WASHINGTON — Sen. Tom Cotton, R-Ark., wants abortion rights protesters demonstrating outside the homes of Supreme Court justices to be quickly arrested and prosecuted by the Justice Department.
Some of his Republican colleagues, however, say that would go too far and could violate First Amendment protections.
“I think if they’re peaceful and stay off their property and don’t disrupt neighborhoods or cause or incite fear, that’s probably a legitimate expression of free speech,” said Sen. Cynthia Lummis, R-Wyo., a former member of the conservative House Freedom Caucus, said Wednesday.
“First Amendment rights are so, so special. … We should all err in favor of the First Amendment, in favor of freedom of speech, in favor of freedom of religion, in favor of freedom of assembly,” she said. “Because if we start to fear our rights to speak and express our religious beliefs, and if we fear the assembly, the consequences of analyzing those rights are extremely dangerous.”
Sen. Mike Braun, R-Ind., said he, too, believes peaceful protests — even outside judges’ homes — are protected speech.
“I’m a First Amendment guy, and I think it goes both ways,” Braun said in an interview. “If they’re there and they’re doing it peacefully, you know, I’m all for that ability on either side of the political spectrum.”
Protesters chanted and held signs outside the homes of three conservatives: Chief Justice John Roberts and Justices Brett Kavanaugh and Samuel Alito, who wrote the leaked majority draft opinion that would overturn the enshrined constitutional right to abortion almost half a century ago in the historic decision Roe v. Wade.
More protests are scheduled for Wednesday night at the homes of conservative Washington-area justices.
In a stern letter to Attorney General Merrick Garland on Tuesday, Cotton criticized “left-wing crowds” who demonstrated outside the homes of Tory judges after the leaked draft notice.
Cotton, who said in 2020 that he supported the use of military force to quell protests against police violence sparked by the killing of George Floyd, called the recent protests illegal and a “flagrant violation” of a 1950 law that says anyone who “pickets or marches” near a building or residence used by a judge with intent to influence him or her is liable to fines or imprisonment. Justice Department is not acting, Cotton told Garland, perhaps the next Congress should start impeachment proceedings.
Cotton, a potential 2024 presidential candidate, said in an interview Wednesday, “There is a federal law that prohibits protesting in the homes of judges. Anyone who protests a judge’s home must be arrested immediately by federal law enforcement. Yes [protesters] want to raise a First Amendment defense, they are free to do so.
“I do not advocate the arrest of people protesting on the public streets of Washington, DC, the nation’s capital. I think they should be arrested for protesting at the homes of judges, jurors and prosecutors,” Cotton said. “Federal law prohibits an overt attempt to influence or intimidate judges, jurors and prosecutors.”
Cotton spoke on Senate Republicans the same day — with Sen. Joe Manchin, DW.Va. — blocked a Democratic-backed bill that would have codified abortion rights into federal law.
When asked if he believed people could legally demonstrate at the home of an elected official such as himself, Cotton replied: “I generally suggest demonstrating in public spaces, not in front of the public houses of whoever. it would be. But it’s not against federal law. This is why Chuck Schumer is wrong.
Schumer, D.N.Y., the Senate Majority Leader, told reporters on Tuesday that he agrees with people peacefully protesting outside justices’ homes, saying such protests are “American-style and noting that people were protesting outside his New York home “three, four times a week.”
The White House has supported the protesters – as long as they remain peaceful.
White House press secretary Jen Psaki said Tuesday that President Joe Biden believes “violent threats and intimidation of any kind have no place in political discourse.” But she said the White House understands the “outrage” in the country over the potential loss of abortion rights.
“And we believe, of course, in peaceful protests,” she said. “And we certainly continue to encourage that outside of the judges’ homes, and that’s the president’s position.”
Cotton is not on an island. Senate Minority Leader Mitch McConnell, R-Ky., say the protests were “well outside the bounds of normal First Amendment speech or protest”, adding, “This is an attempt to replace the rule of law with mob rule”.
And on Wednesday, the Judiciary Committee’s top Republican, Sen. Chuck Grassley of Iowa, demanded in a letter to Garland that the Justice Department protect judges and prosecute the homes of targeted judges.
At the state level, Maryland Governor Larry Hogan tweeted On Wednesday evening, he and Virginia Governor Glenn Youngkin had asked Garland to “provide adequate resources” to ensure the safety of Supreme Court justices and their families. In their letter, the GOP governors asked the Justice Department to enforce the 1950 law cited by Cotton.
Justice Department spokesman Anthony Coley said in a statement that Garland continues to be briefed on security matters related to the judges and directed the US Marshals Service to “help ensure the safety of the judges” by assisting the Supreme Court Police and the Marshal of the Court.
Some Republican senators have said there may be common ground when it comes to the protests.
Senator Roger Marshall of Kansas, the son of a police officer, said he would like authorities to engage with protesters and issue warnings to protesters before they make arrests.
“I would prefer a softer approach. I would prefer some type of crowd warning, kind of like getting a speeding ticket,” Marshall said. “Sometimes there’s a place for a warning, so I’d like those crowds to get warnings before they go to prosecution.”
Other GOP senators said they were unsure whether protesting outside a judge’s home was against the law, but they also condemned the recent protests.
“Whether it’s legal or not, it’s inappropriate, and they shouldn’t harass the judges,” said Senator Susan Collins of Maine, who called police this week after protesters wrote chalk messages outside her home urging her to vote for a democratic abortion. measurement of rights.
Sen. Mitt Romney, R-Utah, who has also had protesters outside his home before, said the Supreme Court grounds are where people should raise their voices.
“I generally think a judge’s house shouldn’t be where we protest,” Romney said. “We have a Supreme Court building, and that’s probably the best place to do that.”
CLARIFICATION (May 12, 2022, 9:17 a.m. ET) A previous version of this article contained an incorrect reference in a quote from Senator Tom Cotton on who can raise a First Amendment defense against protests outside the homes of Supreme Court justices. He was referring to the protesters, not his fellow Republican senators. The quote has been corrected: “If they [the protesters] want to raise a First Amendment defense, they are free to do so.