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Is It Legal to Protest Outside Supreme Court Justices' Homes?

By Richard Dahl on May 12, 2022 4:06 PM

When abortion-rights activists released the home addresses of six U.S. Supreme Court justices for targeted protesting over Mother's Day weekend, they may have been inspired by a sense of "turnabout is fair play."

It's called "doxing," the malicious online public posting of private personal information about individuals or organizations. It has long been a common tool used by anti-abortion activists.

Many people were upset by the leak in the case Dobbs v. Jackson Women's Health Organization signaling the justices' apparent intent to overturn Roe v. Wade. They may have felt that in this case, at least, doxing is warranted.

If so, they should be aware that picketing the homes of Supreme Court justices comes with definite legal risk.

Doxing and the Law

Doxing itself occupies a legal gray area. No single federal law prohibits posting someone's personal information online as long as the information isn't gained illegally, such as by hacking their email accounts.

Generally, doxing must be connected to a wider campaign of harassment or stalking to be illegal. While doxing itself might not be illegal, in other words, the action that results from the doxing can be.

Limits on Picketing

The protesters may argue that they are exercising their First Amendment rights in a manner that falls short of harassment. The problem, however, is that federal law appears to prohibit their action.

The "Picketing or Parading" law states that anyone "with the intent of interfering with, obstructing, or impeding the administration of justice, or with the intent of influencing any judge, juror, witness, or court officer in the discharge of his duty," cannot picket near a judge's residence. A conviction on this charge could come with up to a year in prison, a fine, or both.

The distinction is important: This law doesn't speak to gatherings of people who protest a court's decision but focuses instead on gatherings that seek to influence a decision. And in this case, with a leaked draft that is not yet final, the appearance of attempted influence is clear.

There is also precedent. In the 1965 U.S. Supreme Court case Cox v. Louisiana, justices concluded that picketing outside courtrooms and judges' homes with the intent to influence decisions "infringes a substantial state interest in protecting the judicial process." The majority opinion insisted that "mob law is the very antithesis of due process."

Legal experts are weighing in and concluding that the law appears to be clear.

"The statute would seem to apply both because they appear to be picketing and parading with the relevant intent and at the relevant locations," said Tabatha Abu El-Haj, an expert on protest rights at Drexel University's Law School.

Citizens' Rights and Obligations to Protest

The most recent poll on abortion, by CBS News, shows that nearly two-thirds of Americans favor the continuation of Roe v. Wade as the law of the land.

Obviously, many Americans are not pleased by what the leaked draft indicates will happen if this strongly supported law is overturned. Many feel a powerful obligation to voice their concerns now in an effort to stop the Supreme Court from reaching the dire conclusion they fear. But it could come with the prospect of facing federal criminal charges.

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