Appeals court upholds N.Y. law limiting speech near courthouses

The offices of the Southern District of New York are seen in Manhattan after an abrupt announcement by U.S. Attorney General William Barr
500 Pearl Street, home of the 2nd Circuit in New York. REUTERS/Caitlin Ochs

(Reuters) - A U.S. appeals court on Wednesday reinstated a New York law limiting speech near courthouses but ordered a judge to block its enforcement in limited circumstances to protect the 1st Amendment right to free speech.

The decision by the 2nd U.S. Circuit Court of Appeals involves a New York law prohibiting demonstrations within 200 feet of a courthouse “concerning the conduct of a trial.”

A divided three-judge panel found that a New York federal judge overstepped by blocking the law entirely after civil libertarian Michael Picard sued over his 2017 arrest for passing out leaflets in front of a Bronx courthouse.

Instead, the lower court should have crafted an injunction blocking enforcement of the rule in Picard’s circumstances, noting that New York concedes he didn’t break the law.

Brian Hauss, an attorney for Picard, said he was "glad that our client’s rights will be protected" after the ruling, but added they continue to maintain the law is unconstitutional.

The New York Attorney General’s Office did not immediately respond to requests for comment Wednesday.

Picard was detained but not charged for passing out leaflets in front of the courthouse promoting jury nullification, or the legal concept that juries can block enforcement of unjust laws. The leaflets were not related to any specific case, according to the opinion.

Picard sued to block enforcement of the law, saying it violates the 1st Amendment. U.S. District Judge Denise Cote ruled in his favor in 2020, finding the statute wasn’t narrowly tailored enough to New York’s interest in shielding trial participants from undue public pressure.

In Wednesday's majority opinion by Circuit Judge Gerard Lynch, the 2nd Circuit declined to weigh in on whether the law is unconstitutionally broad but said it was “doubtful” that a challenge to the entire law would succeed.

Circuit Judge Jon Newman said in a partial dissent that New York’s law is unconstitutional on its face because it prohibits speech too broadly and over too large a geographic area.

The case is Picard v. Magliano, 2nd U.S. Circuit Court of Appeals, No. 20-3161.

For Picard: Brian Hauss of the American Civil Liberties Union Foundation

For New York: Eric Del Pozo of the Office of the New York State Attorney General

Reporting by Jack Queen

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