Judge Newman's dissent on courthouse speech issue

It is not very often that we get a pure free speech issue before the Second Circuit. In this case, the Court of Appeals rules that a state law prohibiting certain speech within 200 feet from a state courthouse may be unconstitutional as applied to a jury nullification activist who stood outside Bronx Supreme with a sign telling everyone to Google "jury nullification." But the Court splits on whether the statute is unconstitutional on its face. The majority sidesteps that issue because the record in the district court is not fully developed yet. Judge Newman disagrees. Here I will discuss Judge Newman's dissent on that issue.

The case is Picard v. Magliano, issued on July 27. I know Judge Newman to be a free-speech warrior. I recall a concurrence he issued in 1993 on workplace speech retaliation where he said the Court of Appeals was moving too fast on these issues, to the detriment of plaintiffs. Thirty years later, Judge Newman weighs in on the courthouse picketing law, noting that content-based speech restrictions are reviewed under the "strict scrutiny" test, the most unforgiving test in constitutional law, presuming the law is unconstitutional unless the government has a compelling reason for the speech restriction and the. restriction is narrowly-tailored to satisfy that compelling interest.

Judge Newman notes the statute does not prohibit expression that is likely to disrupt ongoing proceedings. It simply prohibits picketing that would "concern[] the conduct of a trial being held in such courthouse." He notes that some placard-speech would not interfere with ongoing proceedings, such as a sign that says that "the trials in this courthouse are generally unfair." That sign would concern an ongoing trial, but it would not influence any jurors. That makes the statute overbroad, and the First Amendment does not like overbroad statutes.

What also makes the statute overbroad is its geographic scope, barring certain speech. within 200 feet from the courthouse. That's just too far from the building to communicate your message to anyone relevant. Judge Newman notes that 200 feet is two-thirds the length of a 100-yard football field. "The subsection forces a person delivering a message about ongoing court proceedings to stand away from potential listeners and readers at a location equivalent to that of a person standing on a 33-yard line whose spoken words could not be heard in the far end zone or whose writings displayed at that location could not be read in that end zone." As those with an important message "are entitled to have their views heard and read in the vicinity of a courthouse, even though the State can bar speech unduly influencing such proceedings expressed to close to the courthouse that their views can be easily heard or read."