The law, signed by Gov. Ron DeSantis yesterday, provides:
(1) As used in this section, the term “dwelling” means a building, structure, or portion thereof which is occupied as, or designed or intended for occupancy as, a residence by one or more families.
(2) It is [a misdemeanor] for a person to picket or protest before or about the dwelling of any person with the intent to harass or disturb that person in his or her dwelling….
(4) Before a person may be arrested for a violation of this section, a law enforcement officer … must go as near to the person as may be done with safety and shall command any person picketing or protesting before or about the dwelling of a person to immediately and peaceably disperse. If any such person does not thereupon immediately and peaceably disperse, he or she may be arrested for a violation of this section.
Now a flat ban on all “focused picketing taking place solely in front of a particular residence” would be constitutional, as the Court expressly held in Frisby v. Schultz (1988), interpreting an ordinance that used the “before or about” language. (In Carey v. Brown (1980), the Court had held that a content-based residential picketing ban was unconstitutional, but Frisby held that content-neutral ones are fine.)
But this statute wouldn’t ban all such residential picketing, but only picketing “with the intent to harass or disturb.” I appreciate the desire to narrow the ordinance; consider Justice Stevens’ dissent in Frisby, which faulted the ordinance for making it a crime “for a fifth grader to carry [a] sign” outside a friend’s home saying, “Get well Charlie—our team needs you.” But I think this attempt to narrow it might actually make it unconstitutionally content-based, unconstitutionally vague, or perhaps effectively meaningless.
The problem is that the ordinance doesn’t define “harass,” and the closest state law analog—the Florida stalking statute—defines “harass” to “mean to engage in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose.” What counts as a “legitimate purpose”? The stalking cases haven’t set forth a categorical test, and indeed acknowledge its uncertainty (and circularity):
Whether the purpose for contact is “legitimate” is evaluated on a case-by-case basis and the term “legitimate” seems to be lacking a precise definition. However, courts have generally held that contact is legitimate when there is a reason for the contact other than to harass the victim.
But they have recognized that a good range of communication, including communication to a person and not just about the person, is viewed as having a “legitimate purpose.” Indeed,
- One Florida appellate case made clear that a wife’s “contact[ing her husband’s lover] by phone and by messages and ‘friend’ requests on Facebook” to “tell[ the lover] to stay away from [the husband]” was a legitimate purpose.
- Another held the same as to a girlfriend warning her boyfriend’s ex-girlfriend to “stay away” from him.
- A third held that calling one’s daughter’s dance team coach to complain about the “daughter’s participation in a dance team competition” “was a legitimate purpose.”
- A fourth held the same about “six text messages” “asking him to repay $10,000.”
It seems that protesting outside someone’s home to tell the person to vote a particular way on a political proposal (if the person is a legislator) or to stop performing abortions (if the person is an abortion provider) or to change corporate policy (if the person is a business executive) would likewise be a “legitimate purpose” under that term. (The Florida stalking law also specifically says that another element of the stalking statute, “course of conduct,” “does not include constitutionally protected activity such as picketing or other organized protests,” but that is not itself within the definition of “harass” in that stalking law.)
It thus seems to me that there are three options here:
- An intent to communicate to the picketed person that one thinks his behavior is improper (whether having an affair, failing to repay money, acting a particular way as a dance coach, or doing anything else) is a “legitimate purpose,” in which case the “intent to harass” branch of the law would do little about residential picketing.
- An intent to communicate to the picketed person that one thinks his behavior is improper is not a “legitimate purpose”; but where is that in the statute, especially given how “legitimate purpose” has been defined in the cases under the Florida stalking statute?
- An intent to communicate to the picketed person that one thinks his behavior is improper is sometimes a “legitimate purpose” and sometimes not a legitimate purpose, depending on whether one is communicating about something one has a legitimate interest in (e.g., the target’s having an affair with one’s husband). But that would likely be unconstitutionally vague, and likely unconstitutionally content-based.
Of course, the law also bans residential picketing with the intent to disturb, which might potentially be much broader. But that term appears to be entirely undefined within Florida law, which further suggests that it might be unconstitutionally vague. (I did find one other Florida statute that spoke of “harass[ing] or disturb[ing],” but that had to do with manatees.) Would, say, picketing outside a legislator’s home aiming at persuading the legislator to vote a particular way be viewed as intent to disturb, or as intent to persuade? What if there’s evidence that the real purpose for the picketing was to draw media attention?
More broadly, the Supreme Court held in Reed v. Town of Gilbert (2015) that statutory distinctions that “defin[e] regulated speech by its function or purpose” may be content-based, presumably if the function or purpose relates to the content of the speech. And since speech said with “intent to disturb” would often disturb precisely because of its disturbing content, that would mean the statute is content-based; as I mentioned, the Court has held that content-based restrictions on residential picketing are content-based.
Nor can one respond by saying that all residential picketing is inherently intentionally disturbing because it intentionally intrudes on the target’s privacy: After all, the law doesn’t ban all residential picketing, but only residential picketing conducted “with the intent to harass or disturb that person in his or her dwelling,” which suggests that the legislature views some residential picketing as intentionally disturbing and some as not.
So it looks like, by trying to limit the scope of the residential picketing ban, the Florida Legislature might have either made it unconstitutional or ineffective. Perhaps this is a flaw in the Court’s First Amendment jurisprudence; again, consider Justice Stevens’ view, both in his Frisby dissent and in his Carey dissent, that content discrimination that narrows the scope of such laws is a virtue and not a vice. Indeed, Justice Stevens’s dissent in Frisby suggested that the better approach is for such laws to be limited “to conduct that unreasonably interferes with the privacy of the home and does not serve a reasonable communicative purpose”—something that might be pretty close to the Florida “intent to harass” language. But Justice Stevens was dissenting, and for better or worse the majority opinion, with its insistence on content neutrality, is the law.