Grant v. Trial Court of the Commonwealth of Massachusetts

137 F.4th 1

• Court: Court of Appeals for the First Circuit
• Decided: May 9, 2025
• Docket: 25-1380
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 25-1380

JASON GRANT; ALLISON TAGGART; LISA PETERSON; SAMANTHA LYONS,

Plaintiffs, Appellants,

v.

TRIAL COURT OF THE COMMONWEALTH OF MASSACHUSETTS; BEVERLY J. CANNONE, in her official capacity as Justice of the Superior Court; GEOFFREY D. NOBLE, in his official capacity as Colonel of the Massachusetts State Police; MICHAEL D'ENTREMONT, in his official capacity as Chief of the Police Department of the Town of Dedham, Massachusetts; MICHAEL W. MORRISSEY, in his official capacity as the Norfolk County District Attorney,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Myong J. Joun, U.S. District Judge]

Before

Montecalvo, Lynch, and Kayatta, Circuit Judges.

Marc J. Randazza, with whom Jay M. Wolman, Randazza Legal Group, PLLC, Mark Trammell, and Center for American Liberty were on brief, for appellants. John G. Mateus for First Amendment Lawyers Association, Foundation for Individual Rights and Expression, and National Press Photographers Association, amici curiae. John R. Hitt, Assistant Attorney General, with whom Andrea Joy Campbell, Massachusetts Attorney General, and Thomas E. Bocian, Gabriel Thornton, Emily Rothkin, and Emily Swanson, Assistant Attorneys General, were on brief, for appellees.*

May 9, 2025

* Appellee D'Entremont was represented by separate counsel, Janelle M. Austin; did not file a brief; and ceded his oral argument time to co-appellees. Per Curiam. In June 2022, the Commonwealth of

Massachusetts indicted Karen Read for murder. She pled not guilty,

and at the end of a trial held in Norfolk County Superior Court

(the "state court"), the jury failed to return a unanimous verdict,

resulting in a mistrial. Prosecutors decided to retry Read, and

opening statements began last week.

Read's case has become something of a cultural

phenomenon. It has drawn headlines, controversy, and, as relevant

here, throngs of demonstrators near the Norfolk County Courthouse

(the "Courthouse"). The prior behavior of some of those

demonstrators -- including loud protests and the display of

materials directed toward trial participants -- frames a potential

conflict between the state court's effort to conduct a fair trial

and demonstrators' right to express their views.

A group of demonstrators (the "Plaintiffs") sought a

preliminary injunction in the District of Massachusetts to secure

their right to demonstrate in certain areas, which the district

court denied. As we explain below, the parties' arguments and

positions have evolved and narrowed during these expedited

appellate proceedings, and we therefore send the case back to the

district court to consider anew both Plaintiffs' motion and the

Commonwealth's arguments against it.

- 3 - I.

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." In so

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

- 4 - 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

- 5 - 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 prevent jurors from outside influence and to

prevent interruptions and distractions during trial."

II.

A group of individuals who seek to demonstrate during

the second trial in an area barred by the Order filed this action

in the District of Massachusetts, requesting a preliminary

injunction against the Order. Following a period of expedited

briefing and argument lasting just eleven days, the district court

denied the motion for a preliminary injunction. See Grant v. Trial

Ct. of Mass., No. 25-cv-10770, 2025 WL 1147752, at *1 (D. Mass.

Apr. 11, 2025). Finding Plaintiffs unlikely to succeed on the

merits, the court determined that the Order is likely "narrowly

tailored to serve a significant governmental interest." Id. at

*3–4 (quoting McCullen v. Coakley, 573 U.S. 464, 486 (2014)).

Plaintiffs then initiated this appeal, which has also proceeded on

an expedited basis, with briefing completed this past Sunday, and

oral argument held the next day.

- 6 - III.

When ruling on a motion for a preliminary injunction, a

district court must consider four factors: (1) "the movant's

likelihood of success on the merits," (2) "whether and to what

extent the movant will suffer irreparable harm in the absence of

injunctive relief," (3) "the balance of relative hardships," and

(4) "the effect, if any, that an injunction or the lack of one may

have on the public interest." Russomano v. Novo Nordisk Inc., 960

F.3d 48, 52 (1st Cir. 2020) (cleaned up). "We review the district

court's ruling on a motion for a preliminary injunction for abuse

of discretion. Within that framework, we examine legal questions

de novo, findings of fact for clear error, and the balancing of

the four factors for abuse of discretion." Id. at 53 (quotation

marks and citations omitted).

IV.

At oral argument, Plaintiffs clarified that they do not

challenge the Order as applied to Courthouse property.1 Plaintiffs

likewise stated at oral argument that they do not seek to

demonstrate along the pathways -- including public sidewalks and

roads -- through which trial participants enter and exit the

Courthouse. And they additionally disclaimed at oral argument any

1 The Order also prohibits individuals in the Courthouse from "wear[ing] any buttons, photographs, clothing, or insignia, relating to [Read's] case." Plaintiffs said at oral argument that they do not challenge this portion of the Order.

- 7 - legal argument in favor of noisy protest. Finally, Plaintiffs do

not contest that the Commonwealth may -- consistent with the First

Amendment -- regulate at least some demonstration-related conduct

beyond Courthouse grounds, such as certain picketing of courts,

judges, jurors, witnesses, and court officers, Mass. Gen. Laws

ch. 268, § 13A (2025); intimidation of witnesses and jurors, id.

§ 13B; disruption of court proceedings, id. § 13C; and public

disturbances, id. ch. 272, § 53.2

The upshot is that Plaintiffs have suggested to us that

they challenge the Order as applied to 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.

The areas where Plaintiffs seek to demonstrate -- most

notably, public sidewalks -- "are 'quintessential' public forums

for free speech." Hill v. Colorado, 530 U.S. 703, 715 (2000); see

also Schenck v. Pro-Choice Network of W. N.Y., 519 U.S. 357, 377

2Plaintiffs argue that Massachusetts judges lack authority under state law to reach the offsite conduct of individuals with no formal relation to court proceedings. Suffice it to say, Plaintiffs point to a murky area of Massachusetts law in which their likelihood of success on the merits is not sufficiently clear for us to order preliminary injunctive relief on these grounds.

- 8 - (1997) ("Leafletting and commenting on matters of public concern

are classic forms of speech that lie at the heart of the First

Amendment, and speech in public areas is at its most protected on

public sidewalks, a prototypical example of a traditional public

forum."). And all parties agree that we must reject the Order

under the First Amendment if it is not "narrowly tailored to serve

a significant governmental interest" or if it does not "leave open

ample alternative channels for communication of the [suppressed]

information." Coakley, 573 U.S. at 477 (citation omitted).3

In assessing whether a courthouse buffer zone survives

judicial review, we do not write on a blank slate. In Cox v. State

of Louisiana, the Supreme Court recognized a state's interest "in

protecting its judicial system from the pressures which picketing

near a courthouse might create." 379 U.S. 559, 562 (1965). There,

the Court considered the as-applied validity of a Louisiana statute

making it a crime to "picket[] or parade[] in or near a"

courthouse, "with the intent of interfering with . . . the

administration of justice, or with the intent of influencing any

judge, juror, witness, or court officer, in the discharge of his

duty." Id. at 560. The Court held that the statute was "narrowly

3 Plaintiffs advance several theories that would require us to apply a higher level of scrutiny, but we do not reach these theories because we conclude that vacatur and remand is appropriate even under the less strict test described above.

- 9 - drawn" to effect a "substantial state interest" and thus survived

First Amendment review. Id. at 562–64.4

Thus, with Cox as our guide, we must determine whether

the Order is narrowly tailored to effectuate the Commonwealth's

asserted interests. In attempting to distinguish Cox, Plaintiffs

point principally to the mens rea requirement of the Louisiana

statute, which bars only protests directed toward interfering with

the administration of justice or influencing trial participants.

Id. at 560.5 By including such a requirement, Louisiana tailored

the statute to target the type of speech that most threatens the

judicial system -- i.e., speech "inten[ded]" to effect "mob law"

and thus to "infringe[ the] substantial state interest in

protecting the judicial process." Id. at 560, 562, 564. Notably,

the Massachusetts and federal statutes that Cox cited as "similar"

to the Louisiana statute share this feature. Id. at 561 (citing

Mass. Gen. Laws ch. 268, § 13A (1965); 18 U.S.C. § 1507 (1965)).

4 At the same time, the Court held that the state violated due process by telling a demonstrator that he could protest 101 feet from the courthouse and then prosecuting him for doing just that. See Cox, 379 U.S. at 571. 5 Plaintiffs also suggest that Cox's First Amendment reasoning turned in part on the legislative provenance of the restriction at issue. We see no evidence in Cox for this assertion. See Cox, 379 U.S. at 560–64. In other words, Cox's First Amendment holding applies even if a court, rather than a legislature, imposes a limitation on courthouse protest.

- 10 - 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

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.6 Cf. Welch v. Shultz, 482 F.2d 780,

783 (D.C. Cir. 1973) (per curiam) (remanding a case for "definition

and examination afresh on an up-to-date factual record").

6 Because we remand on the First Amendment issue, and because its resolution may affect the framing of Plaintiffs' other federal arguments, we do not now weigh in on those issues.

- 11 - Of course, the state court could, entirely of its own

volition, further simplify any potential First Amendment issues by

amending the Order to introduce a mens rea requirement as in Cox

and Mass. Gen. Laws ch. 268, § 13A (2025) -- i.e., by limiting the

Order to demonstrations directed toward interfering with the

administration of justice or influencing trial participants.

Based on Plaintiffs' representations at oral argument, such an

amendment would allow Plaintiffs to engage in their desired quiet,

offsite, nonobstructive demonstrations, while minimizing the risk

that demonstrators will improperly interfere with the judicial

process. No costs are awarded.

- 12 -