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View Diary: The Haters win a Case, and I am Glad 20090630 (75 comments)

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  •  I'd allow a picket (4+ / 0-)

    but not major amplification.

    O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and BLACKMUN, SCALIA, and KENNEDY, JJ., joined. WHITE, J., filed an opinion concurring in the judgment, post, p. 488. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 491. STEVENS, J., filed a dissenting opinion, post, p. 496.

    From brennan's dissent

    I also agree with the Court that the town has a substantial interest in protecting its residents' right to be left alone in their homes.  It is, however, critical to specify the precise scope of this interest. The mere fact that speech takes place in a residential neighborhood does not automatically implicate a residential privacy interest. It is the intrusion of speech into the home or the unduly coercive nature of a particular manner of speech around the home that is subject to more exacting regulation.

    A crowd of protesters need not be permitted virtually to imprison a person in his or her own house merely because they shout slogans or carry signs. But so long as the speech remains outside the home and does not unduly coerce the occupant, the government's heightened interest in protecting residential privacy is not implicated.

    The foregoing distinction is crucial here because it directly affects the last prong of the time, place, and manner test: whether the ordinance is narrowly tailored to achieve the governmental interest.

    Contrary to the Court's declaration in this regard, it seems far more likely that a picketer who truly desires only to harass those inside a particular residence will find that goal unachievable in the face of a narrowly tailored ordinance substantially limiting, for example, the size, time, and volume of the protest. If, on the other hand, the picketer intends to communicate generally, a carefully crafted ordinance will allow him or her to do so without intruding upon or unduly harassing the resident. Consequently, the discomfort to which the Court must refer is merely that of knowing there is a person outside who disagrees with someone inside. This may indeed be uncomfortable, but it does not implicate the town's interest in residential privacy and therefore does not warrant silencing speech.



    Practicing Law without a License is my 3d favorite Crime.

    by ben masel on Tue Jun 30, 2009 at 11:28:07 PM PDT

    [ Parent ]

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