The Washington PostDemocracy Dies in Darkness

No speech that ‘degrade[s] or call[s] into question the integrity’ of judges on courthouse sidewalks

The order is here; it covers a lot of behavior, but the most clearly unconstitutional provision is this one (bold added):

1. The term “Duval County Courthouse grounds” herein shall apply to the exterior of the Duval County Courthouse at 501 West Adams Street, Jacksonville, Florida, 32202; the lawn area in front of the Courthouse facing Adams Street, perimeter sidewalk leading from Adams Street to the front of the Courthouse, the front steps and the entrance of the Courthouse; the garages on Broad Street, on Pearl Street, and the Sally Port entrance; the adjacent building known as the “State Attorney’s Office” which has an overpass bridge leading directly into the Courthouse; all perimeter sidewalks around the Courthouse (on Adams Street, Duval Street, Broad Street and Pearl Street), as well as around the State Attorney’s Office building (on Monroe Street, Pearl Street, Julia Street, and Duval Street); and the fenced-in garage of the State Attorney’s Office building directly across the street from the judges’ garage.
2. The public sidewalks along Adams Street; across the street from the Duval County Courthouse on Broad Street; and across the street from the Duval County Courthouse on Duval Street; are all excluded from the designation of “Duval County Courthouse grounds.” [EV notes: This means that many of the public sidewalks covered in item 1 are included.]
3. Demonstrations or dissemination of materials that degrade or call into question the integrity of the Court or any of its judges (e.g., claiming the Courts, Court personnel or judges are “corrupt,” biased, dishonest, partial, or prejudiced), thereby tending to influence individuals appearing before the Courts, including jurors, witnesses, and litigants, shall be prohibited on the Duval County Courthouse grounds….
6. Any person engaging in the type of expressive conduct as indicated in this Order may be found in criminal contempt of Court….
9. If an individual is observed to engage in conduct that is in violation of this Order after having been provided notice as set forth herein, the Jacksonville Sheriff’s Office is hereby DIRECTED to arrest and charge the offending individual with indirect criminal contempt of Court (and any other charges deemed appropriate) and transport such person to the Duval County Jail for identification and processing.

But all public sidewalks near the courthouse are “traditional public fora” (see United States v. Grace (1983)) in which content-based speech restrictions — and, even more clearly, viewpoint-based speech restrictions such as the one in item 3 — are unconstitutional.

I realize that some courts have (wrongly, I think) allowed restrictions on speech outside courthouses that advocates jury nullification. But whatever courts might say about this sort of specific call for juries to disregard judges’ instructions, this can’t be extended, I think, to general condemnation of the character of judges — public officials (in Florida, elected officials) who must always be subject to public scrutiny and criticism. Nor is the judge’s order justified by the argument that “reasonable restrictions are necessary to limit expressive conduct, speech, or dissemination of materials, tending to influence individuals as they enter the Courthouse, which serves the reasonable purpose of protecting the actual or perceived integrity of judicial impartiality and independence of the courts.” Government officials can’t protect the “perceived integrity” of their “impartiality and independence” by suppressing speech that accuses them of not being impartial and independent.

Grounds within the courthouse complex (setting aside sidewalks) are not public fora, so some content-based restrictions on speech there are permissible. But even in such nonpublic fora, viewpoint-based restrictions such as this one are not allowed.

The order also bans “videotaping of secure locations on the Duval County Courthouse grounds, such as the judges’ secure parking garages (under the Courthouse at the Pearl Street and Broad Street entrance), the State Attorney’s Office garage (on Pearl Street) and the Sally Port, and all security features of the Duval County Courthouse, including non-public entrances to and exits from the Courthouse, shall be prohibited for the protection and security of the judiciary and to avoid breaching the security systems, or revealing the security systems, or security procedures of the Courthouse in place.” This order was apparently prompted by videotaping that “include[s] license plates of some of the judges’ vehicles and showed some judges driving out of the secure garage, including their faces and their associated vehicles (make, model, year, and license plates). This disclosure puts the judges in a vulnerable position because the videotape is available on the Internet ….” (The order excludes “credentialed media representatives’ ability to use the front Courthouse steps and any exterior areas where the Courthouse has traditionally been used as a backdrop while performing newsgathering, photographing, filming, recording, and broadcasting functions consistent with journalistic practices.”)

This ban is also, I think, likely too broad to be constitutional, despite the judge’s security concerns. Among other things, judge’s faces and cars cannot, I think, be treated as secret matters that may not be photographed, even despite the potential risk that the public availability of this information creates. But the law related to permissible restrictions on photography and videorecording in public places is less well-settled than the law related to outright speech restrictions, so the constitutionality of this provision is less clear.

Finally, here’s part of the judge’s rationale for the order:

[T]he proper procedure for challenging a court’s decision is to file an appeal with the appropriate appellate court. Shouting out on the Courthouse grounds that the Court and judges are “corrupt” during business hours while people are entering the Courthouse is entirely inappropriate and disruptive and is analogous to falsely shouting “fire” in a crowded theater ….

Completely analogous! Except that it’s not a proven false statement of fact, but either an expression of opinion or a statement of fact as to which there has been no trial to determine its falsity. And it’s not likely to immediately start a stampede in which people might be trampled to death. And it criticizes a government official, with the very official being criticized trying to restrict it. Other than that, they are totally the same thing.

Thanks to Michael Westendorf of the Saginaw Valley Journal for the pointer.