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.
46 thoughts on “Protests and “First Amendment Exceptionalism”: A Response to Professor Richard Epstein”
Would have been informative if JT had personalized this specific issue. I don’t wish to speculate either way but the question is: WWJT do if/when protesters gathered with the same intensity (never reaching the direct physical threat as Kavanaugh), for the same duration, at his private residence? As much as I respect and mostly agree with JT, I have to wonder if he would practice – in this specific instance – what he preaches.
Prof. Richard Epstein is pulling a “Murphy Brown”.
e.g.: I’ll provoke You just to claim to be the Victim.
Just ignore Him. (Totally right out of the Late 80’s)
For those of you whom may not have been Born before the 80s.
Murphy Brown was the name of a Sit-Com & Character played by Candice Bergen.
Whereupon reading Playboy Magazine’s interview with Mrs. Bergen,
I made the epiphany that She was indeed right. People play this game of:
… “I just provoked everything down the line, provoked it so that I could then claim to be a victim.” …
Or otherwise said: I’ll provoke You just to claim to be the Victim. (the epiphany)
Hence, I’m calling it a “Murphy Brown”.
Today one might say: ‘You got Punked’ in a way.
Playboy (US), December 1989, Vol. 36, Iss. 12, pg. 61-81, by: David Sheff, “Playboy Interview”
Did you say, “Freedom of Speech?”
“Do I even want to go back to America?”
– LeBron James, July 12, 2022
“Why don’t we ask that white trash hag from Tennessee who thinks Justice Jackson should be required to define “woman”? Maybe she knows.”
“Lincoln Proposes a Constitutional Amendment”
“In spite of such obstacles, Lincoln re-affirmed his strong support for gradual emancipation coupled with resettlement in his second annual message to Congress of December 1, 1862. On this occasion he used the word deportation. So serious was he about his plan that he proposed a draft Constitutional Amendment to give it the greatest legal sanction possible. Lincoln told Congress:99”
‘I cannot make it better known than it already is, that I strongly favor colonization.’
“In this view, I recommend the adoption of the following resolution and articles amendatory to the Constitution of the United States … “Congress may appropriate money, and otherwise provide, for colonizing free colored persons, with their consent, at any place or places without the United States.”
“Applications have been made to me by many free Americans of African descent to favor their emigration, with a view to such colonization as was contemplated in recent acts of Congress … Several of the Spanish American republics have protested against the sending of such colonies [settlers] to their respective territories … Liberia and Haiti are, as yet, the only countries to which colonists of African descent from here could go with certainty of being received and adopted as citizens …
“Their old masters will gladly give them wages at least until new laborers can be procured; and the freedmen, in turn, will gladly give their labor for the wages, till new homes can be found for them, in congenial climes, and with people of their own blood and race.
‘Fellow-citizens, we cannot escape history. We of this Congress and this administration will be remembered in spite of ourselves …’
“The President’s December 1862 proposal had five basic elements:100
1. Because slavery was a “domestic institution,” and thus the concern of the states alone, they — and not the federal government — were to voluntarily emancipate the slaves.
2. Slave-holders would be fully compensated for their loss.
3. The federal government would assist the states, with bonds as grants in aid, in meeting the financial burden of compensation.
4. Emancipation would be carried out gradually: the states would have until the year 1900 to free their slaves.
5. The freed blacks would be resettled outside the United States.”
– Robert Morgan
Black Woman Calls Cop A Murderer, Mexican, & A Racist After Being Pulled Over
“You’re always gonna be a Mexican, you’ll never be white, ya know that, right?”
It’s not surprising that Epstein, a libertarian, wants to interpret the law in the broadest terms possible. Libertarians, most of them anyway, are always asserting that the law should always be interpreted in the narrowest terms. Essential what the law literally says. Even our resident right leaning libertarian John B Say could be inclined to agree.
Epstein wants to interpret this law in its broadest terms only because he wants it to fit his bias against the protesters. Turley in this instance is correct that the federal statute no longer applies because the justices are no longer deliberating a case. It’s the end of the term.
The justices ARE public officials and they shouldn’t have any real expectation of being free from criticism or protests. As long as protests are peaceful and within reasonable limits such as noise and times they are constitutionally protected from arrest if they are on public property such as sidewalks and streets.
As Turley noted that it’s a consequence of their decision and it’s simply something that is always going to be true.
There is no should in how the law is interpreted.
The law must be interpreted narrowly with respect to government powers, and broadly with respect to individual rights.
Anything else ultimately makes govenrment power infinite and individual rights non-existent.
Constitutional or legislative limits on government power must be interpreted broadly.
Constitutional or legislative grants of civil rights must be interpreted broadly.
In addition to the argument above, this is also a requirement of logic.
Broad interpretations of government power will inevitably end up with an unworkable legal mess.
In this instance both Turley and Epstein are wrong.
The supreme court has already ruled on protests in front of peoples homes.
Bars of protesting 300ft away are unconstitutional, 90′ away are not.
I do not think it is SCOTUS’s job to decide the distances.
But if they were in the law that sounds reasonable.
18 USC 1507 is unconstitutional with respect to protests in front of courts.
But not with respect to homes.
18 USC 1507 is unconstitutional with respect to requiring a specific intention.
Therefore Epstein is correct that barring protesting at a justices (or anyones) home after a decision would constitutional.
I would note that protesters have recently been arrested for violating local noise ordinances on complaints by neighbors.
And conservative protesters have been arrested for protesting in front of representatives homes.
With respect to both Turley and Epstein.
Either you can protest in front of homes or you can’t.
All the deterius about influencing pending decisions is nonsense. Influence is always the purpose of protests.
The provisions of the law baring protests at the supreme court are almost as unconstitutional as trying to bar protests at the capital.
Laws or actions restricting protest – directly or indirectly at the capital or at federal courts are ALWAYS unconstitutional.
If Turley was the first amendment absolutist he claims to be he would be defending the right of Protestors to protest inside the capital on J6.
That is far more constitutionally protected than protesting at a supreme court justices home.
Epstien is correct that the intent provision of the law would in the instance of decisions regarding constitutionality that are certain to come before the court again would cover protests after the decisions.
The intent provision of 18 USC 1507 is unconstitutional.
The provisions baring protests at Courthouses is unconstitutional.
Stand alone provisions barring protests at judges or justices (or anyone elses) homes for any reason at any time are constitutional.
At or near peoples homes is NOT a public forum.
At or near the pinnacles of governmnet is absoluely a public forum.
Now you are trying to read Epsteins mind.
Your argument is like saying Turley beleives 18 USC 1507 is unconstitutional because he wants abortion to be constitutionally protected.
Or he has not spoken out about the violations of the first amendment rights of J6 protestors because he wanted Trump to lose the election.
Pretending you know what others think is always fallacy and nearly always error.
In order from weakest first amendment protection to strongest.
Protesting in front of anyone’s home.
Protesting in front of a govenrment building.
Protesting in front of a govenrment building where a decision is being made.
Protesting in front of the capital, White House or Supreme court.
Petitioning government at the capital.
It is repeatedly asserted here that protests on sidewalks are constitutionally protected speech.
That blanket claim is FALSE. And SCOTUS decided that decades ago.
Myriads of restrictions on protests on sidewalks even public sidewalks have been found constitutional.
Laws are found constitutional or not based on the degree of privacy afforded the local and the distance.
Protesters must be distant from homes, but not from abortion clinics.
But in all cases can not disrupt.
It is not constitutional to protect those in government from protest in government buildings.
It is constitutional to protect them in their homes or other places they have an expectation of privacy.
Oddly todate SCOTUS has gotten the cases before them mostly right.
While Both Turley and Epstein miss the salient points. Expectation of privacy, distance, and the significance of the space as a public forum.
While provisions of law regarding intent, or political objectives would ALWAYS be unconstitutional.
Why do we bother anymore? If you aren’t sending your kids to the likes of, you know, trade school, then what is the point? If they are just going to move back in with you instead of providing something useful to the rest of society, you might as well save your money. Just let them move back in and inhabit your basement, posting furiously on Twitter or Tik Tok. Obama ruined higher ed years and years ago when he declared that a bachelor’s degree was the ‘new high school diploma’ (and he did. he did exactly that. Begs questions. . . .). That has worked out SO well, and it was a scam from the start. I value my plumber so very far beyond my local dem politician. If I had to choose between the plumber and planned parenthood, as a mature adult, I would choose the plumber every time. So would the young and woke when they realize, after their temper tantrum radicalization of literally everything under the sun, there is no one left to call to handle their stage of life issues except for people as incompetent as themselves. Sheltered. Privileged. That is kind of all there is to it. i suspect our favorite leftist commenters, due to their privilege, have this built in. ‘somebody else takes care of that for me. Who they are, I do not know. Call the nanny’.
Everybody else has to actually think about it. There are about a kajillion reasons the modern dems should be destroyed in November. Let us hope.
I am afraid that this type of Societal Behavior is leading to something like 1972’s Bloody Friday.
[i.e.: Catholic Nationalist vs. Protestant Loyalist = U.S. Rightist vs. U.S. Leftist]
A good deal of your Readers are not aware of what went on in Belfast and the Carnage* that ensued.
Protest at Justice’s Homes will spread. It is the Tip-of-the-Iceberg.
Please don’t feed the Fire (here in the U.S.)
I think you should take ‘pause’ in these Matter(s), as a precautionary measure in favor of making the Morally Correct Decision,
For the sake of our future.
Ref.: [See the similarities between pls.]
* Belfast bombing(s)
The Troubles: https://en.wikipedia.org/wiki/The_Troubles
The main participants in the Troubles were republican paramilitaries such as the Provisional Irish Republican Army (IRA) and the Irish National Liberation Army (INLA); loyalist paramilitaries such as the Ulster Volunteer Force (UVF) and Ulster Defense Association (UDA); British state security forces such as the British Army and RUC; and political activists.
I agree fully with Epstein’s position.
Once again you OMIT the most salient feature that the law is trying to protect:
Jury tampering and analogous conduct.
You are elevating the 1st Amendment free speech and protest rights over the 5th Amendment DUE PROCESS rights of persons participating in or subjected to our Justice system.
IT CANNOT BE REASONABLY ARGUED THAT THE FREE SPEECH RIGHT SHOULD BE ALLOWED TO INTERFERE WITH THE DUE PROCESS RIGHT OF A PERSON TO RECEIVE A FAIR TRIAL.
Since He and Others like him induce and ‘seek to influence a pending decision’ upon the Brethren.
1. Would a demonstration (a reasonable picketing) at a Professor Richard Epstein’s residence be allowable?
2. A demonstration at his Office(s)?
3. A demonstration at his place of Employment?
4. A demonstration at his demonstration place of Worship?
5 … ?
Break the Free Speech Apartheid.
Rise Up! … Nip it in the Bud.
Call me a Free Speech realist and sorry but I agree with Epstein that picketing and threatening federal judges AT THEIR HOME is a bridge too far. The very system of justice depends on disinterested judges. Allow a mob block party in front of their house and even the strongest will break when family is involved. The judges in Nazi Germany had no such protection from the brown-shirt mob. See how that ended up.
Chevy Chase, MD
Code of Ordinances
Chapter 14 – MISCELLANEOUS PROVISIONS AND OFFENSES
Sec. 14-2. – Disturbing the peace.
It shall be unlawful for any person to disturb the public peace by the discharge of firearms; by the throwing of stones or other dangerous missiles, by drunken, lewd or riotous conduct, noise, profanity, or vulgar language; by disorderly conduct; or by the commission of any nuisance in any manner whatsoever.
Has anyone who reads Turley daily been made aware of any protesting having taken place at the homes of Sotomayor, Kagan, or Breyer? Pro-life groups would have the same rights of free speech to do so regarding the Dobbs case, letting the other side be aware that their ‘liberal’ viewpoints were not appreciated.
A related question might be, “have any of the three liberal justices objected publicly to these protests at the homes of their colleagues?“
“The right to free speech is more important than the content of the speech” – Voltaire
Sad that the fruits of the Enlightenment are now being defiled by academics from the New Dark Age.
I think your position on the First Amendment, if I understand it as being somewhat”absolute”, seems to largely ignore the concept of time, place and manner restrictions as recognized by our Supreme Court. I wonder if our founding fathers would have approved of a hoard of demonstrators picketing a residence of a judge over a legal concept decided by that judge? Using a park or traditonal forum would have been OK I presume. Citizens should have a right to peace and quiet at their home. I doubt you and your family would want your home being the subject of civil protests.
I agree with this. Insofar as 18 USC 1507 bans demonstrations at a Justice’s residence to influence a decision it should be upheld as a reasonable time, place and manner restriction.
I don’t see where the right to “peaceably assemble and to petition the government for a redress of greivances ” includes the freedom to personally harass and intimidate individual Supreme Court judges no matter what precedents are cited.
When does protest become harrassment or intimidation? It is not surprising to find much disagreement here. Constitutional line drawing is always difficult and especially so in this regard. Protest means publicly expressing one’s disagreement with some policy or decision. Harrassment may also involve expressing disagreement, but it goes beyond that. It has elements of an attack designed to cause some sort of distress on the part of the target of the harrassment. And intimidation goes a step beyond. Intimidation is essentially a threat designed to frighten the target. Harrassment and intimidation are forms of verbal punishment, whereas protest is a communication of disagreement. If a so-called protest goes beyond communicating disagreement, it is no longer mere protest, and, in my view, is no longer constitutionally protected. I am not saying that this distinction will always be easy to recognize, but it should be clear that certain actions are not mere protests. The so-called protests at the homes of SC justices are clearly designed to punish the justices and should not be allowed. There is ample opportunity to protest any SC decision without surrounding the homes of the justices.
JT, you seem not to care much about the good citizens who step forward into positions of visible public service. Under your expansive, almost absolutist “free speech” standard (which condones intimidation tactics such as confronting and scaring family members), many fewer will agree to public service. I wish you could take a more circumspect view, instead of short-term, 1-dimensional thinking.
Turley gets into an interesting debate concerning the philosophy of free speech and the theoretical limits thereto. However, he misses the purpose of vague and over broad statutes like the one in question… selective enforcement. If everything is made a “potential” crime, then the prosecutors have the discretion to make anybody a criminal. If this were a different issue with protests before different justices’ houses, we would have enforcement and arrests and a chance to test the constitutionality of the statute. But those protestors would still have been dragged off in leg irons. See how that works?
Disturbing the peace is a local ordinance, and should be enforced locally. Protests that rise to the level of intimidation should be dealt with this way. No need for feds to get involved. No need for leg irons.
Thank you, Professor Turley, for your thoughtful analysis of these issues. I think that it’s fair to say that they have arisen in the context of the Dobbs case precisely because many of the protesters do not care enough about the Constitution to actually read the cases. Their expansive view of the First Amendment knows no boundaries. We live in an age where people are influenced by sound bites rather than logic. I am still troubled that there was no effort to enforce 18 USC 1507 prior to the issuance of the opinion. I wish that we could get CLE credits in NYS for reading your columns.
In NYS you might lose credits.
When does the exercise of free speech become mob rule and acts of intimidation? Should we send mobs to every judge’s house? There is a time and place for everything. In my opinion, protesting at the house of any person crosses that line. How about the rights of the neighbors?
I’ve taken time to think about this issue and I believe that Professor Turley has the correct take on things; albeit with one modification.
Our First Amendment right to free speech should never be abridged. These protesters absolutely have the right to do so wherever they see fit, however they also need to abide by the laws regarding excessive noise after hours and they should not be allowed to harass neighbors or other members of the community.
Provided they act in a socially acceptable manner while protesting, I’ll support their right even though I despise the thing about which they are protesting.
When does “free speech” become intimidation and threats? Given the attempted assassination of Kavanaugh and the many calls from Democrats at all political levels for aggression against the justices, it’s naive to think these protests are just an exercise in free speech. Time to take off the rose colored “free speech” glasses and see the actual intent of these protests. I also find it amusing and hypocritical that people who are otherwise “triggered,” traumatized and terrified by “microaggressions,” a wayward glance, or an opposing opinion, have no second thoughts using intimidation tactics when they don’t get their way.
Interesting takes. I think I lean more on the line of thought in the Frisby dissent. My concern is more with those who are now considered as “collateral damage”, – that is, the others who live on the street
As much as I abhor the mob protests, and wanted AG Garland to prosecute those seeking to indimidate the Court, I must side with Prof. Turley on this matter.
whig98 – That’s exactly what I feel. Why should those removed from the debate suffer the protests. These protesters can move off to DC and walk and scream all they please in front of the SC. It changes from protest to harassment of the community walking through the neighborhood.