Mia Brett
May 14, 2022
Protest (Wade Jackman / Shutterstock.com)
The right to peaceably assemble and protest is dearly held in the American imagination dating back to the Boston Tea Party.
While the response to peaceful protests by non-white people and women was not always embraced at the time, the narratives of suffrage parades and Civil Rights marches have been embraced in American history as the “right” way to protest free of violence or incitement.
Despite the near-universal praise for peaceful protests of the past, when activists take these historical lessons to heart and protest current injustices, those in power must be reminded anew each time that peaceful protest is vital to American history and a thriving democracy.
And so we are once again left to educate Supreme Court justices and senators on the Bill of Rights and assure them that people holding signs outside their homes are not a threat, but simply exercising one of our most treasured freedoms – the freedom to tell a powerful person they’ve royally screwed up.
This past week protests erupted outside Justices Kavanaugh, Roberts and Alito’s homes to protest the likely overturning of Roe v. Wade after Justice Alito’s draft opinion was leaked for Dobbs v. Jackson Women’s Health.
The protests outside the Justices' homes, and the terrifying sidewalk chalk incident outside of Senator Collins’ home, have been peaceful. Yet many are clutching their pearls at the idea that someone could face protests at their private home.
It’s not clear why these protests are so offensive to people or why the private home of people questioning a constitutional right to privacy should be off limits.
Some have claimed these protests aren’t fair to their neighbors but the protests in front of Justice Kavanaugh’s home were organized by a neighbor and protestors felt pretty supported by Justice Alito’s neighbors with some even offering wine and cheese to a reporter covering them.
When asked about these protests, Senator Schumer shrugged them off and said such peaceful protests are “the American way.” He would know since he faces protests at his home in Brooklyn multiple times a week (without calling the police as far as I know).
The right of “freedom of assembly” is held in the First Amendment of the Bill of Rights, which protects freedom of speech and the right to peaceably assemble and petition the government for a redress of grievances.
The Supreme Court has also repeatedly protected this right in the face of government intrusion.
In De Jong v. Oregon in 1937, the Supreme Court said the state could not interfere in De Jong’s right to organize a protest against police brutality. This case was particularly important in that it emphasized a difference between “advocacy” and “incitement” in that advocacy for communist ideas did not necessarily incite violence to overthrow the government.
It struck down Oregon’s “criminal syndicalism” law, which prohibited advocacy of “any unlawful acts or methods as a means of accomplishing or effecting industrial or political change or revolution.”
In Edwards v. South Carolina in 1963, the Supreme Court overturned the convictions of students for supposedly “disturbing the peace” when they were protesting segregation. The majority opinion wrote that the students were exercising their First Amendment rights in the “most pristine form.”
Freedom of assembly clearly has limits with one built right into the language of the First Amendment in that the assembly must be “peaceable.”
Violent action, like speech that incites violence, is not protected.
While this is a reasonable limit, it also provides an unfortunate method of delegitimizing protest – those in power can claim protests are inciting violence or lawlessness.
In Justice Clark’s lone dissent in Edwards v. South Carolina, he employed the threat of violence to justify the police’s actions in arresting the peaceful protestors. Clark claimed the protestors were not engaging in a “passive demonstration” and that the police were preventing a possible riot.
The fear of possible violence supported laws passed after the Nat Turner rebellion in 1831 to prohibit the assembly of free Black people all over the south.
The majority of these assemblies were peaceful and often devoted to schooling or religious worship. But the threat of another rebellion was enough to justify outlawing this basic constitutionally protected freedom. Theodore Dwight Weld said these laws were indicative of “‘the right of peaceably assembling’ violently wrested” in 1836.
At the same time in the north, abolitionists, including free Black people and white women, were taking advantage of this constitutional right to hold meetings, conventions and give speeches.
While these abolitionist tactics set the stage for the suffrage movement and the Civil Rights movement, many at the time criticized an assembly of a mixed gender and interracial group.
The behavior of the abolitionists were criticized while mobs disrupted their meetings and speeches. At an 1835 meeting of the Boston Female Anti-Slavery Society, the mayor burst in with his constables to demand the women go home rather than control the mob of people disrupting the meeting.
Racial justice protests in recent years have been delegitimized with claims of violence and looting even though data shows that 93 percent of such protests were completely peaceful.
While there have been no reports of violence as a result of abortion protests this week, even though Susan Collins called the police about sidewalk chalk, the Senate has still decided to pass a bill to increase security for Supreme Court justices.
While not a big deal on its face (who cares if they have security), the need for the bill implies a threat of violence that there is no evidence for.
Once again completely peaceful protests are being maligned with the mere possibility of future violence which would delegitimize their constitutional protection.
The governors of Maryland and Virginia are trying to stop the protests by demanding that the Department of Justice enforce a federal law that prohibits demonstrations intended to influence judges on decisions.
This is a particularly obnoxious attempt to stop the protests considering justices are clearly influenced by politics and conservative justices regularly give speeches at political gatherings. Clarence Thomas won't even recuse himself from January 6 cases despite his wife’s involvement.
It’s ridiculous to think any of these justices would be swayed by public opinion and enforcing this law to stop the current protests could set a dangerous precedent that limits constitutional rights if protesting anything related to a Supreme Court case.
The real history of protesting in the United States is that those in power are always threatened and seek to find ways to suppress protests, but the public imagination forgets those actions and fondly remembers successful protests as deeply American. Senators and justices concerned with their legacy might want to reread how much our history books love a good protest.
Mia Brett, PhD, is a legal historian. She lives with her gorgeous dog, Tchotchke. You can find her @queenmab87
Republicans want Supreme Court demonstrators arrested. Is that legal?
Jon Skolnik, Salon
May 14, 2022
Sen. Tom Cotton (R) - (Photo by Tasos Katopodis for AFP)
Hundreds of pro-choice demonstrators have gathered outside the homes of conservative Supreme Court Justices Samuel Alito, Brett Kavanaugh, and John Roberts since a draft decision reversing Roe v. Wade, the landmark 1973 decision affirming America's constitutional right to abortion, leaked. The protests – featuring signs, chants, and candle-lit vigils – have remained peaceful demonstrations. But while no threats or acts of violence have been reported in connection to these demonstrations, Republicans are already tarring them as immoral, illegal, and even terroristic, going so far as to call on the Justice Department to prosecute individuals.
On Wednesday, Sen. Tom Cotton, R-Ark., said that the protesters "should be arrested for protesting in the homes of judges, jurors and prosecutors."
"There is a federal law that prohibits the protesting of judges' homes," Cotton told NBC News. "Anybody protesting a judge's home should be arrested on the spot by federal law enforcement. If [protesters] want to raise a First Amendment defense, they are free to do so."
"The President may choose to characterize protests, riots, and incitements of violence as mere passion," Sen. Chuck Grassley, R-Iowa, echoed in a Wednesday letter to Attorney General Merrick Garland. "But these attempts to influence and intimidate members of the federal judiciary are an affront to judicial independence."
The Republican governors of both Virginia and Maryland, where the three justices' homes are located, have also joined the chorus, urging Garland to "provide appropriate resources to safeguard the justices and enforce the law as it is written."
Even some Democrats came forward to condemn the demonstrations, including most notably Sen. Dick Durbin, D-Ill., who this week went so far as to call the protests "reprehensible."
"Stay away from the homes and families of elected officials and members of the court," Durbin told CNN. "You can express yourself, exercise your First Amendment rights, but to go after them at their homes, to do anything of a threatening nature, certainly anything violent, is absolutely reprehensible."
To make their case, Republican pundits and politicians have for the most part hung their hat on an esoteric legal statute, first enacted in 1950, that makes it illegal to picket or parade "in or near a building or residence occupied or used by [a] judge, juror, witness, or court officer" with "the intent of influencing [that] judge." The statute, 18 U.S. Code § 1507, is seemingly designed to protect members of the judiciary from protests that might obstruct justice through fear or intimidation and was first enacted as part of the "Internal Security Act of 1950," a McCarthy-era law that sought to address fears that communism was creeping into the judiciary.
Historically, the courts have hewed closely to laws that protect juries and justices from any outside political influences, as Law & Crime noted. Still, the legality of the protests remains something of an open question.
Alvin B. Tillery, Jr., an associate professor of political science at Northwestern University, told Salon that it's unlikely this week's demonstrations would be ruled illegal under 18 U.S. Code § 1507.
"I always have read [that statute] as 'impeding the officers ability to get to the court, or from the court to take part in proceedings' ... or terrorizing them with loudspeakers in front of their houses," he explained in an interview. "There's really no interpretation by which one could say that [the protests are] untoward or illegal in my understanding of the law and the Constitution and the history of protest in our country."
Anuj C. Desai, a professor of law at the University of Wisconsin, expressed a little more doubt, arguing that the statute could be applied. But still, he added, very little case law in the U.S. has actually ventured into the territory of the situation at hand.
"I think if [the protesters] did get prosecuted, there would be reasonable arguments about the interpretation of the statute that have not played out in the courts."
One pertinent legal case, Desai said, is Cox v. Louisiana, a 1965 case in which the Supreme Court affirmed a state law that made picketing before a courthouse illegal. The case specifically centered on Benjamin Elton Cox, a civil rights activist who was convicted of disturbing the peace after organizing a thousands-strong march outside of a Baton Rouge courthouse. The facts around Cox v. Louisiana "were relatively sympathetic" for the protestors, DeSai said, "and the Supreme Court still said [Louisiana's statute] is carefully drawn."
Another past case that stands out, as The Washington Post notes, is Frisby v. Schultz, which stems from a 1988 picket organized in Brookfield, Wisconsin by two anti-abortion activists outside the home of an abortion doctor. Both activists claimed that a town ordinance banning the demonstration violated their First Amendment rights. Citing "a special benefit of the privacy all citizens enjoy within their own walls," the Supreme Court ultimately upheld the ordinance, arguing goals of the protests could be achieved through other means of communication.
"I do not believe that picketing for the sole purpose of imposing psychological harm on a family in the shelter of their home is constitutionally protected," wrote then-Justice John Paul Stevens, adding that there is "little justification for allowing them to remain in front of his home and repeat it over and over again simply to harm the doctor and his family."
Apart from local ordinances, like Wisconsin's, a judge might also consider state codes. This strategy could prove especially successful in Virginia and Maryland, both of whose criminal statutes put a strong emphasis on the preservation of the home as a place of tranquility.
"The practice of picketing before or about residences and dwelling places causes emotional disturbance and distress to the occupants," states the Maryland criminal code. "The purpose of this practice is to harass the occupants of the residences and dwelling places."
Virginia statutory law imposes a similar restriction: "Any person who shall engage in picketing before or about the residence or dwelling place of any individual, or who shall assemble with another person or persons in a manner which disrupts or threatens to disrupt any individual's right to tranquility in his home, shall be guilty of a Class 3 misdemeanor."
All a prosecutor would need to do, then, under Virginia or Maryland law is establish that the demonstrations disrupted the tranquility within Alito, Kavanaugh, or Roberts' homes.
But if prosecutors were to argue that the demonstrations violated 18 U.S. Code § 1507, they would have to establish that the protesters intended to distress these three justices – a task which would likely require a lot of heavy lifting, suggested Sheila Bedi, a clinical professor of law at Northwestern University.
"A prosecutor could look at things like notices of the protest, if there's any social media posts, but again, I think it's highly unlikely that anybody out there protesting really believes that Justice Alito is going to change his opinion as a result of the protests. And because of that, I think anybody who was charged under the statute would have a strong defense," Bedi said. "I think the reality is that the movement has known that this was a possibility for a long time because of the organizing that happened on the right. And this is about harnessing the political moment far more than it is about trying to influence the judges."
Desai likewise said that prosecutors would be bedeviled with "proof problems" relating to mens rea, or the state of mind protesters were in during the demonstrations. "This one just looks like it would be that aspect of it that would be hard to prove," Desai said.
Thus far, the Justice Department has not signaled that it will be pursuing legal action against any of the demonstrators, and there have been no arrests at this point. Department spokesperson Anthony Coley on Wednesday said that the agency "continues to be briefed on security matters related to the Supreme Court and Supreme Court justices.
Jon Skolnik, Salon
May 14, 2022
Sen. Tom Cotton (R) - (Photo by Tasos Katopodis for AFP)
Hundreds of pro-choice demonstrators have gathered outside the homes of conservative Supreme Court Justices Samuel Alito, Brett Kavanaugh, and John Roberts since a draft decision reversing Roe v. Wade, the landmark 1973 decision affirming America's constitutional right to abortion, leaked. The protests – featuring signs, chants, and candle-lit vigils – have remained peaceful demonstrations. But while no threats or acts of violence have been reported in connection to these demonstrations, Republicans are already tarring them as immoral, illegal, and even terroristic, going so far as to call on the Justice Department to prosecute individuals.
On Wednesday, Sen. Tom Cotton, R-Ark., said that the protesters "should be arrested for protesting in the homes of judges, jurors and prosecutors."
"There is a federal law that prohibits the protesting of judges' homes," Cotton told NBC News. "Anybody protesting a judge's home should be arrested on the spot by federal law enforcement. If [protesters] want to raise a First Amendment defense, they are free to do so."
"The President may choose to characterize protests, riots, and incitements of violence as mere passion," Sen. Chuck Grassley, R-Iowa, echoed in a Wednesday letter to Attorney General Merrick Garland. "But these attempts to influence and intimidate members of the federal judiciary are an affront to judicial independence."
The Republican governors of both Virginia and Maryland, where the three justices' homes are located, have also joined the chorus, urging Garland to "provide appropriate resources to safeguard the justices and enforce the law as it is written."
Even some Democrats came forward to condemn the demonstrations, including most notably Sen. Dick Durbin, D-Ill., who this week went so far as to call the protests "reprehensible."
"Stay away from the homes and families of elected officials and members of the court," Durbin told CNN. "You can express yourself, exercise your First Amendment rights, but to go after them at their homes, to do anything of a threatening nature, certainly anything violent, is absolutely reprehensible."
To make their case, Republican pundits and politicians have for the most part hung their hat on an esoteric legal statute, first enacted in 1950, that makes it illegal to picket or parade "in or near a building or residence occupied or used by [a] judge, juror, witness, or court officer" with "the intent of influencing [that] judge." The statute, 18 U.S. Code § 1507, is seemingly designed to protect members of the judiciary from protests that might obstruct justice through fear or intimidation and was first enacted as part of the "Internal Security Act of 1950," a McCarthy-era law that sought to address fears that communism was creeping into the judiciary.
Historically, the courts have hewed closely to laws that protect juries and justices from any outside political influences, as Law & Crime noted. Still, the legality of the protests remains something of an open question.
Alvin B. Tillery, Jr., an associate professor of political science at Northwestern University, told Salon that it's unlikely this week's demonstrations would be ruled illegal under 18 U.S. Code § 1507.
"I always have read [that statute] as 'impeding the officers ability to get to the court, or from the court to take part in proceedings' ... or terrorizing them with loudspeakers in front of their houses," he explained in an interview. "There's really no interpretation by which one could say that [the protests are] untoward or illegal in my understanding of the law and the Constitution and the history of protest in our country."
Anuj C. Desai, a professor of law at the University of Wisconsin, expressed a little more doubt, arguing that the statute could be applied. But still, he added, very little case law in the U.S. has actually ventured into the territory of the situation at hand.
"I think if [the protesters] did get prosecuted, there would be reasonable arguments about the interpretation of the statute that have not played out in the courts."
One pertinent legal case, Desai said, is Cox v. Louisiana, a 1965 case in which the Supreme Court affirmed a state law that made picketing before a courthouse illegal. The case specifically centered on Benjamin Elton Cox, a civil rights activist who was convicted of disturbing the peace after organizing a thousands-strong march outside of a Baton Rouge courthouse. The facts around Cox v. Louisiana "were relatively sympathetic" for the protestors, DeSai said, "and the Supreme Court still said [Louisiana's statute] is carefully drawn."
Another past case that stands out, as The Washington Post notes, is Frisby v. Schultz, which stems from a 1988 picket organized in Brookfield, Wisconsin by two anti-abortion activists outside the home of an abortion doctor. Both activists claimed that a town ordinance banning the demonstration violated their First Amendment rights. Citing "a special benefit of the privacy all citizens enjoy within their own walls," the Supreme Court ultimately upheld the ordinance, arguing goals of the protests could be achieved through other means of communication.
"I do not believe that picketing for the sole purpose of imposing psychological harm on a family in the shelter of their home is constitutionally protected," wrote then-Justice John Paul Stevens, adding that there is "little justification for allowing them to remain in front of his home and repeat it over and over again simply to harm the doctor and his family."
Apart from local ordinances, like Wisconsin's, a judge might also consider state codes. This strategy could prove especially successful in Virginia and Maryland, both of whose criminal statutes put a strong emphasis on the preservation of the home as a place of tranquility.
"The practice of picketing before or about residences and dwelling places causes emotional disturbance and distress to the occupants," states the Maryland criminal code. "The purpose of this practice is to harass the occupants of the residences and dwelling places."
Virginia statutory law imposes a similar restriction: "Any person who shall engage in picketing before or about the residence or dwelling place of any individual, or who shall assemble with another person or persons in a manner which disrupts or threatens to disrupt any individual's right to tranquility in his home, shall be guilty of a Class 3 misdemeanor."
All a prosecutor would need to do, then, under Virginia or Maryland law is establish that the demonstrations disrupted the tranquility within Alito, Kavanaugh, or Roberts' homes.
But if prosecutors were to argue that the demonstrations violated 18 U.S. Code § 1507, they would have to establish that the protesters intended to distress these three justices – a task which would likely require a lot of heavy lifting, suggested Sheila Bedi, a clinical professor of law at Northwestern University.
"A prosecutor could look at things like notices of the protest, if there's any social media posts, but again, I think it's highly unlikely that anybody out there protesting really believes that Justice Alito is going to change his opinion as a result of the protests. And because of that, I think anybody who was charged under the statute would have a strong defense," Bedi said. "I think the reality is that the movement has known that this was a possibility for a long time because of the organizing that happened on the right. And this is about harnessing the political moment far more than it is about trying to influence the judges."
Desai likewise said that prosecutors would be bedeviled with "proof problems" relating to mens rea, or the state of mind protesters were in during the demonstrations. "This one just looks like it would be that aspect of it that would be hard to prove," Desai said.
Thus far, the Justice Department has not signaled that it will be pursuing legal action against any of the demonstrators, and there have been no arrests at this point. Department spokesperson Anthony Coley on Wednesday said that the agency "continues to be briefed on security matters related to the Supreme Court and Supreme Court justices.
