Free Speech

Protests Outside People's Homes (Residential Picketing) and the First Amendment

They can be banned, so long as the ban is content-neutral, and so long as people remain free to generally march through the neighborhood (as opposed to protesting right outside the target's home).

|The Volokh Conspiracy |

We've heard a good deal in recent years about demonstrations outside people's homes. Is this sort of targeted residential picketing protected by the First Amendment?

The short answer: No, but any restrictions on such picketing have to be imposed through content-neutral statutes or ordinances (or, in some situations, injunctions); and they have to leave people free to demonstrate in the same neighborhood:

  1. In Carey v. Brown (1980), the Court struck down a ban on residential picketing that had an exemption for labor picketing.
  2. In Frisby v. Schultz (1988), the Court upheld a ban that had no exemption, because it was content-neutral and narrowly tailored to serving an important interest in protecting residential privacy, and because "General marching through residential neighborhoods, or even walking a route in front of an entire block of houses" remained allowed.
  3. In Madsen v. Women's Health Center, Inc. (1994), the Court struck down an injunction that barred residential picketing within 300 feet of clinic employees' homes, because it was too broad.

Carey involved a pro-busing group picketing the home of a mayor, while Frisby and Madsen involved anti-abortion groups picketing the homes of clinic employees. Indeed, most of the residential picketing cases I've seen have involved anti-abortion protesters; at least in the 1980s and 1990s, such residential picketing seemed to be a favored tactic of at least some parts of that movement.

But the Court of course didn't draw distinctions based on the content of the speech or based on whether the picketing was aimed at a public official. For instance, Justice Scalia, who had often faulted the Court in free speech cases where he thought anti-abortion speech was being treated unfairly, was in the majority in Frisby; Justices Brennan and Marshall, strong supporters of abortion rights, dissented; none of them seemed swayed by the speakers' ideology. Rather, as I note above, the Court expressly forbade such distinctions.

So a city or a state could ban picketing or allow it. But the rules would apply equally to anti-racism protesters, antifa protesters, anti-abortion protesters, alt.right protesters, and any other protesters.

To my knowledge, residential picketing is banned on a statewide basis only in Arizona, Colorado, Illinois, and Minnesota, though the statutes operate somewhat differently. (The Arizona ban is limited to picketing conducted "with intent to harass, annoy or alarm"; the Minnesota law allows injunctions to be issued based on targeted residential picketing that happens "on more than one occasion," rather than banning such picketing outright.) But various cities ban it as well.

Finally, even when there is no ordinance banning residential picketing, particular kinds of behavior while picketing—especially loud noise at night (cf. the Washington protest outside the Postmaster General's home)—may be banned by content-neutral restrictions. See Kovacs v. Cooper (1949). Of course, those restrictions must be enforced in a content-neutral manner as well: A city can't deliberately ignore loud protests that express certain views but then punish loud protests that ignore others.

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  1. Question: Does the “Reasonable Time, Place, and Manner” apply here — may a municipality prohibit neighborhood demonstrations after a certain hour (or even “after dark”) as part of it’s content-neutral police power?

    The rationale is that there are small children (and adults) sleeping in residential neighborhoods so a 2 AM protest is unreasonable. It’s also more likely to become problematic for a variety of reasons.

    BTW — my guess of why the abortion protests went to people’s homes is that many states criminalized protesting in front of the clinics. Even though SCOTUS struck down Massachusetts’ 35 foot exclusion zone around an abortion facility, a new MA law allows police to impose a 25 foot exclusion zone if they feel it will facilitate access — with the same severe criminal penalties as before. https://malegislature.gov/Laws/GeneralLaws/PartIV/TitleI/Chapter266/Section120E1~2

    So it’s legally safer to go out to the leafy suburbs and protest there….

    FYI: 268 MGL 13A (Massachusetts) bans picketing outside a courthouse.

    1. 1. Noisy night-time demonstrations can certainly be restricted in residential neighborhoods, just as noisy parties can be restricted. But I doubt that quiet marches can be restricted, even at night. I know of no cases on the subject, though.

      2. As to your guess, can you elaborate on just when “many states criminalized protesting in front of the clinics”? I ask because the picketing in Frisby happened in 1985. (Also, the Court in McCullen asserted that the Massachusetts government in that case, and the amici on its side, “identify no other State with a law that creates fixed buffer zones around abortion clinics,” though there were apparently five localities that had such laws.)

      1. Respectfully, Professor, why are you engaging with this racist?

        1. Pray tell, jjrzw72, what makes you think I am a “racist.”

          I’d really like to know, in a morbid sort of way.

        2. “Respectfully, Professor, why are you engaging with this racist?”

          If you’re familiar with the professor’s work you’d know why, so your question feels more like a complaint that he should not be giving Dr. Ed 2 any airtime. In which case including the word “respectfully” seems disingenuous. But I don’t want to cast aspersions when not warranted, I’d be happy if you can provide an alternative explanation I did not consider.

          1. “a complaint that he should not be giving Dr. Ed 2 any airtime”

            That would be one thing.

            Calling me a “racist” is something else entirely.

            And I think it is worth remembering that similar tactics were employed by the German National Socialists in the waning days of the Wiemar Republic. How’d that work out?

      2. Well, John Salvi shot up two Beacon Street abortion clinics in 1994, so of course protests had to be banned to prevent psychos from going in and shooting people. Memory is that my take was that Salvi was nuts, really nuts, although he was convicted and sentenced to two life terms in regular prison. He then committed suicide, I strongly suspect he had help.
        https://time.com/3648437/john-salvi-shootings/

        As an aside, the pro-life folk were HORRIFIED by what Salvi had done, and they wanted no part of that, which might have encouraged the shift to the residences. I don’t know beyond that they were horrified.

        And Cardinal Law, cited below, wound up fleeing to the Vatican to avoid criminal liability for perping priests, but I digress.

        1. It depends which pro-lifers you mean.

          It is true that the mainstream of the movement hates clinic bombers and terrorists.

          BUT:

          1. There’s a fairly large fringe that offers excuses for it.

          and

          2. There’s plenty of mainstream pro-life groups who support the notion of creating life threatening chaos in front of clinics.

          1. “There’s plenty of mainstream pro-life groups who support the notion of creating life threatening chaos in front of clinics.”

            Really. The ones I know are polite middle-aged women.

            It’s BLM that creates life threatening chaos…

            1. Irrespective of whom you know, the anti-abortion movement has a virulent component of domestic terrorism actors, including assassins. It is inaccurate to call the movement ¨pro-life.¨

              1. You’d be hard put to find a movement of any size that didn’t have a few nut jobs tagging along. You can figure out how many they are in this case by how often abortion clinics actually get attacked.

                In the US, the last decade has seen 3 abortion providers murdered. The level of violence is so low, becoming an abortionist apparently makes you safer.

                Considering what is going on inside those clinics, that’s remarkable restraint.

                1. It is more than just a few nut jobs.

                  https://en.wikipedia.org/wiki/Anti-abortion_violence

                  What other domestic political issue has a comparable record of violence?

                  1. What other domestic political issue involved the mass slaughter of infants?

                    But, you want an answer? Look up the statistics for church arson, for instance. Or just take your blinders off and look at the rioting in our cities today.

                    1. Did you read the linked Wikipedia article? It details eleven murders in the United States. In addition, since 1977 in the United States and Canada, there have been 17 attempted murders, 383 death threats, 153 incidents of assault or battery, 13 wounded,[13] 100 butyric acid stink bomb attacks, 373 physical invasions, 41 bombings, 655 anthrax threats,[14] and 3 kidnappings committed against abortion providers.[I 31] Between 1977 and 1990, 77 death threats were made, with 250 made between 1991 and 1999.[13] Attempted murders in the U.S. included:[I 17][I 6][I 7] in 1985 45% of clinics reported bomb threats, decreasing to 15% in 2000. One fifth of clinics in 2000 experienced some form of extreme activity.[15] property crimes committed against abortion providers have included 41 bombings, 173 arsons, 91 attempted bombings or arsons, 619 bomb threats, 1630 incidents of trespassing, 1264 incidents of vandalism, and 100 attacks with butyric acid (“stink bombs”).[I 31] The New York Times also cites over one hundred clinic bombings and incidents of arson, over three hundred invasions, and over four hundred incidents of vandalism between 1978 and 1993.

                      The self-styled ¨pro-life¨ movement has an active terrorist wing.

                    2. Are you comfortable on that side of the culture wars? Do you excuse that kind of violence?

    2. Virginia bans residential picketing statewide. Va. Code Ann. 18.2-418 et seq.

      1. Knowing it’s Virginia, I suspect it includes union picketing.

        Wonder how that squares with Federal Labor Law.
        Seriously…

  2. Its doubtful that any protest targeting a residence or residential neighborhood meets the “peaceful” reequirement under 1A

    1. Joe_dallas: I appreciate your argument, though it’s not obvious to me that it fits the normal meaning of the word “peaceably.”

      But I just want to make clear that, whatever you might think the law should be, that’s not what current law actually is: The Supreme Court in Frisby and Madsen made clear that demonstrations in residential neighborhoods are fully protected by the First Amendment.

      1. So if he bundled his family into the car and carefully backed out to go out to dinner, zero fear they will block the car or throw stuff at it? He wouldn’t be being irresponsible to his kids attempting that? Just free as a bird to go?

        1. And if he were taking a neighbor’s kid, once they were attacked, the neighbor’s lawyer wouldn’t have a solid case he was being irresponsiblr just for attempting it?

          1. I don’t think your scenarios track, if move yourself out of the partisan context.

            You’re arguing that all protests outside anyone’s house carries with it an implied true threat.

            1. I think it’s pretty clear that protests outside a residence carry an element of “And we know where you live”. So long as the protest was peaceful, and restricted to public property, I’d allow it anyway, but one step onto private property and I’d consider prosecution for trespassing appropriate: The Hoover salesman may not know he’s unwelcome, but the protester does.

      2. EV – you highlighted one of the problems of constitutional interpretation. One of the most prominent examples is Kelo, where the phrase in 5A is “public use” which eventually morphed into “private benefit” .

        Same with 1A – where “or the right of the people peaceably to assemble” has morphed into “mostly peaceful ” or “not excessively disturbing the peace”

        1. The First Amendment’s phrasing “to petition the *government*” should (but apparently per SCotUS does not) direct “peaceable” assembly and petition to government offices and public squares, and away from residential neighborhoods where the 3rd and 4th Amendments apply. Indeed, to the extent votes and actions of government officials can be coerced by residential picketing, there ceases to be a small-R republican form of government within the meaning of Article IV Section 4 of the Constitution.

    2. I wish there was a way to un-flag comments. I accidentally flagged this one by Joe_Dallas and don’t see a way to turn the flag off.

  3. Peaceful protests involve signs in the daytime, without blocking other foot traffic or public roadways, or trespassing.

    Oh, wait. Silence is violence, so they can’t do that anymore.

    There are no protests; only violent riots.

    1. WTF?
      So just start shooting this folks with signs?

      1. I’m sure some here think that’s perfectly acceptable.

        1. Alas, that is the case.

          1) I don’t know if this guy does,
          2) I legit don’t know what this guy was getting at
          3) I want to see them say it.

          1. “So just start shooting this folks with signs?”

            You don’t know if he does, but your response suggests you assume yes unless proven otherwise. Longtobefree may well believe that rioters should be shot on sight, but if he said so in his comment I missed it.

            1. See the question mark? That means I’m not assuming, just trying to get him to explain the limits of his argument.

      2. “WTF?
        So just start shooting this folks with signs?”

        Why don’t you try reading what he wrote?

      3. *whoosh*

        That was the pretty funny joke going over your head.

        1. There are no protests; only violent riots.

    2. Virginia bans residential picketing statewide. Va. Code Ann. 18.2-418 et seq.

    3. Commenters below should try re-reading wrote you wrote, which is only pointing out the irony of “woke” protest verbiage that says silence is tantamount to social- moral violence against the cause, when actual protest deeds, these days, have been criminal, destructive, and quite discrediting to the cause.

      A fair point.

      1. (My comment above was to be in reply to Longtobefree and reference the several comments below his. Should have hit the Reply button several times like a Jeopardy contestant.)

  4. That seems wrong as a matter of first principles. What “privacy” right do you have against people being outside your house on public property? Picketing is often a shaming/shunning tactic and that seems right at home here.

    1. tkamenick: I appreciate your argument, and so did Justices Brennan and Marshall, who reasoned that, “so long as the speech remains outside the home and does not unduly coerce the occupant, the government’s heightened interest in protecting residential privacy is not implicated.” Yet the majority, rightly or wrongly, disagreed.

      1. Professor Volokh…How do you draw the line between between “not unduly coerce” and ‘intimidation’?

        To me, marching down the residential neighborhood street is ‘not unduly coerce’ (provided property is respected, and no particularized threat to an individual living on that street is articulated), and picketing right in front of someone’s property is ‘intimidation’.

        1. Well, that’s the dissent’s line, and here’s how the dissent suggested that it could be drawn:

          Without question there are many aspects of residential picketing that, if unregulated, might easily become intrusive or unduly coercive. Indeed, some of these aspects are illustrated by this very case. As the District Court found, before the ordinance took effect up to 40 sign-carrying, slogan-shouting protesters regularly converged on Dr. Victoria’s home and, in addition to protesting, warned young children not to go near the house because Dr. Victoria was a “baby killer.” Further, the throng repeatedly trespassed onto the Victorias’ property and at least once blocked the exits to their home.

          Surely it is within the government’s power to enact regulations as necessary to prevent such intrusive and coercive abuses. Thus, for example, the government could constitutionally regulate the number of residential picketers, the hours during which a residential picket may take place, or the noise level of such a picket. In short, substantial regulation is permitted to neutralize the intrusive or unduly coercive aspects of picketing around the home. But to say that picketing may be substantially regulated is not to say that it may be prohibited in its entirety. Once size, time, volume, and the like have been controlled to ensure that the picket is no longer intrusive or coercive, only the speech itself remains, conveyed perhaps by a lone, silent individual, walking back and forth with a sign. Such speech … no longer implicates the heightened governmental interest in residential privacy ….

          But I’m not sure I’d articulate the distinction between permissible and impermissible in quite the same terms, and the majority didn’t articulate it that way: It agreed with your proposed distinction, but on the grounds that targeted picketing intrudes unduly on residential privacy, not on the grounds that it’s unduly coercive. I’m inclined to agree with the majority, for largely the reasons it gave, though I’m not completely certain about that.

          1. Professor…Thanks so much for the reply. Really appreciate the engagement. You said, “I’m inclined to agree with the majority, for largely the reasons it gave, though I’m not completely certain about that.”

            So…what is the point of uncertainty for you; is it the restriction of behaviors, or the speech (residential privacy versus undue coercion) aspect that gives you pause?

            The other thing I am wondering about is how on earth can you craft regulations that will pass constitutional muster that will restrict size, time, volume of pickets in residential areas? Seems pretty tough to do for local town/city councils.

    2. There’s a line between protesting and intimidation. And when protests are angrily outside your house, it crosses that line.

      Let’s give you an example. A group of KKK-clad individuals decide to park themselves outside the house of individual African American politicians or government officials promising bad things will happen to the politician or official and their family. “Bad things” staying on just this grey line of what could legally be considered a threat.

      What’s your stance there?

      1. It’s a pretty easy line, actually. Bannable intimidation needs to be a true threat under VA v. Black.

        1. True threats aren’t necessarily quite so easy. They’ve never been perfectly defined.

          1. Protesting with signs is by it’s nature hard to characterize as a true threat.

            1. So if the masked KKK / Antifa “protestors” carried signs, they wouldn’t be a true threat?

              1. Yeah; putting on a costume does not change that you’re just holding a sign.

                1. Hey, where’d that word ‘just’ come from? It’s certainly not in the comment you are responding to–it seems quite obvious that Kevin P’s point is, can Antifa morph into peaceful protesters simply by adding sign-carrying to what they are already doing?

      2. There’s also a public order issue — said Afro Am politician throws a rock, things escalate, and we have people shooting each other.

        Doesn’t the state have some right to defuse incendiary confrontations?

        1. Look up the concept of “heckler’s veto.”

    3. Tkamenck–
      The First Amendment protects a right peaceably to assemble and petition “the government”, not individual persons at their private homes. There are obvious public spaces and business hours for petitioning “the government.”

      The White House, though a residence, is also a place of government business, hence a legitimate site of protests.

  5. There is a law, FACA [Free Access to Clinics Act], which gives strict rules for how the picketing in front of abortion clinics is conducted. Why is it constitutional to restrict anti-abortion picketing without similarly restricting picketing the venues where other legal activities are practiced, such as workplaces [at a company being obstructively picketed by union members]?

    -dk

    1. The Freedom of Access to Clinic Entrances Act basically bans force, threat of force, vandalism, and blocking of entrances; I’m not sure that’s “strict rules” so much as federalization (with significant punishment) of behavior that is already criminal under state law.

      The First Amendment doesn’t prevent the federal government from especially punishing such criminal conduct, given that clinics have been especially targeted for such conduct (more so than most other businesses), and given that such conduct interferes with the exercise of something that the Court has recognized as a constitutional right. And the law leaves speakers free to speak outside abortion clinics (as they do), so long as they don’t engage in violence, true threats, vandalism, or physical obstruction.

  6. The Left is getting increasingly more violent and “in your face.” I hope they realize this escalation will eventually be met with equal or greater force. Some have stayed their hand, but I doubt that tolerance is going to continue if they keep pushing.

    1. Professor Volokh, please note the not-at-all subtle threats of violence being shared on your blog.

      1. WHISKEY TANGO FOXTROT?!?

        You say stuff like that, you gotta support it.

        And I said Salvi was “nuts.” What more do you want?

      2. “If things escalate the left should expect violent push back” =/= “I am going to start shooting.”

        You seem fine with thought policing the professor’s blog.

      3. It was not a threat. It was a warning to those who think being apologists for leftist violence is OK.

        1. Loud, all-talk right-wingers — who appear to become more desperate and disaffected as Trump’s campaign founders, advancing vague threats against their betters — are among my favorite culture war casualties.

      4. If I warn you that it is unwise to walk across a busy freeway, is that a warning or a threat?

        1. A car accident != an intentional shooting.

  7. Professor: How would you describe the BLM protest/demonstration video from Seattle that was posted within the past 48 hours? Video of demonstrations directed at white homeowners demanding that they come out of their houses. Statements that they needed to leave the neighborhood because they were white. There were City Councilpersons who condoned the protests and accusations against white Amazon employees who were living in homes downtown.

    1. I know there are some civil rights cases from the 50’s and 60’s where various Klan members were convicted for similar activity. I’m sure for such a conviction to survive a constitutional challenge the facts would need to be specific enough to prove a “true threat”, but I don’t think that would be too hard if a mob is standing outside of someone’s house telling them they need to leave the neighborhood or else.

      1. While I am not a fan of the “fighting words” doctrine, how is “what are you going to do about it” *not* “fighting words.”

        What bothers me is the possibility (eventual likelihood) that someone in one of the homes, someone possibly not sober, possibly not sane (lockdowns and mask mandates not helping the latter) accepts the challenge. And not necessarily with a firearm.

        I like to remind the gun grabbers that an SUV is really nothing more than a 3-ton guided missile. People *have* intentionally killed others with one before, one of my Sect 8 clients killed her husband this way, dropping it into reverse and running over him a few more times in front of her horrified neighbors. So imagine one of these homeowners coming out the driveway with a SUV in 4WD and at full throttle — there’d be mass carnage.

        And one other thing to worry about — what if the homeowners respond to this by establishing a neighborhood watch? Remember how the Klan initially got started….

        If the government doesn’t stomp on this, it will not end well.

        1. The mistake Saul Alinsky made was presuming that the people on the other side are sane. Some aren’t…

          I’d worry about something like this coming out of a garage: http://dejana.com/wp-content/uploads/2014/11/Fisher-XV2-Snowplow-5.jpg

          I’m not a fan of the _Chaplinsky _ decision, but you also don’t play with matches around gasoline.

  8. During a labor strike in 1969 a coworker of mine picketed outside the home of another coworker who hadbcrossed the company picket line to return to work five weeks into the strike. The scab turned on the lawn sprinklers in 40 degree weather, soaking the picketer, who sued for assault.
    Tossed out of court.

    1. innovative…and funny

    2. I returned to work for one day, once during a strike. I was a janitor at the time, and as I explained to the picketers, if I left some of those messes for a month, it would take a jackhammer to clean the place.

  9. At some point there will be a demonstration in a neighborhood. Someone, not the target of the marchers, will come out of their house and ask them to get off their private property or tone it down because children are sleeping or scared. A demonstrator will get in their face.

    Shortly thereafter the resident will be saying to the police, “I was in fear of my life when I shot him.”

    1. Exactly, except being genuinely scared, her marksmanship won’t be the best and there will be a few stray rounds that go into the house across the street — into the children’s bedroom, and…..

      1. Or the resident is retired military and puts two in the chest and one in the head then shots the second demonstrator three times and the rest of the rioters turn and run.

        That scenario is just as likely as yours.

        1. Sorry.

          Shots should be shoots.

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