Wednesday, May 18, 2022

As a Matter of First Impression, Should Free Speech Protect the Right to Protest at Homes?

 by Michael C. Dorf

My latest Verdict column addresses the legal and strategic questions surrounding protests outside the homes of justices, judges, and other public officials. While recognizing the utter hypocrisy of the likes of insurrectionist-adjacent Josh Hawley calling for peaceful protesters to be prosecuted and that the issue could distract from the much larger looming disaster for American women as SCOTUS prepares to overrule the right to abortion, I nonetheless regard the questions as somewhat difficult. Here I want to step back a bit and consider the free speech question without the overhang of existing constitutional doctrine--especially the 1988 SCOTUS ruling in Frisby v. Schultz.

As I note in the column, Frisby found that the public have a right to peaceful protest in residential neighborhoods but not to engage in "targeted picketing"--i.e., protesting at length in front of any particular home. Is that the right line? Let's start from scratch.

Certainly by contemporary standards and even by the standards of the time, I don't think it is inappropriate for me to tell a story from my time as a SCOTUS law clerk over thirty years ago. Justice Kennedy's habit in preparing for oral argument in cases he found challenging or especially interesting was to gather the law clerks in his office in chambers for a discussion. One day we were discussing Int'l Societyy for Krishna Consciousness, Inc. v. Lee, which involved restrictions on solicitation in the public areas of the NYC-area airports. One of my co-clerks thought that the restrictions should be upheld. He said something like this: "My grandmother and others taking trips to visit family don't want to be approached by strangers. It's annoying."

I recall Justice Kennedy replied with a grin and said (more or less): "Well, the point of the First Amendment is to annoy people." Thus he staked out a more speech-friendly position than the majority in the case. Justice Kennedy would have found that the public areas of an airport were compatible with robust speech in much the same way as streets and sidewalks and should therefore be treated as a public forum. I thought he was right in saying so. But was he right about annoying people?

The short answer is that Justice Kennedy was exaggerating to make a point. The way he would and did put it in other contexts was that in order to ensure freedom of speech, we must all tolerate some annoying speech we would rather avoid--at least when we venture out into the public square. But surely there are limits to the annoyance we must tolerate. Threatening speech does more than annoy. Meanwhile, free speech requires a willing listener. In general, speakers should be granted the freedom to ascertain whether a potential listener regards their speech as welcome, but they can be required to take no for an answer. Otherwise, annoyance becomes harassment.

Those principles apply in the public square, but there are also particular places and occasions when and where it should be permissible for government to treat certain kinds of speech as presumptively unwelcome. Protests at funerals should be proscribable and, notwithstanding the peculiar facts of Snyder v. Phelps, they are. So too, limits on solicitation that would be impermissible in the open are permissible in crowded subways, as the Second Circuit held in 1990. And the Court's cases recognize the legitimacy of buffer zones at polling places and entrances to abortion clinics.

What about the home? At the outset, there is a distributional issue. Protection for privacy in the home disproportionately benefits the relatively well off. I don't want to dismiss this concern, but it seems to me the right response is to find some way to level up, so that people with very modest or no homes have some opportunities for the kind of shelter that the more fortunate do. Moreover, given the express protection for homes in the Third and Fourth Amendments, it would be at least a little odd to categorically reject an interest in protecting people in their homes.

There is another distributional issue, however, between urban residents versus suburban and rural ones. I currently live on a residential block in the Town of Ithaca. Limits on picketing or other kinds of potentially unwelcome speech in my neighborhood would keep protesters away from people who are only in their homes. However, I used to live in a fifth floor New York City apartment in a building that contained a pharmacy, a deli, and a movie theater that were accessible from the street. Was that a residential neighborhood?

Well, yes and no. Many people lived in the neighborhood but there were also many businesses as well. Any regulation premised on the notion of protecting people when they have retreated to their homes would have been substantially overbroad in restricting speech aimed at commercial or other public actors. Moreover, the fact that many white-collar workers worked from home for years at a time during the pandemic--and that some will continue to do so indefinitely--further complicates any distinction between residential and non-residential neighborhoods.

Accordingly, there may be insuperable difficulties in drawing a line between pickets and other speech in residential versus non-residential neighborhoods. But what would we say in principle if there were not? Suppose everyone lived in their own one-family house on a quiet street. Would we want to say that the correct free speech line to draw allows picketers to march through that street but not linger in front of any one house, as the Frisby Court did?

Perhaps. I am sympathetic to the Frisby Court's line. I wouldn't want a constitutional rule that treats all uninvited intrusions into residential neighborhoods as proscribable. It's true that most people will find the Jehovah's Witnesses or Hare Krishnas who knock on their door annoying, but until they get no for an answer, they should have a right to ask whether any particular resident is interested in the good news (in the Gospels or the Bhagavad Gita, depending on who's doing the knocking). At the same time, I would allow a rule that deems anyone who ignores a prominently displayed "no solicitations" sign a trespasser, much in the way that the do-not-call registry strikes me as consistent with the First Amendment (albeit not enforced, given the number of spam calls I receive anyway).

Put differently, some annoyance is the price we pay for the First Amendment. But we shouldn't pay any more than necessary to ensure the possibility of fair access to willing listeners.