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In a rare move, Supreme Court Marshal Gil Kerley has sent letters to Maryland Gov. Larry Hogan, Montgomery County Executive Mark Ellrich, and Virginia Gov. Glenn Youngkin, asking officials. End the strike and “threatening activity” outside the SCOTUS justices’ homes. The letter seeks to use state law to achieve what the Justice Department has clearly rejected under federal law. If this letter leads to an arrest, we can witness a major challenge to freedom of speech in court. However, the timing of the letter is particularly interesting and may indicate recognition of the limitations of federal law.

Like most Americans, I have condemned these protests targeting judges’ homes as excessive and reckless (although One law professor actually suggested that such protests could be more aggressive). However, I have too questioned the use of federal law To arrest protesters

According to a federal law, 18 U.S.C. 1507Any person who “pickets or marches” in or “near” any court of the United States with intent to interfere with, obstruct, or obstruct the administration of justice, or with intent to influence any judge, jury, witness, or court officer. building or residence occupied or used by such judge, jury, witness or officer of the court shall be liable to a fine or to ‘imprisonment for a term not exceeding one year or to both’.

I believe the court will declare the use of federal law against protesters on public sidewalks unconstitutional. There are issues of free speech, assembly, and ambiguity that are likely to come up in federal court. In fact, if you apply a broad interpretation of the law, even protests outside the Supreme Court building can lead to arrests, as the courts are involved.

However, the timing is particularly interesting. After the publication of the decision in Women’s Health Organization Dobbs v. JacksonI noted that the statute would be even more difficult to apply because the statute refers to “interfering with, obstructing, or obstructing the administration of justice or with intent to influence any judge … in the discharge of his duty.” With the publication of this decision, there is no chance that the protestors will interfere, obstruct or influence the decision. Thus, even if the constitutional arguments are rejected, the Court may question whether the statute can be applied as a demonstration generally applied against judges because of their opinions.

This is what makes history so interesting. Dobbs Published on June 24, 2022. A week later, Curley sought to enforce state law as an alternative to federal enforcement. It may reflect the view that, even if the law to arrest protesters is constitutional, given the fact that Dobbs It is currently in the book. Since it has been clear for weeks that the Justice Department will not enforce the law to arrest protesters outside these homes, the timing of the letter could indicate that enforcement is less likely in light of the end of the term.

“I respectfully request that you direct the Maryland State Police to enforce the laws of Maryland and Montgomery County prohibiting picketing at the residences of Supreme Court Justices residing in Maryland,” Curley wrote to Governor Hogan.

Both governors of Maryland and Virginia He responded by asking Attorney General Merrick Garland to exercise his authority Under federal law to stop protesters.

However, state laws still face the same constitutional challenges. While noise and other non-contentious regulations can be enforced, preventing any protests that don’t block the streets is difficult to maintain, despite some precedent favoring states.

States can cite Frisbee v. Schultz (1988), where the court upheld Wisconsin’s ban on all protests outside a dwelling house. Because the law was content neutral, Judge Sandra D. O’Connor ruled that it was permissible. As a free speech advocate, I have always found the 6-3 opinion troubling.

However, the Frisby case is not as extensive as some have made it out to be. Indeed, this is a typical O’Connor decision that draws fine or blurred lines for states to ban certain protests. citing its holding in Curry vs. Brown (1980), the Court expressly stated that “[o]”Our prior holdings make clear that a public street does not lose its status as a traditional public forum simply because it passes through a residential neighborhood.” It later added that it was not said that any protests could be prevented in residential areas.

We instead construe this provision more narrowly. This narrow reading is supported by City counsel’s representations at oral argument, indicating that the City takes and will exercise a narrow view of the “choice” prohibited by the ordinance. Thus, in general, “picketing means to continue the picket in a certain course or course in front of the house.” Tr. Aral Citadel 8. It is not necessary for the picket to have a sign. ID., at 14, but in order to be within the scope of the ordinance, the strike must be at a residence, ID., at 9. Public marching in residential neighborhoods, or even walking a path in front of an entire block of houses, is not prohibited by this ordinance. ID., at 15. Accordingly, we find the prohibition limited. Only concentrated demonstrations that take place solely in front of a specific residence are prohibited.

Maryland law states that “no person or group of persons shall assemble in front of or adjacent to any private residence.” criminal doctor Code § 3-904(c). Montgomery County also has an ordinance that prohibits protests in front of or adjacent to any private residence. Montgomery County. Code 32-23a.

The problem with these rules is that, even if you take an extreme view of it frisbee (which the court itself rejected), they are very broad. Most congregate areas include a mix of offices and residences. In fact, movement in most cities warrants such multi-purpose zoning to avoid dead zones or high crime in cities. Based on this, most of the protests may be faced by protestors marching in big cities. which creates the risk of selective implementation based on the content of the speech.

In this demonstration, many protestors continue to walk past the houses that are mentioned in it frisbeeNarrowing of the tongue

There is an interesting question as to whether Curley consulted Chief Justice John Roberts. There is usually considerable coordination with the chief justice, but Roberts’ confirmation could raise further ethics problems if the court is challenged on appeal. If Roberts gives the letters the green light, he would be directly involved in the decision, effectively upholding a fundamental interpretation (and application) of state law. In this case, he must exempt himself from any appeal.

Roberts won’t be the only one facing conflict issues. All judges would benefit from such enforcement, but six conservative judges are the subject of these particular protests. They can effectively resolve such conflicts by denying review of any challenge and allowing lower courts to have the final say on the constitutionality of such enforcement.

However, some judges may not be pleased that Marshall is essentially making such a legal claim to crack down on protesters. By sending this letter, Curley speaks as a high-ranking official in the judiciary. Not only does he openly encourage the use of these rules, but he also implies that these rules can be used to prevent any further protests in these homes.

What is remarkable about this effort is that Corley did not turn to the FBI for help in apprehending the whistleblower of Dobbs’s decision. The Supreme Court is just a few blocks away from the world’s leading expert agency in computer forensics and forensics. However, Roberts and Curley have limited this research to their relatively small and inexperienced staff. This has puzzled many of us because it is one of the biggest attacks on the internal operations and integrity of the Court in its history.

This letter could well suppress the protesters. We could soon see these constitutional issues being played out in court.

This is the Maryland letter: July-1-2022-Letter-to-Hon.-Larry-Hogan

Note: This blog has been updated to add more legal analysis and to include language from state constitutions.

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