Report Excerpt:Voted (4-1). The majority of the Board recommends favorable action for a proposed bylaw that would prohibit targeted residential picketing before or about any private residence in the Town of Arlington. The proposed bylaw is identical to a local ordinance the United States Supreme Court found to be constitutional in Frisby v. Schultz, 487 U.S. 474 (1988). It is also similar to a local bylaw the Town of Brookline passed, and the Massachusetts Attorney General approved, in 2004. The City of Boston also enacted a focused residential picketing ordinance in 2022, albeit with restrictions as to time the Board will distinguish further in this comment.
The proposed bylaw was inserted in the warrant in response to several resident inquiries and expressions of concern following the targeted demonstrations that took place in front of the Governor’s residence last Fall and earlier this year.
Chief Flaherty provided the Board with information on three protests that have taken place in front of the Governor’s residence, the second and third of which resulted in numerous calls to the Arlington Police Department. The first was planned and was peaceful. The second was unplanned and involved 25-30 people wearing military gear who were directly in front of the Governor’s residence, holding flares, chanting and yelling obscenities at neighbors. Chief Flaherty also noted that the protest lasted for about twenty minutes and dispersed thereafter. The third protest was similar to the second protest. Both unplanned protests resulted in calls to 911 and to the Department’s business line, some of which indicated that the protest was blocking roadways and, in one instance, required police assistance to allow a neighbor to exit their driveway.
In supporting the proposed bylaw, the Board recognizes the balance between important First Amendment free speech rights and the significant government interest in a person’s right to privacy in their home. In this instance, the majority believes the balance favors residential privacy. The majority further notes that the Supreme Court drew a distinction between the home and an office for purposes of First Amendment protection. As noted in the following excerpt from the Frisby decision that Town Counsel provided to the Board, “the State’s interest in protecting the well-being, tranquility, and privacy of the home is certainly of the highest order in a free and civilized society.” Frisby, 487 U.S. at 484 (1988).
Where a particular home is the subject of a protest, the occupants of the home are compelled listeners who are not readily able to avoid the speech, as would be the case in other settings. It is this element of compulsion the majority believes justifies the restriction contained in the proposed bylaw, as the First Amendment, while containing a right to free speech, does not require compelled listening.
The Board took into account Town Counsel’s conclusion that the proposed bylaw is constitutional because it:
1) is content-neutral on its face;
2) prohibits only focused residential picketing taking place solely in front of a particular residence;
3) leaves open ample alternative channels of communication for the dissemination of messages;
4) prohibits the type of focused picketing which is fundamentally different from more generally directed means of communications that may not be completely banned in residential areas; and
5) is narrowly tailored to serve the significant government interest in protecting residential privacy.
The Board also considered the impact on neighbors when a targeted protest takes place as further justification for the proposed bylaw. During its hearing,the Board heard from an immediate neighbor of the Governor, who noted the fear she and her family were placed when the protests occurred. She stated that for her, support for the proposed bylaw is about public safety. Mr. DeCourcey, who also lives in the same neighborhood as the Governor, reported hearing from several other neighbors who expressed similar concerns.
Finally, support for the Board’s recommended vote comes from Chief Flaherty’s statement that passage of the proposed bylaw would accelerate the time period during which the Police Department could begin to clear a targeted protest.
The Board notes that a restriction on targeted picketing applies at all times in Brookline, while is enforced between 9 pm and 9 am pursuant to a City of Boston ordinance. The two focused demonstrations in Arlington that were reported by state and local media occurred at different times (6:00pm and 9:00pm, respectively) but were equally disruptive, as evidenced by the testimony received at the Board’s hearing and the Town’s receipt of calls from residents both during and after the protests. For this reason, the majority supports a full ban similar to the bylaw approved in Brookline.
Mr. Diggins voted against the proposed bylaw. He stated that although he understood residents’ concerns, he questioned the bylaw’s impact on First Amendment rights. He observed that the bylaw in his view could make it more difficult for residents to access Town or elected officials even if the protests were quiet, but nonetheless challenged the deeply-held view and mores of the target person. Further, he questioned whether there were other ways to protect the interests at issue rather than passing a new bylaw. He fully appreciates that several legal decisions have determined that we can pass this bylaw with little or no concern about its constitutionality, but he has deep reservations regarding whether we should.