The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
- Whoever, with the intent of interfering with, obstructing, or impeding the administration of justice, or
- with the intent of influencing any judge, juror, witness, or court officer, in the discharge of his duty,
- pickets or parades in or near a building housing a court of the United States, or
- in or near a building or residence occupied or used by such judge, juror, witness, or court officer, or
- with such intent uses any sound-truck or similar device or resorts to any other demonstration in or near any such building or residence,
- shall be fined under this title or imprisoned not more than one year, or both.
A similar provision focused just on picketing outside courts (equivalent to subsection 3 above) was upheld in Cox v. Louisiana (1965); and the logic of that decision would apply equally to residential picketing (subsection 4 above). [UPDATE: Note that U.S. v. Grace (1983), struck down a total ban on demonstrations near the Supreme Court; but the law there was "not limited to expressive activities that are intended to interfere with, obstruct, or impede the administration of justice," as Justice Marshall's separate opinion noted.] Here is Cox's logic, which was set forth in a protest of an impending trial, but which I think would apply to protests of an impending appellate decision as well:
There can be no question that a State has a legitimate interest in protecting its judicial system from the pressures which picketing near a courthouse might create. Since we are committed to a government of laws and not of men, it is of the utmost importance that the administration of justice be absolutely fair and orderly. This Court has recognized that the unhindered and untrammeled functioning of our courts is part of the very foundation of our constitutional democracy. The constitutional safeguards relating to the integrity of the criminal process attend every stage of a criminal proceeding, starting with arrest and culminating with a trial "in a courtroom presided over by a judge." There can be no doubt that they embrace the fundamental conception of a fair trial, and that they exclude influence or domination by either a hostile or friendly mob.
There is no room at any stage of judicial proceedings for such intervention; mob law is the very antithesis of due process. A State may adopt safeguards necessary and appropriate to assure that the administration of justice at all stages is free from outside control and influence. A narrowly drawn statute such as the one under review is obviously a safeguard both necessary and appropriate to vindicate the State's interest in assuring justice under law.
Nor does such a statute infringe upon the constitutionally protected rights of free speech and free assembly. The conduct which is the subject of this statute—picketing and parading—is subject to regulation even though intertwined with expression and association…..
Bridges v. California (1941) and Pennekamp v. Florida (1946) do not hold to the contrary. Both these cases dealt with the power of a judge to sentence for contempt persons who published or caused to be published writings commenting on judicial proceedings. They involved newspaper editorials, an editorial cartoon, and a telegram sent by a labor leader to the Secretary of Labor. Here we deal not with the contempt power—a power which is "based on a common law concept of the most general and undefined nature."
Rather, we are reviewing a statute narrowly drawn to punish specific conduct that infringes a substantial state interest in protecting the judicial process. We are not concerned here with such a pure form of expression as newspaper comment or a telegram by a citizen to a public official. We deal in this case not with free speech alone, but with expression mixed with particular conduct….
We hold that this statute on its face is a valid law dealing with conduct subject to regulation so as to vindicate important interests of society and that the fact that free speech is intermingled with such conduct does not bring with it constitutional protection….
Appellant additionally argues that his conviction violated due process as there was no evidence of intent to obstruct justice or influence any judicial official as required by the statute…. We have already noted that various witnesses and Cox himself stated that a major purpose of the demonstration was to protest what was considered to be an illegal arrest of 23 students. Thus, the very subject matter of the demonstration was an arrest which is normally the first step in a series of legal proceedings.
The demonstration was held in the vicinity of the courthouse where the students' trials would take place. The courthouse contained the judges who in normal course would be called upon to try the students' cases just as they tried appellant. Ronnie Moore, the student leader of the demonstration, a defense witness, stated, as we understand his testimony, that the demonstration was in part to protest injustice; he felt it was a form of "moral persuasion" and hoped it would have its effects. The fact that the students were not then on trial and had not been arraigned is not controlling in the face of this affirmative evidence manifesting the plain intent of the demonstrators to condemn the arrest and ensuing judicial proceedings against the prisoners as unfair and unwarranted.
The fact that by their lights appellant and the 2,000 students were seeking justice and not its obstruction is … irrelevant …. Louisiana, as we have pointed out supra, has the right to construe its statute to prevent parading and picketing from unduly influencing the administration of justice at any point or time in its process, regardless of whether the motives of the demonstrators are good or bad…. [And a]t the very least, a group of demonstrators parading and picketing before a courthouse where a criminal charge is pending, in protest against the arrest of those charged, may be presumed to intend to influence judges, jurors, witnesses or court officials.
Many thanks to commenter TwelveInchPianist for alerting me to the federal statute, as a response to my post about the likely inapplicable Virginia statute. (I had been aware of limits on protests outside courthouses, but I hadn't realized that they also applied to protests outside the homes of judges and others involved in the judicial process.)