The First Amendment And Peaceful Protests On Public Sidewalks
The U.S. Supreme Court eviscerated the First Amendment in a decision earlier this year and now ignores it while demanding a halt to peaceful protests at Justices' homes
Years ago, the U.S. Supreme Court almost certainly would have overturned a Virginia law banning the picketing of private residences or assembling to “disrupt any individual’s right to tranquility in his home.”
Yet, U.S. Supreme Court Marshall Court Gail Curley recently wrote to officials in Virginia and Maryland demanding a halt to peaceful protests by pro-choice abortion activists at the Justices’ homes. She cited the Virginia statute as support in a letter to Virginia Gov. Glenn Youngkin.
The Virginia law is so vague and overly broad that it is doubtful it could pass “strict scrutiny,” the highest level of judicial review, which is applied to a law that infringes upon a fundamental right guaranteed to all citizens. (i.e. freedom of speech). It’s also not content-neutral.
The Court ruled 8-1 in 2011 that the First Amendment protected the right of the fundamentalist Westboro Baptist Church to hold an anti-gay protest outside a church where a military funeral was being held. The picketers, standing on public land, peacefully displayed signs stating “Fags Doom Nations,” “Priests Rape Boys,” and “You’re Going to Hell.” The Court said speech on public matters is most sacrosanct under the First Amendment.
The First Amendment says “Congress shall make no law … prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble…”
Court Carves Out 1st Amendment Exception
The Marshall’s letter to Gov. Younkin is also somewhat ironic in that it follows a Court decision on June 8 that arguably is one of the worst decisions in the Court’s history.
The Court expressed concern that allowing federal employees to be sued civilly for violating the First Amendment rights of citizens would pose a “risk that fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties.”
So the Court carved out a First Amendment exception for federal employees.
The Court, where the buck stops on interpreting the Constitution, concluded that Congress was in a “better position” to decide whether “the public interest would be served by imposing damages on federal officials.”
The case involved the owner of a bed and breakfast in Washington state, Robert Boule, who filed a complaint alleging he was physically assaulted by Border Patrol Agent Erick Egbert after he told Egbert to get off his property. Egbert was investigating a hotel guest who was in the country legally.
In retaliation, Egbert then reported Boule’s license plate to Washington’s Dept. of Licensing for illegal activity and asked the local assessor and the IRS to investigate. All of them investigated but found no impropriety.
The Court’s decision left Boule without redress for a clear violation of his First Amendment rights. So what if Boule suffered the fear and indignity of a physical assault by a federal agent? So what if he had to pay an accountant $5,000 to defend an IRS audit? God forbid federal employees should be placed in fear of a lawsuit?
(Meanwhile, Americans can sue state and local government employees for violating their First Amendment rights under 42 U.S.C. § 1983).
Is Congress in a '‘better position’ to decide whether folks can walk on public sidewalks in front of private homes, chanting "Your neighbor says post-Roe, we say hell no!"
What about these pro-choice activists who are marching on the public sidewalk in front of the justices homes. It’s unpleasant, for sure, but is it protected by the First Amendment’s guarantee of free speech and to peaceful assembly?
Hmmm… This is surely a question for Congress.
Under strict scrutiny, the government must show that there is a compelling interest in the law and that the law is either very narrowly tailored or the least restrictive means to achieve the goal.