Protests and “First Amendment Exceptionalism”: A Response to Professor Richard Epstein

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”

  1. TURLEY you have turned into such a right wing HACK you should be ashamed of your columns about the 10 year old rape survivor seeking an abortion if your parents were not already dead they would be mortified!

    1. Nasty garbage wrote that response to Turley. Thank you for demonstrating the hate leftists carry for the truth and those that protect our civil liberties.

  2. Could this SCOTUS case push America toward one-party rule?
    The court considers ‘Moore v. Harper’ to be a legitimate constitutional question. Critics say it’s a ‘power grab.’

    The Supreme Court has announced its intention to take up Moore v. Harper this fall, a case that critics claim is “perhaps the gravest threat to American democracy since the Jan. 6 attack.”

    Here’s everything you need to know:
    https://theweek.com/feature/briefing/1015009/moore-harper-one-party-rule

    – – –

    Will this be the next; ‘Sit-In’ in front of Justice’s homes? or a Demonstration at their residence?

    We have come a long way from “Sit-In’s”, and migrated to ‘Rally’s’, now to “Demonstrations”, to “Insurrections”.
    Where will the natural escalation End? -The Button- (Yes … That Button – The Planet has reached 8 Billion Humans)

    REASON (mental reasoning) has left U.S. America.

  3. There is a difference between speech and action. There is a difference between free assembly and assembling which disrupts normal activity. But it has been ruled that a particular action (flag burning) is not actually an action, but speech. Burning a cross on someone else’s lawn is what? An action or speech?

    Free speech should be protected, but not all actions which “send a message.”

  4. Interesting way to look at it.

    Interfering, intimidating, or coercing voters is illegal. This is why campaign workers must maintain a certain distance from polling places. This is why water must be handed out from a central location by poll workers, not campaign volunteers.

    You can say whatever political opinion you want, but you may not follow a voter inside, look over their shoulder, and shout at them while they vote.

    You can say whatever you want about a trial, but I don’t think you can follow a jury pool to their hotels or homes and harass them to find someone guilty or not guilty. Crime bosses would disagree.

    I agree that people have the free speech right to protest Supreme Court justices, The Supreme Court, and SCOTUS rulings. I also believe we need to protect the Court from coercion and threats. Trying to frighten Justices, their spouse, or their kids by showing up at their home seems to fall under intimidation or coercion. It also affects neighbors in those communities.

    Free speech does need to be protected. We need to be careful to protect the SCOTUS from threats.

    One day, someone is just going to kill a Supreme Court Justice they disagree with, in order for a president they support to appoint the replacement. You watch. The assassination plot against Kavanaugh was just the beginning. We fail to protect the SCOTUS at the peril of the country. In today’s hot emotional climate, the Supreme Court should enjoy similar security as Congress.

  5. The Professor and I see this Free Speech thing a bit different.

    Turley embraces the notion that a Professor at a University or College can say anything…no. matter how foolish it is or how much it works to incite violence shy of provoking an immediate act of violence due to merely being a member of academia.

    I disagree with that notion completely.

    As long as the speech in question is in defense of scholastic research or some such study….I side with Professor Turley….but when it is anything other than that….I see no protection beyond that of any citizen being proper.

    When it comes to the situation in question….protests outside a Judge or Justice’s Home….enforce the Federal Law or such State Laws that apply.

    Any public place….meaning non-residential area….I have no problem with protests…assuming the exact same permit process is followed as for any and all such Protests.

    Free Speech does have limits.

    Politicians encouraging others to harass Judges and Justices is a criminal act in my view…..and should be prosecuted.

    Professor Turley himself has opined of the bitter divisiveness extant….and this turning a blind eye to speech that promotes yet more to it….must be addressed.

    What would this conversation be today if Justice Kavanaugh had been murdered?

    Is that what it is going to take to get the USDOJ to get off its big political behind and do something to protest the Supreme Court and the Justices?

    If it were a right wing group going after the Liberal members of this Court….would the Attorney General be doing what he is currently?

    Professor Truly is a Man of Principle and embraces the “Honest Man” concept…..he should answer those questions to find the truth about this lack of action by the USDOJ.

    We must be a Nation based upon the Rule of Law….one where the Supreme Court is free to make its decisions based upon the Constitution and the Law and those decisions be accepted even if not liked and respected.

    Protest the Decision…protest the Court….but keep it to a genuinely public place….not a residential neighborhood.

  6. Thanks for the informative and civil discussion here. I think if you removed two problematic parts of the statute — no protests outside the court and the part about influencing the decision (that’s banning certain content) — then perhaps the rest of the statute would be considered a time, place, and manner restriction as a couple of you pointed out (love to hear what JT thinks about that argument).

    1. PEACEFUL protest in PUBLIC places is acceptable. Going into residential neighborhoods harassing & disturbing the peace is NOT. Perhaps the Catholic Church can send over an exorcist or two.

  7. Justice Jay’s comment referred to the response he received for the Jay Treaty he negotiated with Britain while he was Chief Justice on President Washington’s behalf in 1794. In 1795 he was elected governor of New York and resigned from the Supreme Court. Things were a bit different back then. While the freedom of speech is recognized, there is no recognized right that the individual(s) the speech is aimed at must hear it. The first amendment guarantees the right to assemble peacefully it does not grant unconditional use of public property. The public has the authority to regulate the use of public property and in most jurisdictions the public requires an application to use public property to peacefully assemble on. If the public does not issue a permit, such a gathering is an illegal assembly. Without a permit, a group of individuals cannot stroll down the center of 495 whenever they desire speaking their minds.., and it is doubtful a permit to assemble at that location would ever be granted. This substantiates the publics authority to limit the use of different public properties for public assembly. That seems to be the real question on the legality of 18 U.S.C. § 1507.

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