By Alexandra Schrader-Dobris

Introduction:

Minnesota cities are steadily banning targeted residential protests in response to several Black Lives Matter demonstrations following George Floyd’s death in 2020.^[1] That summer, over one hundred Black Lives Matter (BLM) protesters picketed outside Minneapolis Police Union President Bob Kroll’s house, calling for his resignation as a result of his failure to prevent Floyd’s death.^[2] In response, St. Louis Park amended its residential protesting ban to include multifamily housing as a prohibited protesting space.^[3] Originally, the ban only protected single-family housing.^[4] On February 4, 2021, Republican Representative Pat Garofalo introduced bill HF 771 to the House, which would impose a statewide ban.^[5] The bill defines the act of residential protesting as “A person who protests before or about the residence or dwelling of any person, except when the residence or dwelling is used as a place of business.” ^[6] Violating this act would result in a misdemeanor or gross misdemeanor conviction.^[7] First Amendment implications and residential privacy and safety concerns arise from these protest ordinances.

Targeted Residential Protests–SCOTUS and Eighth Circuit Rulings:

In Frisby v. Schultz, the 1988 Supreme Court held that a categorical ban on residential protesting was facially constitutional under the First Amendment.^[8] The Court held that ordinances banning this type of protesting are subject to the time, place, and manner test: the restriction must be “content-neutral…narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.”^[9] The ordinance is not viewpoint neutral if the “government has adopted a regulation of speech because of disagreement with the message it conveys.”^[10] The Court’s goal was to protect residential privacy but allowed “General marching through residential neighborhoods, or even walking a route in front of an entire block of houses.”^[11] Applying the Schultz test, the eighth circuit held in Veneklase v. City of Fargo that a residential protest ban did not violate the First Amendment.^[12] In 2001 the Veneklase court analyzed the ordinance’s language, finding that the phrase ‘“No person shall engage in picketing the dwelling of any individual’” regulates nothing other than the particular location of where one may picket.”^[13] Thus, the Court held that the ordinance did not restrict free speech.^[14] Furthermore, the ordinance “[did] not speak to which types of picketing are prohibited. Rather, it ban[ned] all picketing…[and] the City’s interest of protecting the privacy of the home is unrelated to the content of the plaintiffs’ speech.”^[15] As long as the statutes do not discriminate against the type of speech produced, the eighth circuit prioritizes preserving the “sanctity of the home.”^[16]

The First Amendment and Black Lives Matter Protests:

Although targeted residential protest ordinances are only Constitutional if they are content-neutral, the ordinances disproportionately impact BLM protests.^[17] The resurgence of  residential protest bans in many states, including in Minnesota, occurred in response to BLM. Drafters of the legislation wanted to curb potential violence emanating from the protests, however, nationwide 93% of all BLM protests have been peaceful.^[18] Given the peaceful nature of these demonstrations, it seems unlikely that residential harassment is as severe a concern as some legislators fear within this context.^[19]

The First Amendment and Abortion Protests:

Before the BLM protests, targeted residential protest ordinances emerged from anti-abortion demonstrations. The Supreme Court in Madsen v. Women’s Health Center, Inc. (1994) held that an injunction barring residential picketing within 300 feet of clinic employees’ homes was overly broad and therefore unconstitutional.^[20] In this instance, the Court declined to apply Frisby because injunctions entail a more extensive censorship risk.^[21] Instead the Court asked, “whether the challenged provisions of the injunction burden no more speech than is necessary to serve a significant government interest.”^[22] When weighing the balance between safety concerns and First Amendment rights, the Court held that the proximate area around the home is appropriate grounds for picketing.^[23]

The First Amendment and Labor Rights Protests:

Carey v. Brown represents another landmark residential protesting case. In 1980 the Supreme Court struck down a residential protesting ban which exempted labor picketing.^[24] The ordinance was a content-based regulation and not narrowly tailored to a substantial government interest.^[25] The Court’s holding focused on an equal protection argument, however, Justice Stewart’s concurrence expressed that the impermissibility of content based speech discrimination was also a First Amendment violation.^[26] This case reduced residential privacy in favor of freedom of expression.

Legal Scholar’s Legislation Recommendations:

To preserve First Amendment Rights while reducing harassment, some legal scholars suggest restricting picketing to the “site of the dispute.”^[27] Additionally, other scholars note that this area of the law is highly subjective, and therefore, each ordinance must be evaluated using fact-specific analysis.^[28] Throughout the drafting process, legal decision makers ought to ensure that residential protest bans will not limit expressive activity in public places.^[29] When undergoing that analysis, “a particular group’s past violent or disruptive conduct should be carefully documented…”^[30] Thus, if a protesting group had a history of non-peaceful demonstrations, then it would be reasonable to infer that residential protesting might escalate toward violence.

Conclusion:

As more cities in Minneapolis restrict residential protesting and Minnesota moves toward a statewide ban, legal scholars should consider the growing First Amendment and safety concerns.  Protesters may increasingly criticize these ordinances with frustration if they view their rights are being impeded. The frustration could lead to greater displays of civil unrest, endangering the public. More research should be done to determine the impact of distance and location on protests. If studies find that neighborhood picketing carries no greater impact on legislative change than picketing directly in front of someone’s home, perhaps legislators should more firmly define the parameters of residential protesting. Thorough research could serve as a starting point to evaluate the pressing First Amendment and safety concerns.

Alexandra Schrader-Dobris is a Staff Member for Volume 41 of the Minnesota Journal of Law & Inequality

[1] Kim Hyatt, St. Louis Park amends targeted residential protest ban, Startribune, (Mar. 16, 2021), https://www.startribune.com/st-louis-park-amends-targeted-residential-protest-ban/600034980/.

[2] Id.

[3] Id.

[4] Id.

[5] Megan Olson, Bill in Minnesota House seeks to ban protests outside people’s homes, ALPHANEWS, (Feb. 22, 2022), https://alphanews.org/bill-in-minnesota-house-seeks-to-ban-protests-outside-peoples-homes/.

[6] Residential Protesting, H.R. 771, 93rd Cong. § 256B.0625 (2023).

[7] Id.

[8] Frisby v. Schultz, 487 U.S. 474, 108 S. Ct. 2495, 488 (1988).

[9] Id. at 481. (citing Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 103 S. Ct. 948, 45 (1983)).

[10] Ward v. Rock Against Racism, 491 U.S. 781, 109 S. Ct. 2746, 791 (1989).

[11] Frisby v. Schultz, 487 U.S. 483.

[12] Veneklase v. City of Fargo, 248 F.3d 738, 749.

[13] Veneklase v. City of Fargo, 248 F.3d 738, 744 –745 (8th Cir. 2001).

[14] Frisby v. Schultz, 487 U.S. 488.

[15] Id. at 745.

[16] Ken Gormley, One Hundred Years of Privacy, 1992 Wis. L. REV. 1335, 1384 (1992).

[17] Bob Shaw, Suburbs such as Lake Elmo look to strike back against protests targeting homes, Pioneer Press, (Nov. 11, 2020), https://www.twincities.com/2020/11/11/suburbs-such-as-lake-elmo-look-to-strike-back-against-protests-targeting-homes/.

[18] Roudabeh Kishi & Sam Jones, Demonstrations and Political Violence in America: New Data for Summer 2020, ACLED, (Sept. 3, 2020), (https://acleddata.com/2020/09/03/demonstrations-political-violence-in-america-new-data-for-summer-2020/).

[19] Shaw, supra note 17.

[20] Madsen v. Women’s Health Ctr., 512 U.S. 753, 114 S. Ct. 2516, 8 (1994).

[21] Id. at 4.

[22] Id. at 24.

[23] Id. at 8.

[24] Carey v. Brown, 447 U.S. 455, 465 (1980).

[25] Carey v. Brown, 447 U.S. 455, 457.

[26] Carey v. Brown, 447 U.S. 455, 472.

[27] Sylvia Arizmendi, Residential Picketing: Will the Public Forum Follow Us Home? 37 How. L.J. 495, 554 (1994).

[28] Daniel L. Schofield, Controlling Public Protest: First Amendment Implications, 63 FBI

1. ENFORCEMENT BULL. 25, 31 (1994).

[29]  Id. at 25.

[30] Id. at 31.