MICHAEL PICARD v. MICHAEL MAGLIANO, in his оfficial capacity as Chief of Public Safety for the New York Unified Court System; DARCEL D. CLARK, in her official capacity as District Attorney for Bronx County
Docket No. 20-3161
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
July 27, 2022
August Term, 2021; Argued: October 25, 2021
Before: NEWMAN, LYNCH, and PARK, Circuit Judges.
Defendant-Appellant Michael Magliano, represented by New York‘s Attorney General, appeals from a judgment of the United States District Court for the Southern District of New York (Cote, J.) holding that New York Penal Law § 215.50(7), which prohibits certain speech within a 200 feet radius of a courthouse, violates the First Amendment of the United States Constitution and permanently enjoining the enforcement of the statute in all circumstances. The State of New York argues that Plaintiff-Appellee Michael Picard lacked standing to challenge the statute and that the district court erred in granting an injunction that enjoined enforcement of the statute in all circumstances, beyond its application to Picard‘s own conduct in this case. We conclude that while Picard has standing to challenge the statute, the district court erred in granting such a broad injunction. We therefore VACATE the judgment of the district court and REMAND with instructions to enjoin the application of
Judge NEWMAN concurs in part and dissents in part in a separate opinion.
ERIC DEL POZO, Assistant Solicitor General, New York, NY (Letitia James, Attorney General; Barbara D. Underwood, Solicitor General; Steven C. Wu, Deputy Solicitor General, on the brief), for Defendant-Appellant Michael Magliano.
BRIAN M. HAUSS, (Arianna M. Demas, on the brief), American Civil Liberties Union Foundation, New York, NY, for Plaintiff-Appellee Michael Picard.
Dwayne D. Sam, Christina Jones, Karsyn N. Keener (law student), Patton Solowey (law student), Williamsburg, VA, for Amicus Curiae William & Mary Law School Appellate and Supreme Court Clinic.
This appeal concerns the constitutionality of New York Penal Law (“NYPL“) § 215.50(7) and its application to an individual protestor who wishes to promote
In late 2017, Michael Picard, a self-described civil libertarian, stood on the sidewalk outside the Bronx County Hall of Justice holding a sign that read, “Jury Info” and handing out flyers to passersby directing them to “Google Jury Nullification.” A New York State Court Officer told Picard to move and warned him that he would be arrested if he did not move at least 200 feet from the courthouse. Picard, however, refused to move. The officer then arrested Picard for violating
On July 29, 2020, the United States District Court for the Southern District of New York (Denise Cote, J.) issued an order holding that
We hold that while Picard does have standing to challenge the constitutionality of the statute as applied to him, the district court erred in granting a broad injunction against the enforcement of the statute in all circumstances. We therefore VACATE the injunction and REMAND to the district court to enjoin the enforcement of
BACKGROUND
Michael Picard is a self-described civil libertarian who advocates jury nullification as an “effective means to protest unjust laws.” App‘x at 29. Picard began publicly advocating jury nullificatiоn in early 2016 when he first started passing out pamphlets with information on jury nullification to passersby on public sidewalks outside courthouses in Connecticut and Massachusetts. Picard maintains that he has never “attempted to influence a juror‘s vote in a particular case” and that he does not “research which trials are occurring before visiting a courthouse to advocate jury nullification.” App‘x at 30.
On December 4, 2017, Picard stood on a public sidewalk outside the Bronx County Hall of Justice in New York near the main entrance of the courthouse. Picard held a sign that stated, “Jury Info.” App‘x at 30. Picard also held flyers that read “No Victim? No Crime. Google Jury Nullification” on one side and “‘One has a moral responsibility to disobey unjust laws’ – Martin Luther King Jr.” on the other side. App‘x at 30. Picard distributed flyers to about four pedestrians. Picard claims that he was “not aware of any particular cases in which jurors were being impaneled or serving at the time” and that he did not “discuss any
At around 8:05 AM, a New York State Court Officer approached Picard and told him that it was “against the law to distribute flyers about jury nullification within two hundred feet of a courthouse.” App‘x at 31. The officer also repeatedly asked Picard to move and told Picard that he would be arrested if he did not move at least two hundred feet away from the courthouse. Picard refused to move, arguing that he was standing on a public sidewalk and that he was allowed to advocate jury nullification by passing out the flyers. The officer then arrested Picard for violating
A person is guilty of criminal contempt in the second degree when he engages in any of the following conduct: . . . On or along a public street or sidewalk within a radius of two hundred feet of any building established as a courthouse, he calls aloud, shouts, holds or displays placards or signs containing written or printed matter, concerning the conduct of a trial being held in such courthouse or the character of the court or jury engaged in such trial or calling for or demanding any specified action or determination by such court or jury in connection with such trial.
Picard was released from police custody at around 6:00PM that day. A Bronx County Assistant District Attorney declined to prosecute Picard for the alleged violation of
Picard claims that since his arrest, he has not promoted jury nullification within two hundred feet of a New York courthouse out of fear that he would again be arrested and possibly prosecuted for violating
On April 5, 2019, Picard filed this action under
Both defendants moved to dismiss the complaint, arguing that Picard lacked standing to challenge the statute and, with respect to Clark, that his complaint failed to state a claim. The district court denied those motions on December 2, 2019, concluding, as relevant to this appeal, that Picard had standing to challenge the constitutionality of
The district court then held a bench trial on the written record, with both parties filing written submissions. On July 29, 2020, the district court found in favor of Picard, holding that
Neither party disputed that
The defendants argued that
The district court then found that Picard was entitled to a permanent injunction against the enforcement of
After directing the parties to submit a proposed final judgment, id. at 208, the district court entered the final judgment and order on August 14, 2020, declaring that
DISCUSSION
I. Standard of Review
We review de novo a district court‘s rulings on questions of standing. Conn. Citizens Def. League, Inc. v. Lamont, 6 F.4th 439, 444 (2d Cir. 2021). We also review de novo a “district court‘s interpretation and application of state law.” In re World Trade Ctr. Lower Manhattan Disaster Site Litig., 846 F.3d 58, 63 (2d Cir. 2017). And we review de novo a district court‘s “decision following a bench trial on stipulated facts.” Roganti v. Metro. Life Ins. Co., 786 F.3d 201, 210 (2d Cir. 2015).
“We review the award of permanent injunctive relief for abuse of discretion.” Biediger v. Quinnipiac Univ., 691 F.3d 85, 96 (2d Cir. 2012). “A district court abuses its discretion if it (1) bases its
II. Analysis
The State raises two main issues on appeal: first, whether Picard has standing to challenge the constitutionality of
A. Standing
The State first challenges the district court‘s judgment on the ground that Picard lacks Article III standing because “his intended activities plainly do not violate § 215.50(7), and he therefore does not face a legitimate risk of conviction under that statute.” Appellant‘s Br. 1.
“To establish Article III standing, a plaintiff must show (1) an ‘injury in fact,’ (2) a sufficient ‘causal connection between the injury and the conduct complained of,’ and (3) a ‘likelihood’ that the injury ‘will be redressed by a favorable decision.‘” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157-58 (2014) (alterations adopted), quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).1 An Article III-sufficient injury, however, must be “‘concrete and particularized’ and ‘actual or imminent,’ not ‘conjectural’ or ‘hypothetical.‘” Id. at 158, quoting Lujan, 504 U.S. at 560.
Pre-enforcement challenges to criminal statutes are “cognizable under Article III.” Cayuga Nation v. Tanner, 824 F.3d 321, 331 (2d Cir. 2016). As the Suрreme Court has made clear, a plaintiff has suffered an injury-in-fact and has standing to bring a case when he is facing the “threatened enforcement of a law” that is “sufficiently imminent.” Susan B. Anthony List, 573 U.S. at 158-59. Specifically, a plaintiff “satisfies the injury-in-fact requirement where he alleges ‘an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder.‘” Id. at 159, quoting Babbitt v. United Farm Workers Nat‘l Union, 442 U.S. 289, 298 (1979); see also Hedges v. Obama, 724 F.3d 170, 196 (2d Cir. 2013) (noting that a plaintiff has “standing to make a pre[-enforcement challenge when fear of criminal prosecution under an allegedly unconstitutional statute is not imaginary or wholly speculative“) (quotation marks and citation omitted).
A plaintiff need not first “‘expose himself to liability before bringing suit to challenge... the constitutionality of a law threatened to be enforced.‘” Knife Rights, Inc. v. Vance, 802 F.3d 377, 384 (2d Cir. 2015), quoting MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128-29 (2007); see also Babbitt, 442 U.S. at 298 (noting that a plaintiff “should not be required
The dispute between the parties over standing turns primarily on the proper interpretation of
This type of dispute is not novel. In Susan B. Anthony List v. Driehaus, for example, the Supreme Court considered a statute that prohibited certain “false statements” regarding a political candidate or public official‘s voting record. 573 U.S. at 151-52. The respondents in that case argued that the petitioners’ fears of facing enforcement of the statute were “misplaced” because the petitioners insisted that their speech was “factually true,” and thereforе prosecution for those statements was unlikely as they were, by definition, outside the ambit of a statute that only proscribed false statements. Id. at 163. But the Supreme Court rejected the respondents’ argument, noting that “[n]othing in this Court‘s decisions requires a plaintiff who wishes to challenge the constitutionality of a law to confess that he will in fact violate that law.” Id. And in applying the Babbitt standard to the facts of Susan B. Anthony List, the Supreme Court considered whether the petitioners’ intended conduct was “arguably . . . proscribed by [the] statute,” id. at 162 (emphasis added), quoting Babbitt, 442 U.S. at 298, not whether it was in fact proscribed under the best interpretation of the statute or under the government‘s own interpretation of the statute.
The Supreme Court‘s opinion in Susan B. Anthony List makes clear that courts are to consider whether the plaintiff‘s intended conduct is “arguably proscribed” by the challenged statute, not whether the intended conduct is in fact proscribed. We have made similar determinations when applying our own “reasonable enough” standard in similar cases involving questions of standing. Under that standard, “[i]f a plaintiff‘s interpretation of a statute is ‘reasonable enough’ and under that interpretation, the plaintiff ‘may legitimately fear that it will face enforcement of the statute,’ then the plaintiff has standing to challenge the statute.” Pac. Cap. Bank, N.A. v. Conn., 542 F.3d 341, 350 (2d Cir. 2008), quoting Vt. Right to Life Comm., Inc. v. Sorrell, 221 F.3d 376, 383 (2d Cir. 2000).
Our “reasonable enough” standard, which predates the Supreme Court‘s decision in Susan B. Anthony List, essentially corresponds to that decision‘s “arguably proscribed” standаrd in that both standards consider whether the plaintiff‘s proffered interpretation of the statute – which leads them to fear its enforcement against their intended conduct – is arguable or reasonable.
Accordingly, in order to determine whether Picard has standing, we must determine whether Picard intends to engage in a course of conduct protected by the First Amendment, but arguably proscribed by a statute, and whether there exists a credible threat of prosecution thereunder. The district court found, and the State does not dispute, that Picard‘s conduct – jury nullification advocacy that is not connected to any specific court, jury, or ongoing trial in the courthouse – is protected by the First Amendment.
But the State argues that Picard‘s intended conduct – jury nullification advocacy outside of a courthouse that is not connected to any specific court, jury, or ongoing trial in the courthouse – is not proscribed by
But neither the opinion of the New York Attorney General nor any similar view expressed by the district court or by this Court as to whether
The State also argues for its own interpretation of the statute thаt would not cover Picard‘s intended conduct. In particular, the State argues that
It is of course possible that an interpretation that reads “placards or signs containing written or printed matter[] concerning the conduct of a trial” to cover Picard‘s “Jury Info” sign or jury nullification flyers may be less persuasive than the State‘s proffered interpretation, but such an interpretation is not outside the realm of the “arguable.” Even if the jury nullification flyers are not considered “placards or signs” and even if the “Jury Info” sign Picard held did not directly concern the conduct of a trial, Picard‘s use of both the sign and the flyers is “arguably” proscribed by the statute. Similarly, interpreting Picard‘s message regarding jury nullification to apply to the “conduct of a trial bеing held in such courthouse” is at the very least plausible, since his advocacy would apply to any trial then being held in the courthouse, even assuming arguendo that the State‘s interpretation that would require a message regarding a specific trial is more persuasive.
It is also notable that
place in the Bronx courthouse. Accordingly, we find that Picard‘s conduct is “arguably proscribed” by
The standing inquiry does not end there. We must also determine whether a credible threat of future prosecution exists. It may well be the case that if Picard were to engage in the same course of conduct and then be arrested by a police officer unaware of the State‘s interpretation of the statute, Picard would be able to obtain a dismissal under that interpretation once the State stepped in to give its position. But it gives no comfort to Picard that he must face the possibility of arrest and a threatened prosecution again in order to engage in conduct that the State already concedes is protected by the First Amendment. Put plainly, Picard should not have to be arrested again in order to have standing to challenge the statute.
Indeed, perhaps the most significant piece of evidence in Picard‘s favor – and what makes Picard‘s case stand out from other pre-enforcement challenges – is that he has already been arrested for his jury nullification advocacy prior to initiating this lawsuit. Moreover, Picard escaped prosecution not because the District Attorney concluded that the statute did not apply to his conduct, but only because the arresting officer failed to measure the distance between where Picard was standing and the courthouse, a factual ground that would not prevent his arrest in the future should he engage in this conduct in New York again, and his possible prosecution if the officer bothered to measure his precise distance from the courthouse. Picard also alleges in his complaint that he would again engage in the same course of conduct – general jury nullification advocacy outside New York courthouses – if it were not for the statute. It is entirely reasonable for Picard to fear that he would be arrested again if he engages in the same conduct within 200 feet of a New York
Because Picard has sufficiently demonstrated an intention to engage in a course of conduct implicated by the First Amendment but arguably proscribed by a statute, and because there exists a credible threat of prosecution, we find that Picard has sufficiently established injury in fact. Accordingly, we conclude that Picard has standing to challenge
B. Facial or As-Applied Injunction
The State next argues that even if Picard does have standing, the district court exceeded its discretion when it issued an injunction that facially invalidated
Both the Supreme Court and this Circuit have recognized that “[a]lthough facial challenges are generally disfavored, they are more readily accepted in the First Amendment context.” Beal v. Stern, 184 F.3d 117, 125 (2d Cir. 1999); see also Virginia v. Am. Booksellers Ass‘n, 484 U.S. 383, 392-93 (1988). Generally, “[t]o succeed in a typical facial attaсk, [a plaintiff] would have to establish ‘that no set of circumstances exists under which [the challenged statute] would be valid,’ or that the statute lacks any ‘plainly legitimate sweep.‘” United States v. Stevens, 559 U.S. 460, 472 (2010) (citations omitted).2 An as-applied challenge, by contrast,
“requires an analysis of the facts of a particular case to determine whether the application of a statute, even one constitutional on its face, deprived the individual to whom it was applied of a protected right.” Field Day, LLC v. County of Suffolk, 463 F.3d 167, 174 (2d Cir. 2006).
Here, the State does not argue that the issuance of an injunction against the enforcement of
Thus, putting aside the standing argument we have rejected, the State concedes that, on the merits, enforcement of
The State does, however, challenge the district court‘s injunction insofar as it prohibits the enforcement of
The State‘s appeal presents a challenge to the district court‘s conclusion that
The parties dispute whether
The Supreme Court has acknowledged that “[t]here can be no question that a State has a legitimate interest in protecting its judicial system from the pressures which picketing near a courthouse might create.” Cox v. Louisiana, 379 U.S. 559, 562 (1965). In upholding the facial validity of a state statute prohibiting “picket[ing] or parad[ing] in or near” a courthouse with the intent to obstruct justice or influence judges, jurors or witnesses,4 the Court went on to observe:
[I]t is of the utmost importance that the administration of justice be absolutely fair and orderly. . . . [T]he unhindered and untrammeled functioning of our courts is part of the very foundation of our constitutional democracy. . . . A State may adopt safeguards necessary and appropriate to assure that the administration of justice at all stages is free from outside control and influence.
Id. The Supreme Court has also recognized the “‘vital state interest’ in safeguarding ‘public confidence in the fairness and integrity of the nation‘s elected judges.‘” Williams-Yulee v. Fla. Bar, 575 U.S. 433, 445 (2015), quoting Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 889 (2009).
The district court itself recognized that
We agree that
Nor do we agree with Picard that
Further, we respectfully disagree with the observation of the district court that “escort[ing]” jurors and witnesses “to and from the courthouse” would obviate the problems that
Cox itself strongly suggests that a statute of this kind – even without an intent requirement – is not facially unconstitutional and may have legitimate applications in particular circumstances. The statute at issue there prohibited parading and picketing in or near a courthouse “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.” Cox, 379 U.S. at 560, quoting
Cox, of course, predated recent Supreme Court doctrine applying more stringent First Amendment scrutiny to “content-based” restrictions on speech (as opposed to more narrowly defined “viewpoint-based” restrictions). But to the extent that the standard in decisions like Boos and Reed may be thought to call the reasoning of Cox into question, it is for the Supreme Court, and not for us, to decide if and when its precedential force has been undermined by those cases. See Bosse v. Oklahoma, 137 S. Ct. 1, 2 (2016) (“It is this Court‘s prerogative alone to overrule one of its precedents. . . . Our decisions remain binding precedent until we see fit to reconsider them, regardless of whether subsequent cases have raised doubts about their continuing vitality.“) (quotation marks, citations, and brackets omitted). As the Supreme Court recognized in Cox, courthouses present special problems, which justify the adoption of “safeguards necessary and appropriate to assure that the administration of justice at all stages is free from outside control and influence.” 379 U.S. at 562. To the extent that Cox is in tension with later Supreme Court cases addressing “content-based” time, place, and manner restrictions on speech, the courthouse context might well be found to distinguish those cases.
The Supreme Court‘s decision in Burson v. Freeman, 504 U.S. 191 (1992), which upheld a restriction on core First Amendment activity in a particularly sensitive location, supports such a distinction. The Court there upheld a prohibition on electioneering activity in the immediate vicinity of polling places. We respectfully disagree with the district court‘s distinction of Burson on the ground that in that case there was a “widespread and time-tested consensus” on the need for “restricted zones” to “prevent[] voter intimidation and election fraud,” 475 F. Supp. 3d at 207, quoting Burson, 504 U.S. at 206, which the district court thought was lacking here. As noted above,6 many states and the United States have statutes restricting protest activity around courthouses precisely because of the need to protect the administration of justice from outside influence and intimidation.
Although we are doubtful that any facial challenge to the constitutionality of
Other questions too may be raised concerning the narrow tailoring of the statute, such as, for example, whether the statute‘s 200-foot buffer zone around a given courthouse is more restrictive than is reasonably necessary to carry out the State‘s interest. But questions about the appropriate size of the buffer zone have not been litigated before this Court or the district court. We do not have the benefit of a detailed factual record to help us determine the needs of a courthouse – as opposed to an abortion clinic or polling place, sites often subjected to similar statutes or injunctions regulating speech in specified buffer zones – for a buffer zone of a particular size. Cf. Madsen v. Women‘s Health Ctr., Inc., 512 U.S. 753, 775-76 (1994) (vacating injunction prohibiting antiabortion protestors from protesting within 300 feet of the residences of abortion clinic staff, where an unspecified smaller buffer zone would suffice, based on the factual record before the Court). Instead, what we have before us is a sparse factual record involving a single advocate engaging in conduct that the State has conceded is constitutionally protected and asserts is not even covered by the statute.
Even if other challenges to the statute‘s facial constitutionality could have merit, the lack of factual development here makes clear that the district court erred by striking down
Because the State concedes that the application of
As the Supreme Court has recognized, “[g]enerally speaking, when confronting a constitutional flaw in a statute, [courts] try to limit the solution to the problem.” Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 328 (2006). For that reason, courts “prefer . . . to enjoin only the unconstitutional applications of a statute while leaving other applications in force.” Id. at 328-29. And because the State concedes that the statute cannot be constitutionally applied to Picard‘s conduct, we need only follow “‘the normal rule that partial, rather than facial, invalidation is the required course’ and leave for another day [a facial] challenge to the statute.” Am. Booksellers Found. v. Dean, 342 F.3d 96, 105 (2d Cir. 2003), quoting Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 504 (1985). The broader injunction entered by the district court, which would prohibit the enforcement of
CONCLUSION
For the foregoing reasons, we VACATE the August 14, 2020 judgment of the district court and REMAND to the district court to craft a narrower injunction prohibiting the application of
Jon O. Newman, Circuit Judge, concurring in part and dissenting in part:
Unlike the majority, however, I would rule that subsection (7) is also unconstitutional on its face, as the District Court ruled, Picard v. Clark, 475 F. Supp. 3d 198, 201 (S.D.N.Y. 2020). Subsection (7) violates the First Amendment because it is overbroad in prohibiting speech entitled to First Amendment protection and overbroad in its geographic scope. Furthermore, even as to Picard‘s as-applied challenge, which the majority upholds, I believe that the majority has provided the District Court with insufficient guidance as to the appropriate remedy on remand.
I therefore concur in part, but respectfully dissent in part.
I. Standing
The State argues that Picard lacks standing “to maintain a First Amendment challenge to” subsection (7). Br. for Magliano at 19. This contention makes no distinction between standing to make an as-applied challenge and standing to make a facial challenge. However, the State subsequently makes clear that it is challenging Picard‘s standing to make not only an as-applied challenge but also a facial challenge: The State specifically asserts: “[T]he district court held that Picard had standing tо facially challenge the law under the First Amendment . . . . That standing ruling was in error.” Id. at 20.
The majority rules that Picard has standing “to challenge” subsection (7), Maj. Op. at 22, without distinguishing between standing to challenge the subsection as applied and standing to challenge it facially. I agree with the standing ruling, but would explicitly reject the State‘s specific claim that Picard lacks standing to make a facial challenge, rather than leave that rejection merely implicit in the majority opinion. I am unaware of any decision that has recognized a plaintiff‘s standing to make an as-applied challenge to a statute alleged to violate the First Amendment and then denied standing to make a facial challenge. Once a plaintiff has standing to make any First Amendment challenge to a statute, the scope of the challenge is a merits issue. “[N]o general categorical line bars a court from making broader pronouncements of invalidity in properly as-applied cases.” Citizens United v. Federal Elections Commission, 558 U.S. 310, 331 (2010) (internal quotation marks and citation omitted).
When the Supreme Court has rejected a facial challenge to a statute challenged on First Amendment grounds, it has done so on the merits, not for lack of standing. See, e.g., Crawford v. Marion County Election Board, 553 U.S. 181 (2008). And Justices who, in dissent, would have sustained a facial challenge to such a statute have not paused to consider whether the plaintiff, subject to the statute, had standing to facially challenge it. See Brown v. Entertainment Merchants Assn., 564 U.S. 786, 821 (2011) (Thomas, J., dissenting); id. at 840 (Breyer, J., dissenting).
I also note that this is not a typical pre-enforcement challenge. In the leading pre-enforcement decisions of the Supreme Court, the plaintiff had not been arrested for violating the challenged statute. See, e.g., Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014);1 Medimmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007); Steffel v. Thompson, 415 U.S. 452 (1974). Picard, however, has been arrested.
True, he wants protection against being arrested again in the future for continuing to violate
In any event, because of his acknowledged standing to make an as-applied challenge and for the further reason that it is undisputed that he intends to repeat his conduct, Picard has standing to make a facial challenge whether that challenge is called “pre-” or “post-” enforcement.
II. The Merits
Picard wishes to advocate and distribute literature advocating jury nullification.3 His message is not focused on any particular trial.
I agree with the majority that the challenged provision violates the First Amendment as applied to Picard. Whether his facial challenge (1) is available for decision on the record in this case and, if so, (2) should succeed on the merits both require further consideration.
The majority‘s basis for its resolution of these two issues is not entirely clear. Initially, the majority makes a merits rejection of Picard‘s facial challenge:
“Because we conclude that
NYPL § 215.50(7) can likely be found to further a compelling state interest in at least some circumstances, we vacate the district court‘s facial injunction and remand to the district court to issue a narrower injunction that bars enforcement ofNYPL § 215.50(7) only as applied to conduct such as Picard‘s.”
Maj. op. at 25.
Later, however, the majority says that Picard‘s facial challenge is not properly before us for lack of an adequate record:
“We do not have the benefit of a detailed factual record to help us determine the needs of a courthouse . . . for a buffer zone of a particular size.”
Id. at 34. This point is then made more forcefully:
“[T]he lack of factual development here makes clear that the district court erred by striking down the entire statute.”
Id. at 35.
Of course, a court can rule that a record is insufficient to make a merits ruling and then express, in apparent dicta, that the claim fails on the merits, although it is odd to see these two points made in reverse order, as the majority does. In my view, the record does not lack information needed for a merits ruling on Picard‘s facial
What is clear on this record is that subsection (7) punishes anyone who “[o]n a public street or sidewalk within . . . two hundred feet of . . . a courthouse . . . calls aloud . . . or displays . . . signs containing written . . . matter, concerning the conduct of a trial being held in such courthouse . . . .” It is also clear, indeed undisputed, that Picard was arrested for violating subsection (7) and detained in police custody for ten hours. It is also clear that subsection (7) prohibits speech occurring on a sidewalk within 200 feet of a courthouse if the speech concerns an ongoing trial in that courthouse. These circumstances suffice for me to uphold Picard‘s facial challenge because subsection (7) is overbroad.4
The linguistic scope of subsection (7) is overbroad. I start with several well recognized principles: restrictions of speech based on content are subject to the most exacting scrutiny, see Boos v. Barry, 485 U.S. 312, 321 (1988); a content-based restriction, which subsection (7) undisputedly is, must be narrowly tailored to serve a compelling interest, see Reed v. Town of Gilbert, Ariz., 576 U.S. 155, 171 (2015); “it is the rare case in which a State demonstrates that a speech restriction is narrowly tailored to serve a compelling interest,” Williams-Yulee v. Florida Bar, 575 U.S. 433, 444 (2015) (internal quotation marks omitted); such a restriction must be “the least restrictive means among available, effective alternatives,” Ashcroft v. ACLU, 542 U.S. 656, 666 (2004); “[s]peech in public areas is at its most protected on public sidewalks,” Schenck v. Pro-Choice Network, 519 U.S. 357, 377 (1997); public sidewalks, including those surrounding a court, are public fora, United States v. Grace, 461 U.S. 171, 183 (1983). It is also well recognized that the State has a compelling interest in “assur[ing] that the administration of justice at all stages is free from outside control and influences,” Cox v. Louisiana, 379 U.S. 559, 562 (1965), and “protecting the integrity of the judiciary,” Williams-Yulee, 575 U.S. at 445.
Subsection (7) prohibits within the vicinity of a courthouse speech “concerning the conduct of a trial being held in such courthouse.” In the District Court, the State, perhaps recognizing the broad sweep of subsection (7), sought to conform it to First Amendment limitations by offering a narrowing interpretation of the entire statute containing subsection (7): “Properly understood, the Act was crafted to restrict
The State‘s attempted narrowing interpretation not only mischaracterized the Act, it ironically identified an alternative that would serve the State‘s compelling interest and meet First Amendment limitations. A statute prohibiting oral or written expressions likely to come to the attention of jurors, because made in close proximity to a courthouse, and likely to unduly influence jurors or at least risking such undue influence, because of the message communicated, is an available alternative to subsection (7).
Subsection (7), however, broadly prohibits expressions far beyond such a limited alternative. Critical statements such as “the trials in this courthouse are generally unfair” and favorable statements such as “the trials in this courthouse are generally fair” would both be statements “concerning the conduct of a trial being held in such courthouse.” But prohibiting them, as subsection (7) does, would not serve the State‘s compelling interest in avoiding influencing jurors. The wording of subsection (7) demonstrates that it is overbroad.5
The majority enlists Cox to reject a facial challenge to subsection (7).6 ”Cox itself strongly suggests that a statute of this kind is not facially unconstitutional and may have legitimate applications in particular circumstances.” Maj. Op. at 30.
First, the majority is relying on the branch of the facial invalidity doctrine that rejects such a challenge only if “no set of circumstances exists under which the Act would be valid.” See United States v. Salerno, 481 U.S. 739, 745 (1987). But that reliance ignores the branch of the facial invalidity doctrine that upholds such a challenge where a statute is overbroad on First Amendment grounds. “According to our First Amendment overbreadth doctrine, a statute is facially invalid if it prohibits a substantial amount of protected speech.” United States v. Williams, 553 U.S. 285, 292 (2008). “There are two quite different ways in which a statute or ordinance may be considered invalid ‘on its face‘—either because
Second, the statute upheld in Cox against a facial challenge was not of the “kind” exemplified by subsection (7), as the majority contends. The obvious distinction is that the statute in Cox prohibited parading and picketing near a courthouse “with the intent of . . . influencing any judge, juror, witness, or court officer, in the discharge of his duty.” Cox, 379 U.S. at 560. Subsection (7) has no element of intentionally influencing court personnel.
A less obvious distinction turns on the way the Supreme Court characterized the activity prohibited by the statute challenged in Cox. That statute prohibited “picketing and parading” at specific locations, including near courthouses. 379 U.S. at 562. The Supreme Court‘s opinion in Cox called such activity “conduct,” id. at 564, and distinguished such conduct from speech. “We deal in this case not with free speech alone, but with expression mixed with particular conduct.” Id. “[I]t has never been deemed an abridgement of freedom of speech . . . to make a course of conduct illegal merely because the conduct was in part . . . carried out by means of language, either spoken, written, or printed.” Id. at 563. Cox is not authority for rejecting a First Amendment facial challenge to a statute prohibiting speech alone, that is, speech that is not “mixed with particular conduct” such as picketing and parading. Subsection (7) prohibits speech “concerning the conduct of a trial,” and it is overbroad because it is not limited to prohibiting speech intended to or at least likely to unduly influence jurors or court personnel or proceedings.
The geographic scope of subsection (7) is overbroad. Subsection (7) is overbroad in that it creates a 200-foot zone around a courthouse in which verbal or written speech concerning the conduct of trials may not be expressed. A distance of 200 feet is 67 yards, two-thirds the length of a football field. The subsection forces a person delivering a message about ongoing court proceedings to stand away from potential listeners and readers at a location equivalent to that of a person standing on a 33-yard line whose spoken words could not be heard in the far endzone or whose writings displayed at that location could not be read in that endzone. Keeping speakers that far away from potential listeners and readers renders the provision overbroad.
I recognize the state‘s compelling interest in protecting the integrity of court proceedings. I would not deem invalid a narrowly tailored prohibition of speech close enough to a courthouse to risk unduly influencing a proceeding occurring there. But 200 feet is farther than needed to serve the State‘s legitimate interest. Those expressing views about court proceedings are entitled to have their views heard and read in the vicinity of a courthouse, even though the State can bar speech unduly influencing such proceedings expressed so close to the courthouse that their views can be easily heard or read.7
Moreover, subsection (7) is unnecessary.
III. The Remedy
The majority remands the case with an instruction to the District Court “to craft a narrower injunction prohibiting the application of
Although it is not our task to draft an injunction, the majority‘s language leaves it unclear what constitutes “Picard‘s conduct in this case.” Is the conduct exactly what Picard was doing when arrested—holding the same sign and distributing the same literature, or is it uttering any words or distributing any literature advocating jury nullification, or is it uttering any words or distributing any literature outside a courthouse? As for location, is the conduct standing exactly where Picard stood when arrested, or any location within 200 feet of the courthouse near which he
Perhaps the parties will assist the District Court by agreeing to the terms of an injunction. If not, there is a distinct risk that we will encounter these questions on a subsequent appeal.
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For all the reasons stated above, I concur in part and respectfully dissent in part.