"If I had much much more time and money, I’d start the Ironic Protestors for Civility, who would send large crowds to loudly protest the homes and commutes of journalists who argue against civility. (Screenshot via @DavidLat Substack, he’s an honest broker, go subscribe.)"
I’m with James Carville - don’t waste time and energy protesting at homes. Donate to candidates, run for office, volunteer on campaigns, canvass, organize, win elections to change the trajectory.
May 18, 2022·edited May 18, 2022Liked by David Lat
I would support a complete ban on protests in front of private residences. I agree with the person vs. role distinction and think it contributes to a coarsening of the culture. The "civility is of secondary concern" argument is, like so many other arguments, only valid when you agree on the issue. Society is a highly imperfect machine and civility is the lubricant that keeps it from breaking down. It's why classical liberal values are so important. Without them, you constantly are at risk of violence as the "evil" people on the other side are dehumanized.
Oh, and also, these protests are, at best, counterproductive.
I don’t know why Roe v Wade is where this is starting but I see it as the beginning of something. They will repeal Roe v Wade, I don’t think there’s any doubt about it but it’s just going to be the first thing to go. I wonder what society in North America will look like in five or ten years because it feels like a major shift is happening.
I oppose the protests, not on ethical or moral grounds, but because I think they are counterproductive. They distract from the substance of what's about to happen (overruling Roe and Casey) and give our opponents a cheap talking point.
1) In my humble opinion, the federal law prohibiting protests at the homes of judges, justices, and jurors is clearly constitutional. We don’t allow demonstrations in the courthouse for the same reason: we want judges, justices and jurors to decide cases based on the facts, evidence and arguments presented in court, not on the basis of political pressures or in response to mob pressure.
2) The argument in favor of the protests is that “this forthcoming opinion would be really, really, really bad.” That seems to me to be an unprincipled distinction. Suppose an Islamic terrorist is on trial for mass murder? Would it be OK for a mob to protest outside the homes of the judge and jurors, demanding that justice be served and the defendant convicted? Suppose it were a black defendant on trial for raping a white teenager? Once you say it’s OK to protest at the homes of judges, justices and jurors, that is what you’re going to get.
I think protesting at justices house is completely counterproductive, but I don’t think that they should be a special protected class. Other commenters have given examples of unquestioned protest at other residences. If we want to restrict this 1A activity, then the same time place and manner restriction should apply to every residence in the country.
I happen to live in a gated community; at one time we had daily protests at the main entrance, because an OBGYN who performed terminations lived in the community, so I do have some understanding of how disruptive such protests can be.
Here in Idaho during the pandemic, we've seen a lot of protests at the houses of public officials, mostly from the far-right. Ironically, many of those protests have also been in favor of bodily autonomy (i.e., anti vaccine mandates). We've seen protests at members of public health districts (including of one member's home during a meeting when her daughter was home alone, forcing the cancellation of the meeting); at the Boise mayor's house; at the house of a state judge (involved in a child protection case); at the houses of police officers who arrested people violating Covid restrictions.
Idaho policymakers have been moving towards putting restrictions on this form of protest through a coalition of Democrats (of which Idaho has three) and moderate Republicans. For us, I worry that the left endorsing home protests will undermine that coalition.
From a political standpoint, it seems to me like the home protests have harmed the far-right here in Idaho. Home protests alienate many people who don't hold the same confidence in the moral vision of the protesters. I would not be surprised if something similar happens with the SCOTUS protestors; the protests will give moderates who would normally be political allies the cover to reject the protestors' demands.
I am generally in favor of civility. However, I am more strongly committed to the idea that SCOTUS deserves a taste of their own medicine. This conservative court voted to overturn laws that establish buffer zones around abortion clinics, and did so on first amendment grounds. And, doing so was remarkably cruel. If that "time, place, and manner" restriction cannot hold then it would be the height of hypocrisy to sustain either the Federal or state laws protecting the homes of the justices. Why should the justices and their families have this form of protection, when the patients and staff of abortion clinics do not? Why should the important function of the courts be free from uncivil public influence, while those engaging in the constitutionally protected right of access to abortion do not?
I personally would not protest as I think the damage was done when Trump was elected. That being said, as long as the protests are peaceful, I don't have a problem with protests outside the residences of the Justices' homes. I "protest" by voting and donating to/volunteering for organizations/politicians up for election.
This article brushes over my primary question. You state that the statute is "likely constitutional," but should the statutes be evaluated in a vacuum? When you compare "protesting the Justices' homes" to any other protests which SCOTUS has upheld, I wonder how this restriction is a "reasonable time, place and manner" restriction while others are not.
Harassing a person on their way into Planned Parenthood? That's okay, as long as you're 8 feet away. (The opinion IMHO also disingenuously focuses on a "protestor" as a sweet little grandma type who is just whispering and politely talking to patients, and utterly ignoring the much more violent and angry protestors who are also there.) Yelling homophobic slurs at a funeral? That's fine too, can't do anything about that. Protesting in front of SCOTUS itself? Nope, we'll put up a huge buffer zone. One that's much larger than 8 feet. Protesting in front of a judge's house? Oh no, can't have that.
Also, has anyone complained about Anthony Fauci and other public health officials being protested at their homes? How about how Christine Blasey Ford literally had to move, TWICE, because people were protesting at her home?
Seems like us common folk just have to suck it up and deal with people "exercising their First Amendment rights" at us, but heaven forbid people in power also have to deal with the same protests.
There have been quite a few protests at the homes of public health officials during the pandemic in response to mask mandates and other requirements that were aimed to stop the spread of COVID. I admittedly saw those much more as protesting the office over the person, because many of the requirements were based in objective data. And, I was not happy to see those protests happening, because in my view I thought these people were doing their job.
Protesting at the justices' homes seems much more like protesting the person over the office, in my view. For me this is because the anticipated result in Dobbs is not actually compelled by anything except the justices' personal views/beliefs. (Though of course there is an argument that the five justices in favor of overturning Roe/Casey are just doing their job as well...)
I guess my view overall is that if people are allowed to protest at public health officials' homes, then they should be allowed to protest at the justices' homes, presuming that all protests are peaceful.
The issue about the Constitutionality of Section 1507 is more nuanced, because it does not merely prohibit "picket[ing] or parad[ing" with the "intent of influencing any judge . . . in the discharge of his duty" "in or near a building or residence occupied or used by such judge" BUT ALSO " in or near a building housing a court of the United States."
So, a protest against a forthcoming ruling cannot take place at the Courthouse, either. This law makes sense with regard to jurors, who are explicitly told that they should not be considering societal issues in reaching their decisions as judges of the facts. With regard to appellate judges, the law makes little to no sense, if the idea is to shield the judges from threats. Obviously, explicit threats should be dealt with harshly (I am still shaken by the death of Judge Salas' son and the wounding of her husband. I worked with Judge Salas when she was an AFPD and I was an AUSA).
I also disagree that this is truly a "time, place and manner" restriction. Such restrictions must be agnostic as to the content of the speech. The courthouse steps are a traditional First Amendment "public forum" for many issues in political debate. To the extent that the law distinguishes between protests of American policy in Cuba (as an example of an issue with no connection to the court system) and protests about Reproductive Freedom, that would not fit within the doctrine of "time, place and manner" restrictions. In the paradigmatic "time, place and manner" case, the restriction that was upheld banned the use of amplifiers in public parks during certain hours, without distinction regarding the content of the amplification. A Bach concerto was just as banned as a protest demanding a "Nuclear Freeze."
Truly peaceful, even silent, demonstrations about issues pending before the court at the courthouse are banned under Section 1507. But vocal demonstrations about non-court issues are not banned under Section 1507. And since the overbreadth doctrine for First Amendment cases means that a law that would be unconstitutional if applied in some situations is unconstitutional in all situations, I would not place a wager on either side.
I believe that it is counterproductive to have organized protests at the homes of judges. I also believe that citizens should have the right to assemble in the vicinity of the Courthouse to make their voices heard, at least with regard to matters on appeal.
I have to admit that even as a strong pro-choice advocate that I am uncomfortable with these protests (though I certainly understand and sympathize with the anger/passion behind them). The question is, "Where does it end?" Will this now become the norm in any politically-charged decision by the USSC (and for the record, and per my prior comments, this decision is "but the beginning", as we will see similar attacks on Obergefell, Loving, etc.)?
The thing is, I don't think that we would have seen this if the Supreme Court was not increasingly seen as an illegitimate arbiter of legal issues. Liberals rightfully are furious that it is Neil Gorsuch and not Merrick Garland on the high court (though to your point it begs the question of why HIS house isn't one of the ones in front of which there are protests). They are equally (and again rightfully, IMHO) apoplectic about ACB being on the court, when her nomination and confirmation were rammed through in a matter of days after some voting had already taken place on the 2020 election. When you factor in Brett Kavanaugh's presence on the court as well, despite credible allegations of sexual assault, you have a situation where 1/3 of the High Court--all of whom are set to vote to do away with Roe v. Wade--is in the eyes of a huge percentage of the population wrongly being allowed to decide a case that will impact millions of lives. So, anger and protests are entirely understandable, IMHO.
McCullen v. Coakley says 35 feet is unconstitutionally not close enough to harass women in the most private moments of their lives, but picketers 50 feet away on a sidewalk (blocked by a legion of police officers) somehow infringe on the same justices’ privacy… What a joke.
There are weekly protests outside Chuck Schumer’s home. My Governor of Texas lives right in downtown, next door to the Capitol, and is protested all the time. Nobody ever raised a hint of a problem despite the protests being about their “roles.”
When will our legal profession stop treating justices as if they’re prophets spreading God’s infallible word, but rather as decision-makers and people like everyone else?
From Ted Frank on Twitter:
"If I had much much more time and money, I’d start the Ironic Protestors for Civility, who would send large crowds to loudly protest the homes and commutes of journalists who argue against civility. (Screenshot via @DavidLat Substack, he’s an honest broker, go subscribe.)"
https://twitter.com/tedfrank/status/1526947257827852288
I’m with James Carville - don’t waste time and energy protesting at homes. Donate to candidates, run for office, volunteer on campaigns, canvass, organize, win elections to change the trajectory.
I would support a complete ban on protests in front of private residences. I agree with the person vs. role distinction and think it contributes to a coarsening of the culture. The "civility is of secondary concern" argument is, like so many other arguments, only valid when you agree on the issue. Society is a highly imperfect machine and civility is the lubricant that keeps it from breaking down. It's why classical liberal values are so important. Without them, you constantly are at risk of violence as the "evil" people on the other side are dehumanized.
Oh, and also, these protests are, at best, counterproductive.
I don’t know why Roe v Wade is where this is starting but I see it as the beginning of something. They will repeal Roe v Wade, I don’t think there’s any doubt about it but it’s just going to be the first thing to go. I wonder what society in North America will look like in five or ten years because it feels like a major shift is happening.
If this becomes a trend, judges will all move into gated communities. I’m sure that’s not a good thing.
I oppose the protests, not on ethical or moral grounds, but because I think they are counterproductive. They distract from the substance of what's about to happen (overruling Roe and Casey) and give our opponents a cheap talking point.
P.S. Does that protester want a hysterectomy?
1) In my humble opinion, the federal law prohibiting protests at the homes of judges, justices, and jurors is clearly constitutional. We don’t allow demonstrations in the courthouse for the same reason: we want judges, justices and jurors to decide cases based on the facts, evidence and arguments presented in court, not on the basis of political pressures or in response to mob pressure.
2) The argument in favor of the protests is that “this forthcoming opinion would be really, really, really bad.” That seems to me to be an unprincipled distinction. Suppose an Islamic terrorist is on trial for mass murder? Would it be OK for a mob to protest outside the homes of the judge and jurors, demanding that justice be served and the defendant convicted? Suppose it were a black defendant on trial for raping a white teenager? Once you say it’s OK to protest at the homes of judges, justices and jurors, that is what you’re going to get.
I think protesting at justices house is completely counterproductive, but I don’t think that they should be a special protected class. Other commenters have given examples of unquestioned protest at other residences. If we want to restrict this 1A activity, then the same time place and manner restriction should apply to every residence in the country.
I happen to live in a gated community; at one time we had daily protests at the main entrance, because an OBGYN who performed terminations lived in the community, so I do have some understanding of how disruptive such protests can be.
Here in Idaho during the pandemic, we've seen a lot of protests at the houses of public officials, mostly from the far-right. Ironically, many of those protests have also been in favor of bodily autonomy (i.e., anti vaccine mandates). We've seen protests at members of public health districts (including of one member's home during a meeting when her daughter was home alone, forcing the cancellation of the meeting); at the Boise mayor's house; at the house of a state judge (involved in a child protection case); at the houses of police officers who arrested people violating Covid restrictions.
Idaho policymakers have been moving towards putting restrictions on this form of protest through a coalition of Democrats (of which Idaho has three) and moderate Republicans. For us, I worry that the left endorsing home protests will undermine that coalition.
From a political standpoint, it seems to me like the home protests have harmed the far-right here in Idaho. Home protests alienate many people who don't hold the same confidence in the moral vision of the protesters. I would not be surprised if something similar happens with the SCOTUS protestors; the protests will give moderates who would normally be political allies the cover to reject the protestors' demands.
I am generally in favor of civility. However, I am more strongly committed to the idea that SCOTUS deserves a taste of their own medicine. This conservative court voted to overturn laws that establish buffer zones around abortion clinics, and did so on first amendment grounds. And, doing so was remarkably cruel. If that "time, place, and manner" restriction cannot hold then it would be the height of hypocrisy to sustain either the Federal or state laws protecting the homes of the justices. Why should the justices and their families have this form of protection, when the patients and staff of abortion clinics do not? Why should the important function of the courts be free from uncivil public influence, while those engaging in the constitutionally protected right of access to abortion do not?
I personally would not protest as I think the damage was done when Trump was elected. That being said, as long as the protests are peaceful, I don't have a problem with protests outside the residences of the Justices' homes. I "protest" by voting and donating to/volunteering for organizations/politicians up for election.
This article brushes over my primary question. You state that the statute is "likely constitutional," but should the statutes be evaluated in a vacuum? When you compare "protesting the Justices' homes" to any other protests which SCOTUS has upheld, I wonder how this restriction is a "reasonable time, place and manner" restriction while others are not.
Harassing a person on their way into Planned Parenthood? That's okay, as long as you're 8 feet away. (The opinion IMHO also disingenuously focuses on a "protestor" as a sweet little grandma type who is just whispering and politely talking to patients, and utterly ignoring the much more violent and angry protestors who are also there.) Yelling homophobic slurs at a funeral? That's fine too, can't do anything about that. Protesting in front of SCOTUS itself? Nope, we'll put up a huge buffer zone. One that's much larger than 8 feet. Protesting in front of a judge's house? Oh no, can't have that.
Also, has anyone complained about Anthony Fauci and other public health officials being protested at their homes? How about how Christine Blasey Ford literally had to move, TWICE, because people were protesting at her home?
Seems like us common folk just have to suck it up and deal with people "exercising their First Amendment rights" at us, but heaven forbid people in power also have to deal with the same protests.
There have been quite a few protests at the homes of public health officials during the pandemic in response to mask mandates and other requirements that were aimed to stop the spread of COVID. I admittedly saw those much more as protesting the office over the person, because many of the requirements were based in objective data. And, I was not happy to see those protests happening, because in my view I thought these people were doing their job.
Protesting at the justices' homes seems much more like protesting the person over the office, in my view. For me this is because the anticipated result in Dobbs is not actually compelled by anything except the justices' personal views/beliefs. (Though of course there is an argument that the five justices in favor of overturning Roe/Casey are just doing their job as well...)
I guess my view overall is that if people are allowed to protest at public health officials' homes, then they should be allowed to protest at the justices' homes, presuming that all protests are peaceful.
The issue about the Constitutionality of Section 1507 is more nuanced, because it does not merely prohibit "picket[ing] or parad[ing" with the "intent of influencing any judge . . . in the discharge of his duty" "in or near a building or residence occupied or used by such judge" BUT ALSO " in or near a building housing a court of the United States."
So, a protest against a forthcoming ruling cannot take place at the Courthouse, either. This law makes sense with regard to jurors, who are explicitly told that they should not be considering societal issues in reaching their decisions as judges of the facts. With regard to appellate judges, the law makes little to no sense, if the idea is to shield the judges from threats. Obviously, explicit threats should be dealt with harshly (I am still shaken by the death of Judge Salas' son and the wounding of her husband. I worked with Judge Salas when she was an AFPD and I was an AUSA).
I also disagree that this is truly a "time, place and manner" restriction. Such restrictions must be agnostic as to the content of the speech. The courthouse steps are a traditional First Amendment "public forum" for many issues in political debate. To the extent that the law distinguishes between protests of American policy in Cuba (as an example of an issue with no connection to the court system) and protests about Reproductive Freedom, that would not fit within the doctrine of "time, place and manner" restrictions. In the paradigmatic "time, place and manner" case, the restriction that was upheld banned the use of amplifiers in public parks during certain hours, without distinction regarding the content of the amplification. A Bach concerto was just as banned as a protest demanding a "Nuclear Freeze."
Truly peaceful, even silent, demonstrations about issues pending before the court at the courthouse are banned under Section 1507. But vocal demonstrations about non-court issues are not banned under Section 1507. And since the overbreadth doctrine for First Amendment cases means that a law that would be unconstitutional if applied in some situations is unconstitutional in all situations, I would not place a wager on either side.
I believe that it is counterproductive to have organized protests at the homes of judges. I also believe that citizens should have the right to assemble in the vicinity of the Courthouse to make their voices heard, at least with regard to matters on appeal.
I have to admit that even as a strong pro-choice advocate that I am uncomfortable with these protests (though I certainly understand and sympathize with the anger/passion behind them). The question is, "Where does it end?" Will this now become the norm in any politically-charged decision by the USSC (and for the record, and per my prior comments, this decision is "but the beginning", as we will see similar attacks on Obergefell, Loving, etc.)?
The thing is, I don't think that we would have seen this if the Supreme Court was not increasingly seen as an illegitimate arbiter of legal issues. Liberals rightfully are furious that it is Neil Gorsuch and not Merrick Garland on the high court (though to your point it begs the question of why HIS house isn't one of the ones in front of which there are protests). They are equally (and again rightfully, IMHO) apoplectic about ACB being on the court, when her nomination and confirmation were rammed through in a matter of days after some voting had already taken place on the 2020 election. When you factor in Brett Kavanaugh's presence on the court as well, despite credible allegations of sexual assault, you have a situation where 1/3 of the High Court--all of whom are set to vote to do away with Roe v. Wade--is in the eyes of a huge percentage of the population wrongly being allowed to decide a case that will impact millions of lives. So, anger and protests are entirely understandable, IMHO.
McCullen v. Coakley says 35 feet is unconstitutionally not close enough to harass women in the most private moments of their lives, but picketers 50 feet away on a sidewalk (blocked by a legion of police officers) somehow infringe on the same justices’ privacy… What a joke.
There are weekly protests outside Chuck Schumer’s home. My Governor of Texas lives right in downtown, next door to the Capitol, and is protested all the time. Nobody ever raised a hint of a problem despite the protests being about their “roles.”
When will our legal profession stop treating justices as if they’re prophets spreading God’s infallible word, but rather as decision-makers and people like everyone else?