Florida Governor DeSantis Signed a Bill Banning Residential Protesting, What Does the Bill Actually Say and What Does This Mean for Floridians?

May 19, 2022 Don Pumphrey, Jr. Criminal Defense, News & Announcements Social Share

In recent news, we have seen people organize and protest outside of the Supreme Court Justice’s homes. However, protests in residential areas are not a new phenomenon. Last year, Edward Mathews, a resident of New Jersey, faced protestors outside his home after an argument with a neighbor went viral. In 2017, there were also protests outside of Vice President Mike Pence’s house when President Trump was inaugurated.

Florida Governor Ron DeSantis signed a new bill preventing residential picketing into law on May 16th. Desantis stated that “this bill will provide protection to those living in residential communities.” Desantis signed the bill into law to prevent protests like the ones happening at the homes of the United Supreme Court Justices. The bill was first written and introduced to the Florida legislature on January 1, 2022.

What Does the Bill Actually Say?

The bill in question that was signed is HB 1571. The bill makes it unlawful for people to picket or protest “before or about”, which essentially means near, a dwelling of any person with the intent to harass or disturb that person in his or her dwelling. A “dwelling” means that the building is being used as a home by people or the building is intended to be occupied as a residence. You can be arrested for violation of this new law, but before being arrested, you must be warned by an officer to leave the residential area. If a protestor refuses to leave, then the officer may arrest the protestor.

Violation of the residential picking law is a second-degree misdemeanor. Meaning the punishment that results could be 60 days in jail and a $500 fine.

The statute goes into effect October 1, 2022, and will create a new statute, Florida Statute Section 810.15.

Florida’s Residential Picking law mirrors the Federal Picketing and Parading law and other state residential picketing laws. The Federal Picketing and Parading law pertains only to judges, jurors, witnesses, or court officers, but similarly prevents protesting around or about a residence to harass or intimidate the people inside the residence. The state of Virginia created its anti-residential picketing law in the 1950s, which prevents picketing around or about a residence when the picketer intends to harass the residents of the home. Laws that limit protesting are not new, and these laws have been litigated in our court system. It’s important to remain aware of the law and understand the consequences of breaking the law.

Frisby v Schultz

The bill uses the Supreme Court case Frisby v Schultz to validate the Residential Picketing law. In the Frisby case, Brookfield, Wisconsin adopted an ordinance that banned picketing “before or about” any residence. The protestors sued the city and alleged the ordinance violated their first amendment rights. The Court upheld Brookfield city’s ordinance because the ordinance was narrowly tailored to prevent protesting specifically targeting a certain house, and the city had an interest in protecting the residents at the home that are “captive” due to the protests. The Court was clear that the protesters were not without any alternative, the protestors could still march down the street and leave literature at the homes of the residents.

It’s important to note that the Supreme Court distinguished Frisby in Snyder v. Phelps, where protestors were targeting the funeral of a deceased military service member. In Snyder, the court found that due to the church’s content, form, and context, their speech was of public concern and therefore required special protection under the first amendment. In this case, the family of a deceased Marine Lance Corporal filed a lawsuit against the members of Westboro Baptist Church for picketing at their son’s funeral. The family accused the church and its founder of defamation, invasion of privacy, and intentional infliction of emotional distress due to the signs they displayed at the funeral. Because the court found that the content of their signs related to “broad issues of interest to society at large, rather than matters of ‘purely private concern,’” the court said this was protected speech.

Snyder is highly distinguished from Frisby, where the Supreme Court was dealing with the protection of public individuals at their residences and ensuring those individuals were not treated as captive audiences. The captive audience doctrine protects unwilling listeners from protected speech, and in Snyder, the Supreme Court found the family to not be a captive audience. This was due to the picketers staying well away from the funeral, the father being able to see no more than the top of the picketer’s signs when driving to the funeral, and the picketers’ lack of interference in the funeral services.

Unless the Frisby v. Shultz case is overturned, Florida’s new Residential Picketing law will likely go into effect without issue. This is because Florida’s law is also limited to residential areas, where residents have a high level of privacy and any protest would be conducive to holding the members as captive audiences.

What are Common Charges for Protestors

Unlawful Assembly: An unlawful assembly requires three or more people to meet together to breach the peace, or do any other unlawful act. Unlawful Assembly is a second-degree misdemeanor punishable by a 60-day jail sentence and a $500 fine.

Disorderly Conduct: Disorderly conduct is also called “breaching the peace.” Put simply, disorderly conduct is any act that affects the peace and quiets of other persons. Disorderly conduct encompasses an array of conduct from fights and brawls to simply any other conduct that could disturb the peace of someone who is witnessing the behavior. A violation of Disorderly Conduct is a second-degree misdemeanor punishable by a 60-day jail sentence and a $500 fine. Read more about disorderly conduct in our blog here.

Riot or Inciting to Riot: A person who commits a riot by participating in a violent public disturbance involving an assembly of three or more people. The riot must result in injury to another person, damage to property, or imminent danger of injury to another person or damage to property. A person who commits a riot has committed a felony of the third degree. However, you do not have to be physically involved in a riot to be charged. You may be charged with inciting a riot, which is also a third-degree felony, for encouraging participants of the riot. A third-degree felony is punishable by up to 5 years in prison and a $5,000 fine.

Resisting arrest without violence: Resisting arrest without violence means that the accused knowingly and willfully resisted, obstructed, or opposed the arrest. Resisting arrest without violence is a first-degree misdemeanor punishable by a jail sentence of up to a year and a $1,000 fine.

Resisting arrest with violence: Resisting with violence is a third-degree felony punishable by up to 5 years in prison and a $5,000 fine. To read more about the elements of resisting arrest and the common defenses to the charge read our blog here.

Finding a Defense Attorney in Tallahassee, Florida

If you or a loved one have been charged with a crime following a protest, it is important to seek out legal advice from a skilled defense attorney as fast as possible. Navigating the legal word and defenses available to you is stressful and confusing. The team at Pumphrey Law Firm has decades of experience in criminal defense in Tallahassee and can ensure that your case will be handled with diligence. Call us today at (850) 681-7777 or leave an online message to receive a free consultation with an attorney in our legal team.

Written by Melissa MacNicol

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