Protests Outside People’s Homes (Residential Picketing) and the First Amendment

The Boston proposal to restrict residential picketing to 9am to 9pm is making this matter again in the news. The move appears to have been inspired by the residential picketing that took place outside of Mayor Michelle Wu’s residence. I therefore thought I’d repost an item of mine that answers the question: Is this sort of targeted residential picketing protected by the First Amendment?

Short answer is: Yes. However, any picketing restrictions must be in place through non-content-neutral ordinances or statutes. In some cases, they may also include injunctions. They should allow people to freely demonstrate within the same area.

  1. Carey v. Brown The Court ruled against a ban on residential picking up that included an exception for labor picketing in 1980.
  2. Frisby against Schultz (1988) The Court upheld an absolute ban, not only a time limit, but also a total ban, because it (a) was content neutral; (b); narrowly tailored for protecting privacy residential property and (c); left everyone free to “engage in”[g]Walking or marching in residential streets, or walking along a path directly in front of a whole block of houses.”.
  3. Madsen v. Women’s Health Center, Inc.The Court ruled (1994) that residential picketing was prohibited within 300 feet from clinic workers’ homes. This ruling was too wide.

Carey A pro-busing group pickedeted the residence of a mayor while Frisby And Madsen Anti-abortion protesters pickedeted the clinic workers’ homes. I can confirm that most cases of residential picketing I’ve witnessed involved anti-abortion demonstrators. It seems like residential picketing used to be an option for at least some of those who were part of the movement in the 1980s or 1990s.

However, the Court didn’t make distinctions based upon the content of the speech nor on whether the picketing was directed towards a public official. Justice Scalia for instance was the majority, despite his frequent criticisms of the Court’s free speech decisions in which he believed anti-abortion speeches were being unfairly treated. FrisbyJustices Brennan, Marshall and others, who are strong advocates of abortion rights, voted against. None of them appeared to be influenced by the ideology of the speakers. As I have already noted, however, such distinctions were explicitly forbidden by the Court.

A city, state or municipality could either ban or permit picketing. However, the same rules would apply to any protesters: anti-racism, antifa and alt.right.

My knowledge is that residential picketing is prohibited on a state-by-state basis in Arizona, Colorado and Illinois. However, the laws operate slightly differently. The Arizona law prohibits picketing “with the intent to harass or annoy others.” However, Minnesota’s law permits injunctions to apply to residential picketing which occurs “on multiple occasions” rather than outright banning it. It is banned by several cities.

Finally, even when there is no ordinance banning residential picketing, particular kinds of behavior while picketing—especially loud noise at night (cf. the August 2020 Washington protest outside the Postmaster General’s home)—may be banned by content-neutral restrictions. Kovacs v. Cooper (1949). These restrictions should be applied in an objective manner. A city cannot ignore protestors who express certain opinions and then penalize protestors who ignore them.