Photo via The New Yorker
By Robert Porter, Vol. 21 Staff Writer
The freedom to assemble and express your views through protest is a right protected by the First Amendment of the United States Constitution. However, the line between proper assembly and improper harassment is easily muddled, especially when the protest concerns individual people, not institutions.
This tension is seen in the protests sparked by the leaked Supreme Court draft opinion that foreshadowed the overturning of Roe v. Wade. Protestors gathered in front of the homes of various Supreme Court justices, armed with signs, chants, and a palpable fury. In front of Justice Kavanaugh’s home, protestors chanted “Don’t like me at your house? Get out of my uterus.” At Justice Alito’s, they called to “Abort the Court!” When the Dobbs opinion was finally released, and the constitutional right to abortion was rescinded, protestors chanted, sang, and banged pots and pans through Justice Thomas’ neighborhood. This all culminated in the arrest of an armed man outside the home of Justice Kavanaugh who told police he intended to kill the judge for his role in the Dobbs opinion. Congress acted swiftly after that, passing legislation to heighten security for the members of our highest Court.
Are these Protests Legal?
Republican law-makers have pointed towards a 1950 federal statute as a means of stopping these protests. This statute prohibits picketing and parading in front of a courthouse or outside a judge’s home to influence “any judge, juror, witness, or court official.” The statute was originally passed to curb picketing outside the trials of communist sympathizers.
Eugene Volokh, a constitutional law professor at UCLA Law, viewed the statute as one that plainly covers picketing in front of residences used by a judge. In considering the statute as it related to the protests in question, Volokh theorized that “it seems to me that [it] will be pretty easy to prove that it was with the intent to influence.” Finding intent to influence has not been universal, however. Tabatha Abu El-Haj, a law professor at Drexel University, says that “we are in a gray area, because it is not clear what the protestor’s purpose is. Is it really because they think they are going to pressure Brett Kavanaugh to change his mind? Or is it more general outrage at the courts?”
And while Attorney General Merrick Garland has not yet prosecuted protestors under federal law, numerous state law claims are being examined. The U.S. Court Marshall, Gale Curley, wrote to Governor Glenn Youngkin of Virginia and Governor Larry Hogan of Maryland, asking them to enforce local ordinances against the demonstrations, citing “threatening activity.” Specifically, Maryland law prohibits assembling in a manner that “disrupts a person’s right to tranquility” in their own home. Virginia’s law is largely identical, clarifying that it is impermissible to “disrupt or attempt to disrupt” any person’s right to tranquility. Both governors have expressed concern. In a statement posted to Twitter, Governor Hogan stated that he had directed State Police to investigate potential enforcement actions against the protestors. He added that the Department of Justice declined a request to use the federal statute previously discussed.
First Amendment Considerations
These statutes beg the question: are they constitutional? The Supreme Court has held that content-neutral prohibitions against all picketing targeting a particular home are constitutional, provided that protestors may still march through a neighborhood. Such statutes, however, must ban all picketing. The Court has found that legislatures may not carve out exceptions for certain forms of expression. For example, the Court in Carey v. Brown struck down a law exempting picketing at places of employment during a labor dispute because the law was no longer content-neutral; it favored expression concerning labor disputes.
Both the federal statute and Maryland’s statute likely pass constitutional scrutiny as they both provide a blanket ban against targeted picketing (albeit under different circumstances). The Virginia law, however, seems to fail for the same reason the statute in Carey did; they both provide an exception for protests concerning labor disputes.
These statutes seemingly only implicate protestors who camped outside of a specific justice’s home. Protestors who continue to move through the neighborhood would retain constitutional protection. Police in Maryland drew a similar line, telling protestors they could stay as long as they kept moving and didn’t cause any substantial disruptions.
The Policy Debate – What’s Next?
Whether someone could be prosecuted and whether they should be prosecuted are entirely different questions. Even if federal or state authorities possessed the ability to bring legal action against these protestors, it is worth considering what message that would send and what effect it would have. Abu El-Haj suggests that “applying this law to this situation raises that fuzzy line between speech [and] demonstrations that are really meant to intimidate or subvert a judicial process in a substantive way.” Senator Chuck Schumer points to the protests outside of his own home and calls peaceful protests “the American way.”
In some ways, this is absolutely the American way. It is right that we protect the ability for people to come together and advocate for social and political change. We are, after all, a nation built on contentious political discourse. Any attempt to subvert such expression should be inherently suspect. As Abu El-Haj pointed out, however, we must also differentiate between actual protest and intimidation. First Amendment protections do not give us leave to invade every facet of a person life based on personal outrage. Acting within the political sphere should not condemn a person to a complete loss of privacy and the threat of physical harm to the people they love.
Recognizing this distinction, while important, does not give us an easy answer to the case at hand because each instance of protest is unique. Political officials should be careful not to paint with too broad a brush, stamping out all protest for the sake of limiting inappropriate behavior. Likewise, they should not stand completely back and allow for Supreme Court Justices to be harassed and threatened out of an overarching concern about the right to protest.
Perhaps this is an unsatisfying answer, but the most appropriate lane is likely that which reviews each instance of activity on an individual basis. We should carefully enforce statutes to those limited instances where protestors are overstepping themselves, but we should ensure there are still opportunities for expression. Balancing these freedoms is not an easy task, but it is necessary for the preservation of our way of life.