The Family Has A Lot Of Buffers

The United States Court of Appeals for the First Circuit remanded a trial court order dealing with demonstrations around the Karen Read trial

On April 4, 2024, in response to a request from the prosecution, and attempting to balance competing fair-trial and free-speech interests during the first trial, the state court entered an order creating a buffer zone around the Courthouse. That order provided, in relevant part, that “no individual may demonstrate in any manner, including carrying signs or placards, within 200 feet of the courthouse complex during trial of [the Read] case, unless otherwise ordered by this Court.” ordering, the state court explained:

[I]t is well documented that protestors have shouted at witnesses and confronted family members of the victim. Individuals have also taken to displaying materials which may or may not be introduced into evidence during trial, and airing their opinions as to the guilt or innocence of [Read] on their clothing or on signage. Witness intimidation has also been a prevalent issue in this case.

The order, in effect, curtailed all demonstrations along three sides of the Courthouse, while demonstrations persisted beyond the buffer zone in an area west and northwest of the Courthouse. Several demonstrators intervened to challenge the order in state court, arguing that it violated their rights under the First Amendment and the analogous state constitutional provision. See Spicuzza v. Commonwealth, 232 N.E.3d 145, 147 (Mass. 2024). The Massachusetts Supreme Judicial Court ultimately rejected their challenge, concluding that the record lacked evidence to support their claim that the order “extend[ed] beyond the court house grounds,” and that the state court had adequately balanced free-speech and fair-trial concerns in crafting the order. Id. at 149.

Before commencing Read’s retrial, the Commonwealth sought a new and broader order further limiting demonstrations. In support, the Commonwealth attached an affidavit from a juror in the prior trial, an affidavit from a Massachusetts police sergeant who supervised Courthouse security personnel during the first trial, two news stories covering the protests at the first trial, social media posts about protester behavior at the first trial, and a list submitted by local organizations and businesses of the issues they encountered with protestors during the first trial.

On March 25, 2025, the state court agreed, expanding its ban on “demonstrat[ing] in any manner” to encompass not only a radius of 200 feet around the Courthouse, but also the area west and northwest of the Courthouse, “bounded by Bates Court, Bullard Street, Ames Street, and Court Street” (the “Order”). In justifying this now-expanded buffer zone, the state court explained that “during the first trial,” people within the Courthouse could hear “the collective voices of groups of demonstrators gathering outside the [original] buffer zone,” including “along High Street between Bullard Street and Ames Street.” Indeed, the Order documented that “after trial, a  deliberating juror reported that during deliberations, the jurors could hear protestors outside screaming and yelling.” Additionally, “[v]ehicles honking their horns in response to signs and gestures from these demonstrators could . . . be heard frequently during the first trial.” The Order concluded that “[t]o ensure a fair trial with an impartial jury, extending the buffer zone is necessary to — i.e., it likely applies equally to speech directed toward random passersby and speech directed toward trial participants. And Plaintiffs do not appear to ask us to allow them to engage in the latter type of speech: At oral argument, they indicated that they seek only to engage in quiet, offsite demonstrations on public property, in areas and at times that do not interfere with trial participants’ entrance into and exit from the Courthouse, that do not interfere with the administration of justice, and that will not influence any trial participants in the discharge of their duties. These fresh clarifications bring into focus Plaintiffs’ argument that Cox’s tailoring holding should not control this case. prevent jurors from outside influence and to prevent interruptions and distractions during trial.”

The court

The Order, by contrast, seems to lack a mens rea requirement– i.e., it likely applies equally to speech directed toward random passersby and speech directed toward trial participants. And Plaintiffs do not appear to ask us to allow them to engage in the latter type of speech: At oral argument, they indicated that they seek only to engage in quiet, offsite demonstrations on public property, in areas and at times that do not interfere with trial participants’ entrance into and exit from the Courthouse, that do not interfere with the administration of justice, and that will not influence any trial participants in the discharge of their duties.

These fresh clarifications bring into focus Plaintiffs’ argument that Cox’s tailoring holding should not control this case. With Plaintiffs’ position now clarified, we think it prudent to vacate (but not reverse) the district court’s denial of a preliminary injunction and remand this case for further proceedings to determine how the Order has been interpreted and applied and whether the lack of a mens rea requirement renders the Order insufficiently tailored.

(Mike Frisch)