Residential Picketing in Virginia (Outside a Justice’s Home or Otherwise)

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[UPDATE, 5/6/2022, 5:51 pm: A commenter noted that there’s a separate federal statute that seems to ban certain kinds of residential picketing outside judges’ homes in general, which may well apply entirely apart from the Virginia statute I noted below; I’m looking into this now, and plan to post a more detailed update when I track it down.]

[FURTHER UPDATE, 5/6/2022, 6:19 pm: See this follow-up post for more on that federal statute, which I think would indeed outlaw picketing outside federal judges’ homes aimed at influencing their decisions. What I say below about the Virginia law remains correct, I think, but is rendered largely irrelevant by the federal statute, it seems to me (at least to the extent that the federal authorities enforce the federal law).]

There’s been talk of protests outside Supreme Court Justices’ homes; and there’s been talk that such protests are illegal in Virginia (where some of the Justices apparently live). I think protesting targeted at a person’s home is generally bad, because it’s generally aimed more at intimidation than persuasion; I also think it would be ineffective in this instance, because Supreme Court Justices aren’t easy to intimidate (and the publicity is likely to backfire against the protesters). But here I want to talk about whether such protesting is legal.

The Supreme Court has decided three cases about residential picketing.

[1.] Frisby v. Schultz (1988) held that a content-neutral law banning all picketing targeted at a particular home is generally constitutional, at least so long as protesters remain free to march through the neighborhood without focusing on a particular home. (This case actually happened to involve the residential picketing of an abortion provider, and the ordinance was prompted by such picketing; but the ordinance applied to picketing on all topics, and so did the Court’s decision.)

[2.] Carey v. Brown (1980) held that a content-based law that exempted “peaceful picketing of a place of employment involved in a labor dispute” was unconstitutional, because it “accords preferential treatment to the expression of views on one particular subject; information about labor disputes may be freely disseminated, but discussion of all other issues is restricted.”

[3.] Madsen v. Women’s Health Center (1994) held that a content-neutral injunction that banned residential picketing within 300 feet of particular people’s homes was unconstitutionally overbroad, though suggested that a similar injunction that banned targeted residential picketing “before or about the residence or dwelling” of a person would be fine. (This too involved anti-abortion picketing of abortion providers, but again the logic of the decision applied to picketing on all topics.)

Virginia is one of the few states that does ban residential picketing (some cities and counties do as well); but its statute is precisely of the sort held to be unconstitutionally content-based by Carey. It too excepts “the picketing in any lawful manner, during a labor dispute, of the place of employment involved in such labor dispute,” which is the very exclusion that doomed the statute in Carey.

Now, to be sure, that exception on its face doesn’t mention the content of speech. In principle, it could be read as allowing residential picketing on any subject, so long as the targeted home is a place of employment happens to be involved in a labor dispute. But in Carey, the lower courts had interpreted the exception as focusing on labor-related speech:

Throughout this litigation, however, all parties and the courts below have interpreted the statutory exception for “peaceful picketing of a place of employment involved in a labor dispute” as embodying the additional requirement that the subject of the picketing be related to the ongoing labor dispute.

And whether or not courts would interpret the Virginia provision the same way, it seems clear that the exception “cannot be justified without reference to the content of the regulated speech” (Reed v. Town of Gilbert (2015) (cleaned up)), and must therefore “be considered content-based”: The only possible justification for the labor dispute exception is precisely to facilitate labor-related speech.

Had the Virginia Legislature revisited the subject after 1980, when it was clear that its statute was unconstitutional, or after 1988, when it was clear that it could be saved by just excluding the labor picketing exception, then residential picketing would be illegal in Virginia today. But there was no such amendment, so the Virginia law is likely just as invalid as the Illinois law struck down in Carey.

Now it’s possible that some cities or counties in the D.C. area might have their own residential picketing ordinances that are content-neutral and therefore valid. A quick and noncomprehensive search suggests that Prince George’s County and Gaithersburg in Maryland have such ordinances. Manassas and Culpepper in Virginia have somewhat similar ordinances as well, though they’re more complicated. But I couldn’t find any similar ordinances in the Virginia D.C. suburbs or in the Montgomery County D.C. suburbs.

It’s also possible that a court might issue a content-neutral injunction against such picketing, much as the court did in Madsen, and limit the injunction to just targeting picketing in front of the home, thus avoiding the overbreadth objection that doomed the Madsen injunction. I’m skeptical that such an injunction could rely on the Virginia residential picketing statute; though that statute does say “any court of general equity jurisdiction may enjoin conduct, or threatened conduct, proscribed by this article,” I think any such injunction would have to be consistent with the statute and thus would be unconstitutionally content-based. But perhaps a court might rest the injunction on state law principles (perhaps related to the torts of nuisance or intrusion on seclusion); I can’t speak to whether that would work under Virginia injunction principles. In any event, someone would have to go to court first to get that sort of injunction.

Finally, it’s possible that a Virginia court would sever the unconstitutional content-based exception from the statute, thus invalidating the exception, making the statute content-neutral, and then upholding (under Frisby) the result. But while this has been done on occasion (see, in the federal system, Barr v. American Ass’n of Political Consultants (2020)), it’s pretty rare, since it would effectively criminalize behavior (labor picketing) that the legislature deliberately chose not to criminalize. Indeed, in a 1995 case, a Virginia trial court refused to do that with regard to this very statute:

In this case, if the court were to sever the labor exception and/or the construction site exception [a separate exception to the Virginia statute, which I’ve omitted from the discussion above for simplicity -EV] (since it seems that the Carey analysis applies equally to the latter), what would remain would be a blanket prohibition on picketing in residential areas.

Even assuming that such a blanket prohibition is constitutional, it is clearly not what the legislature intended when it enacted this statute. The intent of the legislature is clear: it wanted labor picketing to be allowed in residential areas, and it wanted picketing in front of a construction site to be allowed in residential areas. By removing those exceptions, this court would negate the expressed will of the legislature.

As a corollary to that, as defendants correctly point out, this court would be creating crimes that do not otherwise exist: the crimes of picketing residences that are also places of employment or construction sites. That is not a proper judicial function. The decision whether to ban picketing in such areas is “more appropriately made by a legislative body and not a court.” See Hueblein, Inc. v. Alcoholic Beverage Control Dept., 237 Va. 192, 201 (1989).

The Commonwealth urges the court to conclude based on the legislative declaration of policy found in Code of Virginia § 18.2–418 that the Legislature would have enacted this statute even without the exceptions stated in the second paragraph. It is true that § 18.2–418 contains a clear expression of the high value that the Legislature places on the right to peace and tranquility within one’s own home. But equally clear is the expression in § 18.2–419 of the high value the Legislature places on the right to engage in picketing related to labor disputes and construction projects. It is not possible for this court to know which of the two values the Legislature holds in higher esteem. Only the Legislature may make the determination of whether the right to peace and tranquility in the home is so important that it justifies banning labor and construction picketing in residential areas, or whether labor and construction picketing is so valuable it justifies permitting picketing in all residential areas.

(The case is Commonwealth v. Hyatt, which also happened to involve anti-abortion picketing, but again wasn’t limited to that.)

Finally, I’m not focusing here on what the Supreme Court might do with such a residential picketing prosecution if it comes before the Court. Perhaps the Justices (being human) might do whatever it takes to protect themselves and their colleagues. Or perhaps they would all recuse themselves, or refuse to hear the case. Or perhaps they might conclude that even facially content-neutral injunctions are content-based when they target an identified set of protesters (as Justices Scalia, Kennedy, and Thomas argued in Madsen). But I set all that aside, since any case will begin and very likely end in the lower courts, whose job is to apply the precedents the Supreme Court has set, rather than speculate how the Justices might revise those precedents.

Again, I oppose residential picketing, and such picketing can indeed be banned by a properly crafted law. But given that there have been public claims about how Virginia law prohibits such picketing, I wanted to explain why those claims may well prove, on balance, not correct.

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