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Is Idaho legislation aimed at preventing protests at private homes constitutional?

A proposed bill would make targeting picketing or protesting at private homes against the law in Idaho.

BOISE, Idaho — On Wednesday night, a group of about a dozen protestors showed up at the home of Caldwell Rep. Greg Chaney, who said the group was there with torches and pitchforks.

“Well more than anything I was angry for my family’s sake. I saw the stress on my wife’s face, I saw the teary eyes of my daughters and I was very frustrated for their sake,” Chaney said.

The group was there in response to a bill Chaney is co-sponsoring, which aims to make it illegal to protest at private homes.

There were hours of public testimony on the bill Wednesday. Chaney wrote on Twitter: They say they do this because they aren’t heard-but we’d just spent hours hearing them in committee.

“They say this isn’t an intimidation tactic but they showed up with torches and pitchforks and a stuffed animal hung in effigy. One of our little girls asked this morning “why do they want to kill dad?” he added.

“I think they are conflating the idea of being heard with the idea of having their opinion followed, those are two very different things,” Chaney said. “Intimidation is not a democratic principle. Argumentation and protest even is absolutely appropriate to shape public policy. Making somebody feel unsafe and their family feels unsafe is not an appropriate way to set policy or to react to a civil servant.”

Some critics of the bill say it’s unconstitutional and infringes on their First Amendment rights, and that protesting at a home is sometimes their only option to be heard.

University of Idaho Law Professor Shaakirrah Sanders is an expert on constitutional law and explained that this certainly isn’t the first time a lawmaker has proposed legislation to prevent protests at private homes. The success of those proposals over the years has varied with challenges all the way up to the Supreme Court.

“Advocacy is okay, picketing and protesting is okay but it’s also okay for the government to set reasonable restrictions,” Sanders said. “The state’s goal may be good but it looks like the way this bill is written I think there will be a number of constitutional challenges, and I think some of those could be successful.”

Professor Sanders reviewed the current Idaho proposal and said the idea, in general, is sound but that some specific language in the bill could result in challenges. She points to the part of the bill that looks to prevent targeted picketing “with the intent to harass, annoy, or alarm…”

“It very well could be that’s too vague," Sanders explained. "The court normally does not like laws that infringe on the First Amendment for purposes of avoiding offending people or annoying people. There is a long line of cases where statutes have been struck down where there is just some intent to prevent annoyance. The court says that’s too subjective of a standard."

Another potential issue Sanders points to is the section of the bill that states the law would not apply to private residences that are used as the principal place of business for an individual. Carveouts, like this exception, in past legislation have provided some issues for courts.

“What we see with this carveout for businesses you can till picket in a residential neighborhood," Sander said. "We see that you can picket for other reasons, I guess if it’s not to annoy, harass, or alarm then maybe the picketing is okay. I think those types of topic matter distinctions could be fatal to this bill.” 

Again, Sanders said the idea is completely constitutional but some language in the bill may need to be edited. 

Chaney said this is about keeping the process civil while not chasing people away from the conversation because of the fear of intimidation.

“We want to be mindful of not stopping protest just creating the smallest possible carveout to protect the sanctity of the home,” Chaney said.

The legislation is set to be taken up in committee again Friday afternoon.

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