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N.Y. Law Limiting Court Protest Survives 1st Amendment Challenge

July 27, 2022, 3:54 PM

A New York law that limits protests near courthouses can withstand a broad First Amendment challenge, the Second Circuit ruled Wednesday in partially vacating a federal trial court’s injunction against the law.

But the injunction issued by the US District Court for the Southern District of New York may stay in place as it relates to the activities of the plaintiff who brought the challenge, Michael Picard, the opinion by Judge Gerard E. Lynch said.

Picard was promoting the general concept of jury nullification and handing out pamphlets on the sidewalk outside the Bronx County Hall of Justice. He testified that he didn’t have any knowledge of the trials being held at the time and wasn’t advocating for or against any particular case.

A court officer told Picard he had to move at least 200 feet away from the building. When he refused, he was arrested for violating the state law that makes it illegal to be on a public sidewalk within 200 feet of a courthouse while protesting a trial being held in the building.

The local prosecutor refused the charges because the officer didn’t measure how far away from the courthouse Picard was standing. Picard sued, claiming a violation of his First Amendment rights and seeking injunctive relief.

The district court ruled that the law was unconstitutional as applied to Picard and on its face. The state didn’t challenge the injunction as it applied to Picard but argued that the law was facially valid.

The law is a content-based regulation of speech, but it’s narrowly tailored to serve a compelling state interest, the US Court of Appeals for the Second Circuit said.

The state has a legitimate interest in protecting the judicial system from the pressures that protests near courthouses may create, the court said.

The state clearly has an interest in stopping amplified calls for jurors to reach a particular verdict in an ongoing trial and quiet protests can be equally as intimidating, the court said.

Demonstrations directed at judges and jurors near courthouses “direct the attention of decision-makers in the judicial process to factors from which we strive to insulate them, such as the pressure of public opinion, or factual claims beyond the evidence and argument presented in the courtroom,” the court said.

But an injunction prohibiting enforcement of the law as applied to Picard’s conduct was warranted to ensure that his “constitutionally-protected conduct is not chilled by his reasonable fear of future arrest and prosecution,” the court said.

Judge Michael H. Park joined the opinion.

Dissenting Judge Jon O. Newman said that the law is unconstitutional because it prohibits speech entitled to First Amendment protection and is overbroad in its geographic scope.

The American Civil Liberties Union Foundation represented Picard.

The case is Picard v. Magliano, 2d Cir., No. 20-3161, 7/27/22.

To contact the reporter on this story: Bernie Pazanowski in Washington at bpazanowski@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Patrick L. Gregory at pgregory@bloomberglaw.com