Thursday, December 1, 2022 | Back issues
Courthouse News Service Courthouse News Service

Injunction for courthouse protester ruled too broad in NY

The case divided a Second Circuit panel, with one judge saying he would have ruled New York's 200-foot buffer zone to picket a trial unconstitutional on its face.

MANHATTAN (CN) — Vacating an injunction against a New York law that bars shouting and displaying signage within 200 feet of a courthouse, the Second Circuit said the state has a compelling interest to keep such a rule on its books.

U.S. District Judge Denise Cote had struck down the law, Section 215.50(7) of the New York Penal Code, as unconstitutional two years earlier, finding that it infringed the constitutional right to free speech.

The case stems from the 2017 arrest of Michael Picard, a self-described civil libertarian, as he picketed for jury nullification outside the Bronx County Hall of Justice.

Appealing Cote's injunction, New York said Picard could not even show standing.

While the Second Circuit disagreed with the state on the question of standing, it did find Cote's injunction too broad.

"Because we conclude that NYPL § 215.50(7) can likely be found to further a compelling state interest in at least some circumstances, we vacate the district court’s facial injunction and remand to the district court to issue a narrower injunction that bars enforcement of NYPL § 215.50(7) only as applied to conduct such as Picard’s," the 2-1 ruling from U.S. Circuit Judge Gerald Lynch states.

Picard's lawyers still lauded the result.

“The bottom line here is that the Second Circuit upheld our client’s First Amendment right to peacefully advocate jury nullification outside of New York courthouses,” American Civil Liberties Union Foundation attorney Brian Hauss told Courthouse News on Wednesday. “While we continue to believe that New York’s courthouse protest statute is facially unconstitutional, we are glad that our client’s rights will be protected going forward.”

U.S. Circuit Judge Jon Newman wrote in a partial dissent that the rule is patently overbroad.

“A distance of 200 feet is 67 yards, two-thirds the length of a football field,” the 90-year-old Carter appointee emphasized. “The subsection forces a person delivering a message about ongoing court proceedings to stand away from potential listeners and readers at a location equivalent to that of a person standing on a 33-yard line whose spoken words could not be heard in the far endzone or whose writings displayed at that location could not be read in that endzone.

“Keeping speakers that far away from potential listeners and readers renders the provision overbroad,” Newman continued.

During his protest on the public sidewalk outside the Bronx courthouse, Protest held a single sign reading “Jury Info” and handed out flyers that said one one side, “No Victim? No Crime. Google Jury Nullification." The opposite side of the flyer featured the oft-cited Martin Luther King Jr. quote, “One has a moral responsibility to disobey unjust laws.”

Picard had been picketing for about five minutes before a court officer detained him and cited him for violating the New York law. Because the court officer failed to actually measure the distance between Picard and the courthouse, however, a prosecutor declined to pursue the charges and Picard was released several hours later.

The law in question bans disorderly, contemptuous and peace-breaching behavior in and around court proceedings. It says a person is guilty of criminal contempt in the second degree if, within a radius of 200 feet of a courthouse, he or she “calls aloud, shouts, holds or displays placards or signs containing written or printed matter, concerning the conduct of a trial being held in such courthouse.”

Judge Newman pointed out that Picard is one of just four people arrested under the law in the last 14 years — a fact he attributed to the existence of "Subsection (2) of section 215.50 and several other statutes [that] provide abundant protection for the state’s compelling interest in protecting the judicial process."

The Obama-appointed Judge Lynch was joined in the majority by U.S Circuit Judge Michael H. Park, a Trump appointee.

Picard's original complaint had named several defendants, including Bronx District Attorney Darcel Clark, who in 2016 became the first woman in that position. Clark is also the first Black woman to be elected a district attorney in New York state. She was reelected to a second term in 2019.

Representatives from the Bronx District Attorney's Office did not immediately respond to a request for comment Wednesday.

Read the Top 8

Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.

Loading
Loading...