Q&A Of the Day – Protesting Outside Supreme Court Justices' Homes


United States Supreme Court Building, Washington DC, America

Photo: Getty Images

Are SCOTUS Protests Illegal?  

The answer is yes, they are illegal. The federal statute which applies to this conversation is 18 U.S. Code 1507 – Picketing or parading. The statue states:  

Whoever, with the intent of interfering with, obstructing, or impeding the administration of justice, or with the intent of influencing any judge, juror, witness, or court officer, in the discharge of his duty, pickets or parades in or near a building housing a court of the United States, or in or near a building or residence occupied or used by such judge, juror, witness, or court officer, 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, shall be fined under this title or imprisoned not more than one year, or both. 

Right, so this isn’t even complicated. The reason this issue is so regularly glossed over, is that as a society we’re conditioned towards an understanding that we have freedom of expression. Which, in general, is true. We know there are specific limitations to free speech. The long-used example to illustrate the point is the false yelling of a fire in a crowded movie theater. Of course, that’s just an example of the broader point. In general, and this is true of all Constitutional protections generally, we’re free to do what we will in society provided we don’t use that freedom to create harm. When we’re using freedom of expression to attempt to intimidate a branch of government – there's no doubt that’s harmful. And that’s what the statute very clearly outlines. But you might have noticed something else when I was reading the statue that goes still further.  

While the law states: Whoever, with the intent of interfering with, obstructing, or impeding the administration of justice, or with the intent of influencing any judge, juror, witness, or court officer, in the discharge of his duty...in or near a building or residence occupied or used by such judge, juror, witness, or court officer... This question, which has been brought about by virtue of the protests at the homes of six Supreme Court Justices appointed by Republican Presidents this week, has been isolated to discussing the possibility of unlawful protests at the homes of targeted Justices. It shouldn’t be. The law also clearly states: Whoever, with the intent of interfering with, obstructing, or impeding the administration of justice, or with the intent of influencing any judge, juror, witness, or court officer, in the discharge of his duty, pickets or parades in or near a building housing a court of the United States. Well, that’s a pretty powerful piece of the statute, isn’t it? It’s not only flatly illegal for these protests to occur at the homes of Justices (or any judge in this country for that matter), its flatly illegal for similar protests in or near a building housing a court. Hey-ohh... So, could it be that even the protests at the Supreme Court are illegal? There’s definitely the case that could be made based on the law. The question is then what the definition of “near” is? 

I went to settled case law to find an answer. As the case would have it there’s a 1967 case involving the state of Florida involved. In the Adderley v. State of Florida case, it was ruled that: The First Amendment does not give citizens the right to exercise free speech rights on any government property at any time. “The State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated”. Well, there’s no doubt Supreme Court protests are potentially illegal. All property where protests take place is government property. But what needs to happen? This isn’t a matter of criminal law, whereby law enforcement, proactively would engage and enforce law. This is civil law, meaning the authority would need to pursue legal action. In the streets that could be The District of Columbia. Within the Supreme Court complex, that would be the Court itself at the discretion of the Chief Justice.  

About now you’re wondering why, if not only are home protests illegal, but so potentially are some around the court, nothing has happened to stop them...? This is the tangled web that’s woven when law is selectively applied. Historically the Supreme Court has tolerated potentially illegal protests near the Court out of deference to freedom of expression. The idea being that even if action could be taken to prevent it – they'd rather error on the side of expression as opposed to the appearance of the heavy hand of the highest court in the country. As is often the case, having laws that go unenforced can have unintended consequences. That’s what we’re seeing now. Ultimately, as it applies to the unlawful protests, it’s up to each individual Justice to pursue action against the protestors. That obviously hasn’t happened yet. We can speculate as to why, but just as liberties taken with unlawful protests at the court have resulted in unlawful protests at their homes, one wonders what eventually happens if the law isn’t brought to bear and a message sent to these unlawful assemblies. 

Each day I feature a listener question sent by one of these methods.  

Email: brianmudd@iheartmedia.com  

Gettr, Parler & Twitter: @brianmuddradio  

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