On January 6, the Riverside County Board of Supervisors, on behalf of the Church of Scientology, will vote on an ordinance that would criminalize certain tartgeted picketing of residences. The ordinance is similar to one proposed and which failed to gain the necessary support only weeks ago.
As Eugene Volokh pointed out, Riverside’s original oridinance [PDF] was likely doomed to fail–while restrictions on the picketing of targeted residences are constitutionally permissible (see Frisby v. Schultz, 487 U.S. 474 (U.S. 1988), Klein v. San Diego County, 463 F.3d 1029 (9th Cir. 2006)), restrictions which are overbroad or vague such as Riverside’s first draft will fail if challenged. Riverside’s first ordinance prohibited picketing within 300 feet of a residence.
County Supervisor Jeff Stone is the sponsor behind these ordinances (on behalf of Scientology), and with the introduction of a similar ordinance, the question is: Does this new ordinance remedy the prior ordinance’s constitutional deficiencies? And regardless of its constitutional deficiencies, will it pass anyway?
Taking the last question first, as a matter of pure politics, it seems unlikely that Jeff Stone would’ve reintroduced this amended ordinance without first attempting to mollify the previous no-votes. But as we don’t really know, there’s no sense dwelling on the realpolitick issue.
Regardless of whether Jeff Stone has the votes, is this new ordinance constitutionally bulletproof? Whereas the previous ordinance prohibited picketing or protesting within 300 feet of a targeted residence, the new ordinance shortens that distance to 50 feet, but measures this distance not from the targeted dwelling but from the property boundary. The new version also creates an exception that would permit picketing on the sidewalk opposite a residence. Here is the actual text of both:
Section 4. PROHIBITION. No person shall engage in picketing activity that is targeted at and within three hundred (300) feet of a residential dwelling in the unincorporated areas of the County of Riverside.
Section 4. PROHIBITION. No person shall engage in picketing activity that is targeted at and within fifty (50) feet (measured from the lot line) of the property upon which the targeted dwelling is located in the unincorporated areas of the County of Riverside, except the sidewalk space on the opposite side of the street from the tarageted dwelling.
The new statute [PDF] appears, on its face, to rectify its overbreadth problem by permitting picketing nearer to its target (and adding the sidewalk exception), but only when you consider the statute’s intended beneficiary do you realize that it still prevents anyone from picketing Scientology’s "Gold" base. A look at Gold base in Google Maps illuminates some of the problems:
To begin, Gold isn’t a residence as anyone typically thinks of one–rather, it is a fortified compound containing residential buildings. Therefore, the statute’s shortening the length protesters are permitted to picket from 300 to 50 feet matters little where Scientology’s Gold base is concerned if one is measuring from the property line.
The revised ordinance appears to have pulled off quite the trick, in fact–it appears on one hand to better comport with existing case law by more "narrowly tailoring" its restrictions, while making it even more difficult to picket Gold. By measuring from the property line instead of the dwelling, the zone of protection has effectively been widened, especially as a) Gold’s property line is not marked out; b) the part of Gilman Springs Road upon which a protester would ordinarily picket appears to be a public easement running through property belonging to the Church of Scientology. Additionally, looking at the area in Google Maps, Gilman Springs Road doesn’t appear to have a sidewalk, meaning that the ordinance’s exception is effectively meaningless in this context (and even if a "sidewalk" could be imputed to be near the curb of the adjacent property, the "adjacent property" to either "sidewalk," belongs to Scientology along Gilman Springs Road.)
The revised ordinance’s most clever feat could also be its biggest problem, then–while protesters can somewhat reliably measure from a residence, they cannot so easily measure from a property line, as they cannot be expected to be aware of all property lines, which aren’t always obvious to the naked eye, at least in the same way a residence is. It may be, therefore, that any restriction that requires a protester to measure from a property line would be unconstitutionally vague.