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Leonard Leo of Northeast Harbor is chair of Marble Freedom Trust and CRC Advisors. He has been part of the Federalist Society for 25 years.
Free speech is essential for a free society. As such, it is something I have defended and will continue to defend, and I have always accepted that there will be objections and opposition to the work I do.
For more than three decades, I have sponsored forums where all sides debate issues, and sometimes those debates get contentious and heated. But when opposition warps into threats and harassment toward my family, including a young child, who have never involved themselves in my work, that goes beyond free expression to threats to their safety.
As I recalled in my signed statement to the police, the individual who was arrested last year drove up to my family while we were walking, in an apparent fit of anger, yelling at my wife and daughter that they would burn in hell, and then continued to our home to be there when we returned. I further reported to the police that he had repeatedly shown erratic and aggressive behavior that had escalated from targeting me to targeting my family.
We’ve seen what happens when escalation goes unchecked, including Nancy Pelosi’s husband being attacked in their home, an armed individual showing up at a Supreme Court justice’s home and threatening to kill him, and members of Congress being shot during a baseball practice.
I don’t take reporting someone to the police lightly. But, as a husband and a father, neither can I take harassment of my wife and children lightly. Escalating interactions, in public and at our home, by the same individual, cannot be ignored when family is involved.
Demonstrations outside a home, where residents are basically captive to the speech and conduct, can be complicated under the First Amendment, as I said to the police on the day of the arrest. In the one 1988 U.S. Supreme Court case on this issue, Frisby v. Schultz, anti-abortionists did not have a right to protest outside an abortion doctor’s home because “residential privacy” was a “significant governmental interest” and the government can “prohibit offensive speech as intrusive when the ‘captive audience’ cannot avoid the objectionable speech.” That’s a debate for another day, because the issue here is whether I have a right, and the police have a duty, to protect my family from highly offensive speech by an individual with what I have maintained is a history of an aggressive and erratic presence outside my house and on the street.
Anyone can hear the audio of a recording of my conversation with the police. After I recounted the repeated instances of what I felt to be menacing behavior beyond the protests, the police referenced pursuing Maine’s disorderly conduct law. There have been more than a dozen different protests outside my home, involving well over a hundred different people, and the police have respected those rights, normally doing nothing more than driving by. What made this instance different enough for me to report it is that a pattern of escalating conduct over a period of time, including that day, raised serious concerns to me about my family’s safety.
The Mount Desert police listened and decided to act for my family’s protection. As the audio recording bears out, I never demanded his arrest, but instead asked about pressing charges, which normally entails police issuing a summons to appear in court to answer to the complaint at a later time. I repeatedly welcomed the police to reject that approach and suggest an alternative course of action. It is inconsistent with my beliefs about the role of the government to dictate how law enforcement should act.
For screaming at my daughter and showing up at my family’s home, the Maine Wire has speculated that a settlement of at least $150,000 is under consideration, which is more than four times the median annual income for Mainers. Before Bar Harbor foots such a bill and two police officers are hung out to dry, we should care enough about the First Amendment to have a thoughtful debate about what is acceptable behavior in our communities and how a potential settlement could impact our ability to recruit law enforcement during a time of dire shortages.
I don’t happen to think there are any political or civil rights at issue with this arrest. But if you do, aren’t there times when, just because you might have the right to do or say something, you shouldn’t because community and democracy require civility to survive? However this case turns out, that may be the most important issue.
