In a rare move, Supreme Court Marshal Gail Curley has sent letters to Maryland Gov. Larry Hogan, Montgomery County Executive Marc Elrich, and Virginia Gov. Glenn Youngkin demanding that authorities put an end to picketing and “threatening activity” outside the homes of SCOTUS justices. The letter seeks to use state laws to achieve what the Justice Department has clearly rejected under federal law. If the letter prompts arrests, we could see a major free speech challenge in the courts. The timing of the letter, however, is particularly interesting and may reflect a recognition of the limits of the federal law.
Like most Americans, I have denounced these protests targeting the homes of justices as excessive and reckless (though one law professor actually suggested that such protests could be more aggressive). However, I have also questioned the use of a federal law to arrest protesters.
Under a federal law, 18 U.S.C. 1507, any individual who “pickets or parades” 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” near a U.S. court or “near a building or residence occupied or used by such judge, juror, witness, or court officer” will be fined or “imprisoned not more than one year, or both.”
I believe that a court would declare the use of the federal law against protesters on public sidewalks to be unconstitutional. There are issues of free speech, assembly, and vagueness that would be likely raised in federal court. Indeed, if you apply the broad interpretation of the law, even protests outside of the Supreme Court building could result in arrests since courthouses are also included.
However, the timing is particularly interesting. After the release of the decision in in Dobbs v. Jackson Women’s Health Organization, I noted that it would be even harder to use this law because the statute refers to “interfering with, obstructing, or impeding the administration of justice, or with the intent of influencing any judge … in the discharge of his duty.” With the release of the decision, there is no chance that the protesters are interfering, impeding, or influencing the decision. Thus, even if the constitutional arguments were rejected, a court could question whether the law can be read as applying to protests generally against the justices for their views.
That is what makes the date so interesting. Dobbs came out on June 24, 2022. One week later, Curley sought enforcement of state laws as an alternative to federal enforcement. It may reflect the view that, even if the law is constitutional to arrest protesters, it would be narrowly construed in light of the fact that Dobbs is now on the books. Since it was clear for weeks that the Justice Department would not enforce the law to arrest protesters outside of these homes, the timing of the letter could reflect a dwindling likelihood of enforcement in light of the end of the term.
Curley wrote Gov. Hogan: “I would respectfully request that you direct the Maryland State Police to enforce Maryland and Montgomery County laws that squarely prohibit picketing at the homes of Supreme Court Justices who reside in Maryland.”
Both the Maryland and Virginia governors responded by calling on Attorney General Merrick Garland to use his authority under federal law to stop the protesters.
The state laws, however, would still face the same constitutional challenges. While noise and other non-content-based regulations can be enforced, barring any protests that do not block streets could be difficult to maintain despite some precedent favoring the states.
The states can cite Frisby v. Schultz (1988), where the Court upheld a Wisconsin ban on all protests outside of a residential home. Because the law was content neutral, Justice Sandra Day O’Connor ruled that it was permissible. As a free speech advocate, I have always found the 6-3 opinion troubling.
Nevertheless, the Frisby case is not as sweeping as some suggest. Indeed, it is a typical O’Connor decision that leaves nuanced or vague line for states in banning some protests. Citing its holding in Carey v. Brown (1980), the Court expressly stated that “[o]ur prior holdings make clear that a public street does not lose its status as a traditional public forum simply because it runs through a residential neighborhood.” It later added that it was not saying that all protests can be barred in residential areas.
“We instead construe the ordinance more narrowly. This narrow reading is supported by the representations of counsel for the town at oral argument, which indicate that the town takes, and will enforce, a limited view of the “picketing” proscribed by the ordinance. Thus, generally speaking, “picketing would be having the picket proceed on a definite course or route in front of a home.” Tr. of Oral Arg. 8. The picket need not be carrying a sign, id., at 14, but in order to fall within the scope of the ordinance the picketing must be directed at a single residence, id., at 9. General marching through residential neighborhoods, or even walking a route in front of an entire block of houses, is not prohibited by this ordinance. Id., at 15. Accordingly, we construe the ban to be a limited one; only focused picketing taking place solely in front of a particular residence is prohibited.”
The Maryland law states that a “person or group of persons must not picket in front of or adjacent to any private residence.” Md. Crim. Code § 3-904(c). Montgomery County also has an ordinance barring protests in front of or adjacent to any private residence.” Montgomery Cnty. Code 32-23a.
The problem with these laws is that, even if you adopt an extreme view of the Frisby (which the Court itself rejected), they sweep too broadly. Most areas of picketing contain a mix of offices and residences. Indeed, the move in most cities is to guarantee such multi-use zoning to avoid dead zones or high crime in cities. Accordingly, most protests could face such enforcement as protesters march in major cities. That creates the danger of selective enforcement based on the content of the speech.
In these protests, many of the protesters continue to walk pass the homes as referenced in Frisby‘s narrowing language.
There is an interesting question of whether Curley consulted with Chief Justice John Roberts. There is usually considerable coordination with the Chief Justice, but the approval of Roberts could cause later ethical issues if a challenge comes to the Court on appeal. If Roberts green lighted the letters, he is directly involved in the decision and effectively endorsed the underlying interpretation (and use) of the state laws. In such a case, he should recuse himself from any appeal.
Roberts would not be the only one with conflict issues. All of the justices would be beneficiaries of such enforcement, but the six conservative justices are the subject of these specific protests. They could effectively resolve such conflicts by simply denying review in any challenge and allow the lower courts to be the final word on the constitutionality of such enforcement.
Yet, some justices might not be pleased by the Marshal essentially advancing such a legal claim in calling for this crackdown on protesters. By sending the letter, Curley is speaking as a high-ranking official in the Judicial Branch. She is clearly not just encouraging the use of these laws, but implicitly saying that these laws can be used in this way to stop any further protests at these homes.
What is striking about this effort is that Curley has reportedly not reached out to FBI for assistance in catching the leaker of the Dobbs decision. The Supreme Court is just a few blocks away from the leading expert agency in the world on computer and forensic investigations. Yet, Roberts and Curley have kept this investigation confined to their relatively small and inexperienced staff. That has left many of us perplexed since this is one of the greatest attacks on the internal operations and integrity of the Court in its history.
The letter could well prompt a crackdown on the protesters. We could then watch these constitutional issues play out in court soon.
Here is the Maryland letter: July-1-2022-letter-to-Hon.-Larry-Hogan
NB: This blog has been updated to add more legal analysis and to include the language of the underlying state laws.
Yes, The law protecting members of the Supreme Court is not being enforced so what do the powers to be do ? They want to pass another law to protect them…….If everything else fails pass a law and it will make the voters think Congress is doing something.
Sometimes I have to take a few seconds putting a reply, sometimes I abstain, and other times I have to take a whole 5 to 10 minutes. This whole situation is difficult, because it requires to think above the rules, the regulations and the laws. It’s interesting that Jonathan put Curley’s picture from her years as serving the military, I don’t know if it’s her current official picture for her current Office. But it reminds us that the Military evolves under a restrcited Rights regime, and attitude towards the Law obey to different understandings specifically for that reaon.
I also disagreed with the people Protesting in Front of Justices homes, but I do agree with them protesting in front of Court buildings. Yet we are now mostly pushed away from protesting in Front of the Congress for “Security” reasons of simply from pure “Méchanceté” (Read The Little Prince from Antoine de Saint-Éxupéry” on this one). None the way, we are slipping away from a Free Speech Regime, where the only speech tolerated will be the one which is inconsequential.
Yet, when speaking of where expression of speech are reaonable and where they should be contained…onee must not aavoid understanding the current context. We are in a Cultural War… a form of Revolution and as with our healkth and metabolism, some Coup d’État express themselves in very different styles. For eaxample, in Health, Diabetese is reffered to as the Sillent Killer, very different from a spontaneous heart attack. Diabetese takes year to create is damage imprint in a multi organ fashion it interventions often become too late.
Think of the Feminist cultural war as a Revoltion which opted for slow multi-insitutional deconstructions, then every expression of free speech is in fact participating in a slow revolution. Now, what if you had told to the Founding Fathers of America, 250 years ago, that they had the Right to secede from the British Monarchy but they could only do so by respecting British Law… Where would we be now?
Yet, don’t misinterpret me, I will always prefer the Current State of our Constitution and Declaration of Independance and its Principals of Freedom, Liberty and Pursuit of Happiness as I will always oppose “Collectivism the Feminist Way”…
Happy 4th of July Everyone…Thank you Jonathan.
Why not design missiles that are impossible to trace? That means that any country sympathetic to Ukraine, if given such missiles and a place to launch them from, could attack Russia in “incognito mode”. If the Russians don’t know who exactly launched them, then they won’t know who to retaliate against.
“ That has left many of us perplexed since this is one of the greatest attacks on the internal operations and integrity of the Court in its history.”.
That was not an “atttack” Turley is just being hyperbolic here. It was a leak. One that doesn’t’’t matter now. The leaker may be gone by now since it is the end of the term. It’s pointless to continue to find the leaker and a waste of time and money.
Don’t find the leaker because it is a “waste of time and money”, but get half the FBI totally involved in proving that Trump broke a paper clip.
Trump and company did more that just “leak” a document that was not illegal to leak or a crime to do so. There’s a big difference between subverting an election by force and leaking a document.
Was there an election “subverted by force?” Did I miss something? If you are speaking of the Jan. 6th idiocy, when did that “subvert” an election? All it did was give Pelosi a way to subvert the 2024 election. That was the plan all along it seems.
Not if the leaker is still sitting on the bench as is my suspicion.
The Marshal has her own police department. I’m not sure of the jurisdictional limits, but why should she be dependent on local authorities and resources? Congress and the President just authorized additional protection of the Justices and their families – get on with it!
There are federal criminal laws against this action by protestors. It is apparent that the DOJ does not want to protect the Justices that the White House does not agree with, so the DOJ is avoiding doing what they should be doing. For the exectutive branch, not want to use their power to protect another branch of our Constitutional government, is criminal in and by itself.
Calling for action now is such a sham. The time to prevent intimidation is when a case is before the court not when the court is not in session.
As for Roberts trying to find the leak, if you think he doesn’t know by now message me, I have some beachfront land in the Everglades selling for cheap
No. I don’t think the judiciary has any police powers
There’s an obvious and specific difference between protests and attempts to sway judgements through means of harassment and intimidation.
We have definitions of what that is.
What we also have is politically motivated government entities.
So you can not stop a protest in front of where a jury member is staying?
The Justices aren’t jury members.
The justices are jurists.
The question. Does the govt have the power to stop protests? It the govt has the power to stop protestors in front of a jury members house. Then the constitutional hurdle has been cleared
The Constitution restricts protests.
Only PEACEFUL protests are protected.
Nasty Pelosi set the tone after President Trump’s state of the union. Come on man, let’s face it, democrats are communist democrat thugs and if we don’t crack down they will continue to escalate their communist behavior.
Mr. Turley how does the Supreme Court’s Opinion in United States vs Grace fit within your belief that a court can restrict first amendment activities on a public sidewalk. They can probably limit the time of the peaceful protests but that is about all. Judges like any other civil servant should have to contend with public reactions to unpopular decisions.
But see 18 USC Section 1507 which would have applied prior to the issuance of the decision. Because term has ended, it does not apply now. That’s why Professor Turley mentioned the timing of the letter. It’s outrageous that the DOJ didn’t enforce the statute when it could have and should have.
With the recent performance of the FBI, I don’t think I would even ask them to get involved in the investigation of a dead cat. They would first demand the phone records of every dog in a 100 mile radius, show up at every dog owners house in the same 100 miles with guns drawn and a demand for documents, frog march all of them in handcuffs to the courts (hard to do with manacles on 4 legs), probably shoot 2 or 3 for baring their teeth, probably charge the dogs with conspiracy if 4-5 were found around a food bowl, FISA warrants would be involved, and then the FBI Would probably blame it all on an unnamed raccoon who was trying to muscle in on the territory but who has fled the area to escape prosecution. Then someone would request a special prosecutor and it would go on for another 2 years with untold millions spent. Meanwhile the family of the cat would still be grieving and and asking for justice.
Jonathan, is it possible you overlooked this? 1988 the Supreme Court directly allowed state limitations on protests outside a residence. Frisby v. Schultz, 487 U.S. 474 (1988).
Protests can be limited, but not stopped. The marshal wants the protests stopped. That’s the problem.
Garland can’t enforce the federal statute precisely because of what Turley pointed out. That the decision was rendered. The justices are no longer in session and they are no longer administering justice. The federal law is useless.
As much as I despise the protests, once the court had rendered its decisions and closed its calendar, it is hard to make a case for curtailing free speech.
Russia can dish out the death and destruction but cannot take it:
https://www.foxnews.com/world/ukrainian-missile-strike-kills-three-russia-kremlin-claims
I noticed that the Court waited until the very end of the term to release a slew of decisions.
Could it be that the Dobbs decision was purposefully leaked by the Court to get out ahead of its release?
That’s always been the way decisions were handed out. At the end of the session.
No.
What about cross burnings?
Intimidation can be quite expressive, but that doesn’t mean it should be considered the same kind of free expession as, for example, writing a book or publishing a newspaper.
There is no right to abortion under that Constitution and the interpretation the Constitution by SCOTUS of Dobbs recently was correct. If we do not like that then there are methods to change it, but do it by process not by mobs or hatred of others. The fact are simple should we take emotion and borg mind sets our of it, Abortion decisions are decisions of states made by those we elect locally. Having said that just like freedom of speech which is constitutionally protected within limits does not give one, the bully, the right to either interfere with the judicial process by blocking streets, going to personal residence or attempting to intimidate jurist or judges by publishing addresses. Those that do should be prosecuted it’s that simple. That is nothing more than a bully attempting to intimidate others for his own personal views which I would hope most with common sense would oppose. While clearly I am not opposed to women’s rights I also support the baby’s rights to life and liberty which clearly we have impeded on in so many aspects over the years since the passage of Roe where a fun night was offset by lack of accountability or responsibility. Clearly in my mind there can be exceptions; women health, incest, rape but even there it must be done at an appropriate time. So while Turley, who I like because of his research and dedication to facts, though many times I disagree with his ultimate opinions or interpretation, never the less he does not stand on someone’s lawn, bock a street, or right absurd opinions like Tribe with nothing more than agenda. Since when has mob views, regardless of social issue become an acceptable thing. We should applaud diversity in opinions when they are in facts not agenda in which I find many of the replies here to lack either substance or facts.
“There is no right to abortion under that Constitution . . .”
So if a specific right is not mentioned in the Constitution, then you don’t have that right?
Do you not realize the tyrannical implications of that premise? Do you not care? Are you hoping that “somehow” that premise won’t come back to bite you in the future?
Or is it just that you’re unprincipled, and believe: That premise satisfies a desire (to criminalize abortion) for now, so I’ll just run with it.
“So if a specific right is not mentioned in the Constitution, then you don’t have that right?”
Sam, I like you, but that is not how the Constitution works. Natural rights exist in the DOI; the right to LIFE, liberty and happiness (property). The Constitution doesn’t mention abortion which travels further back in time then Columbus. It has always been a more local issue and belongs to the state. Are you saying, the right is the right to kill a human being in its developmental state which continues after birth? I don’t think that ends up as the question.
Abortion is a complex term involving two actions.
1) killing what is in the Uterus,
2) and then trashing it, so the woman is not encumbered by it.
State laws cover #1. Your argument is with #2
“ Natural rights exist in the DOI; the right to LIFE, liberty and happiness (property).”
Ah, property, like slaves right? Funny, the constitution didn’t say that you have a right to own slaves either because the word “slave” is not in the constitution either. But evidently slave ownership was considered a national right according to those who penned the DOI.
What is your point? Rights not enumerated belong to the state or the people.
At this point, who trusts the FBI or the DOJ at all?
TB asks:
“At this point, who trusts the FBI or the DOJ at all?”
And 6 people on this forum liked that question. No doubt, Turley trusts the FBI and DOJ, yet somehow he appeals to those who believe in a “Deep State.”
The limits on “Free Speech” have been clearly identified. Insighting fear (shouting fire in a crowded theater), influencing a judicial decision (what we are witnessing), and threatening violence with a means to carry the threat through. In the case of the SCOTUS Homes or for that matter anyone else’s HOME is clearly a violation of all 3 defined limits.
Oliver Wendell Holmes in U.S. v Schenk invoked the analogy “you can’t falsely shout fire in a crowded theater” as an example of speech he believed should be restricted. The actual facts of the case, however, did not involve fires, theaters, or really even speech. It was an analogy used to justify sending to prison an anti-war socialist who was charged under the Espionage Act with distributing pamphlets expressing his opposition to the military draft during WWI. Schenk was sent to prison for opposing the government’s policy of drafting men to die in a European war.
Holmes’s famous analogy was not even the holding in Schenk – merely dicta. Meaning it had no legal force. Even so, the holding in Schenk itself was properly overturned around 50ish years ago in Brandenberg v Ohio, a case often cited by Turley and others who support free speech.
Yet the phrase “you can’t shout fire in a crowded theater” won’t die. It remains very useful for activists, politicians, and petty authoritarians who want to criminalize speech they don’t like. Especially when the speech is expressed by people and organizations they don’t like.
https://www.theatlantic.com/national/archive/2012/11/its-time-to-stop-using-the-fire-in-a-crowded-theater-quote/264449/
Let’s stop the intellectual evaluation and call this what it is: a threatening and disgusting mob. Liberals and Dems don’t have winning arguments so they take to the street, burn buildings, make violent threats, tear down our institutions/churches, and ruin businesses and lives to threaten the rest of us. Their hatred has perverted our country and our civil institutions.
We saw it in 4 years of DNC Lies, their 2 years of shutdown politics, the summer of BLM hate and violence, their cop-killing Allies, and now their destruction of the American economy . The DNC foot soldiers are controlled by the leftist Dems and Soros loving Antifa fascists and they are being lauded by China, Russia, Iran. These leftists and those who praise them need to leave this country they hate. Good riddance.
In an ironic twist of fate these protestors could now protest from the sidewalk armed with concealed weapons.
+100
The knife cuts both ways.
jeffsilberman: You think you’re so clever, but as usual, you twist and spin. The distinction here is between “protesting” and “threatening.” The Dobbs decision has been made. There is no longer the issue of protesting to influence a decision. From now on, it’s pure harassment and threats. Oh, and Antifa/BLM were armed during all their “protests,” so let’s not pretend that it doesn’t happen on the left.
Giocon1,
Oh they can still protest. They can protest as long as they want provided they don’t do it 24/7. The justices KNOW the protesters are constitutionally protected from being removed as long as they are within the bounds of a sidewalk or street and abide within certain noise and time limits but why KNOW they can’t be forcefully removed.
If the state or the governor tried to stop them they would lose in court. This is a consequence of their decision and fortunately protesting is a constitutionally protected activity. Now that they have loosened gun restrictions ironically protesters can now carry concealed weapons on the same sidewalk they are protesting on because it is also constitutionally protected.
That is very true. Those protesters can now protest armed in fully concealed weapons from the sidewalk and justices and any law enforcement can do nothing about it. The only thing they can do is limit thee time of these protests not the continuation of them.