The leaking of a Supreme Court justice’s draft opinion on abortion rights, followed by the “doxing” and targeting of individual justices at their homes, has led to calls for prosecution under a federal law prohibiting “pickets and parades” at the residences of judges or jurors. While I have condemned these protests, I believe the use of this law to arrest protesters would be a serious blow to free speech and would be difficult to defend in the courts.
Ironically, those who are harassing these justices likely would be protected by the very people they are targeting.
Under a federal law, 18 U.S.C. 1507, any individual who “pickets or parades” 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” near a U.S. court or “near a building or residence occupied or used by such judge, juror, witness, or court officer” will be fined or “imprisoned not more than one year, or both.”
On the key element of location, there is no question that protesters are picketing and parading near the residences of justices. (In one case, though, a protester in prior months thought she was targeting Justice Brett Kavanaugh’s home but picketed the wrong house; neighbors never told her of her mistake.)
Even after some groups supplied maps and addresses for the justices’ homes, President Biden could not muster the courage to denounce such acts. Days after insisting that the White House took no position on either the leaking of the draft opinion or the doxing of justices, White House press secretary Jen Psaki issued a tepid statement criticizing harassment, vandalism or violence directed at the justices.
Attorney General Merrick Garland also has failed in his leadership of the Justice Department. While Garland was quick to form a national task force to address parents protesting at school board meetings, he has had little to say about the targeting of justices.
Yet, demands that Garland arrest all of the protesters is a case of the pendulum swinging too far in the opposite direction. Such prosecutions could create a massive chilling effect on free speech, even if any convictions are unlikely to be upheld. After all, protests are common at the court itself, which is covered under the same federal provision; if it is unlawful to seek to influence a pending decision through picketing “near a U.S. court,” such protests could be viewed as crimes under this interpretation.
Obviously, picketing a justice at home is more direct and threatening, even with security standing outside. Yet, the focus of our laws should not be on the act of protesting but on actual threats or violence committed against justices or their families.
The claim that such protests are acts of intimidation has been before the courts since the 19th century. In Vegelahn v. Guntner, 167 Mass. 92 (1896), for example, the Massachusetts Supreme Court ruled that a labor union could be found guilty of an intentional tort by picketing a business. Oliver Wendell Holmes, then a state court justice who later famously joined the U.S. Supreme Court, dissented and rejected the notion that protests “necessarily and always thereby convey a threat of force.”
Even under this vague statute, protests are criminal only if they are done 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.” Certainly, today’s protesters are upset about Justice Samuel Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization, and they want to see Roe v. Wade preserved. However, few seriously believe that protesting at justices’ homes will make them more inclined to yield to mob demands. This is unadulterated rage by people who no longer recognize any limits of decency or civility in our political discourse.
If charged, the protesters likely would insist they were denouncing the justices’ views, not trying to coerce a change in those views. Many wanted to vent their rage directly at justices or use the home protests as a way to make the evening news.
Of course, the Constitution often supports those who would deny such protections to others. Many Democrats and liberal organizations have long advocated for sweeping investigations, criminalization or sanctioning of free speech. Reportedly at the encouragement of Biden administration officials, the National School Boards Association sent a letter calling for a Justice Department task force on threats by parents at school board meetings, despite the small number of such incidents. This included the suggested use of national security offices, which also were referenced in the Justice Department’s press release.
Likewise, many Democrats have sought to bar Republican candidates from election ballots for questioning the legitimacy of the 2020 presidential election or calling for a challenge to the certification of that election. Many of them are still demanding criminal charges against figures like former President Donald Trump for “inciting an insurrection” with his speech on Jan. 6, 2020. And some are using the same kind of overheated language as Trump, such as Chicago Mayor Lori Lightfoot’s tweet: “To my friends in the LGBTQ+ community — the Supreme Court is coming for us next. This moment has to be a call to arms … We will not surrender our rights without a fight — a fight to victory!”
Many Democrats also supported sweeping bans on protests near abortion clinics, like a law in Massachusetts that was struck down unanimously in McCullen v. Coakley in 2014. In a concurrence joined by Justices Anthony Kennedy and Clarence Thomas, then-Justice Antonin Scalia declared that “Protecting people from speech they do not want to hear is not a function that the First Amendment allows the government to undertake in the public streets and sidewalks.”
The same is true for the public streets and sidewalks near the homes of justices.
These protests are worthy of condemnation, not criminalization. Just because something is legal does not make it right. Fortunately, for these protesters, the people inside the homes they are targeting will likely protect them from prosecution — because the court will likely follow the lead of Oscar Wilde who said, “I may not agree with you, but I will defend to the death your right to make an ass of yourself.”
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.