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Free Speech

Massachusetts High Court Upholds Ban on Picketing Within 200 Feet of Courthouse in Karen Read Murder Trial


From Spicuzza v. Commonwealth, decided yesterday by the Massachusetts High court:

The petitions stemmed from the ongoing trial, in the Superior Court in Norfolk County, in Commonwealth vs. Karen Read. Read has been indicted for murder, among other crimes, and the case has garnered significant public interest, including protests and demonstrations in the vicinity of the court house complex….

The trial court issued an order stating,

no individual may demonstrate in any manner, including carrying signs or placards, within 200 feet of the courthouse complex during trial of this case, unless otherwise ordered by this Court. This complex includes the Norfolk Superior courthouse building and the parking area behind the Norfolk County Registry of Deeds building. Individuals are also prohibited from using audio enhancing devices while protesting….

The Massachusetts high court upheld the order:

In establishing the buffer zone, the judge indicated that she was seeking to balance the right to free speech protected by the First Amendment and the defendant's right to a fair trial. The judge noted that, in connection with the underlying trial court proceedings, protestors have shouted at witnesses, have confronted family members of the victim, and have "taken to displaying materials which may or may not be introduced into evidence during trial." She also stated that witness intimidation has been a "prevalent issue." …

[T]here is no question that the order establishing the zone does impose some restrictions on the petitioners' speech. As the petitioners themselves recognize, however, a restriction on speech is not, in and of itself, necessarily problematic or unconstitutional. Rather,

"States may impose reasonable restrictions on the time, place, or manner of protected speech and assembly provided the restrictions are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information."

In the circumstances, the 200-foot buffer zone meets the "reasonable restriction" requirements.

First, notwithstanding the petitioners' argument to the contrary, the restriction created by the buffer zone is content neutral. "The principal inquiry in determining content neutrality, in speech cases generally and in time, place, or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys." The fact that the protestors who have appeared outside the court house in connection with the trial have all, according to the petitioners, been in support of the defendant in the underlying criminal trial had no bearing on the establishment of the buffer zone. Any protest against the defendant, and in support of the Commonwealth, would be equally subject to the restrictions of the buffer zone. "Government regulation of expressive activity is content neutral so long as it is 'justified without reference to the content of the regulated speech.'" Additionally, and to the petitioners' argument that the buffer zone is not content neutral because commercial speech is still allowed, the fact that the restriction created by the buffer zone "has an incidental effect on some speakers or messages but not others" does not render the buffer zone unconstitutional.

Second, the restriction—the 200-foot buffer zone—is "narrowly tailored to serve a significant governmental interest." The buffer zone, which is smaller than the 500-foot zone requested by the Commonwealth, will help ensure a fair trial—a significant governmental interest—by physically clearing the path for jurors, witnesses, and other individuals to come and go from the court house complex without obstruction or interference by protestors or demonstrators, and any concomitant intimidation or harassment, within 200 feet of the court house complex. The buffer zone also helps protect the jurors, who, as the trial judge noted, must remain fair and unbiased, from extraneous influence that might result from, for example, viewing pictures of putative evidence directly in their path.

The buffer zone does not preclude the petitioners, or anyone else, from engaging in the same forms of protest they have previously done; it simply constrains them from doing so within a limited zone tied to court house property. In so doing, it leaves open "ample alternative channels for communication of the information." …

Finally, we note that, notwithstanding assertions in their briefing to this court, the petitioners have not provided record evidence sufficient to establish that the 200-foot buffer zone ordered by the Superior Court extends beyond the court house grounds onto public sidewalks or other areas that constitute a public forum with respect to which "the government's ability to permissibly restrict expressive conduct is very limited." United States v. Grace (1983). A map supplied by the Commonwealth is not sufficiently clear to resolve any ambiguity on this score, and does not appear, in any event, to have been a part of the record before the single justice….

The Supreme Court's caselaw on restrictions on picketing outside courthouses are complicated. In Cox v. Louisiana (1965), the Court upheld a statute that banned "picket[ing] or parad[ing] … near" a courthouse "with the intent of influencing any judge, juror, witness, or court officer"; and the Court's rationale seemed to apply even to restrictions that don't require specific proof of intent to influence:

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…. There can be no doubt that {[t]he constitutional safeguards relating to the integrity of the criminal process} 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….

It is, of course, true that most judges will be influenced only by what they see and hear in court. However, judges are human; and the legislature has the right to recognize the danger that some judges, jurors, and other court officials, will be consciously or unconsciously influenced by demonstrations in or near their courtrooms both prior to and at the time of the trial. A State may also properly protect the judicial process from being misjudged in the minds of the public. Suppose demonstrators paraded and picketed for weeks with signs asking that indictments be dismissed, and that a judge, completely uninfluenced by these demonstrations, dismissed the indictments. A State may protect against the possibility of a conclusion by the public under these circumstances that the judge's action was in part a product of intimidation and did not flow only from the fair and orderly working of the judicial process.

But the Court's opinion in U.S. v. Grace (1983) struck down a categorical ban on picketing outside the Supreme Court (which was applied in that case to a lone picketer):

The United States … [argues] that the federal courts represent an independent branch of the Government and that their decisionmaking processes are different from those of the other branches. Court decisions are made on the record before them and in accordance with the applicable law. The views of the parties and of others are to be presented by briefs and oral argument. Courts are not subject to lobbying, judges do not entertain visitors in their chambers for the purpose of urging that cases be resolved one way or another, and they do not and should not respond to parades, picketing, or pressure groups. Neither, the Government urges, should it appear to the public that the Supreme Court is subject to outside influence or that picketing or marching, singly or in groups, is an acceptable or proper way of appealing to or influencing the Supreme Court. Hence, we are asked to hold that Congress was quite justified in preventing the conduct in dispute here from occurring on the sidewalks at the edge of the Court grounds….

But … we are unconvinced that the prohibitions … at issue here sufficiently serve that purpose to sustain its validity insofar as the public sidewalks on the perimeter of the grounds are concerned. Those sidewalks are used by the public like other public sidewalks. There is nothing to indicate to the public that these sidewalks are part of the Supreme Court grounds or are in any way different from other public sidewalks in the city. We seriously doubt that the public would draw a different inference from a lone picketer carrying a sign on the sidewalks around the building than it would from a similar picket on the sidewalks across the street.

We thus perceive insufficient justification for [the] prohibition of carrying signs, banners, or devices on the public sidewalks surrounding the building. We hold that under the First Amendment the section is unconstitutional as applied to those sidewalks. Of course, this is not to say that those sidewalks, like other sidewalks, are not subject to reasonable time, place, and manner restrictions ….

But according to the Massachusetts court's opinion, the challengers apparently didn't sufficiently show that the buffer zone extended to ordinary city sidewalks near the courthouse.

Pamela Alford & Adam C. Lally represent the state.