13 May 2022 — 1032mdt

Whoever, with the intent of interfering with, obstructing, or impeding the administration of justice, or with the intent of influencing any judge, juror, witness, or court officer, in the discharge of his duty, pickets or parades in or near a building housing a court of the United States, or in or near a building or residence occupied or used by such judge, juror, witness, or court officer, or with such intent uses any sound-truck or similar device or resorts to any other demonstration in or near any such building or residence, shall be fined under this title or imprisoned not more than one year, or both.

Nothing in this section shall interfere with or prevent the exercise by any court of the United States of its power to punish for contempt.

(Added Sept. 23, 1950, ch. 1024, title I, § 31(a), 64 Stat. 1018; amended Pub. L. 103–322, title XXXIII, § 330016(1)(K), Sept. 13, 1994, 108 Stat. 2147.)

The supposedly “limited and justifiable” anti-picketing statute being cited by all these people — 18 U.S.C. § 1507 — was enacted as part of the Internal Security Act of 1950, a law requiring communist organizations to register with the government. This particular statute was specifically written to respond to reports of protests outside federal courts during U.S. prosecutions of alleged communist party leaders.

One of the statute’s proponents, segregationist Sen. Allen Ellender (D-La.), explained at the time: “The practice of picketing courts is of recent origin, and apparently has been employed almost solely in connection with proceedings involving alleged Communist Party members and sympathizers… If we are to keep our national judiciary on the high plane it has enjoyed since the founding of this country, we must restrain these disgraceful practices, adopted by persons and groups who would undermine our country by first undermining our judiciary.”

The Supreme Court has subsequently struck down portions of the broader Internal Security Act. Furthermore, in 1983, the court limited the government’s prohibition on protests outside the Supreme Court, finding that the First Amendment protects picketing on sidewalks surrounding the court.

While the Post’s Aaron Blake wrote a story Wednesday headlined, “Yes, experts say protests at SCOTUS justices’ homes appear to be illegal,” one of conservatives’ go-to constitutional law scholars has said that relying on the Internal Security Act statute to quash protests could have troubling Constitutional implications.

George Washington University law professor Jonathan Turley, who has criticized the protests at justices’ houses, wrote a column in The Hill on Tuesday arguing that using the anti-picketing statute “to arrest protesters would be a serious blow to free speech and would be difficult to defend in the courts.”

He similarly told the Wall Street Journal: “As a free speech advocate, I would be very concerned about the use of that statute. I think that what these protesters are doing is reprehensible. I think it’s equally reprehensible for President [Joe] Biden not to denounce this. But when we start to charge protesters with crimes because they’re appearing at the homes of figures, including Supreme Court justices, you really do raise some First Amendment concerns.”

Turley added, “I do think that if you brought a prosecution, it would raise some serious constitutional questions. And I would not bet on that being upheld on appeal.”

There is a most important reason why the prosecutor should have, as nearly as possible, a detached and impartial view of all groups in his community. Law enforcement is not automatic. It isn’t blind. One of the greatest difficulties of the position of prosecutor is that he must pick his cases, because no prosecutor can even investigate all of the cases in which he receives complaints. If the Department of Justice were to make even a pretense of reaching every probable violation of federal law, ten times its present staff would be inadequate. We know that no local police force can strictly enforce the traffic laws, or it would arrest half the driving population on any given morning. What every prosecutor is practically required to do is to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain.

If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him. It is in this realm — in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself.

In times of fear or hysteria political, racial, religious, social, and economic groups, often from the best of motives, cry for the scalps of individuals or groups because they do not like their views. Particularly do we need to be dispassionate and courageous in those cases which deal with so-called “subversive activities.” They are dangerous to civil liberty because the prosecutor has no definite standards to determine what constitutes a “subversive activity,” such as we have for murder or larceny. Activities which seem benevolent and helpful to wage earners, persons on relief, or those who are disadvantaged in the struggle for existence may be regarded as “subversive” by those whose property interests might be burdened or affected thereby. Those who are in office are apt to regard as “subversive” the activities of any of those who would bring about a change of administration. Some of our soundest constitutional doctrines were once punished as subversive. We must not forget that it was not so long ago that both the term “Republican” and the term “Democrat” were epithets with sinister meaning to denote persons of radical tendencies that were “subversive” of the order of things then dominant.

In the enforcement of laws which protect our national integrity and existence, we should prosecute any and every act of violation, but only overt acts, not the expression of opinion, or activities such as the holding of meetings, petitioning of Congress, or dissemination of news or opinions. Only by extreme care can we protect the spirit as well as the letter of our civil liberties, and to do so is a responsibility of the federal prosecutor.