Legal Form Of Protest
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Residential Picketing: Not a One-Size-Fits-All Matter
Pamela Noble
MLS 684: Ethics, Media, the Arts and Society
Professor Brad Bell
Excelsior College
Albany, New York
August 18, 2013
Abstract
Residential picketing is a common and, as a general rule, legal form of protest. It is legal as long as the protest takes place in a public space. Furthermore, as free speech is a constitutional and democratic right, picketers are not prohibited from shouting insults or demonizing the person picketed, even though such degradation may occur in front of the picketed persons family, friends, and neighbors. Consequently, many argue that residential picketing abuses the rights to gather in group and to exercise free speech because it infringes upon individuals constitutional rights to privacy, as well as possibly impeding the freedom of movement and residence of those picketed. Those who have been the subject of residential picketing have described their feelings of intimidation and have often felt compelled to remain inside the seclusion of their residence or even move to another location. They have also described their feelings of fearfulness, that is they no longer have a feeling of physical safety in the privacy of their home.
Residential Picketing: Not a One-Size-Fits-All Matter
The issue of residential picketing presents a constitutional conundrum for legislators and court justices to decide. Consequently, the issue of residential picketing has been the subject of much judicial debate as a one-size-fits-all type solution to resolve the conflict between the right to free speech and the right to privacy has been sought. Many people believe that the one-size-fits-all solution is seeking a standardized compromise between the two competing rights, i.e. of free speech and privacy, by placing standard limits on residential picketing. Many people believe that such limits need to be legally enacted and enforced against protestors ability to conduct residential picketing in order to prevent free speech from violating other constitutional rights.
One measure taken to satisfy such demand for the protection of all constitutional rights is the implementation of specific physical boundaries to designate geographical buffer zones around the residences of those picketed. For example, if picketers are forced to respect a moderate buffer zone around the residence, then they can still disseminate their message–consequently still respecting the picketers right to free speech. Such an alternative seems fair to many; however, some picketers are concerned that the implementation of any such restriction limits the impact of their message. Pro-lifers are especially concerned with this restriction and have written dozens of articles against such restrictions as a violation of free speech. They argue that the effectiveness of their message is jeopardized because their message has a much stronger media impact if it produces some controversy, e.g. keeping those picketed as virtual hostages in their own homes is likely to cause controversy. Consequently, many picketers are not willing to abide by the restrictions of a buffer zone, thus adding to the media impact, especially if arrests do occur.
One well-known related legal-case regarding residential picketing, which nearly resulted in arrests and caused a great deal of controversy, is the case of Klein v. San Diego County. This case involved an incident whereby a municipal water district employee ridiculed another employee suffering from Bells-Palsy Syndrome by mimicking the other employees disability. The employee who sarcastically mimicked the other employee was not reprimanded for her actions by the water district departments general manager. As a result, many people believed that the lack of action taken by the general manager demonstrated a prejudice towards people with disabilities and, thus, protestors decided to picket the home of the general manager.
However, San Diego County legislation dictates that residential picketing is not permitted with 300 feet of a private dwelling. Although the picketers were 300 feet away from the dwelling structure, police misinterpreted the ordinance and ordered the picketers to remain 300 feet away from the general managers residential property line. The picketers then chose instead to leave the area. Yet, after the fact, a lawsuit was initiated against San Diego County because the law stipulated that the picketing could not occur within 300 feet of the dwelling, not within 300 feet of the property line. Furthermore, plaintiffs filed a complaint that raised both facial and applied challenges to the ordinance. Plaintiffs asked for a declaratory judgment that the ordinance violated their free speech and due process rights under the United States and California Constitutions. They also requested injunctive relief and monetary damages. As a result, the district court granted a preliminary injunction that temporarily prohibited the County from enforcing the ordinance.
However, after much debate and physical investigation the case was settled and the San Diego County District Court determined that the picketers were not in violation of the 300 foot restriction. Nevertheless, the 300 foot boundary between structural dwelling and picketers remained intact because the court upheld its view that “occupants are entitled to unencumbered enjoyment of the tranquility and privacy of their homes without being subjected to unwelcome speech, and the First Amendment may not trample those rights” (FindLaw.com).
It seems, therefore, in the case of Klein v. San Diego County, the point the court intended to make is that free speech rights are not automatically prior or superior to other rights, especially not if those speech rights are used in such a way that they must violate other rights and that alternative uses are rejected. Such reasoning supports the idea that there is no hierarchy among human rights and all rights are equivalent. It follows, therefore, that when rights come into conflict with each other, the decision to favor one or the other must take into account the respective costs to one or the other. In the case of Klein v. San Diego County, the court found that the cost to privacy and freedom of movement, by allowing free speech, was clearly higher than the cost imposed on free speech. In fact, the court stated that “so long as the targeted picketing interferes with an individuals