Proposed bill limiting pickets at judges' homes is supported by judges but raises constitional questions

By Gretchen Schuldt

Judges from around the state are supporting a bill that would outlaw protests at their homes, but a constitutional law professor says the measure raises First Amendment concerns. 

The bill would prohibit people from demonstrating near a judge’s residence if they are trying to disrupt the courts or influence the judge. The measure would criminalize violations, with a maximum punishment of up to $10,000 and nine months behind bars. 

The word “near” is used but not defined in the legislation, Assembly Bill 965 / Senate Bill 926. A chart showing the sponsors of the measure is at the bottom of this post. 

Ed Fallone, a constitutional law professor at Marquette University, said in an interview that the U.S. Constitution’s First Amendment generally does not allow a group to exist in a protected “bubble” denied to others. The bill would create such exclusive protections, he said. That amendment protects freedoms of speech and religion and the rights to peaceably assemble and petition the government for a redress of grievances.

Those offering testimony in favor of the bill included state Supreme Court Justice Annette K. Ziegler and judges from St. Croix County, the District II Court of Appeals, Juneau County, the U.S. District Court for the Eastern District of Wisconsin, Dunn County, Sauk County, Fond du Lac County, Washburn County, Dodge County, Racine County, Sheboygan County, Clark County, Sheboygan County, Ozaukee County, Outagamie County, Brown County, Chippewa County, Waukesha County, Brown County, Dane County, Calumet County, Barron County, Manitowoc County, Monroe County, Door County, Milwaukee County, and Rusk County. The State Bar of Wisconsin also offered testimony in support.

The bill is one of three about judges and their security concerns. Judges' written testimony on the three-bill package included discussion of security for their families and them; incidents they had experienced personally; and the June 2022 murder of retired Juneau County Judge John Roemer by a man Roemer sentenced years earlier. 

In some instances, multiple judges from the same county signed on to testimony in support of the bill, raising potential conflict-of-interest issues if the measure becomes law and the judges are asked to rule on related cases.

The Assembly’s Criminal Justice and Public Safety Committee recommended passage of the bill, 13-2, with Reps. Dora Drake (D-Milwaukee) and Jodi Emerson (D-Eau Claire) opposed. The full Assembly approved the measure without a roll call vote.

The Senate’s Judiciary and Public Safety Committee recommended approval on a 5-1 vote, with State Sen. Kelda Roys (D-Madison) opposed. The bill is pending before the full Senate.

In her written testimony to the Assembly committee, Ziegler said that “Judges should not be threatened with acts of violence from people or groups who want to intimidate or harm us, push a cause, subvert the rule of law, or control the outcome of a case. That is a basic tenet of Judicial independence.” 

The bill is modeled on a federal statute, she said. The Wisconsin bill, unlike the federal statute, “removes the prohibition …against picketing, parading or demonstrating at, in, or near a building housing a court,” Ziegler wrote.

The federal law, adopted in 1950, prohibits the same type of picketing of federal judges’ residences as the Wisconsin bill would ban. It also has raised recent First Amendment questions, especially after protests in front of U.S. Supreme Court Justice Brett Kavanaugh’s house in the wake of the Dobbs decision overturning abortion rights.

Allowing courthouse picketing, which judges can easily avoid entirely, is not enough, Fallone said. 

“One of the aspects of your free speech right is to be heard by the person you’re expressing your opinion to,” he said.

While he sympathizes with judges seeking to reduce the stress levels of their jobs, Fallone said, protections such as those proposed should be limited to specific judges in response to specific events or threats.

If judges deserve special security considerations, those protections could well spread to other protest targets, thus further limiting the scope of the First Amendment, he said.

Bill Sponsors