November 17, 2024

Dear Ezra:

You asked me to analyze whether Congress can pass legislation to address picketing outside houses of worship. I have done so, and this letter contains my analysis.

Begin with the problem to be addressed. Religious citizens, on a regular basis, must withstand intimidation from hostile protesters before exercising their right to worship. The problem is especially acute for the Jewish community. That has long been the case.¹ But in the aftermath of Hamas's October 7 attack on Israel, protests outside synagogues have grown increasingly frequent. The protests are virulently anti-Semitic. They are often threatening. Thus, Jews looking to worship together must withstand abuse simply in order to enter a temple.

Federal law (and presumably some state laws, though that is beyond the scope of this letter) already provide some protection. The FACE Act, for example, imposes criminal and civil sanctions on anyone who, "by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts to injure, intimidate or interfere with any person lawfully exercising or seeking to exercise the First Amendment right of religious freedom at a place of religious worship."² These protections, however, are inadequate, because much of the disruptive conduct may not constitute interference "by force or threat of force or by physical obstruction."

Now turn to the question whether anything can be done to address the situation. The answer to that question is emphatically "yes." But Congress must act carefully to avoid constitutional snares. This section addresses these concerns. It first considers whether any enumerated power enables Congress to enact such legislation. It next considers whether, and to what extent, the First Amendment's Free Speech Clause limits Congress's power to act.

"Every law enacted by Congress must be based on one or more of its powers enumerated in the Constitution."³ Accordingly, my analysis begins by asking what enumerated power Congress might wield to address the problem of picketing outside houses of worship.

One might be tempted to invoke the Fourteenth Amendment. After all, its fifth section empowers Congress to "enforce" the amendment's guarantees "by appropriate legislation." Because the Fourteenth Amendment incorporates the Bill of Rights against the States, Congress may wield Section 5 to enforce the First Amendment's prohibition on interference with "the free exercise of religion."⁴

But that will not work here. While the Fourteenth Amendment protects the free exercise of religion, the protection applies only against government actors. Congress cannot wield Section 5 to regulate private action, at least absent some showing of complicity by state actors (such as the selective refusal to enforce otherwise-applicable local laws the protesters are violating).⁵ The problem to be addressed here does not, at least as a global matter, involve such complicity.

So, Congress will need to identify another enumerated power.

The most appealing candidate is the Commerce Clause. The Supreme Court has expanded that clause well beyond its original meaning. Today, it permits Congress to regulate (1) "the use of the channels of interstate commerce"; (2) "the instrumentalities of interstate commerce, or persons or things in interstate commerce"; and (3) "those activities having a substantial relation to interstate commerce i.e., those activities that substantially affect interstate commerce."⁶ What is more, "activities in this third category—those that 'substantially affect' commerce—may be regulated so long as they substantially affect interstate commerce in the aggregate, even if their individual impact on interstate commerce is minimal."⁷ For example, Congress may regulate farmers who grow wheat for personal use on the ground that widespread home-growing could affect the market.⁸

While religion and worship are not commerce, houses of worship engage in economic activity. For one thing, many houses of worship employ priests or pastors or rabbis or imams. Impediments to attendance affect the ability of houses of worship to attract financial support needed to retain these employees. Second, these entities often engage in charitable endeavors. All this and more likely suffices to establish the requisite connection to commerce. (If not, a decision saying so would have the silver lining of helping to restore the Commerce Clause to its original meaning.) Notably, at least one Court has held that the Commerce Clause empowered Congress to enact the FACE Act's protections for houses of worship.⁹

All told, the Commerce Clause likely empowers Congress to pass a law regulating interference with houses of worship. But Congress would be well-advised to build a thick congressional record documenting the effects on commerce of the conduct to which its law is directed.

Turn now to the Free Speech Clause of the First Amendment, which forbids "Congress to" make any "law … abridging the freedom of speech." The freedom of speech (along with the related right "peaceably to assemble") includes the right to protest. Citizens may exercise that right on private property to which they have lawful access. And they may also exercise this right in "traditional public fora"—areas such as parks, streets, and sidewalks "that have historically been open to the public for speech activities."¹⁰ The "government's ability to restrict speech in such locations is 'very limited.'"¹¹ "Content-based laws—those that target speech based on its communicative content—are almost always unconstitutional; they "may be justified only if the government proves that they are narrowly tailored to serve compelling state interests."¹²

Congress has "somewhat wider leeway," however, "to regulate features of speech unrelated to its content."¹³ Thus, "even in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech."¹⁴ But those restrictions must be (1) "justified without reference to the content of the regulated speech," (2) "narrowly tailored to serve a significant governmental interest," and (3) "leave open ample alternative channels for communication of the information."¹⁵ Narrow tailoring, in this context, does not require pursuing the "least restrictive or least intrusive means of serving the government's interests."¹⁶ Instead, narrow tailoring requires that the government "not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals."¹⁷

Cases applying these principles point a way forward.

The body of caselaw most relevant to your goal involves laws aimed at ensuring tranquility near homes and funerals.

The First Amendment has long been understood to permit content-neutral laws barring picketing or protesting outside of private residences, provided speakers have alternative options for expressing themselves. In Frisby v. Schultz,¹⁸ the Court upheld a local ordinance forbidding "any person to engage in picketing before or about the residence or dwelling of any individual."¹⁹ The ordinance announced its purpose: "the protection and preservation of the home" through assurance "that members of the community enjoy in their homes and dwellings a feeling of well-being, tranquility, and privacy."²⁰ This is a valid interest. While "in many locations, we expect individuals simply to avoid speech they do not want to hear, the home is different," as uninterested listeners cannot be expected to leave their homes.²¹ Although this law indisputably regulated speech in a traditionally public forum, it did so without regard to the content of the speech. It was, in other words, content neutral. And the law was narrowly tailored, too, in that it was directed only at picketing outside a home. Speakers thus remained free to communicate their message in other ways, including by door-to-door solicitation, leafleting, marches (picketing included only stationary protests), and so on.²²

Courts have applied these insights to other locales. Laws passed to bar disturbances outside funerals are especially relevant. In the early part of this century, the Westboro Baptist Church gained attention for protesting at the funerals of soldiers killed in action. This left families understandably distraught. So many jurisdictions passed laws creating buffers around funerals.

Ohio, for example, enacted the following law:

Every citizen may freely speak, write, and publish the person's sentiments on all subjects, being responsible for the abuse of the right, but no person shall picket or engage in other protest activities, nor shall any association or corporation cause picketing or other protest activities to occur, within three hundred feet of any residence, cemetery, funeral home, church, synagogue, or other establishment during or within one hour before or one hour after the conducting of an actual funeral or burial service at that place.…

As used in this section, "other protest activities" means any action that is disruptive or undertaken to disrupt or disturb a funeral or burial service or a funeral procession.²³

Note the breadth of this protection. It forbids picketing within 300 feet of a funeral. And it also forbids "other protest activities," defined to include "any action that is disruptive or undertaken to disrupt or disturb a funeral or burial service," occurring within the same distance.

The Sixth Circuit upheld this law as a permissible, content-neutral regulation. The law "served a significant governmental interest, namely to protect the citizens of Ohio from disruption during the events associated with a funeral or burial service."²⁴ The Sixth Circuit reasoned that funeral attendees, much like the homeowners in Frisby, are "captive audiences," and "that the State is warranted in protecting individuals from unwanted communication that implicates certain privacy interests when the listener is somehow 'captive' to the message."²⁵ Finally, the provision was narrowly tailored, as it forbade picketing only within a narrow window of time surrounding a particular event. Further, the speakers remained free to communicate their message outside the 300-foot buffer; the buffer permitted their speech, while also protecting the privacy of mourners.²⁶

A few years after the Sixth Circuit issued its decision, the en banc Eighth Circuit upheld a similar law based on similar reasoning.²⁷ Its decision notes that, in 2012, Congress enacted a federal law that is much to the same effect. Specifically, 18 U.S.C. §1388 protects military funerals. From two hours before such funerals until two hours after, it is illegal for anyone to "mak[e] … any noise or diversion" within 300 feet of the funeral (or entrance to the funeral location) with the "intent of disturbing the peace or good order" of the funeral. The law also bans anyone, during the same timeframe, from taking action to impede access to the funeral within 500 feet of the funeral (or the entrance to the funeral location).²⁸

The very same reasoning applicable to funerals applies to houses of worship. Religious worshipers are "captive" to a similar extent as funeral attendees; often, they cannot walk away without violating the tenets of their religion. Further, houses of worship are places where members of the community have traditionally enjoyed "well-being, tranquility, and privacy."²⁹ Indeed, the Free Exercise Clause exists because the founding generation understood that religious worship is a good thing for the souls of the worshipers and the nation alike. So, the logic the Supreme Court has applied to content-neutral restrictions on speech near homes, and that lower courts have applied to content-neutral restrictions on speech near funerals, applies with full force to speech near houses of worship. Provided that Congress does not target particular viewpoints or messages (it should take care to avoid creating any contrary legislative history on the matter), and provided that those who wish to protest have ample alternative means for communicating their messages, laws protecting tranquility of houses of worship are likely to pass constitutional muster.

One final point. The foregoing is all consistent with the Supreme Court's decision in Snyder v. Phelps.³⁰ There, the Supreme Court held that the First Amendment required setting aside a jury verdict against defendants who, based on their protests of a soldier's funeral, were found liable under Maryland law for three torts: intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy.³¹ Snyder emphasized that the "reach of [its] opinion" was "limited by the particular facts before" it.³² Of most relevance here, those particular facts established that "Westboro stayed well away from the memorial service," that the plaintiff could "see no more than the tops of the signs when driving to the funeral," and that the picketing did not "interfere[] with the funeral service itself."³³ Beyond that, the protesters "had the right to be where they were," "alerted local authorities" about their planned protest, and "complied with police guidance."³⁴

All that points to the most critical distinction of all: the defendants in Snyder were subjected to liability because of the content of their speech³⁵—the case did not involve a content-neutral restriction on picketing. Content-neutral laws, as the Court itself recognized, "raise very different questions from the tort verdict at issue in" Snyder.³⁶

Thus, Snyder is distinguishable. Indeed, it was already distinguished. The en banc Eighth Circuit, in upholding a law limiting picketing outside of funerals, distinguished Snyder along the just-discussed lines.³⁷ Snyder poses no impediment to a content-neutral restriction of the sort permitted by Frisby or the funeral cases.

It is worth also considering the very-controversial case of Hill v. Colorado,³⁸ along with the cases it spawned.

Hill v. Colorado. In Hill, the Court upheld a Colorado law limiting speech outside of abortion clinics. In relevant part, the law stated:

No person shall knowingly approach another person within eight feet of such person, unless such other person consents, for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with such other person in the public way or sidewalk area within a radius of one hundred feet from any entrance door to a health care facility.³⁹

This law dramatically interfered with the work of pro-life advocates, as it prevented them from coming closer than eight feet to women entering clinics, frustrating the advocates' ability to persuade the women through one-on-one conversations. The Court acknowledged that such conversations are protected by the First Amendment. And it did not deny that the law forbade some such conversations. Nonetheless, the Court upheld the law.

To arrive at this conclusion, Hill first held that the law was content-neutral. It gave three reasons. First, the law regulated not the content of any speech, but only the place where speech could occur. Second, it applied without regard to the speaker's viewpoint. (This is among the opinion's more controversial conclusions, as the law was plainly aimed at preventing pro-life speech). Third, the law advanced state interests unrelated to the content of the speech—specifically, its "interests in protecting access and privacy, and providing the police with clear guidelines."⁴⁰

As addressed above, however, even content-neutral laws must be narrowly tailored and leave open ample alternative channels for communication. Hill determined that the Colorado law passed muster. The law in question regulated "three types of communication," namely "the display of signs, leafletting, and oral speech."⁴¹ The 8-foot-buffer requirement, Hill said, would have no impact on the ability to speak via signage. "With respect to oral statements," the 8-foot buffer would allow protesters to speak "at a normal conversational distance," distinguishing the Colorado law from a 15-foot buffer held unconstitutional in another case.⁴² Moreover, while the law forbade pro-life advocates from affirmatively approaching patients, it did not require speakers to move away from patients who approached them, meaning patients desiring a one-on-one conversation could pursue one. Finally, while the "burden on the ability to distribute handbills [was] more serious," nothing "prevent[ed] a leafletter from simply standing near the path of oncoming pedestrians and proffering his or her material, which the pedestrians can easily accept."⁴³

The Court perceived all these as relatively minor hindrances. Measured against the State's interest in protecting the privacy of people "who are attempting to enter health care facilities"—people "often in particularly vulnerable physical and emotional conditions"—the law could be deemed narrowly tailored.⁴⁴

Cases applying Hill. The decision in Hill drew vigorous dissents from Justices Scalia and Kennedy. And history has not viewed it kindly. The recent Dobbs decision described Hill as having "distorted First Amendment doctrine[s]" in service of abortion.⁴⁵ That said, the Court has not overruled Hill, despite having had opportunities to do so.

The Court has, however, narrowed Hill. In McCullen v. Coakley,⁴⁶ the Court held unconstitutional a Massachusetts law not dissimilar from the one in Hill. The law in question said:

No person shall knowingly enter or remain on a public way or sidewalk adjacent to a reproductive health care facility within a radius of 35 feet of any portion of an entrance, exit or driveway of a reproductive health care facility or within the area within a rectangle created by extending the outside boundaries of any entrance, exit or driveway of a reproductive health care facility in straight lines to the point where such lines intersect the sideline of the street in front of such entrance, exit or driveway.⁴⁷

Note the difference. Rather than creating an 8-foot-buffer zone between speakers and patients, the Massachusetts law altogether excluded speakers from coming within 35 feet of the facility. This, the Court held, made all the difference. McCullen deemed the statute content-neutral, since it did not speak to the content of any speech and purported to address safety, ingress and egress, and obstructed sidewalks.⁴⁸ The law was not, however, narrowly tailored, since it "burden[ed] substantially more speech than necessary to achieve" the state interests.⁴⁹ The broad, 35-foot buffer made effective, one-on-one communication far more difficult. Especially considering the many alternatives that would advance the government's interests without burdening so much speech, the law could not be upheld.

In light of McCullen, Hill cannot be read as broadly permitting buffer zones around sensitive activities. The case really is an abortion-specific carveout that it would be best to avoid relying on.

That said, the analysis above—that related to cases restricting picketing and protests near homes and funerals—would survive any decision overruling Hill. That is because the problems with Hill do not extend to the home-and-funeral cases.

The biggest problems with Hill are twofold.

First, it treated as content-neutral a law that drew content-based distinctions. Specifically, the law applied only to speakers engaged "in oral protest, education, or counseling." To know whether someone is engaged in oral protest, education, or counseling, one must consider the content of the speech at issue. One of the dissents stressed that this distinguished the law in Hill from laws banning "demonstrations and picketing": the latter sort of laws, including the law from Frisby, can be enforced without regard to the message being communicated.⁵⁰ And the same distinction would apply to laws like the Ohio funeral law quoted above, which forbid activities that are "disruptive or undertaken to disrupt or disturb a funeral or burial service or a funeral procession." Laws like that can be enforced without considering the substance of the message conveyed. The more clearly a law frees officials from having to consider the content of speech, the more likely it is to survive constitutional scrutiny even if Hill is overruled.

Second, the Court in Hill botched the narrow-tailoring analysis. To quote Justice Scalia, if prohibiting "uninvited speech from a distance closer than eight feet is a 'narrowly tailored' means of preventing the obstruction of entrance to medical facilities (the governmental interest the State asserts), narrow tailoring must refer not to the standards of Versace, but to those of Omar the tentmaker."⁵¹ The Colorado law, for reasons specific to pro-life counseling, significantly interfered with such counseling, and went far beyond what was necessary to ensure clinic access. No such lack of tailoring is apparent in the private-home or funeral cases.

*

All told, the cases allowing content-neutral restrictions on picketing and protests outside of homes and funerals will likely permit laws imposing similar restrictions on similar activity near religious services. Hill and its progeny provide a limited amount of additional support. But even if Hill and the follow-on cases are eventually overruled, that should not affect Congress's power to pass a bill addressing picketing outside of religious services.

In light of the foregoing, I would consider borrowing substantially from already-upheld laws regulating protests outside of homes or funerals. For example, I believe something like the following would survive constitutional scrutiny:

Every citizen may freely speak, write, and publish the person's sentiments on all subjects, being responsible for the abuse of the right, but no person shall picket or engage in other protest activities, nor shall any association or corporation cause picketing or other protest activities to occur, within three hundred feet of any residence, cemetery, funeral home, church, synagogue, or other house of worship during or within one hour before or one hour after the conducting of a religious service at that place.…

As used in this section, "other protest activities" means any action that is disruptive or undertaken to disrupt or disturb a religious service.

As used in this section, a "religious service" includes any service, mass, prayer gathering, or other event at which individuals congregate to worship or otherwise exercise their religion.⁵²

Alternatively, and borrowing from the federal law governing protests outside military funerals:

(a) Prohibition.—For any religious service, it shall be unlawful for any person to engage in an activity during the period beginning 120 minutes before and ending 120 minutes after such service, any part of which activity—

(1)(A) takes place within the boundaries of the location of such religious service or takes place within 300 feet of the point of the intersection between—

(i) the boundary of the location of such religious service; and

(ii) a road, pathway, or other route of ingress to or egress from the location of such religious service; and

(B) includes any individual willfully making or assisting in the making of any noise or diversion—

(i) that is not part of the religious service and that disturbs or tends to disturb the peace or good order of such service; and

(ii) with the intent of disturbing the peace or good order of such service;

(2)(A) is within 500 feet of the boundary of the location of such religious service; and

(B) includes any individual—

(i) willfully and without proper authorization impeding or tending to impede the access to or egress from such religious service; and

(ii) with the intent to impede the access to or egress from such religious service.

(b) Definition.—As used in this section, a "religious service" includes any service, mass, prayer gathering, or other event at which individuals congregate to worship or otherwise exercise their religion.⁵³

The more speech the law permits, the more likely it is to be upheld. Thus, a ban on picketing that permits marches, leafletting, and the like will be easier to defend.

A final, critical consideration is enforcement. The easiest option would include permitting the United States and the Attorneys General of the States (or local prosecutors) to enforce the law. That is what the FACE Act does.⁵⁴

But prosecutors can be unreliable. What really motivates is profit. For that reason, I recommend creating a private right of action that would sic the plaintiffs' bar on those who violate (or who fund violations). The right of action should establish very high statutory damages ($10,000, say), and each individual who violates the statute should be separately liable. The fear of damages, and the eagerness of plaintiffs' attorneys to seek damages, would hopefully dissuade violations.