By Matt Rooney | The Save Jersey Blog
This story is priceless, Save Jerseyans.
Background: you may have heard that pro-Second Amendment activists have peacefully protested in front of Senate President Steve Sweeney’s West Deptford (Gloucester County) home two Sundays in a row following the death of South Jerseyan Carol Bowne at the hands of her ex-boyfriend, pacing on the sidewalk and waving signs in a non-confrontation manner.
Ms. Bowne had applied to purchase a gun but didn’t get approved in time to save her own life thanks, the protesters believe, to gun control laws supported by the Sen. Sweeney and his caucus.
How is the 3-2 Democrat township committee responding to these protesters? By moving to outlaw the protests. At this Wednesday’s meeting, they plan to deliberate on a proposed ordinance which, according to the revised agenda (not the one first listed on the municipal website), would
amend gut and rewrite West Deptford’s loitering law, and the new language contained in § 106-2. “Restrictions on Residential Picketing” is pretty obviously aimed directly at the Sweeney protesters:
No person or persons shall engage in picketing that is targeted at and is within one hundred (100) feet of the property line of a residential dwelling in West Deptford. Lawful picketing beyond the one hundred (100) feet restriction shall be limited to a group of no more than ten persons for one hour every two weeks. Persons intending to conduct lawful picketing must notify the West Deptford police department at least twenty-four hours prior to any intended instance of picketing.”
Henceforth, picketing is defined as “the standing, gathering or parading of one or more persons with or without signs of protest or claims at a location within West Deptford for the purpose of expressing personal opinions on one or more subjects.” Violators could face a $2,000 fine, up to 90 days imprisonment in the county jail and 90 days of community service.
Nerd time! Now, the applicable constitutional principles at play here have been litigated continuously over the years (we often see them in political context when towns try to ban/limit yard signs). Long story short, as a general matter under the U.S. Constitution, the government can impose only “reasonable time, place, and manner restrictions” on free speech in a public space (including a sidewalk) provided the regulation is narrowly-tailored. In other words, the government can restrict a downtown sidewalk protest to avoid obstructing foot traffic but only to the extent necessary to do so.
But what about a residential sidewalk?
For a New Jersey-specific devil’s advocate argument, I highly recommend checking out this brief (and this one, too) filed by the ACLU of New Jersey in an ongoing Trenton case. New Jersey’s Supreme Court has adopted a hostile posture to anti-loitering measures, a trend that hasn’t abated. West Deptford’s new ordinance does that and is viewpoint neutral but it imposes very suspect restrictions on speech and the right of assembly in the residential context.
However, to be entirely fair, we haven’t seen much protection afforded to protests targeted at individual homes at the federal level and some states have so-called “targeted residential picketing” statutes on the books. Here in the Garden State, courts have cited Frisby v. Schultz for the proposition that targeted residential picketing is not protected when balanced against a private homeowner’s privacy rights as articulated by Sandra Day O’Connor. So protesters can march on a sidewalk, just not stand outside one individual residential home. We think.
O’Connor seemed to stop short of condoning a ban on ALL residential picketing, restricting her disapproval to that subject case’s activities aimed at one home. Would the West Deptford ordinance, directing that even protests outside the 100-foot threshold be “limited to a group of no more than ten persons for one hour every two weeks,” be deemed overly-broad? Is that a de facto prohibition on all residential picketing given the close proximity of homes/sidewalks in the suburban South Jersey community? And is the one hour time limit passable?
Bottom line: I wouldn’t be shocked if a legal challenge is forthcoming.