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We all know that people have been protesting outside of the homes of originalist Justices since the Dobbs decision was leaked. We also know that this is against a Federal law designed to stop the intimidation of the Justices and Judges on the bench. Today I saw this thread:
The act of protesting outside the private homes of SCOTUS justices is rooted in intimidation.
The message is ‘we know where you and your family live.’ And these illegal protests are restarting just ahead of the end of the term when the majority of opinions will be released. https://t.co/6iTNsS3hmY
— Carrie Severino (@JCNSeverino) May 15, 2023
Mr. Hurley puts forth a defense that enforcing such a law would abridge the free speech rights of the protesters. He then finds some left and libertarians who agree and quotes them. One, the libertarian, argues that:
Legal scholars from across the ideological spectrum seem to agree that there are potentially free speech issues, notwithstanding a 1965 Supreme Court ruling that upheld a similar law.
Here's how Thomas Berry from the libertarian Cato Institute put it: pic.twitter.com/YQk3U9B506
— Lawrence Hurley (@lawrencehurley) May 14, 2023
Ahh, so, protesting at the house of a Justice is not different from publishing an op-ed in a newspaper. Since one is legal, both should be. Ms. Severino correctly notes that the law is designed to stop intimidating Judges and Justices. This makes sense. Publishing an op-ed is expressing one’s opinion in the public square. Picketing their home is very different. Picketing their place of work begins to encroach on intimidation, but has long been allowed because those locations are public squares.
But it does beg the question, if it isn’t intimidating to protest at the work or home of Judges and Justices, then why does the FACE act exist? After all, protesting a policy one doesn’t agree with is a freedom of speech issue. Therefore passing a law that claims that is intimidation seems to violate that same concept. Alas, the govt seems to care much more about ensuring that women should be able to obtain an abortion than that Justices (only the originalist ones) be intimidated.Published in