Even conservative justices have a right to privacy

More than three decades later, with another question of residential picketing in front of the court but on a more personal basis, there is a certain irony to the factual setting of O’Connor’s opinion.

Then, the justices were grappling with the question of protesters gathering outside the home of a doctor who performed abortions — carrying signs, shouting slogans and warning children to stay away from the “baby killer.”

Now, the tables have turned. The picketers are protesting the court’s decision to eliminate constitutional protection for abortion. And their intended targets are the homes of the justices themselves, on the leafy streets of Chevy Chase, Md., and in the suburbs of Virginia.

Earlier this month, Supreme Court Marshal Gail A. Curley wrote to the states’ governors and local executives asking that they enforce existing prohibitions against residential picketing.

“For weeks on end, large groups of protesters chanting slogans, using bullhorns, and banging drums have picketed Justices’ homes in Montgomery County,” Curley wrote to Montgomery County Executive Marc Elrich. “This is exactly the kind of conduct that Maryland and Montgomery County laws prohibit.”

A Montgomery County ordinance provides that protesters “must not picket in front or adjacent to any private residence.” They are allowed to march in residential areas, but “without stopping at any particular private residence.”

But Elrich, responding in public comments Wednesday, declined Curley’s request. He dismissed it as a publicity stunt: “It’s not about security when you get a message from the press office about security,” he said of the letter, which was released to the public.

And he invoked the example of authoritarian regimes: “I think all you got to do is look at Putin’s Russia, and get an idea of where you don’t want to go,” Elrich said. “This idea where people can gather together and if you gather together, you’re gonna be arrested. That’s not happening here.”

I’m heartsick — I’m furious — over the conservative majority’s brute force move to do away with a half-century of reproductive freedom and precedent. My sympathies are with the protesters. And I’m steadfast in my support for free speech rights; my job and my country depend on robust support for the First Amendment.

But count me with Curley — and O’Connor — over Elrich. The pickets at justices’ homes — they’ve primarily targeted Justice Brett M. Kavanaugh — are beyond the pale. As I’ve written before, they’re unnecessary; protesters can make their views amply known at the court itself. They are, if anything, counterproductive. Maybe making justices’ lives miserable will make people feel better, but it won’t accomplish anything beyond that.

Justices, and their families, deserve as much protection from bombardment within their own homes as abortion doctors do. So yes, yet another irony: The privacy rights to which conservative justices gave the back of the hand in Dobbs v. Jackson Women’s Health Organization argue for authorities stepping in to shield them at home.

This is a tricky area of First Amendment law. Streets — even quiet, suburban streets — are considered traditional public forums. That means they can’t be placed off-limits to protests. “Streets, sidewalks, parks, and other similar public places are so historically associated with the exercise of First Amendment rights that access to them for the purpose of exercising such rights cannot constitutionally be denied broadly and absolutely,” the court observed in a 1968 case.

But as long as they’re not drawing distinctions based on the content of the speech — for example, allowing pickets for labor organizing but not for other purposes — governments can impose carefully drawn restrictions on protesting.

That’s precisely what Montgomery County has done — and for the sake of the justices, their beleaguered families and at least some of their exasperated neighbors — Elrich should enforce the law as written. That will still leave the streets of Chevy Chase a far cry from Vladimir Putin’s Russia.

There’s also a federal law that prohibits picketing outside the homes of judges and others involved in the court system “with the intent of influencing any judge, juror, witness, or court officer, in the discharge of his duty.” But in the case of pickets motivated by the abortion ruling, as UCLA law professor Eugene Volokh has noted, “Such an intent may be hard to prove, especially after the decision has been handed down, and the Justices have already discharged their duties.”

As an intellectual matter, the question of whether the picketing can be limited is distinct from issues of protecting justices’ safety — in particular the chilling fact that a California man was recently charged with attempting to assassinate Kavanaugh, and turned up at his house in the middle of the night with a cache of weapons and ammunition, according to court documents. The scope of protesters’ free speech rights shouldn’t be circumscribed by others’ deranged, and criminal, behavior.

But as a matter of common sense, in terms of where we are as a community and how we want to behave as fellow citizens, how can we separate them? Those who share my pro-choice views recoiled at protests targeting abortion providers and clinic employees at their homes, and they were not reluctant to connect those actions to clinic bombings or murders of physicians.

It should be possible to find ways to express justified outrage at the conservative justices without terrorizing them and their families. Can we not at least manage that?