People get angry. Patients get angry. Sometimes they will call your office to fix their perceived problem. Sometimes they go online to vent. Sometimes they go to court.
And on rare occasion, they picket your office.
What can be done.
First, this analysis addresses a picketer who is dealing with a private matter, and not a matter of public concern.
What’s the difference?
A matter of public concern addresses a news-worthy issue and the picketer is trying to influence how the public perceives or addresses the issue. A classic example is abortion. Picketing in front of a women’s health clinic with placards related to abortion follows specific rules. But, because it is a matter of public concern, the law grants more latitude to allows people to “speak.”
A matter of private concern might be a patient unhappy with their bill, or even surgical outcome, who has decided to spend their day with you alerting the world what a horrible human being you are.
First, if they are on private property and disrupting work flow, you can kindly ask them to leave. When they refuse, you can ask the police to follow-up. Usually that will get the job done.
If and when they move to the sidewalk, what next?
Check to see whether your municipality has any time, place, and manner restrictions on picketing. What’s that?
Time, place, and manner restrictions are content-neutral limitations imposed by the government on expressive activity. Such restrictions come in many forms — imposing limits on the noise level of speech, capping the number of protesters who may occupy a given forum, barring early-morning or late-evening demonstrations, and restricting the size or placement of signs on government property. Such regulations are frequently upheld and represent a common part of the regulatory landscape in most cities and counties.
For a time, place, and matter regulation to pass constitutional muster, it must satisfy three pongs:
(a) It must be content neutral (the regulation cannot restrict certain categories of speech).
(b) It must be narrowly tailored to serve an important government interest.
(c) It must leave open ample alternative channels for communicating the speaker’s message.
Prong (c) is the most challenging in the case of a picketer in front of your office. The picketer might just pick up and carry on at a different time or place. This might be useful if the regulation prevents the picketer from doing his thing during work hours in front of your office.
Finally, what about the law. Can the law stifle the picketer?
Remember Johnnie Cochran, the lawyer who defended O.J. Simpson and famously described the glove found at the scene of the murder with “If the glove doesn’t fit, you must acquit.”
Well, O.J. wasn’t the Cochran’s biggest headache. ‘
In 1983, Ulysses Tory and Javier Gutierrez hired Cochran as their attorney in a personal injury lawsuit against the City of Los Angeles. Cochran settled Gutierrez’s claim, but not Tory’s. Tory believed that his own attorney was conspiring with the City. Tory said he’d settle the so-called conspiracy claims against his attorney and “refrain from any public discussions of conspiracy or scandal” if Cochran forked over $10M.
Cochran responded by withdrawing as Tory’s lawyer.
Tory then wrote to Cochran demanding he return money Tory paid to another attorney in a family law matter. As to why Tory believed Cochrane was responsible for this second lawyer’s invoice was a mystery. Cochran ignored the demand.
In the late 1990s, Tory and others started picketing outside of Cochran’s office and outside the Los Angeles Superior Court. Only Tory, and potentially one other picketer was a former Cochran client. The rest were people Tory convinced to participate, frequently by providing free lunch.
In 2000, Tory wrote Cochran demanding $6,500 he paid to the family law attorney and $15k from Cochran for Tory’s “time and effort to bring this entire matter to closure.”
In 2000, Cochran filed a lawsuit against Tory for defamation and invasion of privacy. A preliminary injunction was granted to stop the picketing. The case was tried in March 2002. The trial court concluded that Cochran was entitled to a permanent injunction because Tory’s statements were false and made with knowledge of their falsity,
“maliciously and with reckless disregard for the truth [and] for the purpose of inducing Cochran to pay Tory various amounts of money to which Tory was not entitled.” The permanent injunction forever prohibits Tory and Craft from speaking about Cochran, an admitted public figure, in a public forum, regardless of the content or context of the speech.
Tory appealed and a California Appellate Court ruled against him.
The California Supreme Court refused to hear the case.
Tory appealed to the US Supreme Court. The issue was whether a permanent injunction can be used to prohibit an individual from speaking about a public figure.
Oral argument took place on March 22, 2005.
Unfortunately, Cochran had another headache in his life. A brain tumor. He died 7 days after oral briefs were made.
On May 31st, 2005, the Supreme Court ruled, 7-2, that in light of Cochran’s death, the injunction limiting Tory’s ability to criticize Cochran “amount[ed] to an overly broad prior restraint of speech.”
Dead people cannot be defamed, according to tort law.
Cochran’s death, however, makes it unnecessary for this Court to explore petitioners’ basic claims. Rather, the Court need only point out that the injunction, as written, has lost its underlying rationale. Since picketing Cochran and his law offices while engaging in injunction-forbidden speech could no longer coerce Cochran to pay for desisting in this activity, the grounds for the injunction are much diminished or have disappeared altogether. Consequently, the injunction amounts to an overly broad prior restraint upon speech, lacking plausible justification.
So, the law is an option. But, remember, Cochran had infinite resources to go long in his pursuit of justice. For the average doctor, going long against a determined defendant might be impractically expensive.
From a practical perspective, you just want to picketer out of the way of patients. So, such an expansive injunction is probably overkill.
Anyway, helping our members navigate such kerfuffles is what we do. So, if you are on the receiving end of a picketer or any other thorny challenge, contact us.
What do you think?