12(b)(3)(B). See, e.g., United States v. Bronstein, 151 F. Supp. 3d 31
(D.D.C. 2015) (reviewing a criminal defendant’s motion to dismiss an indictment on First
Amendment grounds).
III. Analysis
A. First Amendment Facial Challenge
Caputo argues that the unlawful entry statute is facially unconstitutional because it
restricts too much protected speech. Def.’s Mot. Dismiss 9. A facial challenge to a statute is,
generally, “the most difficult challenge to mount successfully.” General Elec. Co. v. Jackson,
610 F.3d 110, 117 (D.C. Cir. 2010) (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)).
The Supreme Court has not looked kindly upon overbreadth challenges, noting that “[f]acial
challenges of this sort are especially to be discouraged.” Sabri v. United States, 541 U.S. 600,
609 (2004). That said, free speech challenges present an exception to the normal rule concerning
facial invalidity, under which a plaintiff must demonstrate that “no set of circumstances exists
under which the [challenged statute] would be valid.” Salerno, 481 U.S. at 745. Instead,
“[under] First Amendment overbreadth doctrine, a statute is facially invalid if it prohibits a
substantial amount of protected speech.” Williams, 553 U.S. at 292 (emphasis added).
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Caputo’s facial challenge is easily dispensed with. 18 U.S.C. § 1752(a)(1) does not
criminalize a substantial amount of protected speech. In fact, it does not criminalize any amount
of protected speech because there is no First Amendment right to express one’s self in a
nonpublic area like the White House. In a nonpublic forum, an individual’s right to expression is
at its nadir. A statute can restrict access to such a forum “as long as the regulation on speech is
reasonable and not an effort to suppress expression merely because public officials oppose the
speaker’s view.” Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46 (1983);
see also U.S. Postal Service v. Greenburgh Civic Ass’s., 453 U.S. 114, 129 (1981) (“[T]he First
Amendment does not guarantee access to property simply because it is owned or controlled by
the government.”); Greer v. Spock, 424 U.S. 828, 836 (1978) (“The guarantees of the First
Amendment have never meant that people who want to propagandize protests or views have a
constitutional right to do so whenever and however and wherever they please.”) (internal
quotations omitted).
The White House complex is a nonpublic forum—and unambiguously so. To determine
whether a forum is public or nonpublic, reviewing courts must “look[] to the policy and practice
of the government to ascertain whether it intended to designate a place not traditionally open to
assembly and debate as a public forum.” Cornelius, 473 U.S. at 802. The government has not
engaged in any conduct that would suggest it has opened the White House grounds to public
discourse. Quite the opposite: the government has categorically barred unauthorized public
access to the White House complex, and has even restricted speech on the public sidewalks
surrounding it. See, e.g., White House Vigil for ERA Committee v. Clark, 746 F.2d 1518 (D.C.
Cir. 1984) (upholding regulations that restricted demonstrations and other activities on the
sidewalk directly in front of the White House). Because the White House is a nonpublic forum,
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there is no First Amendment right to access its grounds. Accordingly, 18 U.S.C. § 1752(a)(1)
does not prohibit any amount of expressive activity protected under the First Amendment, let
alone a substantial amount. The statute is therefore not facially overbroad.
As a regulation of a nonpublic forum, § 1752(a)(1) need only be reasonable and content
neutral to be valid under the First Amendment. Perry, 460 U.S. at 46. The Court finds that the
statute easily meets these two requirements. First, the Government’s prohibition of all
unauthorized access to the White House is reasonable. After all, “at stake is not merely the
safety of one man, but also the ability of the executive branch to function in an orderly fashion
and the capacity of the United States to respond to threats and crises affecting the entire free
world.” Clark, 746 F.2d at 1528. Second, the challenged statute is content neutral. Under the
Supreme Court’s recent decision in Reed v. Town of Gilbert, a regulation is content neutral if it
refrains from targeting a specific viewpoint or subject matter. 135 S. Ct. 2218, 2230 (2015)
(expanding the definition of content-based regulation to include those that discriminate on the
basis of subject matter, in addition to viewpoint). Section 1752(a)(1) imposes criminal sanctions
upon anyone who breaches a restricted area, without regard to the message the intruder seeks to
express, or the subject matter he seeks to discuss. The statute is clearly content neutral and
reasonable, and therefore does not violate the First Amendment.
B. First Amendment As-Applied Challenge
Caputo also argues that 18 U.S.C. § 1752(a)(1) is unconstitutional as applied to him.
Def.’s Mot. Dismiss 15. For Caputo to prevail on an as-applied First Amendment challenge, he
must demonstrate that the statute is unconstitutional as applied to his particular expressive
activity. Edwards v. Dist. Of Columbia, 755 F.3d 996, 1001 (D.C. Cir. 2014). The Court must
first assess whether Caputo’s conduct is, in fact, expressive, and then determine whether the
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challenged statute “is related to the suppression of free expression.” Texas v. Johnson, 491 U.S.
397, 403 (1989) (assessing an as-applied challenge to a state flag-burning statute). If the statute
is not related to expression, “then the less stringent standard [the Supreme Court] announced in
United States v. O’Brien for regulations of noncommunicative conduct controls.” Id. (citing
United States v. O’Brien, 391 U.S. 367, 377 (1968)).
Caputo’s act of jumping over the White House fence to, by his account, make a symbolic
point about flaws in White House security is expressive in nature. To be sure, “[w]e cannot
accept the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever
the person engaging in the conduct intends thereby to express an idea.” O’Brien, 391 U.S. at
376. But the Supreme Court has “acknowledged that conduct may be ‘sufficiently imbued with
elements of communication to fall within the scope of the First and Fourteenth Amendments.’”
Johnson, 491 U.S. at 404 (quoting Spence v. Washington, 418 U.S. 405, 409-411 (1974)). The
target of Caputo’s purported expression is the White House—the iconic seat of the executive
branch and an important subject in public discourse. The act of unlawfully entering its grounds
is thus much more likely to be communicative in nature than other acts of trespassing, regardless
of the content of the message being expressed by the intruder. See Snyder v. Phelps, 562 U.S.
443, 444 (2011) (“A statement’s arguably inappropriate or controversial character … is
irrelevant to the question [of] whether it deals with a matter of public concern.”) (internal
quotation omitted).
Even though Caputo’s conduct is expressive, it does not follow that § 1752(a)(1) is
unconstitutional. Since the statute is not related to the suppression of free expression, the Court
need only review Caputo’s as-applied challenge under the O’Brien test. 391 U.S. at 377. This
test has four prongs: First, the challenged regulation must be “within the constitutional power of
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government;” second, it must “further[] an important or substantial government interest;” third,
this interest must be “unrelated to the suppression of free expression;” and fourth, the incidental
restriction on First Amendment freedoms must be “no greater than is essential to the furtherance
of that interest.” Id. Caputo does not dispute that § 1752(a)(1) passes the test’s first three
prongs. Def.’s Reply Govt.’s Opp’n 3-4. He does argue that the statue violates the fourth prong.
In doing so, he claims that the statute “would prevent all fence jumping protests seeking to
illustrate that the fence was inadequate … [e]ven a jump that has nothing to do with endangering
the President.” Id. Caputo is correct that § 1752(a)(1) categorically bars this peculiar form of
expression. But such a restriction is easily justified, given the Government’s profound interest in
protecting the White House complex, the President, and the functionality of the executive
branch. Section 1752(a)(1) thus satisfies the O’Brien test for regulations of noncommunicative
conduct that incidentally affect expression. Accordingly, the Court rejects Caputo’s as-applied
challenge.
C. Vagueness Challenge
Finally, the Court turns to Caputo’s vagueness challenge. Def.’s Mot. Dismiss 13.
Vagueness doctrine is a product of the Due Process Clause of the Fifth Amendment, not the First
Amendment. Williams, 553 U.S. 285, 304 (2008). A criminal statute is unconstitutionally vague
if it is written so imprecisely “that it fails to give ordinary people fair notice of the conduct it
prohibits,” or is “so standardless that it invites arbitrary enforcement.” Johnson v. United States,
135 S.Ct. 2551, 2556 (2015). These concerns are more sensitive in the First Amendment
context, where “a more stringent vagueness test should apply.” Holder v. Humanitarian Law
Project, 561 U.S. 1, 19 (2010).
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Section 1752(a)(1) prohibits entry into the White House or other restricted areas “without
lawful authority.” Caputo contends that this phrasing, specifically, is unconstitutionally vague.
Def.’s Mot. Dismiss 13. But the White House’s perimeter, demarcated by an imposing fence and
manned by scores of Secret Service agents, unambiguously provides ordinary people with fair
notice that unauthorized entry onto the grounds is unlawful. See, e.g., United States v. Powell,
563 A.2d 1086, 1090 (D.C. 1989) (“A fence, a gate, or any other barrier which controls public
access to property gives notice to persons that they do not have a legal right to enter or remain in
a certain area.”). Moreover, Caputo’s own words and actions undermine this argument. He told
the Secret Service officer who arrested him that “I knew I would be locked up;” Govt.’s Opp’n
2; left behind several letters that intended to exonerate his acquaintances for his actions; and
suggested he knew he might die after scaling the fence. Id. at 3. Like every other reasonable
person who visits the White House perimeter, Caputo was well-aware that unauthorized entry
onto the grounds was illegal. 18 U.S.C. § 1752(a)(1) is thus not void for vagueness.
IV. Conclusion
For the foregoing reasons, the Court will deny the Defendant’s motion to dismiss the
Information. A separate Order accompanies this Memorandum Opinion.
_________________________
CHRISTOPHER R. COOPER
United States District Judge
August 19, 2016
Date: ________________________
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