Over the past year and a half, two groups have held weekly protests in Front Royal. The first group, Vigil for Democracy, launched the protests soon after the election of President Trump. By all accounts, the Vigil for Democracy obtained permits and conducted peaceful and lawful pickets, as provided for by the First Amendment. The group has met near the Town Gazebo on Main Street every Wednesday, usually from 5 to 6 PM and has renewed its permits as required by local town statute.
Soon after the Vigil for Democracy began its weekly protests, a group of counter-protestors emerged. Like the Vigil for Democracy activists, the counter-protestors, who consider themselves Trump supporters, have lawfully picketed at the same time. In both cases, the groups have conducted lawful and peaceful protests on public town streets. Recently, the two groups filed and received permits to continue their weekly First Amendment activities with one change: now the Vigil for Democracy group will appear from 12 to 1 PM by the Gazebo while the Trump supporters will congregate near the Gazebo and across the street from 4:30 to 5:30 PM—still on Wednesdays.
Last week, a few business owners appeared before the Front Royal Town Council to request that the protests be curtailed or moved to a different location. Their rationale is that the protests hurt their bottom line by discouraging potential customers from frequenting their respective business establishments.
Such an argument is somewhat novel from a constitutional standpoint. A purview of U.S. Supreme Court case law reveals a dearth of support for the argument that peaceful picketing can be attacked on the grounds that it affects local business revenues. Indeed, Town Attorney Doug Napier acknowledged the constitutional concerns inherent on imposing restrictions on political demonstrations on public streets, acknowledging that public streets can lawfully be used for First Amendment-related assemblies.
According to a Northern Virginia Daily News article dated September 5, 2018, however, Mr. Napier argued,
For ‘content-based’ activities, such as political demonstrations . . . the government may enforce the time and place they are held.
This proposition is well supported by case law. From a time standpoint, governments may limit free speech in a crowded public square if the speech will limit the flow of traffic and create congestion. Cox v. Louisiana, 379 U.S. 536 (1965). In the case at hand, no one is alleging that the Front Royal protestors are causing traffic congestion.
The next issue goes to enforcing the place where the protests are held. The Court treats public spaces, or “traditional public forums” such as the town square where the gazebo is located, with considerably more care than protests held in a non-public forum. Stated the Court in Hague v CIO:
Streets and parks…have immemoriably been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public issues. Such use has, from ancient times, been part of the privileges, immunities, and liberties of citizens.
In the Hague case, a local governing body argued that it could restrict labor unions from distributing leaflets or meeting in public because this could lead to disturbances. The Court rejected this argument on its face. A local ordinance may not limit speech in a traditional forum merely because it may lead to disruptions to public tranquility.
Interestingly, Mr. Napier argued that it “may be possible” to limit the free speech rights of the groups at hand if the protests cause a loss in income to local businesses. Absent supportive case law, it is difficult to evaluate such a position. Nonetheless, the Town Attorney went on to say the following:
Napier noted that a U.S. Supreme Court decision upheld a town’s decision to prohibit picketing in the interest of well being and tranquility. He added that the town would have to provide the protesters another venue in public view if they are relocated.
The problem with such an argument is that it hinges on an apparent misapplication of law to facts. Napier it would seem is referring to a 1988 Supreme Court decision, Frisby v. Schultz, in which the Court upheld a ban on picketing in front of a residential home where a doctor was performing abortions.The “speech” in Frisby v. Schultz involved picketing held at a non-public forum, whereas the speech involved in the case at hand occurs in as traditional a public forum as there can be: the town square or “Gazebo.” The protests that occurred in Frisby are by no means similar to those occurring in Front Royal.
Indeed, Justice O’Connor tightly limited the future application of her ruling:
General marching through residential neighborhoods, or even walking a route in front of an entire block of houses, is not prohibited by this ordinance. Only focused picketing taking place solely in front of a particular residence is prohibited.
The entire ruling, as written by Justice O’Connor, focused on preserving the privacy of individuals while living in their residences against “the devastating effect of targeted picketing on the quiet enjoyment of the home.” She further added that [t]here simply is no right to force speech into the home of an unwilling listener.”
Mr. Napier argued that the town can limit or even prohibit picketing in the interest of the community’s well-being and tranquility, but support for such a proposition appears to be limited to cases in which the picketing is targeted at a single private residence. Furthermore, the Supreme Court does not factor into First Amendment time and place limits the potential loss of revenue to local businesses when the protests occur in a traditional forum like the Town Square or the Front Royal Gazebo/main street area.
Any time and place restrictions upon free speech “must be narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.”The courts weigh even content-neutral restrictions on free speech with strict scrutiny.Absent a compelling government interest, the town of Front Royal cannot lawfully prohibit Vigil for Democracy or the counter-protestors from continuing their weekly vigils or pickets or protests.
It should be noted that the groups meet only for an hour, are small in number, and that businesses are divided as to whether the protestors hurt or help revenue. Indeed, recent heavy rains have impacted business revenue to a greater degree than the appearance of ten or twenty individuals waving signs. And the case law that speaks to a town’s right to limit picketing in order to preserve tranquility is easily distinguishable, because it applies to the picketing of a single residence in a non-traditional, semi-private forum, such as a residential street.
Should the town proceed to pass an ordinance that limits protestors from lawfully applying for and receiving a permit to appear in the town square, it will most likely face legal challenges from concerned citizens. Such a case would present an expensive and risky court challenge to the Town of Front Royal. It is a case the town most likely would lose.
307 U.S. 496 (1939).
Frisbyv. Schultz, 487U.S.474,108S.Ct.2495,101L. Ed.2d 420(1988).
“Freedom of Speech and Press: Exceptions to the First Amendment,” Congressional Research Service, CRS Report for Congress, Kathleen Ann Ruane. September 8, 2014. https://fas.org/sgp/crs/misc/95-815.pdf.