Sen. Tom Cotton, R-Ark., wants the abortion-rights protesters demonstrating in front of the homes of Supreme Court justices to be swiftly arrested and prosecuted by the Justice Department.
Some of his Republican colleagues, however, say that would go too far and that it could violate First Amendment protections.
“I think if they’re being peaceful and are staying off their property and are not disrupting neighborhoods or causing or inciting fear, it’s probably a legitimate expression of free speech,” 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 be erring in favor of the First Amendment, in favor of freedom of speech, in favor of freedom of religion, in favor of the freedom of assembly,” she said. “Because if we start fearing our rights to speak and express our religious convictions, and if we fear assembly, the consequences of parsing those rights are extremely dangerous.”
Sen. Mike Braun, R-Ind., said he, too, believes peaceful protests — even outside the homes of justices — is protected speech.
“I’m a First Amendment guy, and I think that cuts both ways,” Braun said in an interview. “If they’re there and they’re doing it peacefully, you know, I’m for that ability on either side of the political spectrum.”
Protesters have been chanting and holding up signs in front of 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 constitutional right to abortion enshrined nearly a half-century ago in the landmark Roe v. Wade decision.
More demonstrations are planned for Wednesday night at conservative justices’ homes in the Washington area.
In a stern letter Tuesday to Attorney General Merrick Garland, Cotton slammed “left-wing mobs” that have protested outside the homes of conservative justices after the draft opinion leaked.
Cotton, who said in 2020 he supported the use of military force to suppress the protests against police violence sparked by the murder of George Floyd, called the recent protests illegal and a “blatant violation” of a 1950 law that says anyone who “pickets or parades” near a building or residence used by a judge with the intent of influencing the judge shall face fines or imprisonment. If the Justice Department doesn’t act, Cotton told Garland, perhaps the next Congress should begin impeachment proceedings.
Cotton, a potential 2024 presidential candidate, said Wednesday in an interview: “There is a federal law that prohibits the protesting of judges’ homes. Anybody protesting a judge’s home should be arrested on the spot by federal law enforcement.” He added that if his Senate GOP colleagues “want to raise a First Amendment defense, they are free to do so.”
“I don’t advocate for arresting people protesting on public streets in Washington, D.C., the nation’s capital. I do believe they should be arrested for protesting in the homes of judges, jurors and prosecutors,” Cotton said. “Federal law prohibits an obvious attempt to influence or intimidate judges, jurors and prosecutors.”
Cotton spoke the same day Senate Republicans — along with Sen. Joe Manchin, D-W.Va. — blocked a Democratic-backed bill that would have codified abortion rights into federal law.
Asked whether he believed people could legally protest at the home of an elected official such as himself, Cotton replied: “I generally suggest protesting in public spaces, not in front of public homes of any person. But that’s not against federal law. That’s why Chuck Schumer is wrong.”
Schumer, D-N.Y., the Senate majority leader, told reporters Tuesday that he was OK with people peacefully protesting outside the justices’ homes, saying such demonstrations are “the American way” and noting that people protest in front of his home in New York “three, four times a week.”