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Free Speech

Residential Picketing in Virginia (Outside a Justice's Home or Otherwise)

A state law bans it -- but that law is very likely unconstitutional (though a different version of such a ban would have been constitutional).


[UPDATE, 5/6/2022, 5:51 pm: A commenter noted that there's a separate federal statute that seems to ban certain kinds of residential picketing outside judges' homes in general, which may well apply entirely apart from the Virginia statute I noted below; I'm looking into this now, and plan to post a more detailed update when I track it down.]

[FURTHER UPDATE, 5/6/2022, 6:19 pm: See this follow-up post for more on that federal statute, which I think would indeed outlaw picketing outside federal judges' homes aimed at influencing their decisions. What I say below about the Virginia law remains correct, I think, but is rendered largely irrelevant by the federal statute, it seems to me (at least to the extent that the federal authorities enforce the federal law).]

There's been talk of protests outside Supreme Court Justices' homes; and there's been talk that such protests are illegal in Virginia (where some of the Justices apparently live). I think protesting targeted at a person's home is generally bad, because it's generally aimed more at intimidation than persuasion; I also think it would be ineffective in this instance, because Supreme Court Justices aren't easy to intimidate (and the publicity is likely to backfire against the protesters). But here I want to talk about whether such protesting is legal.

The Supreme Court has decided three cases about residential picketing.

[1.] Frisby v. Schultz (1988) held that a content-neutral law banning all picketing targeted at a particular home is generally constitutional, at least so long as protesters remain free to march through the neighborhood without focusing on a particular home. (This case actually happened to involve the residential picketing of an abortion provider, and the ordinance was prompted by such picketing; but the ordinance applied to picketing on all topics, and so did the Court's decision.)

[2.] Carey v. Brown (1980) held that a content-based law that exempted "peaceful picketing of a place of employment involved in a labor dispute" was unconstitutional, because it "accords preferential treatment to the expression of views on one particular subject; information about labor disputes may be freely disseminated, but discussion of all other issues is restricted."

[3.] Madsen v. Women's Health Center (1994) held that a content-neutral injunction that banned residential picketing within 300 feet of particular people's homes was unconstitutionally overbroad, though suggested that a similar injunction that banned targeted residential picketing "before or about the residence or dwelling" of a person would be fine. (This too involved anti-abortion picketing of abortion providers, but again the logic of the decision applied to picketing on all topics.)

Virginia is one of the few states that does ban residential picketing (some cities and counties do as well); but its statute is precisely of the sort held to be unconstitutionally content-based by Carey. It too excepts "the picketing in any lawful manner, during a labor dispute, of the place of employment involved in such labor dispute," which is the very exclusion that doomed the statute in Carey.

Now, to be sure, that exception on its face doesn't mention the content of speech. In principle, it could be read as allowing residential picketing on any subject, so long as the targeted home is a place of employment that happens to be involved in a labor dispute. But in Carey, the lower courts had interpreted the exception as focusing on labor-related speech:

Throughout this litigation, however, all parties and the courts below have interpreted the statutory exception for "peaceful picketing of a place of employment involved in a labor dispute" as embodying the additional requirement that the subject of the picketing be related to the ongoing labor dispute.

And whether or not courts would interpret the Virginia provision the same way, it seems clear that the exception "cannot be justified without reference to the content of the regulated speech" (Reed v. Town of Gilbert (2015) (cleaned up)), and must therefore "be considered content-based": The only possible justification for the labor dispute exception is precisely to facilitate labor-related speech.

Had the Virginia Legislature revisited the subject after 1980, when it was clear that its statute was unconstitutional, or after 1988, when it was clear that it could be saved by just excluding the labor picketing exception, then residential picketing would be illegal in Virginia today. But there was no such amendment, so the Virginia law is likely just as invalid as the Illinois law struck down in Carey. [UPDATE: Maryland has a statute that bans "intentionally assembl[ing] with another in a manner that disrupts a person's right to tranquility in the person's home" and declares that "the practice of picketing before or about residences and dwelling places causes emotional disturbance and distress to the occupants." But it also has a labor picketing exception, which likewise makes it unconstitutional.]

Now it's possible that some cities or counties in the D.C. area might have their own residential picketing ordinances that are content-neutral and therefore valid. A quick and noncomprehensive search suggests that Prince George's County and Gaithersburg in Maryland have such ordinances. Manassas and Culpepper in Virginia have somewhat similar ordinances as well, though they're more complicated. But I couldn't find any similar ordinances in the Virginia D.C. suburbs or in the Montgomery County D.C. suburbs.

It's also possible that a court might issue a content-neutral injunction against such picketing, much as the court did in Madsen, and limit the injunction to just targeting picketing in front of the home, thus avoiding the overbreadth objection that doomed the Madsen injunction. I'm skeptical that such an injunction could rely on the Virginia residential picketing statute; though that statute does say "any court of general equity jurisdiction may enjoin conduct, or threatened conduct, proscribed by this article," I think any such injunction would have to be consistent with the statute and thus would be unconstitutionally content-based. But perhaps a court might rest the injunction on state law principles (perhaps related to the torts of nuisance or intrusion on seclusion); I can't speak to whether that would work under Virginia injunction principles. In any event, someone would have to go to court first to get that sort of injunction.

Finally, it's possible that a Virginia court would sever the unconstitutional content-based exception from the statute, thus invalidating the exception, making the statute content-neutral, and then upholding (under Frisby) the result. But while this has been done on occasion (see, in the federal system, Barr v. American Ass'n of Political Consultants (2020)), 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:

In this case, if the court were to sever the labor exception and/or the construction site exception [a separate exception to the Virginia statute, which I've omitted from the discussion above for simplicity -EV] (since it seems that the Carey analysis applies equally to the latter), what would remain would be a blanket prohibition on picketing in residential areas.

Even assuming that such a blanket prohibition is constitutional, it 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.)

Finally, I'm not focusing here on what the Supreme Court might do with such a residential picketing prosecution if it comes before the Court. Perhaps the Justices (being human) might do whatever it takes to protect themselves and their colleagues. Or perhaps they would all recuse themselves, or refuse to hear the case. Or perhaps they might conclude that even facially content-neutral injunctions are content-based when they target an identified set of protesters (as Justices Scalia, Kennedy, and Thomas argued in Madsen). But I set all that aside, since any case will begin and very likely end in the lower courts, whose job is to apply the precedents the Supreme Court has set, rather than speculate how the Justices might revise those precedents.

Again, I oppose residential picketing, and such picketing can indeed be banned by a properly crafted law. But given that there have been public claims about how Virginia law prohibits such picketing, I wanted to explain why those claims may well prove, on balance, not correct.

NEXT: What If The SCOTUS Leak Came From A Foreign Hack?

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  1. The feminist enemy should try to Kelo the homes of the Justices.

  2. Apparently it's obstruction of justice to picket a building occupied by a judge with the intent of influencing judge in his duties.

    IDK if the law's ever been tested or if it's constitutional.

    1. Interesting addition...

      Apparently some of the picketers are being paid.

      If you are paying a picketers to be outside a Justice's house, with the goal of attempting to get the justice to change their decision in a case.... Is it Obstruction of Justice?

      1. Seems like that would make it a conspiracy against the United States. But I don't know the law as well as some. Perhaps our resident expert (on incredibly broad readings of federal criminal statutes regarding that kind of behavior) will chime in on how many laws this breaks.

        1. Conspiracy...might be stretch.

          RICO isn't a stretch. Paying protestors to obstruct justice or associated with vandalizing churches...

          1. <a href=""IT'S NOT RICO, DAMMIT!

            Humor aside, if "conspiracy" is a stretch, RICO is flatly impossible because a "RICO claim is really just an elaborate over-complicated conspiracy claim."

            1. Apologies. Didn't close my link properly. That should have been:

              IT'S NOT RICO, DAMMIT!

              1. Well, conspiracy, obviously, yes. "Conspiracy against the United States"...a stretch.

                Imagine if an organization, run by powerful benefactors, arranged for a series of paid informants to obstruct justice, bribe, and extort people via intimidation across state lines over a period of years for the gain of the organization...

                Would that qualify as RICO?

                1. re: "conspiracy against the US" - Fair enough. I maybe read too much into your comment.

                  re: RICO - So far, no. I don't even pretend to be an expert at RICO but it seems to me that you're still missing at least elements 2 and 5 of the list in the linked article. Regardless, the scenario above can't be RICO because it fails element 3 - doing bad stuff in an attempt to influence just one case can't be a "pattern".

                  1. It arguably isn't just one "case", but an entire policy and fiscal benefit stretching over decades to an organization.

                    1. Luv to make stuff up and then act like they're 'arguably' true.

                    2. Come back when you can make informed decisions and arguments Sarcastro, backed by actual facts you can link to. Like Rossami does.

                    3. Burden is on you to support your 'an entire policy and fiscal benefit stretching over decades to an organization' speculation.

                    4. Which hypothetical are we working on, Armchair? Your comment at 5:53 above described a single event. You changed the scenario in the comment at 6:32 to a series over years. My comment about element 3 was intended to refer back to your original comment at 5:53.

                    5. Rossimi,

                      You can understand my confusion here, as your 6:18 comment directly responded to my 6:07 comment, which referred to two separate events, the protesting outside of homes and vandalizing of churches. Now, multiple criminal acts designed to affect "one" case, may still fall under RICO, as they are multiple racketeering acts.

                      That would be the most clear cut explanation.

                      Now, if you wanted to expand it, you could extend it to actions in other years...

  3. Unless it has been declared unconstitutional or an injunction issued it is the law and should be enforced.

    1. The Justices should shoot the protesters in the legs with full immunity, if they trespass or if they make the Justive feel threatened or in any way verklempt.

    2. What do you mean by "has been declared unconstitutional"? A law that was substantively the same was declared illegal. Is that not enough for you? If not, what good-faith distinction should a law enforcer make for this law?

    3. Not just no but hell no. Officers of the Executive Branch take an oath to 'uphold and defend the Constitution'. (The exact wording varies by position.) That oath creates an independent obligation to assess the legality of the orders you are given and an obligation to disobey illegal orders.

      Yes, you have to accept the consequences of that disobedience. That includes the consequences if it turns out that you were wrong. But if the law actually is wrong and you knew it (or should have known it), you can not use the "following orders" defense even when those illegal orders came from the Legislature.

      If you don't like it, go get a job somewhere else.

  4. Even if the protests remain peaceful and involve no other crimes, they would seem to constitute a crime under federal criminal law, 18 U.S.C. 1507, which provides:

    "Whoever, with the intent . . . of influencing any judge . . ., in the discharge of his duty, pickets or parades in or near . . a building or residence occupied or used by such judge . . . 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."

    If the federal government does not enforce the statute to protect the targeted justices, could those who favor the overturning of Roe v. Wade perform a citizen's arrest, especially if the protestors engage in activities which also constitute disturbance of the peace - the grounds for a citizen's arrest in both Virginia and Maryland?

  5. I hope the Biden DOJ is professional about this. After all, if the protesters make things bad enough, and if the police and DOJ take a relaxed view towards arresting and convicting the protesters (like the BLM riots 2 years ago) you might have some very frightened Justices...and maybe a few resignations that Biden could then fill.

    1. There was no relaxed view to the BLM protesters. Don't make things up.

      Frightened justices resigning? The paranoia is too much here.

      1. Seattle's mayor thought they might have "the summer of love" until people burned down a police precinct and a wannabe warlord set up his own armed enforcers there. He apparently hasn't been charged for that -- although he has been since sued by young women who accuse him of sexually assaulting and otherwise abusing them. So law enforcement seems to be taking a rather relaxed view of him, at least.

        1. Buckeye talked about the DoJ. You're not.

          But even so, what charges are you thinking? Got bad news about being tried for sexual assault after an accuser comes forwards. But of course you know that from defending Trump.

          There is no double standard, it's just the DoJ doesn't exist to indulge the nonsense things that you've swallowed uncritically.

      2. There was no relaxed view to the BLM protesters. Don't make things up.

        Gaslighto, gaslighting like mad.

        1. The Minneapolis / Minnesota authorities let them burn down a blanking police station, for blank's sake...

          1. Switch from the DoJ to local law enforcement? And I'll bet you didn't even check into whether anyone was actually arrested and let off for that crime.

            You believe what you want, facts bedamned. And anyone questioning it is just the worst.

  6. "(at least to the extent that the federal authorities enforce the federal law)"

    And there, ladies and gentlemen, is the whole issue in one parenthetical.

    I have no doubt that the federal government, under the current democratic rule, will refuse to enforce laws against people based on politics. I will bet ENB's next paycheck that there will be nothing like the J6 treatment given to the "protesters".

  7. Tell that to Sarcatr0

  8. This is a job for the Disinformation Governance Board. Perhaps they can put up a snappy skit on TikTok that will resolve the issue. It's a durn fine thing we have such a large, generous government! Who knows where we'd find someone willing to pay six figures for amateur-hour legal videos?

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