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S. Ct. Marshal Asks for Enforcement of Md. Residential Picketing Ban; but that Ban Is Likely Unconstitutional

But the Montgomery County residential picketing ordinance, also mentioned in the marshal's letter, is likely fine.


The Marshal of the Supreme Court has asked the Governor of Maryland and the Montgomery County Chief Executive to enforce Maryland's and Montgomery County's residential picketing bans "outside of the homes of Supreme Court Justices who live in" those jurisdictions. And content-neutral restrictions on residential picketing are generally constitutional (see item 2 below).

[1.] But the Maryland law appears to be unconstitutional under the Supreme Court's decision in Carey v. Brown (1980), because it's not content-neutral. The law (which bans assemblies conducted "in a manner that disrupts a person's right to tranquility in the person's home") has an exception for "picketing or assembly in connection with a labor dispute," and Carey held that a similar exception in an Illinois statute for "picketing of a place of employment involved in a labor dispute" made the statute unconstitutionally content-based.

As with the Illinois statute in Carey, the Maryland statute "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:

While broadly permitting all peaceful labor picketing notwithstanding the disturbances it would undoubtedly engender, the statute makes no attempt to distinguish among various sorts of nonlabor picketing on the basis of the harms they would inflict on the privacy interest. The apparent overinclusiveness and underinclusiveness of the statute's restriction would seem largely to undermine appellant's claim that the prohibition of all nonlabor picketing can be justified by reference to the State's interest in maintaining domestic tranquility.

Had the Maryland 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 (see below), then residential picketing would be illegal in Maryland today. But there was no such amendment, even when some changes were made in 2002, so the Maryland law is likely just as invalid as the Illinois law struck down in Carey.

Nor could a Maryland court sever the unconstitutional content-based exception from the statute, thus invalidating the exception, making the statute content-neutral, and then upholding the result (under Frisby, noted below). 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. And 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.

[2.] The Montgomery County ordinance (§ 32-23), however, is likely constitutional, because it has no content-based labor picketing exception. In this respect, it's like the content-neutral residential picketing ban upheld in Frisby v. Schultz (1988), and can indeed be enforced, as to homes in Montgomery County.

[3.] Some might ask: Why doesn't the federal government go after the picketers under the federal law related to picketing the homes of judges, jurors, witnesses, or court officers (which is likely constitutional given Cox v. Louisiana (1965))?

That federal law, it turns out, is limited to such picketing engaged in "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." Such an intent may be hard to prove, especially after the decision has been handed down, and the Justices have already discharged their duties.

To be sure, there is still time for the Court to consider a petition for rehearing, but those are almost never granted. It seems likely that the picketers intend to condemn the Justices and to draw the attention of the public at large, not to get the Justices to grant a petition for rehearing. The advantage of the Montgomery County ordinance is that it limits residential picketing generally, regardless of intent.

My view, by the way, is that 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 talk only about which bans on such protesting are applicable here, and constitutionally permissible.