S. Ct. Marshal Asks for Enforcement of Va. Residential Picketing Ban; Can That Ban Be Rendered Constitutional?

I wrote a few minutes ago that the Maryland residential picketing ban, mentioned in the Marshal of the Supreme Court's letter to Maryland enforcement authorities, is unconstitutional under Carey v. Brown (1980), because it has an exception for labor picketing. I've just learned from Josh Gerstein of Politico (thanks!) that the Marshal also sent similar letters to the Virginia Governor and the Fairfax County Chief of Police, urging them to enforce the Virginia residential picketing ban.

Now the Virginia law also has the same labor picketing exception that the Court has said makes a residential ban unconstitutionally content-based; but the letter cites to a 1989 Virginia Attorney General's opinion that argues that the labor picketing exception could just be struck down, and the rest of the statute could be upheld:

The Supreme Court of the United States has held that an Illinois statute prohibiting the picketing of residences, but exempting "the peaceful picketing of a place of employment involved in a labor dispute" violates the equal protection clause …. Carey v. Brown (1980)…. It is my opinion that no substantive distinction exists between the portion of the Illinois statute declared unconstitutional in Carey and the labor dispute exception in § 18.2–419. It is further my opinion, therefore, that the exception to the prohibition of § 18.2–419 for "the picketing in any lawful manner, during a labor dispute, of the place of employment involved in such labor dispute" violates the equal protection clause … and, therefore, is unenforceable….

Unlike the Illinois statute in Carey, however, the constitutionally invalid provision of § 18.2–419 may be severed from the remainder of that statute. "The provisions of statutes in … [the Virginia] Code … which are held invalid shall not affect the validity of other … provisions or applications of this Code which can be given effect without the invalid provisions or applications." The test to determine the severability of an invalid portion of a statute from the remainder of the statute is whether or not the General Assembly would have passed the statute if it had been presented with the invalid portion removed.

There is no constitutional proscription against the blanket prohibition of residential picketing…. Frisby v. Schultz (1988) ….

In its statement of legislative intent, the General Assembly expressly declared "that the practice of picketing before or about residences and dwelling places causes emotional disturbance and distress … [and] has as its object the harrassing of such occupants; and without resort to such practice, full opportunity exists … for the exercise of freedom of speech." Based on the above, it is my opinion that the General Assembly would have enacted current § 18.2–419 without the provision that I conclude violates the equal protection clause …. It is further my opinion, therefore, that the phrase "the picketing in any lawful manner, during a labor dispute, of the place of employment involved in such labor dispute" in § 18.2–419 is severable from the remainder of this statute and that § 18.2–419 may be enforced without the provision quoted above.

Such striking down of content-based exceptions has been done on occasion (see, in the federal system, Barr v. American Ass'n of Political Consultants (2020)). Still, it's pretty rare, since it would effectively criminalize behavior (labor picketing) that the legislature deliberately chose not to criminalize. Indeed, in a 1995 case, a Virginia trial court refused to do that with regard to this very statute (and expressly rejected the Virginia AG's opinion I quote above):

In this case, if the court were to sever the labor exception …, what would remain would be a blanket prohibition on picketing in residential areas…. [This] is clearly not what the legislature intended when it enacted this statute. The intent of the legislature is clear: it wanted labor picketing to be allowed in residential areas, and it wanted picketing in front of a construction site to be allowed in residential areas. By removing those exceptions, this court would negate the expressed will of the legislature.

As a corollary to that, as defendants correctly point out, this court would be creating crimes that do not otherwise exist: the crimes of picketing residences that are also places of employment or construction sites. That is not a proper judicial function. The decision whether to ban picketing in such areas is "more appropriately made by a legislative body and not a court." See Hueblein, Inc. v. Alcoholic Beverage Control Dept., 237 Va. 192, 201 (1989).

The Commonwealth urges the court to conclude based on the legislative declaration of policy found in Code of Virginia § 18.2–418 that the Legislature would have enacted this statute even without the exceptions stated in the second paragraph. It is true that § 18.2–418 contains a clear expression of the high value that the Legislature places on the right to peace and tranquility within one's own home. But equally clear is the expression in § 18.2–419 of the high value the Legislature places on the right to engage in picketing related to labor disputes and construction projects. It is not possible for this court to know which of the two values the Legislature holds in higher esteem. Only the Legislature may make the determination of whether the right to peace and tranquility in the home is so important that it justifies banning labor and construction picketing in residential areas, or whether labor and construction picketing is so valuable it justifies permitting picketing in all residential areas.

(The case is Commonwealth v. Hyatt, which also happened to involve anti-abortion picketing, but again wasn't limited to that.)

And the Maryland high court in State v. Schuller (Md. 1977) expressly held that a labor picketing exception from a similar residential picketing statute was not severable:

The General Assembly clearly intended that those who engage in residential picketing in connection with a labor dispute should not be guilty of a criminal offense. A holding that the residential picketing provisions are severable would extend the statutory prohibition to a class which was intended to be excepted. Nothing in the statute suggests that the Legislature would have intended this result. Consequently, the residential picketing provisions of the act are not severable and are invalid under the Equal Protection Clause.

So the Virginia AG's opinion does show that there's some doubt here; but on balance, I think it would still be hard to persuade Virginia courts that the unconstitutional content discrimination in the residential picketing statute can be cured by severing the labor picketing exception.