Recently, Professor Richard Epstein wrote a column in favor of prosecuting protesters targeting Supreme Court justices and criticizing what he calls  “First Amendment exceptionalism.” He specifically cites my writings as an example of those with extreme views of free speech. While I disagree with Professor Epstein on this issue, it is an interesting and insightful publication that I recommend to our readers as they develop their own views on this admittedly difficult issue.

Professor Epstein is the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, is the Laurence A. Tisch Professor of Law, New York University Law School, and a senior lecturer at the University of Chicago.

He begins his analysis on a point of agreement between us that “the most regrettable, if foreseeable, political consequences of Dobbs v. Jackson Women’s Health Organization has been the rise of vehement and prolonged picketing outside the homes of the six conservative Supreme Court justices.”

He then argues, however, that:

“The key controversy is whether this picketing is protected by the First Amendment or whether it is just the latest version of high-tech intimidation that should be banned by forcibly removing the pickets before violence occurs. Regrettably, too many First Amendment experts, like George Washington Law School Professor Jonathan Turley, have adopted what I termed a generation ago First Amendment exceptionalism. This dangerous attitude turns ‘Congress shall make no law . . .  abridging the freedom of speech’ into a general mandate offering protection to all sorts of aggressive conduct, when the clause’s proper office is to prevent aggressive legislation from outlawing all forms of dissent displeasing or offensive to the powers that be.”

I have long been called a free speech absolutist, a distinction that only recently became a vice. However, critics today of free speech protections are more often found on the left in academia. Epstein is a well-known academic with libertarian views, including some that we share, on constitutional interpretation. The scope and meaning of the First Amendment remains, however, a matter of considerable disagreement between us.

The current debate (and Epstein’s analysis) focuses on 18 U.S.C. § 1507 which makes it a crime to engage in “picketing or parading” in broad terms as any action done “with the intent of interfering with, obstructing, or impeding the administration of justice, or 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[.]”

As I have previously argued, the broad reading of the statute would not only sharply curtail protected First Amendment activities, but lead to some clearly incongruent results. After all, protests are common at the court building itself, which is covered under the same federal provision. If it is unlawful to seek to influence a pending decision through picketing “near a U.S. court,” such protests could be viewed as crimes under this interpretation.

Professor Epstein maintains that

“[a]bout this statute, Professor Turley takes the indefensible provision that once Dobbs has come down, the statute is no longer applicable because there is “no chance that the protesters are interfering, impeding, or influencing the decision.” But these protesters well know that the Supreme Court will surely be asked to pass on myriad abortion statutes, and they want to make clear right now that recalcitrant justices will continue to pay a high personal price for upsetting future progressive legislation or approving of conservative laws. This is arguably an attempt of intimidation to influence the justices’ future decisions under 18 U.S.C. § 1507.”

It is true that, after the decision came down, I noted that it would make it more difficult to argue that the protests were meant to influence a pending matter. Indeed, the call of the Supreme Court marshal for states to crackdown on protection seemed to follow that change in status. Courts routinely apply a rule of constitutional avoidance (and the rule of lenity) to adopt a narrow interpretation of such constitutional conflicts. See NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 500 (1979);  Skilling v. United States, 561 U.S. 358, 405-11 (2010); McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 17 (1963).

What I find “indefensible” is the limitless interpretation given to the statute. Under Epstein’s view, justices are always rendering decisions so you can never protest them “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[.]”

Justices have long been the subject of protests, including at their home. That includes figures like Chief Justice John Jay and Chief Justice John Marshall. Indeed, Jay once said that he could travel the “country at night by the light of [my] burning effigies.”

Epstein cites Frisby v. Schultz (1988) as “the most direct precedent . . . to enforce a categorical ban against picketing against persons in private residences.” However, that case was narrower than the Epstein theory.

Indeed, it is a typical O’Connor decision that leaves a 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 court rationale in the case was somewhat fractured among the justices and O’Connor’s decision was typical of her nuanced approach to such standards. In his concurrence, Justice White emphasized that he would consider it unconstitutional if the ordinance were interpreted to bar more than mere single-residence picketing or broader application. Justices Brennan, Stevens, and Marshall dissented.

Nevertheless, the Court’s use of a “captive audience” rationale was maddening for some of us in the free speech community. The implications of the more sweeping interpretation  was evident in Phelps-Roper v. Strickland, 539 F.3d 356, 363 (6th Cir. 2008) where the court upheld bars on protests near medical buildings: “The Supreme Court has held that the State is warranted in protecting individuals from unwanted communication that implicates certain privacy interests when the listener is somehow ‘captive’ to the message.” It extends the ruling to cover patients and others as “captive.”

Such rulings run counter to the underlying values in cases like Hague v. CIO (1939), where Jersey City sought to categorically prohibited the Committee for Industrial Organization from picketing on public property. As Professor Epstein recognized, Justice Owen Roberts reaffirmed that “Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” Epstein notes that such cases could be confined to a special rule supporting labor disputes but recognizes the implications for a more robust protection of free speech.

It is hard to see how the narrower approach advocated by Professor Epstein would be implemented. Most of these protesters have walked past the houses on sidewalks. Would police start to arrest anyone with a sign or anyone voicing pro-abortion views in the neighborhood? How about people just walking by in groups but without signs? It is difficult to see a discernible and workable line of regulation. What if a neighbor next door invited protesters on their property or put up signs denouncing a justice?

Many areas today are subject to multi-use zoning which is a mix of residential and business locations. This includes high rise buildings in major cities. Would all of these areas also be barred to protesters?

The alternative is to do precisely what the dissent in Frisby advocated in the narrow tailoring of such laws and addressing disruptive elements of such protests:

“Without question there are many aspects of residential picketing that, if unregulated, might easily become intrusive or unduly coercive. Indeed, some of these aspects are illustrated by this very case…Thus, for example, the government could constitutionally regulate the number of residential picketers, the hours during which a residential picket may take place, or the noise level of such a picket. In short, substantial regulation is permitted to neutralize the intrusive or unduly coercive aspects of picketing around the home. But to say that picketing may be substantially regulated is not to say that it may be prohibited in its entirety. Once size, time, volume, and the like have been controlled to ensure that the picket is no longer intrusive or coercive, only the speech itself remains, conveyed perhaps by a lone, silent individual, walking back and forth with a sign. Such speech, which no longer implicates the heightened governmental interest in residential privacy, is nevertheless banned by the Brookfield law. Therefore, the ordinance is not narrowly tailored.”

That may seem like “First Amendment exceptionalism” but the alternative is to put free speech on the slippery slope of ill-defined speech regulation.