Volume 43, Issue 1 (2025)

Examining the Constitutionality of Targeted Residential Protest Bans

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.

A New Future for Social Media Platforms, Courtesy of State Legislators.

By: Anitra Varhadkar

On March 23, 2023, Utah Governor Spencer Cox signed the Social Media Regulation Act (H.B. 311 and S.B. 152) (“the Bill”), arguably one of the most aggressive bills targeted at limiting the social media usage of children under the age of 18.[1] The Bill, which is one of the first in the nation, leaves the fate of children’s social media use entirely to their parents or legal guardians.[2]

The Utah Bill, Decoded.

Though the Bill is filled with stringent new requirements aimed at building a safer online experience for minors, some seem to stick out more than others. Spanning an extensive 40 lines of the Bill, Utah legislators require all account holders to go through an extensive age verification process, and anyone under the age of 18 will now need the “express consent of a parent or guardian” to create their accounts.[3] And while parental consent is nothing new, the Bill takes this one step further by allowing parents access to the private messages of their children’s account.[4]

In addition to requirements for account holders, social media companies[5] have a host of requirements to abide by, including: (1) strict restrictions on the advertising (their main source of revenue) minor accounts are exposed to and (2) creating a default setting to “block minors from accessing their accounts from 10:30 pm to 6:30 am,” which can only be reversed by parents.[6]  Enforcement is punitive as well, with social media companies subject to both private actions and an administrative fine of $2,500 per violation.[7]

The Utah Legislature consistently cites the youth mental health crisis as a driving force of the Bill, noting that social media has only amplified this crisis in recent years.[8] Opponents, however, raise a fundamentally different argument. Though all parties acknowledge that youth mental health measures are necessary, opponents argue that the Bill’s tactics are far from congruent to the stated purpose.[9] Influential to their opposition was the “California Age-Appropriate Design Code,” which pioneered a movement to ensure safe media platforms for children.[10] The legislation, to be deployed in 2024, will require social media platforms to create heightened privacy features for minors that cannot be easily turned off.[11] Utah, on the other hand, is seemingly attempting to both mitigate the potential negative effects of social media and entirely prevent kids, especially teenagers, from accessing social media—potentially a source of grave consequences for Utah minors.[12]

Psychologists have reported the detrimental mental health effects of social media on young women especially for decades, with social scientists concluding that social media is exponentially increasing the likelihood of body dysmorphia for young girls.[13] And yet, over 15 years since the first study was released, Utah’s legislature is only now taking such drastic measures. The timing is almost picturesque, with the Bill arriving in the midst of Congressional hearings regarding TikTok’s “national security risk” and only months after the actions taken by Governor DeSantis in Florida on academic censorship.[14] This slippery trajectory unfortunately begs the question— is this where censorship in the United States is heading?

(Un)Intended Consequences?

It is no secret that social media, despites all of its woes, has been tremendously useful as a catalyst for social movements and as an information source for much of the world.[15] Domestically, we have seen millions rally on platforms such as TikTok and Instagram—whether for racial justice in 2020 after the murder of George Floyd, or for reproductive justice following the fall of Roe v. Wade.[16] On an international scale too the power of social media has been revolutionary, with movements like “Women, Life, Freedom” from Iran gaining incredible traction on social media platforms.[17] In Iran specifically, platforms have both educated the globe on the daily injustices Iranian women face, as well as undeniably given a voice to those on the ground.[18]

While the premise of Utah minors being cut off from information sources on social media is jarring, it is when this measure is put in the context of surrounding legislative action that it becomes truly bone-chilling. In Florida, Governor DeSantis’ has taken sweeping actions to censor public education through his now infamously coined “Don’t Say Gay” and “Stop W.O.K.E. Act.”[19] By way of background, his policies have created a parent-friendly system, where parents, rather than licensed educators, would be influential in deciding what topics are covered in school curriculum and what books the library is “allowed” to carry.[20] Prohibited topics include critical race theory and gender/sexual orientation education, while stringent limits are put on how race in the United States is taught.[21]

However, the students in Florida still have access to their social media, seemingly allowing them to be exposed to educational tools and informational videos that inform them of these so-called “prohibited topics.” The importance of social media here can be readily seen with LGBTQ+ minors, who have been outspoken about finding and connecting with community members through their accounts—often a source of life-saving support, education, and resources.[22] If, however, Florida imposed a similar bill to that of Utah, all of these resources, whether it be for education, support, or otherwise, will: (1) only be available if parents/guardians allow access and (2) be far from private, as parents have access to account messaging and posts.[23]

Whether the intention of the Utah legislature was censorship or not can remain up for debate, but the consequences of their actions cannot. As other states begin to follow suit, only time will tell just how negative an impact these bills will have on the future generations.[24]

 

[1] S.B. 152, 2023 Leg., 498 Sess. (Utah 2023) [hereinafter “Utah Act”].

[2] Natasha Singer, Utah Law Could Curb Use of TikTok and Instagram by Children and Teens, N.Y. TIMES (Mar. 23, 2023).

[3] Utah Act, supra note 1, at 239-305.

[4] Id. at 302-05.

[5] In the Act, a “social media company” is defined as “a person or entity that: (a) provides a social media platform that has at least 5,000,000 account holders worldwide; and (b) is an interactive computer service.” Utah Act, supra note 1, at 310-11.

[6] Utah Act, supra note 1, at 310-11.

[7] Utah Act, supra note 1, at 341.

[8] Nicholas Reimann, Utah Bans Teens Under 18 From Social Media Without Parental Consent, FORBES (Mar. 23, 2023) https://www.forbes.com/sites/nicholasreimann/2023/03/23/utah-bans-teens-under-18-from-social-media-without-parental-consent/?sh=7b56295179d3.

[9] Id. (“But the Utah law far outstrips the California online safety  effort, imposing broad constraints and enabling parental surveillance that could alter how many teenagers in Utah use the internet.”).

[10] AB 2273 “Age-Appropriate Design Code” (Nov. 18, 2022), https://californiaaadc.com/.

[11] Natahsa Singer, Tech Trade Group Sues California to Halt Children’s Online Safety Law, N.Y. TIMES (Dec. 14, 2022).

[12] See generally Utah Act, supra note 1.

[13] See Richard Strauss & Harold Pollack, Social Marginalization of Overweight Children, Arch Pediatric Adolescent Medical (2003). https://jamanetwork.com/journals/jamapediatrics/article-abstract/481398

[14] Sapna Maheshwari, What to Know About Today’s Congressional Hearing on TikTok, N.Y. TIMES (Mar. 23, 2023) https://www.nytimes.com/2023/03/23/technology/tiktok-congress-hearing.html

[15] Belle Liang, Using Social Media to Engage Youth: Education, Social Justice, & Humanitarianism, 17 THE PREVENTION RESEARCHER (2010).

[16] Tyler T. Reny, The Opinion-Mobilizing Effect of Social  Protest Against Police Violence: Evidence from the 2020 George Floyd Protests, 115 AM. POL. SCI. REV. 1499 (Jun. 08, 2021) (“several of the attributes of the Floyd protests that make it unique (e.g., scale and media coverage) also arguably render it more likely than other episodes of protest to exert the broad effect on public opinion”).

[17] Marie Lamensch, In Iran, Women Deploy Social Media in the Fight for Rights, CTR. FOR INT’L GOV. INNOVATION (Nov. 16, 2022) https://www.cigionline.org/articles/in-iran-women-deploy-social-media-in-the-fight-for-rights/

[18] Id.

[19] Katie Reilly, Florida’s Governor Just Signed the ‘Stop Woke Act.’ Here’s What it Means for Schools and Businesses, TIME (Apr. 22, 2022) https://time.com/6168753/florida-stop-woke-law/

[20] Id.

[21]Sarah Mervosh & Dana Goldstein, Florida Rejects Dozens of Social Studies Textbooks, and Forces Changes in Others, (May 09, 2023) https://www.nytimes.com/2023/05/09/us/desantis-florida-social-studies-textbooks.html

[22] Natasha Singer, Utah Law Could Curb Use of TikTok and Instagram by Children and Teens, N.Y. TIMES (Mar. 23, 2023) https://www.nytimes.com/2023/03/23/technology/utah-social-media-law-tiktok-instagram.html

[23] Id.

[24] Similar laws can be found in Connecticut H.B. 5025 and Ohio’s “Social Media Notification Act.”