On Wednesday, a Florida-based blog that tracks instances of police officers attempting to curtail the free speech rights of citizens who record law enforcement in action reported that Henderson County, N.C., sheriff’s deputies attempted to seize the cellphone recordings several people made of the officers attempts to break up a pro-marijuana protest outside the courthouse.
The right of citizens to record the police while in public is fairly well established as a basic First Amendment principle. While the Supreme Court has not had to answer the question directly of whether there is a right to record in public, numerous lower courts, including the First Circuit Court of Appeals, Seventh Circuit Court of Appeals, Ninth Circuit Court of Appeals and Illinois Supreme Court, have found that it exists. The issue has not yet come up in North Carolina’s courts or the Fourth Circuit, though I’m confident in asserting that citizens here have a right to record police as long as the citizen isn’t interfering with an active investigation.
What captures my attention about this story, though, is not the officers attempt to seize the cellphone recordings. Rather, I’m interested in the law they were attempting to enforce.
The officers apparently asked protesters, a group of libertarian-minded folks who sought to encourage jury nullification in a particular marijuana case, to move to a spot 300 feet from the entrance to the courthouse. That’s in accord with a 1977 state law on obstruction of justice that bars protesting or picketing within 300 feet of a courthouse if the intent of the protest is “to interfere with, obstruct, or impede the administration of justice, or with intent to influence any justice or judge of the General Court of Justice, juror, witness, district attorney, assistant district attorney, or court officer, in the discharge of his duty …”
Within that 300 foot buffer zone at nearly every (I’m fairly confident that it is every, although I have only personally visited about 30) courthouse in the state are public streets and sidewalks. Public streets and sidewalks are considered traditional public forums in constitutional law, meaning that government attempts to restrict speech there must meet the time, place and manner test first announced by the Supreme Court in Grayned v. City of Rockford and later refined in Ward v. Rock Against Racism. For a time, place and manner restriction on speech in a public forum to be valid, the government must show that the limitation is 1) content-neutral, 2) is narrowly tailored to advance a substantial government interest and 3) leaves open alternative channels of communication. It is my opinion that North Carolina’s anti-picketing ban near courthouses cannot withstand the scrutiny of a time, place and manner test.
The law has only been noticed by our appellate courts twice since its passage. The first time was In re Kivett, a 1983 case, in which the N.C. Supreme Court mentions the picketing ban as one of the many possible ways a person could run afoul of the state’s obstruction of justice laws. The second time was in Crumpler v. Thornburg, a 1989 case, in which the N.C. Court of Appeals was asked to directly consider the constitutionality of the ban. The court chose not to answer the question because the underlying issue had become moot. William Crumpler was an attorney opposed to the death penalty who sought a permit from the City of Raleigh to protest outside the Wake County courthouse in advance of the state’s execution of John Rook. Superior Court Judge Donald Smith entered a temporary restraining order allowing Crumpler’s protest, and Rook was executed. On review, the Court of Appeals declined to rule on the merits since the issue was moot following Rook’s death.
The U.S. Supreme Court has continued to provide guidance on time, place and manner restrictions, though.
Most recently in 2014, the court struck down a Massachusetts ban on standing within 35 feet of an abortion clinic entrance in McCullen v. Coakley. In McCullen the court said: “The Act would be content based if it required ‘enforcement authorities’ to ‘examine the content of the message that is conveyed to determine whether’ a violation has occurred.” It seems self-evident that the N.C. statute in question requires that sort of determination by an officer attempting to enforce the law because it is limited to speech that is intended to “influence” any justice, judge, witness, prosecutor or other central figure in a case before the courts. It appears content-based because by omission it excludes pickets that are not intended to influence potential actors in a particular court case.
For example, one could hold a general pro-cannabis protest outside a North Carolina courthouse, but if the picket references a particular defendant then it would be in clear violation of the obstruction statute. If the statute is viewpoint based, then it must pass the heightened strict scrutiny standard of being put in place to further a compelling government interest and being narrowly tailored to achieve that interest.
Even if one concludes that the statute’s intent to prevent an undue influence on the outcome of court cases is content-neutral, it is hard to reconcile the breadth of the N.C. statute against the limitations placed in McCullen and its predecessors. As the McCullen court noted: “For a content-neutral time, place, or manner regulation to be narrowly tailored, it must not ‘burden substantially more speech than is necessary to further the government’s legitimate interests.'” (citing Ward). The anti-picketing statute on its face appears to fail the narrow tailoring requirement. Three hundred feet is 100 yards, or the entire field of play in a football game. That is a tremendous amount of space within which protected speech cannot occur.
The Supreme Court has been somewhat skeptical of buffer zones, although it has upheld them in such cases as the 100-foot barrier that Tennessee put in place around polling areas. That buffer came before the court in Burson v. Freeman. In Burson, the court acknowledged that Tennessee’s statute failed the content-neutrality test, but the state was able to pass strict scrutiny by showing that the ban on campaign speech within 100 feet of a poll served a compelling government interest and that it was narrowly tailored to serve that interest. North Carolina’s ban on picketing near courthouses appears to fail that narrow tailoring based on the sheer distance it requires protesters to stay away from the court building. Wouldn’t 50 feet or 100 feet be less restrictive and more narrowly tailored? What about 25 feet? The 300 foot number appears arbitrary.
One of the reasons the Burson court found that the 100-foot buffer was narrowly tailored to achieve a compelling government interest was that the state of Tennessee was that under state law, law enforcement officers were generally barred from being present at the polls in order to prevent the appearance of coercion on the electoral process. No such prohibition exists outside N.C. courthouses. Deputies are readily able and available to monitor protests in the vicinity of judicial buildings.
And that’s why I think the state of North Carolina would have a difficult time showing that NCGS 14-225.1 is narrowly tailored sufficient to pass either a heightened strict scrutiny standard or a lessened time, place and manner test.
To come full-circle, the law is on the books and the deputies are tasked with enforcing it until it is either modified by the General Assembly or overturned by a court.