The Sidewalk at the Corner of Property and Norms

In my last post, I wrote about the predictable malfunction legal institutions face when behavior regarding property is illegal but normatively acceptable: selective enforcement.  Today I want to write about the opposite dynamic -- behavior that is legal but normatively unacceptable – and the predictable problem it presents for legal institutions: 'popular justice.'  The state cannot (or at least, should not) prevent such behavior, because it is legal; but, in the absence of formal sanctions, a community might apply its own informal sanctions, sometimes violently (for those interested, I write about these dynamics in more detail here).

Consider the use of public property. Many cities formally prohibit performances for money on public sidewalks, but in many places, it is normatively acceptable for some aspiring talent to croon, twang and pass the hat.  Most likely the musician won’t be subject to formal sanctions, because the imposition of formal sanctions tends to follow the limits of normative acceptability, rather than the law.

Now imagine a religious zealot standing in the same spot, demanding that you repent or go to hell.  That behavior is probably legal regardless of local ordinances.  But, regardless of its legality, that behavior is also probably normatively unacceptable.  The state can’t impose formal sanctions on the zealot, so the community may impose informal ones.  Passers-by might cross the street, shoot hard stares or laugh.

Or much worse.  Members of the infamous Westboro Baptist Church proselytize from public sidewalks near soldiers' funerals, holding signs that say, among other charming things "Thank God for Dead Soldiers," "He's Going to Hell," and "God Hates Fags."  The hateful sect apparently believes God is punishing the United States for tolerating homosexuality.

The Fourth Circuit recently ruled that the First Amendment prohibited the father of a soldier killed in Iraq from imposing private legal sanctions on the group in the form of damages, after it picketed his son's funeral.  Although the Supreme Court recently granted certiorari, it seems highly unlikely that the Court will find that the group can be held liable, for reasons Daniel Solove explains here. 

If legal institutions can't allow formal sanctions against normatively unacceptable behavior, the predictable consequence is that ‘popular justice’ will follow.  And, in fact, is has.  One motorcycle club has made it its mission to drown the sect out at soldiers' funerals.  More ominously, in at least one instance, on-lookers have violently attacked demonstrating sect members. 

The controversy has been framed as a First Amendment issue, but the right to use public space is also property rights issue.  The inability -- appropriate inability, but inability nonetheless -- of legal institutions to sanction legal but normatively unacceptable behavior with regard to the use of public property has predictably lead to vigilantism instead.  The question now facing the Supreme Court is: how, if at all, should legal institutions respond?  It can't change the normative acceptability of the sect’s behavior.  It must decide, therefore, whether to insist upon the legality of that behavior.  It will be fascinating to see whether strongly felt norms drive a change in the right to use public space. 

Mark Edwards

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