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Lawmakers discuss bill to criminalize protesting outside officials’ homes

INDIANAPOLIS (WISH) — An expert on First Amendment law said Tuesday a bill to criminalize picketing could face serious constitutional challenges.

Citing recent incidents such as protests outside Supreme Court Justice Brett Kavanaugh’s home following last year’s abortion ruling, a state Senate panel Tuesday morning discussed whether to make it a misdemeanor to protest or picket outside the home of anyone, including public officials. The bill would apply even if people were standing on the street or sidewalk, which are considered public rights-of-way. Protesters could face up to 60 days in jail for doing so. Police could not arrest them unless they refuse to disperse when ordered to do so and prosecutors would have to prove protesters intended to harass the target.

“We crafted the legislation in a way that provides an opportunity for police officers to tell people that they are, in fact, in violation of the law and then make the arrest if they refuse to comply,” bill author Sen. Scott Baldwin, R-Noblesville, said. “So again, there are very narrow circumstances where citizens are going to be in violation of this but we have some professional protesters out there that are really good at skirting these laws.”

Prof. Steve Sanders, a constitutional law professor at the IU Maurer School of Law, said Baldwin’s bill does not fall under the traditional heading of time, place, and manner regulations, which the courts have traditionally allowed to stand. Instead, he said the bill attempts to regulate conduct during a protest. Sanders said this kind of restriction would face a much tougher test, though not an insurmountable one.

“Different people can have different understandings of intent to harass,” he said. “Maybe the protester says, ‘No, I’m not intending to harass, I want to make my point’ and then the police say, well, no, you’re really harassing them.”

Picketing restrictions have a mixed record in court. In the 1988 Frisby v. Schultz ruling, the United States Supreme Court held that a Wisconsin town’s ordinance barring picketing in residential neighborhoods did not violate the First Amendment. Last fall, however, the Ohio Supreme Court unanimously struck down a state law prohibiting picketing outside someone’s home in connection with a labor dispute. Sanders said it’s hard to predict how the courts would rule on Baldwin’s bill if it became law.

“It’s natural to appeal to people’s sentiments, you don’t want noisy, rowdy people outside your house,” he said. “On the other hand, I think many of those same citizens would say if it’s an issue I cared about, I’d want them to know.”

The Senate Corrections and Criminal Law Committee did not vote on the bill. Chair Sen. Aaron Freeman, R-Indianapolis, said he expects that will happen next week.