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Why Florida’s New Law Against Demonstrations Outside Residences Doesn’t Match DeSantis’ Narrative

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This one was created for Florida Governor Ron DeSantis.

In March, long before conservative furor over protests at Supreme Court justices’ homes, the Florida legislature banned protests at residences with “the intent to harass or disturb.”

DeSantis (R) signed the bill into law on Monday, drawing support from conservative critics of the Supreme Court protests and derision from some on the left who argued the move violated First Amendment rights.

And you could forgive the latter group for jumping on that narrative, since another bill DeSantis signed last year to crack down on protests that turn violent — after a summer of racial justice protests — was interrupted by a judge who indeed said he violated the First Amendment. DeSantis also lobbied to remove Disney’s special tax status after opposing him over a bill limiting discussion of sexual orientation and gender identity in schools. These actions by DeSantis clearly raise important and valid questions about his stance on free speech and its politicization.

But in this most recent case at least, DeSantis appears to be on the side of most Florida State Senate Democrats — and established law.

The bill passed the state Senate in March by an overwhelming 28-3 majority, winning the votes of 10 Democrats. (The previous State House vote was more partisan.)

Florida is not alone. While most states don’t have such a law, some blue-leaning states do, including Arizona, Colorado, Illinois and Minnesota, according to legal analyst Eugene Volokh. And many municipalities have similar laws. That includes Montgomery County, Maryland, whose law was at issue when protesters showed up at a judge’s home this month. This law prohibits stationary protests in a home but allows walking in residential areas.

Much like that law, Florida’s seems carefully tailored to meet established requirements. The text of the law itself cites perhaps the most significant precedent, that of 1988 Frisby v. Schultzwhile applying a similar standard and even reducing its scope.

The text of Florida law states:

“It is illegal for a person to picket or protest in front of or around any person’s dwelling with the intention of harassing or disturbing that person in his or her dwelling.”

The first part aligns with the standard established in frisby. In this case, the Supreme Court ruled that it is constitutional to ban protests in residences as long as the ban is content-neutral, that is, it applies to all the types of manifestations and not to specific causes. The court also said a ban must allow people to continue to protest in those neighborhoods, including marching on residential streets in a way that does not target a particular home.

The Florida ban is actually a bit narrower than that in this case. Local law in Brookfield, Wisconsin prohibited “any person from picketing in front of or around the residence or dwelling of any individual.” Florida law contains the same “before or about” language — deliberately — but it also requires such protests to be intended to “harass or annoy” to be illegal. The law is also more reserved in that it requires a law enforcement officer to warn protesters to disperse peacefully before making any arrests.

It is not because a law is constitutional and exists elsewhere, of course, that one cannot oppose it; indeed, complying with the Constitution is a pretty low bar.

But aside from echoing existing laws, this particular law doesn’t go as far as the “riot” law that DeSantis made his focal point early last year. The law he signed made it a crime to “deliberately participate in violent public disorder”. (He also granted civil immunity to drivers who hit protesters with their vehicles, if they said the protests made them fear for their well-being at the time.) because protesters could be held responsible for violence that they did not perpetrate. A judge ruled that the law’s vagueness “consumes vast swaths of basic First Amendment speech.”

DeSantis’ decision to strip Disney of special tax status has rubbed even some conservatives the wrong way. Despite DeSantis’ assurance that he wasn’t hitting back at Disney for a speech he didn’t like, the timing pointed a lot in that direction.

If there’s any narrative building here, it’s that DeSantis doesn’t exactly err on the free speech side — and even targets the speech of people he doesn’t like, in rather novel ways. DeSantis is very much in line with Republicans who embrace the usefulness of big government in cracking down on Big Tech, critical race theory and corporations enacting their own coronavirus restrictions.

It’s just that the law he signed on Monday on residential protests is far from the best proof of that. But in his long and successful quest to build his political career on owning the libs, it certainly comes in handy.