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Plaintiffs in San Diego County picked the wrong test case to challenge a local law limiting protests outside people’s homes. In upholding the ordinance Monday, a Ninth Circuit U.S. Court of Appeals panel disagreed with some of U.S. District Judge Rudi Brewster’s reasoning but ultimately agreed with his conclusion: The 4-year-old law that makes picketers stay 300 feet away from the home they are protesting is constitutional. “The government certainly has a significant interest in preventing picketing that renders the targeted resident a captive audience to the picketers’ message,” Ninth Circuit Judge Harry Pregerson wrote in the unanimous decision. “But the right to residential privacy does not encompass a right to remain blissfully unaware of the presence of picketers.” Two deputy sheriffs had improperly ordered the group of plaintiff picketers, who targeted their criticism at the head of the local water district by marching around his block holding signs, to stay 300 feet away from his property line. In fact, the law only required them to stay that far away from the home itself � so both sides in the case ultimately agreed the protesters hadn’t actually broken the law at issue. But the picketers still decided to challenge the law’s constitutionality on its face. The picketers could have won that facial challenge if they could show the ordinance was unconstitutional “in every conceivable application,” Pregerson noted. But as their own picketing had shown � the home they targeted was at least 300 feet away from the street � the law was not always too restrictive. “For all practical purposes, had the officers correctly interpreted the ordinance, the ordinance would have had no impact on the plaintiffs’ right to picket at [the water district official's] residence,” Pregerson wrote. Deputy County Counsel William Johnson Jr., who successfully defended the law, said it’s hard to predict how courts will balance privacy and First Amendment rights. In this case, it helped that the protesters had already been abiding by the restriction. “This one was presented on rather unique facts, and that’s what led the court to decide it the way it did,” Johnson said. Though the Ninth Circuit judges arrived at the same conclusion as Brewster, the Southern District judge, they didn’t agree with all of his reasoning. “The district court erred when it stated that residential occupants are entitled to ‘an unencumbered enjoyment of the tranquility and privacy of their homes,’” Pregerson wrote. “Instead, residential picketing ordinances must carefully balance two valid and competing interests: the right of residents not to be captive audiences to unwanted speech and the right of picketers to convey their message.” They also agreed there are reasonable ways picketers can make sure they are 300 feet away from a house, though they said the lower court had “overstated” the options. The district court � which took a “field trip” to a football field and had court personnel hold up signs and make noise � had suggested, for instance, that picketers could walk on someone’s property to measure as long as there was not a “no trespassing sign.” But that solution, the Ninth Circuit said, only promised to escalate tensions. The case is Klein v. San Diego County, 06 C.D.O.S. 8789.

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