by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Fox News has a report on the Biden Justice Department’s refusal to take enforcement action against radical leftists who have been conducting demonstrations at the homes of Supreme Court justices, blatantly seeking to intimidate and influence the Court while it has the Dobbs abortion case under consideration. …
… [A] federal penal statute, Section 1507, unambiguously criminalizes this behavior. I’ve heard some suggestion in the commentary in recent days that Section 1507 may violate free-speech principles. It doesn’t.
The First Amendment has always permitted reasonable time, place, and manner restrictions. The degree of permissible restrictiveness is heightened as the government’s interest becomes stronger.
The Constitution insulates the judiciary from politics, so it is obvious that the government has a high interest in protecting the integrity of the judicial process, on which the rule of law depends, by safeguarding judges, jurors, and litigation participants from intimidation and corrupt influence (e.g., pressure to decide a case based on fear rather than on faithful application of the law).
Moreover, Section 1507 does not criminalize all expression; only expression undertaken “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.” The government must prove this intent requirement beyond a reasonable doubt. The First Amendment is not a defense against menacing. Furthermore, free expression forbids only the criminalization of protected speech, not proof of speech as evidence of a standard crime. (The First Amendment, for example, does not bar a prosecutor from proving that the mafia boss said “Whack him” to the button man shortly before the murder.)
It is notable that, in connection with the Capitol riot, the Justice Department has prosecuted scores of protesters on charges of parading on restricted federal territory.