More than three decades later, with another matter of residential picketing before the court but on a more personal basis, there is a certain irony in the factual framework of O’Connor’s opinion.
Then the judges grappled with the issue of protesters gathering outside the home of a doctor who performed abortions — carrying signs, shouting slogans and warning children to stay away from the “baby killer”.
Now the tables have turned. The picketers are protesting the court’s decision to eliminate constitutional protection for abortion. And their intended targets are the homes of the judges themselves, on the leafy streets of Chevy Chase, Maryland, and suburban Virginia.
Earlier this month, Supreme Court Marshal Gail A. Curley wrote to state governors and local leaders asking them to enforce existing prohibitions against residential picketing.
“For weeks, large groups of protesters chanting slogans, using megaphones and beating drums have been picketing the judges’ homes in Montgomery County,” Curley wrote to Montgomery County Executive Marc Elrich. “This is exactly the kind of conduct the laws of Maryland and Montgomery County prohibit.”
A Montgomery County ordinance states that protesters “shall not picket in front of or adjacent to a private residence.” They are allowed to march through residential areas, but “without stopping at any particular private residence”.
But Elrich, responding in public comments Wednesday, declined Curley’s request. He dismissed it as a publicity stunt: ‘It’s not about security when you get a message from the press office about security,’ he said of the letter, which was made public .
And he cited the example of authoritarian regimes: “I think all you have to do is look at Putin’s Russia and get an idea of where you don’t want to go,” Elrich said. “This idea where people can congregate and if you congregate you are going to be arrested. It’s not happening here.
I am heartbroken – furious – at the brute force movement of the Conservative majority to remove half a century of reproductive freedom and precedent. My sympathies go out to the protesters. And I am unwavering in my support for free speech rights; my work and my country depend on strong support for the First Amendment.
But count me with Curley – and O’Connor – on Elrich. The pickets at the judges’ homes — they primarily targeted Justice Brett M. Kavanaugh — are out of place. As I have already written, they are useless; protesters can make their views widely known before the court itself. They are, if necessary, counter-productive. Maybe making judges’ lives miserable will help people feel better, but it won’t accomplish anything more.
Judges and their families deserve as much protection from the bombings inside their own homes as abortion doctors. So yes, yet another irony: the privacy rights that conservative judges have given the backhand in Dobbs v. Jackson Women’s Health Organization plead for the authorities to intervene to protect them at home.
This is a tricky area of First Amendment law. Streets – even quiet suburban ones – are seen as traditional public forums. This means that they cannot be banned from demonstrations. “Streets, sidewalks, parks, and other similar public places are so historically associated with the exercise of First Amendment rights that access to them for the purpose of exercising those rights cannot constitutionally be broadly and absolutely denied,” observed the court in a 1968 case.
But as long as they don’t make distinctions based on content of speech – for example, allowing picketing for labor organizing but not for other purposes – governments can impose carefully defined restrictions on protests. .
That’s precisely what Montgomery County did — and for the sake of the judges, their beleaguered families, and at least some of their exasperated neighbors — Elrich should enforce the law as written. That will still leave the streets of Chevy Chase a far cry from Vladimir Putin’s Russia.
There is also a federal law that prohibits picketing outside the homes of judges and others involved in the justice system “with intent to influence any judge, juror, witness, or officer of the court in the performance of his or her duties.” . But in the case of picketing motivated by the abortion decision, as noted by UCLA law professor Eugene Volokh, “such intent can be difficult to prove, especially after the decision has rendered and the judges have already discharged their duties”.
From an intellectual point of view, the question of whether picketing can be limited is separate from questions of protecting the safety of judges – in particular the chilling fact that a Californian man was recently charged with trying to murder Kavanaugh and showed up at his home in the middle of the night with a cache of weapons and ammunition, according to court documents. The scope of protesters’ free speech rights should not be limited by the deranged and criminal behavior of others.
But in common sense, in terms of where we are as a community and how we want to behave as fellow citizens, how can we separate them? Those who share my pro-choice views have backed down from protests targeting abortion providers and clinic workers in their homes, and they have not shied away from associating these actions with clinic bombings or murders. of doctors.
It should be possible to find ways to express justified outrage against conservative judges without terrorizing them and their families. Can’t we at least handle this?