Indiana senators consider bill that would criminalize protesting outside of private homes

Indiana lawmakers are trying to find the line between protecting privacy in Hoosiers’ homes while respecting the First Amendment right to free speech and assembly.

Senate Bill 348 would create a new crime — residential harassment — if someone pickets or protests outside a person’s dwelling. It would require an intent to harass and be a Class C misdemeanor. It would also apply to anyone’s home — whether an elected official or a private citizen.

Proponents argued in the Senate Corrections Committee on Tuesday that this gives law enforcement a tool to protect the privacy of someone’s home, especially in a time of increasingly violent political vitriol. 

But some stakeholders remain skeptical, saying that laws already exist to cover these actions and this proposal wouldn’t be effective.

“The intent of the bill, which has come to me from the Prosecuting Attorneys Council, is to protect the sanctity of our private residence… to prevent people from picketing and intending to harass people in their homes,” said bill author Sen. Scott Baldwin, R-Noblesville.

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State senators ultimately decided to hold the bill and continue working on the legislation before deciding whether to advance it through the committee.

Senators had bipartisan concerns about individuals at private residences, whether the far-right attack on Paul Pelosi, husband of former U.S. House Speaker Nancy Pelosi, or threats to the life of Supreme Court Justice Brett Kavanaugh.

In recent years, state lawmakers have also had protesters come to their homes to picket.

“I never thought I’d see that in my lifetime,” Sen. Greg Taylor, D-Indianapolis, said about the Pelosi attack. “I’m going to support the bill but I don’t think it’s going to do anything to help with what we’re trying to do.”

Legal precedence

Sen. Aaron Freeman, R-Indianapolis, argued that the U.S. Supreme Court already upheld ordinances limiting protests in residential neighborhoods, citing the 1988 decision in Frisby v. Schultz. 

In that case, a group of anti-abortion protesters gathered outside of the home of a local doctor who provided abortion healthcare. Following the protest, the city of Brookfield, Wisconsin banned picketing in front of residential homes. The protesters sued but lost when the Supreme Court agreed with city lawmakers.

Courtney Curtis, the assistant executive director for the Indiana Prosecuting Attorneys Council, said the right of “tranquility” at home had been recognized by the nation’s highest court numerous times. 

“There is not a right to force speech into the home of an unwilling listener,” Curtis said. 

Under this proposed law, Curtis said that protesters could still march in a neighborhood, go door-to-door and distribute literature related to their protest  — they just couldn’t linger outside of one home and needed to keep moving.

In April of 2020, a group of conservative protesters gathered outside the Governor’s Residence in Indianapolis, rallying against ongoing efforts to mitigate the spread of COVID-19. Under this bill, those protests couldn’t occur and the group would have to disperse.

Defense attorneys say tools already exist

Zach Stock, the legislative counsel for the Indiana Public Defender Council, said police already could ticket or arrest someone for disorderly conduct, trespassing, intimidation or obstruction of trafficways like roads and sidewalks.

“I think that prosecutors and judges have the tools, juries have the tools, to engage in that case-by-case analysis right now,” Stock said. “We’re not defending anybody’s right to harass people.”

Stock said he thought protests at homes should be kept to a minimum and that there were more effective ways to share concerns with a legislator — such as testifying at the Statehouse.

Sen. Liz Brown, R-Fort Wayne, said that not everyone has that opportunity and lawmakers don’t have offices in their districts. But it was a “really fine” line between coming to someone’s house to contact them about legislation and protesting. 

“I don’t think they should come to our homes; I’ve had that happen to me,” Brown said. “They didn’t say a word but I found it very intimidating and harassing.”

It’s unclear if the bill would apply to media.

Baldwin said that “professional protesters” had learned to skirt existing laws, meaning that legislation like this was necessary to protect Hoosiers. 

“I definitely agree that it’s a tightrope between first amendment rights and the right to enjoy one’s home quietly and peaceably,” Baldwin said.

The bill has already been amended to remove provisions related to false reporting and battery of a public safety official which added costs to the state. 

Freeman, the committee chair, said lawmakers would hold the bill to try and amend it again to avoid sending the bill to the Appropriations Committee.