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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.
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Wouldn’t all the SCOTUS justices have to recuse themselves, if a lawsuit challenging this law were appealed all the way up to them?
Yes, I expect they would, but there is a statute dealing with that: In the typical such case, “the court shall enter its order affirming the judgment of the court from which the case was brought for review with the same effect as upon affirmance by an equally divided court.”
That statute requires that “a majority of the qualified justices shall be of opinion that the case cannot be heard and determined at the next ensuing term”. If there are no qualified justices at all, how can a majority of them make such a determination?
There would not be four votes to grant review in a residential picketing case in which the justices were disqualified, leaving the decision of the Fourth Circuit as the final word.
In election law cases where the court is normally required to review the decision of a three judge District Court the Chief Justice may send the case to the Court of Appeals instead.
Look up the “rule of necessity.”
David Nieporent: Would the rule of necessity kick in, given the statute I cite?
“Such an intent may be hard to prove”
Put it to the common sense of an impartial jury.
Ironic, isn’t it, that the exception for labor picketing would prevent the law from being applied to picketing related to abortion, a procedure intended to prevent labor.
This is pure revenge picketing, intended to make the justices suffer because of their decision. I also think it is also clearly intended to intimidate them with regard to their future decisions. The intend is to make sure that they know that the protesters will do whatever they can get away with doing if the justices do not toe the liberal line in their future decisions. I think therefore that the protesters are indeed violating the federal law.
Where are the Hell’s Angels when you need them?
“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.”
Then what is the “intent” of the picketers? Further, the Justices are never finished discharging their duties even if the Court is not in session.
Maybe the intent is merely to tell a bunch of assholes that they are a bunch of assholes?
Then they would be picketing you and your multiple A-holes.
I have but one; I just seem bigger because it takes about six dozen bigoted right-wingers (several of them tenured law professors) to keep up with me at the marketplace of ideas and make this debate a sporting proposition.
The alternative is that their intent is not to influence the justices, which they have no hope of doing, but simply to punish them, and to express the extremity of their disagreement with what the justices are doing. “If abortion isn’t safe then we won’t let you be safe either.” That’s disgusting, but it isn’t what the statute forbids.
Speaking of the Marshal of the Supreme Court, how long could it take to review a few months of Ginni Thomas’ email and telephone records?
Really want to get into reviewing emails/telephone/players rectal tears??? “Reverend’ Jerrry???
These Republican on the court were just fine with people protesting the houses of abortion clinic workers, but when the protesters come to their house suddenly they don’t like it.
Hypocritical scum.
You’re going to have to remind me which case that was.
MollyGodiva feels it very strongly. How, then, could it be false?
The ones that are so notorious there’s no record of them.
Umm, little bit of a difference protesting at Killers of Babies vs Preventing Killing of Babies, and again, I’m conflicted, as there are Babie’s I’d have preferred to be killed (Legally of course from Jan 1973-June 2022) which unfortunately wouldn’t include POTUS Sleepy (DON’T want anything to happen to him, because whoever the SOS is (No way Common-Law Harris takes the job, she’d have to show up) might actually improve things (Moe Howard could “improve things”) Lets see, $6/gal Gas (where? it’s $7 where I am), 9% Inflation (If you don’t count Gasoline, Healthcare, Food, Travel, you know, all those things you should be doing in a Prius (HT P Booty -Judge)
And all the current decision did, was a (minor) inconvenience traveling to whereever it’s legal to kill your baby…
Frank “Against killing babies, except in certain circumstances, and then do it legally”
If only one Eugene Volokh had already written on this topic.
“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.”
Damn your Facts!!! Cancel Yourself!!!!!!
Nor could a Maryland court sever the unconstitutional content-based exception from the statute, thus invalidating the exception…”
Seems like that stunt would be tougher to pull on a post-enforcement challenge, since courts can’t go back and retroactively criminalize the excluded conduct.
“protesting targeted at a person’s home is generally bad, because it’s generally aimed more at intimidation than persuasion”
I mean, all picketing is aimed generally more at intimidation than persuasion. You don’t change people’s minds with slogans, signs, and chants.
Depends on how the picketing is done. But you certainly demonstrate the size of your support.
Usually the audience is a third party. You’re performing on behalf of the media, etc.
What you don’t want to do is anything that might harden the opinions of your target audience. If you actually need that target audience to voluntarily change behavior.
On what planet would judges strike down the entire law protecting their houses rather than the unconstitutional exception?
Does this mean that pregnant rape victims can solicit or not outside justices’ or churches’ abodes?
So that they can urge the death penalty for rape, which the Supreme Court has said is always unconstitutional?
What do you think – should rape be a capital crime?
And if they think rapists should be punished by executing any child they produced by their rape, how about executing their other children too?
Maybe they just want to state that a bunch of bigoted, obsolete, gullible, childish jerks are bigoted, stale-thinking, superstitious culture war casualties.
You know, the American way.
(Not, as this blog seems to prefer, the un-American way.)