Florida’s governor is on a roll when it comes to enacting laws to micromanage people’s behavior, his latest being in response to concerns about protesters going to the homes of Supreme Court justices for their anticipated ruling in Dobbs. Not in Florida, Ron DeSantis says.
The law, signed by Gov. Ron DeSantis yesterday, provides:
(1) As used in this section, the term “dwelling” means a building, structure, or portion thereof which is occupied as, or designed or intended for occupancy as, a residence by one or more families.
(2) It is [a misdemeanor] for a person to picket or protest before or about the dwelling of any person with the intent to harass or disturb that person in his or her dwelling….
(4) Before a person may be arrested for a violation of this section, a law enforcement officer … must go as near to the person as may be done with safety and shall command any person picketing or protesting before or about the dwelling of a person to immediately and peaceably disperse. If any such person does not thereupon immediately and peaceably disperse, he or she may be arrested for a violation of this section.
After parsing Supreme Court law with regard to restrictions on protesting, Eugene Volokh argues that the law might well be a constitutional time, place and manner limitation if it were content neutral, but by making it contingent on “intent to harass or disturb,” it’s not content neutral and therefore unconstitutional.
Now a flat ban on all “focused picketing taking place solely in front of a particular residence” would be constitutional, as the Court expressly held in Frisby v. Schultz (1988), interpreting an ordinance that used the “before or about” language. (In Carey v. Brown (1980), the Court had held that a content-based residential picketing ban was unconstitutional, but Frisby held that content-neutral ones are fine.)
But this statute wouldn’t ban all such residential picketing, but only picketing “with the intent to harass or disturb.” I appreciate the desire to narrow the ordinance; consider Justice Stevens’ dissent in Frisby, which faulted the ordinance for making it a crime “for a fifth grader to carry [a] sign” outside a friend’s home saying, “Get well Charlie—our team needs you.” But I think this attempt to narrow it might actually make it unconstitutionally content-based, unconstitutionally vague, or perhaps effectively meaningless.
Is there any protest that doesn’t intend to “harass or disturb” the target of the protest? While Eugene finds this subject to some doubt, and there can be instances where people “protest” in the sense that they march, chant, carry signs, in support of someone, most protests are expressly intended to pressure their target to act or not by making their life unpleasant. There will be a message conveyed, but that could be accomplished by sending a letter. Protests send another message as well, that there are a bunch of folks unhappy with something who want to “persuade” the target of their unhappiness to change their position to end the unpleasantness.
But the words used in the act, “harass or disturb,” raise problems.
The problem is that the ordinance doesn’t define “harass,” and the closest state law analog—the Florida stalking statute—defines “harass” to “mean to engage in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose.” What counts as a “legitimate purpose”?
Whether Florida courts will draw the definition of “harass” from the stalking statute is unclear, given that the statutes have very different purposes and the word “harass” is sufficiently vague and malleable to be used in both despite very different meanings. If the word draws its definition from the stalking statute, then the protest law is rendered meaningless given that protests, by definition, serve a “legitimate purpose” in expressing views on matters of public concern to government decision-makers. Is there any purpose more legitimate?
But the kicker in the stalking statute doesn’t seem to be, as Eugene argues, the purpose of the protest, but that it “causes substantial emotional distress to that person.” This is a subjective test, so anyone can claim sufficient emotional distress to invoke it. But what if the distress isn’t “emotional” but objective, the kids can’t sleep because of the noise, they can’t enter or leave their house without being blocked, they are denied the quiet enjoyment of their home?
Then comes the “disturb” alternative, which is even less well-defined than harass.
Of course, the law also bans residential picketing with the intent to disturb, which might potentially be much broader. But that term appears to be entirely undefined within Florida law, which further suggests that it might be unconstitutionally vague. (I did find one other Florida statute that spoke of “harass[ing] or disturb[ing],” but that had to do with manatees.) Would, say, picketing outside a legislator’s home aiming at persuading the legislator to vote a particular way be viewed as intent to disturb, or as intent to persuade? What if there’s evidence that the real purpose for the picketing was to draw media attention?
As Eugene notes, the Supreme Court held in Reed v. Town of Gilbert that when distinctions to speech are made “based on function or purpose,” they are content based. Whether the rhetoric of Reed, intended to provide a rationale as to regulation of signage, applies well to restrictions on protests is another matter.
That the norm of protesting at the homes of government officials, in general, and judges, in particular, has broken down is disturbing. But even if it’s the wrong thing to do and likely ineffective if not counterproductive, that doesn’t make it a right unprotected by the Constitution. But if DeSantis wants to limit that right, he’s going to need better words and better definitions than the blunt instruments used here. It’s doubtful any words or definitions will be sharp enough to do the trick.