RICHMOND, Va. (WRIC) — Abortion rights protests this week at the homes of U.S. Supreme Court Justices are testing the limits of free speech in Virginia.
On Monday evening, dozens of protesters surrounded the Alexandria home of Justice Samuel Alito, Jr., who wrote the leaked draft of the majority opinion in support of overturning Roe v. Wade.
In a letter on Wednesday, Gov. Glenn Youngkin asked the Fairfax County Police Department to establish an expanded security perimeter around the homes of three Supreme Court Justices to ensure their safety. He said access should be limited for unauthorized vehicles and pedestrians “prior to planned events” on Wednesday, May 11. He said Virginia State Police is prepared to assist upon request from local law enforcement.
“This request is based on credible and specific information received about upcoming activities planned at or involving the homes of the Justices in Fairfax County,” Youngkin wrote. “In addition to my clear safety concerns, I fundamentally believe such demonstrations and picketing should not be allowed at the Justices’ homes as they are meant to intimidate and influence the Justices, not to mention, scaring their families and small children.”
Youngkin has not specifically called on police to charge these protesters under state law, according to his spokesperson Macaulay Porter.
Victoria LaCivita, a spokesperson for Attorney General Jason Miyares, said in a statement that state law prohibits protesting in front of an individual’s private residence. She said violators could be charged with a misdemeanor carrying a maximum fine of $500.
“Under Virginia law, local Commonwealth’s Attorneys are responsible for prosecuting violations of this statute,” LaCivita said. “Attorney General Miyares urges every Commonwealth’s Attorney to put their personal politics aside and enforce the law.“
Lt. Gov. Winsome Sears echoed Miyares’ comments on Twitter, adding, “Silence doesn’t guarantee safety. The mob may come for you.”
Steve Descano, the Commonwealth’s Attorney for Fairfax County, declined to comment on Wednesday. The Fairfax Police Department didn’t respond.
University of Richmond Law Professor Kevin Walsh said the government cannot target protesters based on what they’re saying but it can reasonably restrict the means of delivering that message as long as it’s applied neutrally.
“Time, place and manner restrictions are often upheld and have even been upheld against residential picketers,” Walsh said.
However, Walsh said the state law leaves some room for interpretation because it prohibits picketing in residential areas “in a manner which disrupts or threatens to disrupt any individual’s right to tranquility in his home.” He said it all comes down to how tranquility is defined.
“Residential protesters are at risk of being prosecuted. However, that risk is relatively low if they are silent, if they are non-threatening and they are not in a big crowd and that’s just because of the particularities of the law,” Walsh said.
The legal gray area has been a source of frustration for Clark Mercer, former Gov. Ralph Northam’s chief of staff.
Ashland Police confirmed a man with an explicit sign opposing President Joe Biden has been picketing in front of Mercer’s home for weeks, but he has not been charged.
“I sympathize with individuals that are calling on the state law to be enforced,” Mercer said. “These are intimidating situations. They are scary situations.”
Hanover County Commonwealth’s Attorney R.E. “Trip” Chalkley, III, said he didn’t think there was enough evidence to obtain a conviction in Mercer’s case.
“I think it’s totally inappropriate to have that language but I don’t think a person could be convicted for it,” Chalkley said in a phone interview.
Mercer thinks the state law either needs to be eliminated or changed to make it easier to enforce in situations like this. Right now, he said it gives homeowners a false sense of security.
“Let’s enforce it across the board, irrespective of who is being targeted and the message that is being sent,” Mercer said.