dissenting:
The majority construes D.C.Code § 9-112(b)(7) to prohibit in the United States Capitol building any “activit[y]” which is “conducted for the purposes of demonstrating approval or disapproval of governmental policies or practices (or lack thereof), expressing a view on public issues, or bringing into public notice any issue or other matter.” Majority opinion at 408. The majority further concludes that this construction is constitutional, at least as applied to those portions of the Capitol that the government designates as “restricted areas.” In my view, the majority’s construction of the statute — which allows the government to treat the Capitol as a virtual “First Amendment Free Zone,” Board of Airport Comm’ners v. Jews for Jesus, Inc., 482 U.S. 569, 574, 107 S.Ct. 2568, 2572, 96 L.Ed.2d 500 (1987) — is both inconsistent with the legislative history and unconstitutional. Accordingly, I respectfully dissent.
The unique posture of this case must be emphasized. The trial judge was presented with conflicting evidence on the question whether the demonstrators were disruptive before their arrest. Several police officers testified that appellants chanted loudly before their arrest. Some of the appellants testified that they silently unfurled the banner and were immediately arrested, and that they did not begin chanting until after the police officers seized them. The trial judge explicitly declined to make a finding, however, on whether appellants were engaged in a disruptive demonstration before their arrest. The judge concluded that he did not need to make such a ruling because the statute prohibited all demonstrations, even those that were entirely peaceful.
Therefore, in order to affirm the majority must assume, for purposes of this appeal, that appellants were entirely peaceful before their arrest.1 Under the posture of this case, we must decide (1) whether the statute proscribes peaceful expressive conduct, and if so, (2) whether such a prohibition is constitutional. The majority answers these questions in the affirmative. In my view, the majority errs in both conclusions.
A.
The statute provides that “[i]t shall be unlawful for any person or group of persons willfully and knowingly ... [t]o parade, demonstrate, or picket within any of the Capitol buildings.” D.C.Code § 9-112(b)(7). The statute does not provide a more specific definition of the term “demonstrate,” and the majority turns to a regulation promulgated pursuant to a different *411statute, 40 U.S.C. § 212b (authorizing the Capitol Police Board to regulate traffic on the Capitol grounds), in construing the term. The legislative history of § 9-112(b)(7), however, makes clear that Congress did not intend so broad a ban as the majority now approves.
Congress’ primary purpose in enacting § 9-112(b) was to respond to “a substantial increase in the number of incidents of excessive disruption or disorderly conduct” in the Capitol buildings. S.Rep. No. 573, 90th Cong., 1st Sess. 2 (1967). During the floor debate members of Congress justified the need for the statute by describing several disruptive demonstrations. See 113 Cong. Rec. 29,388 (1967) (statement of Representative Colmer) (“a group of misguided Puer-to Ricans ... entered [the] Capitol Building itself and up there in the corner of the gallery they arose and began a holocaust of shooting and a general disturbance here in the Capitol itself. A number of the Members were shot”); id. (a group “forced the guards up against the walls, entered the gallery itself, and created a great disturbance in the deliberations of the Nation’s business”); id. at 29,930 (statement of Representative Anderson) (“some students ... laid down upon the floor and began to kick and scream and carry on in a boisterous, disorderly and disgraceful fashion”).
Congress was cognizant, however, of the need to balance its interest in preventing disruption with the people’s rights “of freedom of expression and of assembly and the right to petition their Government.” S.Rep. No. 573, supra, at 2. Congress was also aware of the unique importance of protecting expressive activity at the Capitol. Hearings on S. 2310 Before the Sub-comm. on Public Buildings and Grounds of the Senate Comm, on Public Works, 90th Cong., 1st Sess. [hereinafter Senate Hearings ] at 18 (statement of David G. Bress, United States Attorney for the District of Columbia) (indicating “the closer relationship of first amendment rights on the Capitol Grounds, ... including [the right to] petition to redress grievances”). As this court has recognized, “ ‘[t]he United States Capitol is a unique situs for demonstration activity’ and ‘is a place traditionally open to the public — thousands visit each year — to which access cannot be denied broadly or absolutely, [a fact which must be weighed] against the government’s interest in protecting against possible damage to buildings and grounds, obstruction of passageways, and even dangers to legislators and staff.’ ” Wheelock v. United States, 552 A.2d 503, 506 (D.C.1988) (quoting Kroll v. United States, 590 F.Supp. 1282, 1289, 1290 (D.D.C.1983) (quoting Jeannette Rankin Brigade v. Chief of Capitol Police, 342 F.Supp. 575, 583-85 (D.D.C.), aff'd mem., 409 U.S. 972, 93 S.Ct. 311, 34 L.Ed.2d 236 (1972))). Through-out consideration of the legislation, the focus was to assure that Congress could function in an orderly and safe manner and to ban activity that would impede its work; nothing would suggest that Congress intended to ban any and all forms of expressive conduct in the Capitol buildings. See infra note 4 and accompanying text.
Given Congress’ expressed purposes, the statutory term “demonstrate” is properly construed to apply only to expressive conduct which is disruptive because it is incompatible with the orderly functioning of Congress.2 Thus, in order to be prosecuted under § 9-112(b)(7) for expressive conduct in a Capitol corridor, a person’s behavior must be so disruptive as to be “incompatible with the normal activity” of the area in which his or her conduct occurs. Grayned v. City of Rockford, 408 U.S. 104, 116, 92 S.Ct. 2294, 2303, 33 L.Ed.2d 222 (1972); cf. Wheelock, supra, 552 A.2d at 508 (demonstrators in the Capitol Rotunda can be prosecuted under § 9-112(b)(7) only if they “in*412terfere[] with the rights of others to a greater degree than tourists do”). Such behavior would have to be markedly different from the conduct of tourists and others (even lobbyists seeking to express views on legislation) who are routinely in the area.
Accordingly, in view of the conflicting evidence at trial regarding appellants’ pre-arrest conduct, and the absence of any finding by the trial judge whether appellants’ conduct was disruptive because incompatible with the orderly functioning of Congress, I would remand the case to the trial judge to determine whether appellants’ conduct prior to their arrest was disruptive because incompatible with the orderly functioning of Congress.
B.
The majority’s construction of § 9-112(b)(7) is not only inconsistent with the legislative intent, it is also contrary to constitutional requirements. In Wheelock, supra, 552 A.2d 503, the court held — with respect to demonstrations in the Capitol Rotunda — that § 9-112(b)(7) must be subject to a narrowing construction in order to save it from constitutional infirmity. A similar limiting construction is necessary in the instant case.
In Wheelock, supra, the Capitol police closed the Capitol Rotunda in order to arrest a group of protestors who had staged a peaceful demonstration. Although the demonstrators were prosecuted for unlawful entry, the court noted that the convictions could only be upheld if there was some “legal factor establishing the [demonstrators’] lack of a legal right to remain” in the Capitol Rotunda. Id. at 505. The government argued that § 9-112(b)(7) provided the justification for the demonstrators’ arrest. The court rejected that argument, and adopted a narrowing construction for § 9-112(b)(7) in order to save it from constitutional attack:
As to the general prohibition against demonstrating [contained in § 9-112(b)(7) ], the seminal case in this area explains why appellants’ conduct cannot constitute the basis for penalizing the exercise of their constitutional rights unless it interfered with the rights of others to a greater degree than tourists do.
Id. at 508 & n. 6 (citing United States v. Nicholson, 97 Daily Wash.L.Rptr. 1213 (July 17, 1969), aff'd, 263 A.2d 56 (D.C.1970), appended to Dellums v. Powell, 184 U.S.App.D.C. 275, 305, 566 F.2d 167, 197 (1977), cert. denied, 438 U.S. 916, 98 S.Ct. 3146, 57 L.Ed.2d 1161 (1978));3 see also United States v. Murphy, 114 Daily Wash.L.Rptr. 2149 (Oct. 20, 1986) (Schwelb, J.) (granting judgments of acquittal to demonstrators in the Capitol Rotunda after applying Nicholson construction to § 9-112(b)(7)). Thus, with respect to demonstrations in the Capitol Rotunda, the court has limited the reach of § 9 — 112(b)(7) to conduct that interferes with the rights of others to a greater degree than tourists.
Although Wheelock involved a demonstration in the Capitol Rotunda, the rationale underlying Wheelock applies with equal force to expressive conduct in the Capitol corridor. As the majority concedes, a content neutral regulation which places incidental burdens on speech must be evaluated under the test enunciated by the United States Supreme Court in United States v. O’Brien, 391 U.S. 367, 376-77, 88 S.Ct. 1673, 1678-79, 20 L.Ed.2d 672 (1968), which held that a statute not aimed at expression is constitutional only if “it furthers an important or substantial governmental interest; if the governmental inter*413est is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” Id. at 377, 88 S.Ct. at 1679; see also Arshack v. United States, 321 A.2d 845 (D.C.1974) (applying the O’Brien test to D.C.Code § 9-123(b)(5)).
Applying the O’Brien test to § 9-112(b)(7), the government interest offered in support of the statute is “to insure that Congress can transact its business in an orderly manner, without interference,” while at the same time “to guarantee that there is no infringement on the rights of the people ... to assemble peaceably and to petition the Government for a redress of grievances.” Senate Hearings, supra, at 1 (September 21, 1967) (statement of Senator Jordan, chairman of the Subcommittee).4 The governmental interest in protecting Congress from such disruptive conduct is substantial and legitimate, and certainly applies to demonstrations in the Capitol corridor. See Wheelock, supra, 552 A.2d at 507 (“Congress has an indisputably legitimate interest in regulating the Capitol building to ensure the safety of legislators, employees, and visitors”).
The problem with the majority’s interpretation of § 9-112(b)(7), however, is that it views the statute as proscribing in the Capitol all expressive conduct that could be characterized as a “demonstration,” regardless of whether the conduct interferes with the orderly conduct by Congress of its business. Although a content-neutral regulation need not adopt the “least restrictive means” in order to survive constitutional scrutiny, Ward v. Rock Against Racism, 491 U.S. 781, 797-98, 109 S.Ct. 2746, 2757-58, 105 L.Ed.2d 661 (1989), the government “may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance [the government’s] goals.” Id. at 799, 109 5.Ct. at 2758. Under the majority’s interpretation, § 9-112(b)(7) would prohibit all corridor demonstrations, even those that pose no threat to the order and safety of the Congress. Such a construction sweeps far too broadly.5
The majority relies on Smith v. United States, 445 A.2d 961, 985 (D.C.1982) (en banc), for the proposition that demonstrations “inherently involve some degree of controversy. When controversy is flaunted before an unwilling audience, there is always a chance for violence or unrest, however slight.” Majority opinion at 406 (quoting Smith). As the majority recognizes, however, Smith dealt with the unique status of the White House.6 In the quite *414different context of the Capitol building, the court in Wheelock made clear that the mere chance that a speaker’s controversial views might prompt violence is an insufficient basis for prohibiting a peaceful, non-disruptive demonstration. See Cohen v. California, 403 U.S. 15, 22, 91 S.Ct. 1780, 1786, 29 L.Ed.2d 284 (1971) (“we do not think the fact that some unwilling ‘listeners’ in a public building may have been briefly exposed to [the offensive speech] can serve to justify this breach of the peace conviction ... ”). Most recently, in Texas v. Johnson, 491 U.S. 397, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989), the United States Supreme Court rejected just such an argument as the majority makes:
Texas claims that its interest in preventing breaches of the peace justifies Johnson’s conviction for flag desecration. However, no disturbance of the peace actually occurred or threatened to occur because of Johnson’s burning of the flag....
[W]e have not permitted the government to assume that every expression of a provocative idea will incite a riot, but have instead required careful consideration of the actual circumstances surrounding such expression, asking whether the expression “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg v. Ohio, 395 U.S. 444, 447 [89 S.Ct. 1827, 1829, 23 L.Ed.2d 430] (1969) (reviewing circumstances surrounding rally and speeches by Ku Klux Klan). To accept [the] argument that [the government] need only demonstrate “the potential for a breach of the peace,” ... and that every flag-burning necessarily possesses that potential, would be to eviscerate our prior holding in Brandenburg.
Id. at 409, 109 S.Ct. at 2542. Thus, the government may not base an arrest on the possibility that the demonstration could become unruly; protestors can be punished only for demonstrations which are actually disruptive. The majority’s conclusion that Congress can “prevent the existence of circumstances which rationally can be viewed as creating a potential for disturbances,” majority opinion at 409 n. 17, is therefore contrary to the law.
C.
The fact that appellants’ conduct occurred in a “restricted area” does not change the analysis. Appellants were arrested not for being in a restricted area, but for demonstrating. The police officers testified without exception that appellants were placed under arrest — immediately after they began to unfurl the banner — for demonstrating in the Capitol building.7 The fair import of the testimony is that appellants would not have been arrested if they had not attempted to unfurl the banner. Nor did the trial judge view this as a restricted area case.8 This case therefore does not call into question the power of Congress to declare certain areas within the Capitol off limits to the general public, and to arrest those who refuse, after prop*415er warnings, to leave such areas. See Arshack, supra, 321 A.2d at 847-48.
The majority’s focus on the “restricted area” in which appellants were arrested is therefore misplaced. Given the posture of the case, the court must assume that appellants were arrested for entirely peaceful, nondisruptive expressive conduct. The fact that this conduct occurred in a “restricted area” only has relevance if Congress is permitted to designate certain areas as “First Amendment Free Zones” in the United States Capitol building, in which a citizen is free to walk, but is not free to express views. The Supreme Court has made clear that even in a “nonpublic forum” the government is not permitted to go so far. Board of Airport Comm’ners v. Jews for Jesus, Inc., supra, 482 U.S. 569, 107 S.Ct. 2568.9
In Jews for Jesus, a local resolution designated Los Angeles International Airport (LAX) as “not open for First Amendment activities by any individual and/or entity.” Id. at 570, 107 S.Ct. at 2570. The Supreme Court concluded that the ordinance was unconstitutional:
On its face, the resolution ... reaches the universe of expressive activity, and, by prohibiting all protected expression, purports to create a virtual “First Amendment Free Zone” at LAX. The resolution does not merely regulate expressive activity in the Central Terminal Area that might create problems such as congestion or the disruption of the activities of those who use LAX_ We think it obvious that such a ban cannot be justified even if LAX were a nonpublic forum because no conceivable governmental interest would justify such an absolute prohibition of speech.
Id. at 574-75, 107 S.Ct. at 2571-73 (first emphasis in original, second emphasis added).
The majority’s construction of § 9-112(b)(7) is equally broad and equally flawed. Instead of limiting the reach of the statute to expressive conduct which creates “congestion or the disruption of the activities of those who use” the Capitol, id. at 574, 107 S.Ct. at 2572, the majority construes the statute as prohibiting all speech “in the same class with ‘parading, picketing, speech making,’ etc.” that occurs in a restricted area. Majority opinion at 408. Indeed, despite the majority’s disclaimer to the contrary, it is difficult to understand why its construction of § 9-112(b)(7) would not reach “the wearing of a T-shirt or button that contains a political message,” even though such conduct “is still protected speech even in a nonpublic forum.” 10 Id. at 576, 107 S.Ct. at 2573. A lobbyist, likewise, would seem to be at risk. If a visitor to a municipal airport may not be punished for engaging in nondisruptive expressive conduct, then surely one who visits the United States Capitol, which is “a unique situs for demonstration activity,” Wheelock, supra, 552 A.2d at 506 (quota*416tion and citation omitted), is similarly protected.
The majority disclaims an intention to equate “demonstration” with all expressive activity. Thus, the majority concedes that neither wearing a T-shirt with a political slogan nor “conversation conducted in ordinary tones” would “fall within a reasonable reading of the definition” of § 9-112(b)(7). Majority opinion at 408 & n. 13, 409 n. 17. Given this concession, however, the majority’s conclusion that appellants clearly engaged in a demonstration within the meaning of § 9-112(b)(7) seems puzzling. The majority relies on the fact that appellants “unfurl[ed] a large banner,” but the posture of the case requires us to assume that appellants did so silently. If appellants, instead of unfurling a banner, had instead silently removed their jackets, revealing T-shirts covered with provocative political slogans, would the majority reach a different result? In attempting to distinguish between “banner” speech and other types of speech, the majority ends up drawing seemingly arbitrary lines.
The majority’s limiting principle is that the statute only bans expressive conduct “in the same class with ‘parading, picketing, speech making’ etc.” Majority opinion at 408. In addition to being disturbingly vague, this construction divorces the statute from its purpose of protecting Congress from disruptive conduct.11 In my view, the majority errs in adopting a construction that turns on whether an individual’s conduct falls into a “class” defined with little or no connection to the statutory purpose, especially since a much less troublesome construction is available. See McIntosh v. Washington, 395 A.2d 744, 757 (D.C.1978) (the court has a duty to adopt a construction that saves a law from constitutional attack). The more straightforward construction of § 9-112(b)(7) — indeed, the only construction consistent with the legislative history and constitutional requirements — is that the statute applies only to conduct that is actually disruptive of the orderly functioning of Congress. Accordingly, I would remand the case for the trial judge to make a finding whether appellants’ conduct was disruptive before their arrest.
. While acknowledging that the trial judge "refrained" from resolving the evidentiary ambiguity regarding appellants’ pre-arrest conduct, the majority nonetheless refers to controverted evidence that appellants caused a commotion. See Majority opinion at 401-402. Appellants’ testimony, in addition to testimony of some of the police officers, contradicted that evidence. Because the trial judge explicitly declined to consider whether appellants were disruptive before their arrest, this evidence may not be relied upon.
. This construction of the term “demonstrate” is supported by the legislative history in statements of both a proponent and an opponent of the bill. See 113 Cong.Rec. 27,982-83 (statement of Senator Young) (Congress “must not have its work interfered with or unduly disturbed. Therefore, it is proper for Congress to prohibit demonstrations within the Capitol building itself’); id. at 29,392 (statement of Mr. Edwards) (Congress "can prohibit any dangerous, disorderly or disruptive conduct. Therefore, Congress can and should prohibit demonstrations within the Capitol Buildings themselves”).
. In Nicholson the trial judge construed a similar statute, D.C.Code § 9-124 (1969), as applying only to “any group which is noisy, violent, armed, or disorderly in behavior; any group which has a purpose to interfere with the processes of the Congress, any Member of Congress, congressional employee, visitor, or tourist; any group which has the effect, by its presence, of interfering with the processes of the Congress, any Member of Congress, congressional employee, visitor, or tourist; and any group which damages any part of the buildings, shrubbery, or plant life.” 184 U.S.App.D.C. at 312-13, 566 F.2d at 204-05. “In each category, the conduct would have to be more disruptive or more substantial (in degree or number) than that normally engaged in by tourists and others routinely permitted on the Grounds." Id. at 313 n. 22, 566 F.2d at 205 n. 22.
. Throughout the legislative history of § 9-112, Congress expressed the importance of these “sometimes conflicting goals.” S.Rep. No. 573, supra, at 2; see id. (“people with strong feelings must be assured of the rights of freedom of expression and of assembly and the right to petition their Government, but under no circumstances should the guarantee of these rights be extended to a license for a minority to delay, impede, or otherwise disrupt the orderly processes of the legislature”); H.Rep. No. 745, 90th Cong., 1st Sess. 2 (1967), U.S.Code Cong. & Admin.News 1967, pp. 1739, 1740 (same); Senate Hearings, supra, at 16 (statement of Senator Cooper) (§ 9-112(b) "is directed toward establishing reasonable rules under which we hope to protect the constitutional rights of people, and at the same time insure the orderly work of the Congress”).
. Indeed, the court in Arshack, supra, 321 A.2d 845 (D.C.1974), upheld the constitutionality of the prosecution under § 9-123(b)(5) (1973) ("[i]t shall be unlawful for any person ... willfully and knowingly ... to obstruct, or to impede passage through or within ... any of the Capitol buildings”), noting that the ban obstructing the Capitol corridor placed incidental burdens on speech that were no greater than necessary to effectuate the governmental purpose. The majority’s construction of § 9-112(b)(7), by contrast, bans speech that does not interfere with the function of Congress.
. The Smith court explained that the defendants’ argument in that case “might well be persuasive if we were dealing with almost any other form of public property." 445 A.2d at 965 (emphasis added). Subsequent cases have reaffirmed that the Smith analysis applies only in the limited context of the White House. See Boertje v. United States, 569 A.2d 586, 589 (D.C.1989) (‘The White House differs from all other properties owned by the United States government [and] the exercise of citizen's First Amendment right of free speech on the White House grounds may be regulated in a ‘more stringent [manner] ... than would be tolerated on most other government properties’") (quoting Smith, supra, 445 A.2d at 965); Hemmati v. *414United States, 564 A.2d 739, 743 n. 7 (D.C.1989) ("Smith is one of a series of cases, dating back more than twenty years ..., in which we have repeatedly declared that the White House is unique”).
. See testimony of Officer William Turner (“At that point when he dropped and began chanting, he was demonstrating in the Capitol. We, you know, removed him from the area and placed him under arrest”); testimony of Officer William Hynes ("I knew that they were breaking the law at that point ... Demonstrating within the U.S. Capitol”); id. (“they were charged with demonstrating in the U.S. Capitol, not incommoding”); testimony of Officer Steven Wells (when asked "What caused you to arrest Ms. Markowitz on that date?” the officer testified that he heard a chant and saw her with "several individuals sitting on the floor holding another” and he therefore "placed her under arrest at that time for demonstrating in the Capitol”).
. The trial judge found, as a preface to his ruling on the defendant’s pretrial motion, that "the corridor in which [appellants] were stopped was then considered a ‘secure area’ or a ‘restricted area’_” There is no indication in the trial judge’s subsequent legal discussion, however, that this finding played any role in. the decision to reject appellants’ First Amendment defense, since he construed the statute to preclude all demonstrations in the Capitol building no matter where they take place. See trial judge’s Memorandum Opinion and Order.
. The majority characterizes the area in which appellants were arrested as a "nonpublic forum." In my view, it makes no difference whether the corridor at issue is a traditional public forum, a designated public forum or a nonpublic forum. The Supreme Court has made clear that the three forum categories are of "limited utility” for evaluating the constitutionality of content-neutral time, place or manner restrictions. City Council v. Taxpayers for Vincent, 466 U.S. 789, 815 n. 32, 104 S.Ct. 2118, 2134 n. 32, 80 L.Ed.2d 772 (1984). For all three categories, a content-neutral restriction must be reasonably related to the government’s legitimate purposes. Compare Perry Educ. Ass’n v. Perry Local Educators’Ass’n, 460 U.S. 37, 49, 103 S.Ct. 948, 957, 74 L.Ed.2d 794 (1983) (for a nonpublic forum, test is "whether [the statute is] reasonable in light of the purpose which the forum at issue serves") and Wheelock, supra, 552 A.2d at 506 n. 2 and Community for Creative Non-violence v. Turner, 282 U.S.App.D.C. 238, 248, 893 F.2d 1387, 1397 (1990) (Williams, J„ concurring) (the “[same] substantive standards [for testing content-neutral regulations] are applied in every forum”) with Cornelius v. NAACP Legal Defense and Educ. Fund, Inc., 473 U.S. 788, 799-800, 105 S.Ct. 3439, 3447-3448, 87 L.Ed.2d 567 (1985) (applying different standards to content-based restrictions depending on the type of forum).
. Wearing a T-shirt or button with a political slogan could be characterized as "other activities, conducted for the purposes of demonstrating approval or disapproval of governmental policies or practices (or lack thereof), expressing a view on public issues, or bringing into public notice any issue or other matter.” Majority opinion at [408].
. The majority’s construction arguably "fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute." Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110 (1972) (quoting United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954)). In addition, the standardless definition “encourages arbitrary and erratic arrests and convictions.” Id. (citations omitted).