New York Law Banning Courthouse Picketing Ruled Unconstitutional

The Manhattan federal courthouse on Nov. 27, 2017. (AP Photo/Seth Wenig)

MANHATTAN (CN) — A federal judge struck down a New York law that prohibits shouting and displaying signage outside a courthouse, ruling Wednesday that it infringes the constitutional right to free speech.

The underlying case stemmed from an incident involving Michael Picard, who was picketing for jury nullification outside the Bronx County Hall of Justice in December 2017 when he was taken into custody by a court officer who insisted Picard was breaking a New York penal law by picketing for jury nullification within 200 feet of the courthouse.

The law in question partly bans disorderly, contemptuous and peace-breaching behavior in and around court proceedings. The section relevant to Picard’s case prohibits people from calling, shouting, holding or displaying placards or signs containing speech within 200 feet of a courthouse which “concerns the conduct of a trial being held in such a courthouse.”

Picard’s assembly, which took place on the public sidewalk outside the Bronx courthouse, included a single sign reading “Jury Info” and handing out flyers which read “No Victim? No Crime. Google Jury Nullification” on one side, while the opposite side 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 being detained by the court officer and charged with violating the New York law. He was released several hours later when a New York County assistant district attorney declined to pursue the charges against him, citing insufficient evidence because the court officer did not actually measure the distance between Picard and the courthouse.

Picard sued in April 2019, naming Bronx District Attorney Darcel Clark and Chief of Public Safety for the New York Unified Court System Michael Magliano as defendants and seeking a permanent injunction declaring the New York law unconstitutional under the First and 14th Amendments.

U.S. District Court Judge Denise Cote’s 18-page ruling succinctly sided with Picard and gave him his injunction on Wednesday, saying the law “violates the First Amendment of the U.S. Constitution because it is a content-based restriction on speech in a public forum that fails strict scrutiny.”

Taking into account that there are already laws to maintain public order and access to public buildings, and laws that make it a crime to intentionally tamper with jurors and witnesses, Cote found that “the defendants have not shown that the state must criminalize speech in this way to protect the integrity of ongoing trials.”

Cote, a Bill Clinton appointee, also did not buy the defendants’ argument that the law only criminalizes expression that is likely to disrupt ongoing court proceedings, as “the statute contains no such limitation,” and she declined to try to narrowly construe the law to avoid a constitutional question at the request of the defendants, who did not offer such a construction of the law themselves.

Reacting to Wednesday’s decision, Eric M. Freedman, a distinguished law professor at Hofstra University, considered Cote’s findings “a completely appropriate and unsurprising application of the most basic principles of the First Amendment.”

Freedman offered that Picard’s actions are “exactly what the First Amendment is designed to protect” since “government bodies, including court bodies, are subject to criticism and advocacy about why what they are doing is wrong and should be changed.”

Ruthann Robson, also a distinguished law professor at City University of New York, agreed that “the judge’s conclusion and opinion is consistent with well-established First Amendment doctrine.”

Robson particularly said Cote got right that the law’s fatal flaw is in its content regulation, and she pointed out the deficiency of the defendants’ argument that the law practically has limitations not written into its text, noting that “the U.S. Supreme Court has said numerous times that representations by the government interpreting a statute as containing limits are not controlling.”

She also said the law is even more problematic under the First Amendment since the speech it seeks to block occurs in a public forum—that is, the public sidewalks in front of courthouses—which the U.S. Supreme Court has long held have been historically utilized by the public for free assembly and discussion of public issues.

Brian Hauss, a staff attorney with the ACLU who represented Picard, said on Wednesday that “we’re very pleased with the court’s ruling.”

“I understand the state has an interest in protecting the integrity of judicial proceedings,” Hauss said, “but the state has plenty of tools at its disposal to do so,” without criminalizing what Picard did.

Representatives with the Bronx District Attorney’s Office could not be immediately reached for comment after business hours on Wednesday.

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