Residential Picketing and Abortion

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I’ve seen some people argue that the Supreme Court’s objection to the picketing of Justices’ homes about abortion is inconsistent with the Court’s upholding the right to picket outside abortion clinics, or stressing the right to protest more broadly.

It’s worth noting, though, that bans on residential picketing have been particularly useful to, among other people, abortion providers. Frisby v. Schultz (1988), upheld a content-neutral ban on targeted picketing that was prompted by picketing “outside the … residence of a doctor who apparently performs abortions.” That opinion was written by Justice O’Connor, and joined by Chief Justice Rehnquist and Justices Blackmun, Kennedy, and Scalia; Justice White concurred as to the principle. Justices Brennan, Marshall, and Stevens dissented.

Then in Madsen v. Women’s Health Center (1994), the Court considered an injunction banning picketing within 300 feet of abortion clinic employees’ homes. The Court struck that down, because

[T]he 300-foot zone around the residences in this case is much larger than the zone provided for in the ordinance which we approved in Frisby…. [That] prohibition was limited to “focused picketing taking place solely in front of a particular residence.” By contrast, the 300-foot zone would ban “[g]eneral marching through residential neighborhoods, or even walking a route in front of an entire block of houses.”

But the majority (here, Chief Justice Rehnquist, joined by Justices Blackmun, O’Connor, Souter, Ginsburg, and Stevens) reaffirmed Frisby, as to “targeted residential picketing.” (Justices Scalia, Kennedy, and Thomas viewed such injunctions as unconstitutional prior restraints, but didn’t cast doubt on the correctness of Frisby as to content-neutral ordinances.)

So the rule seems clear: Content-neutral bans on residential picketing are constitutionally permissible. And that would apply whether the residence is that of an abortion provider or that of a Justice who ruled that the Constitution doesn’t secure abortion rights. Perhaps Justices Brennan and Marshall (and possibly Stevens, though his position in Frisby was more complex) were right to reject this, and to conclude that people should be free to picket outside the homes of everyone (again, abortion providers or others). But the current rule upholding residential picketing bans has been useful to abortion providers as well as others.

UPDATE: For more on whether the bans being discussed in this situation are indeed content-neutral and therefore valid, see this post as to Maryland and this post as to Virginia. (Summary: Maryland law very likely invalid, Virginia law likely invalid, Montgomery County ordinance likely valid.)

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