The Volokh Conspiracy
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From U.S. v. Jin, decided Oct. 15 by a D.C. Circuit panel (Judges Rogers, Jackson, and Silberman), but just posted on Westlaw:
This case arises from the conviction of Yuehua Jin for interfering with the progress of a diplomatic motorcade that was traveling through Washington, D.C. Jin wanted to submit a complaint to Chinese Vice Premier Liu He who was meeting with the United States Secretary of the Treasury in May 2019. On May 9, Jin was holding up a piece of paper and shouting from the sidewalk in protest of the Chinese delegation. Jin attempted to run into the street several times, but police officers restrained her from entering an area that had been closed off to pedestrian traffic near the United States Trade Representative building.
The officers told Jin she would be arrested if she ran into the street again. Officers continued to block Jin from entering the street until the delegation departed. The next day, as the delegation was returning from a meeting in a motorcade with lights and sirens on, Jin ran into the street, stood directly in front of the oncoming motorcade, and held a piece of paper above her head. The motorcade had to brake hard and swerve to avoid hitting Jin. A nearby officer, who observed the incident, ran toward Jin, removed her from the street, and placed her under arrest.
The United States charged Jin with attempting to obstruct a foreign official in violation of 18 U.S.C. § 112(b)(2)[,] … a Class B misdemeanor punishable by no more than six-months imprisonment, a fine of $5,000, or both….
[Jin argues] that, as applied to her, 18 U.S.C. § 112(b)(2) limited her ability to speak and therefore violated her First Amendment rights. To be sure, when Jin obstructed the Vice Premier's motorcade, she was engaged in expressive activity. But that does not end our analysis.
Section 112(b)(2) is a content-neutral law. "A content-neutral regulation will be sustained under the First Amendment if it advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests." That is, we apply intermediate scrutiny. "Under this standard a government regulation is constitutional if (1) it is within the constitutional power of the Government; (2) it furthers an important or substantial governmental interest; (3) the governmental interest is unrelated to the suppression of free expression; (4) the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest; and (5) the regulation leaves open ample alternative channels for communication."
We conclude that, as applied to Jin, section 112(b)(2) satisfies intermediate scrutiny. First, the government has an important interest in protecting foreign officials and visitors. Second, there is no evidence in the record that the government's enforcement of section 112(b)(2) against Jin was motivated by the content of her speech or suppressing speech in general. Third, Jin had ample alternative channels to communicate her message. Notably, Jin was not arrested on May 9 when she held up her piece of paper and shouted from the sidewalk as the Vice Premier's motorcade approached.
To be sure, enforcing section 112(b)(2) against Jin had an incidental impact on her expressive conduct. But that incidental restriction was not greater than necessary to further a legitimate governmental interest. Accordingly, Jin's conviction under section 112(b)(2) does not violate the First Amendment.
Quite right, of course.