The Volokh Conspiracy

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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).

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This matter is in the news again, because of a proposal in Boston to limit residential picketing so that it can only happen from 9 am to 9 pm. (This appears to have been prompted by residential picketing outside Mayor Michelle Wu's home.) I therefore thought I'd repost an item of mine that answers the question: 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 (not just a time limitation but a total ban) that had no exemption, on the grounds that it was (a) content-neutral, (b) narrowly tailored to serving an important interest in protecting residential privacy, and (c) left people free to engage in "[g]eneral marching through residential neighborhoods, or even walking a route in front of an entire block of houses.".
  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 August 2020 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 express others.

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  1. "But the rules would apply equally to anti-racism protesters, antifa protesters, anti-abortion protesters, alt.right protesters, and any other protesters."

    On paper the rules would be equal. And then I remember municipal traffic committee meetings where it was understood that parking restrictions would be enforced based on complaints by residents, meaning residents could exempt themselves from enforcement by not complaining. They even expected they could call police and request that parking rules _not_ be enforced when enforcement would cause inconvenience.

    Think the mayor would call the cops on the demonstration of children that her people organized in support of her mask mandate? No, it's the protesters against her policies who would trigger an official response. If she could get police to arrest them; right now police are in a dispute with her over vaccination requirements.

    A few years ago police arrested counterprotesters at a right wing rally in Boston. Police selectively enforced the law to support their people. Charges were quickly dropped. The newly elected "progressive" prosecutor enforced the law to support her people.

    1. Anyone who objects to a picket can call the police, and if there's no enforcement then the next people against whom it is enforced would be able to sue. Of course if nobody at all objects to a given picket then it's right and just that the ban not be enforced against it.

  2. Some day, whites are going to once again act as a herd. And everyone else will have to get out of the way.

    1. You expect all whites to revert to low-grade racism? And you figure those suddenly bigoted whites will be an unstoppable force even after whites lose majority status in this great-and-getting-better country?

      Maybe in Oklahoma, West Virginia, Idaho, and a few other can't-keep-up rural sections (until better Americans impose adult supervision), and maybe in the next few years, but continuing improvements in America seem destined to doom these 'wake up, white people' fantasies.

      1. If every other demographic group is encouraged to engage in low grade racism, why do you expect whites to not do so?

  3. Random thought; is the White House residential?

  4. I think your penultimate word ought to be "express."

  5. "anti-racism protesters"

    Stop Asian hate!

    (Preach it, brother!*)

    Stop discriminating against Asians!

    (Uh, I suppose...)

    End affirmative action!

    (Shut up, racist)

    * Or sister, or sibling

  6. 'You can disturb the peace and privacy of an entire neighborhood the subject lives in but not just the single home you're interested in.' has got to be one of the most inane standards yet.

    So can protesters march in circles around the block? How many streets up must they proceed before doubling back; or must routes be linear with no doubling back? What if they confine themselves to marching up and down a single block?

  7. What about noisy residential picketing intended to annoy, because the demonstration subject is about noise annoyance, and its arbitrary infliction? Before getting legal advice not to try it, a group of anti-aviation-noise advocates gave thought to picketing the residential neighborhoods of airport managers in the Boston area.

    The idea was to bring a powerful mobile sound system. Then transmit to it in real time, from noise-afflicted neighborhoods, the low-overflight aircraft arrival noise. Transmit it flight by flight—about one-per-minute, day and night, until the arrival rate typically abated around midnight.

    Of course no portable sound system can begin to deliver the extensive noise disruption of a low-flying jet, but the hope was that a few nearby homes could get the full volume. Give them an hour or two at bedtime, then move it around.

    Part of the planned effort was to keep it going all night, just like the noise in the afflicted neighborhoods. Maybe do that 24/7. Should that be legal?

    Note that an objective was to raise the question whether the power to inflict that kind of noise was available to everyone, or just to the aviation management elite. Another thought was to test whether a constitutional rationale for inflicting noise like that could stand on equal footing with a merely commercial reason for doing it.

    Judged by formal FAA standards, the actual jet noise amounted to a burden sufficient to render large neighborhoods, "unsuitable for residential use." Specific areas subjected to that burden, in many instances, were not chosen by any pressing operational necessity, but instead by politics, or just by moment-to-moment lapses among air traffic controllers, who scorned noise advisories as a matter of custom.

    Bystanders sometimes supposed noise complainers had brought it on themselves, by choosing to live in proximity to an airport. Some erstwhile bystanders were disabused—surprised to discover that within a radius of about 10 miles, the aviation managers could bring a right-at-the-airport noise experience to almost anyone. A heavy jet inbound on final approach over your bedroom is likely closer to you there than it will ever get to the control tower at the airport.

    Should protestors have been free to demonstrate to the neighbors of airport managers what the managers were doing to the protestors?

    1. I will ask the obvious question; was the airport there first?

      1. Airports have been known to increase their operations, either by extending hours or issuing the frequency of fights, and also to change their approach and takeoff paths. It's not as simple as "was the airport there first?".

        1. Michael P, your points are well made, but understandably fall short of understanding the congressionally imposed difficulty of budging the airport noise governance problem. For most publicly-owned airports, extending hours is not even a possibility. Federal law already mandates they stay open to all takeoffs and landings, 24/7.

          Only a few publicly owned airports have night-time flight curfews, by virtue of having them already in place and grandfathered in before the current noise regulation law was passed; it outlawed curfews. Moreover, all authorities except Congress itself are barred from imposing any kind of limitations on how many flights may be accommodated, or even scheduled for a particular hour (physical impossibility of meeting schedules be damned; if 5 different airlines want to schedule a total of 17 departures for 7 am, nobody can stop them—it may even be illegal to suggest otherwise).

          The law also bars official consideration of any physically measured noise levels. Only results from officially blessed computer noise models operated by FAA consultants may be considered. Needless to say, the official noise modeling standards are hopelessly rigged. For instance, a 3 dB average loudness increase will be perceived by most people as noticeable, but slight. But using the FAA model, you get no more than a 3 dB increase by doubling operations—which in already-noise-afflicted communities will reliably provoke near-universal outrage.

          Also proscribed? Enacting any kind of mandatory night-time curfew, or imposing anything which might be thought of as a noise budget. In fact, one legally-mandated standard for identifying illegitimate airport regulations is a review by the FAA to see if they might in some way be intended to limit aviation noise. If the FAA decides they might do that, they are out. As a practical matter, it is literally true that to reduce airplane noise by policy is against the law.

          That means that policy makers, beginning with local town officials, and state legislators, and state governors, and the entire federal government, up to and including the President of the United States, are barred by law from doing anything at all with intent to limit noise made by post-1990 aircraft using any publicly owned airport.

          The law in question is, "The Airport Noise and Capacity Act of 1990." Should there ever be a lobbying hall of fame, I expect to see the original draft of that act, softly lighted, atop a plinth, just inside the main entrance hall. I have watched seasoned administrative law experts, and experienced political operators, as they encounter that act for the first time. Their jaws drop. They mutter. They become incredulous. One told me, "I didn't think anything like this was possible."

      2. Longtobefree. I will give you 3 answers.

        First from incredulity: it's on the shore, close-in to Boston, first settled in 1630, so what do you think? Second, no. Third, the airport is an older one, built initially to serve piston-engine aircraft. A Douglas D3 was a much better neighbor than are the heavy jets using the airport today (although in fairness, many of the more-recent jets are somewhat quieter than jets of the era I referred to, in the 1990s).

        1. Douglass DC-3

  8. This still seems wrong and unjustifiable from a constitutional standpoint, based on nothing really more than "I think this seems icky". Time/place/manner restrictions, sure. Outright ban? When such activity would be perfectly permissible in any other public space? I don't see it.

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