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SJC-13589

TRACEY ANNE SPICUZZA & others1 vs. COMMONWEALTH & another.2

FREEDOM TO PROTEST COALITION & others3 vs. COMMONWEALTH

& another.4

May 2, 2024.

Supreme Judicial Court, Superintendence of inferior courts.

Constitutional Law, Freedom of speech and press. Practice,
Civil, Intervention.

The petitioners in these consolidated cases appeal from a

judgment of a single justice of this court denying their
petitions for relief pursuant to G. L. c. 211, § 3. On April
26, 2024, we issued an order affirming the judgment. This
opinion states the reasons for that order.5

Background. The petitions stemmed from the ongoing trial,

in the Superior Court in Norfolk County, in Commonwealth vs.
Karen Read, No. 2282CR00117. Read has been indicted for murder,

1 Lorena Jenkinson, Dana Stewart Leonard, and Paul

Cristoforo.

2 Karen Read.

3 Nicholas Rocco and Jon Silveria.

4 Karen Read.

5 We acknowledge the amicus briefs submitted by the American

Civil Liberties Union of Massachusetts and by Bharani
Padmanabhan.
 2

among other crimes, and the case has garnered significant public
interest, including protests and demonstrations in the vicinity
of the court house complex. In the course of the trial court
proceedings, the Commonwealth filed a "Motion for Buffer Zone
Surrounding Norfolk Superior Court and Request for Order
Prohibiting Signs or Clothing in Favor of Either Party or Law
Enforcement," seeking a 500-foot buffer zone around the Norfolk
County Superior Court House and arguing, essentially, that the
demonstrations and protests near the court house jeopardized a
fair trial. Petitioners Tracey Anne Spicuzza, Lorena Jenkinson,
Dana Stewart Leonard, and Paul Cristoforo (individual
petitioners) filed a motion, in the trial court, to intervene
for the purpose of opposing the Commonwealth's motion. They
argued that a buffer zone would infringe on their constitutional
rights under the First Amendment to the United States
Constitution and art. 16 of the Declaration of Rights, as
amended by art. 77 of the Amendments to the Massachusetts
Constitution.

The trial judge held a hearing on the Commonwealth's motion

at which she heard from both the Commonwealth and the defendant.
The defendant specifically took no position on the motion (and
has not taken part in the proceedings in this court). The judge
acknowledged the individual petitioners' motion to intervene,
noting that she had read the motion papers and was not going to
hear from counsel in connection with that motion. Additionally,
she allowed the American Civil Liberties Union of Massachusetts
to submit an amicus brief and indicated that she had read the
amicus brief and did not need to hear from counsel.

The judge issued her decision later the same day, allowing
the Commonwealth's motion, in part, and ordering that

"no individual may demonstrate in any manner, including

carrying signs or placards, within 200 feet of the
courthouse complex during trial of this case, unless
otherwise ordered by this Court. This complex includes the
Norfolk Superior courthouse building and the parking area
behind the Norfolk County Registry of Deeds building.
Individuals are also prohibited from using audio enhancing
devices while protesting."6

6 The trial judge's order also stated that

"no individuals will be permitted to wear or exhibit any

buttons, photographs, clothing, or insignia, relating to
 3

In establishing the buffer zone, the judge indicated that she

was seeking to balance the right to free speech protected by the
First Amendment and the defendant's right to a fair trial. The
judge noted that, in connection with the underlying trial court
proceedings, protestors have shouted at witnesses, have
confronted family members of the victim, and have "taken to
displaying materials which may or may not be introduced into
evidence during trial." She also stated that witness
intimidation has been a "prevalent issue." On the basis of
these details, with which the judge has reason to be familiar,
the judge concluded that a 200-foot buffer zone was warranted to
help ensure a fair trial, free from outside influence. The
judge also denied the individual petitioners' motion to
intervene.

Thereafter, the individual petitioners filed a petition

pursuant to G. L. c. 211, § 3, in the county court, in which
they sought relief both from the denial of their motion to
intervene and from the buffer zone order. Separately, the
Freedom to Protest Coalition also filed a petition pursuant to
G. L. c. 211, § 3, seeking relief from the buffer zone order.
The single justice considered the petitions together and denied
them.

Discussion. As a starting point, we note that the single

justice declined to reach the merits of the issue whether the
trial judge erred in denying the individual petitioners' motion
to intervene. Rather, the single justice concluded that the
trial judge made an ordinary procedural ruling and that the
petitions did not present the type of exceptional matter that
warrants this court's exercise of its extraordinary power of
general superintendence. He did not commit an error of law or
abuse his discretion in reaching this conclusion. See, e.g.,
Commonwealth v. Richardson, 454 Mass. 1005, 1006 (2009) (single
justice properly declined to employ court's extraordinary power

the case pending against the defendant or relating to any

trial participant, in the courthouse during the trial. Law
enforcement officers who are testifying or are members of
the audience are also prohibited from wearing their
department issued uniforms or any police emblems in the
courthouse."

The petitioners have not raised any challenge to this portion of

the order, and it is not at issue in this appeal.
 4

of general superintendence to review relatively routine trial

court ruling).

As to the buffer zone, and the petitioners' arguments

regarding their First Amendment rights, there is no question
that the order establishing the zone does impose some
restrictions on the petitioners' speech. As the petitioners
themselves recognize, however, a restriction on speech is not,
in and of itself, necessarily problematic or unconstitutional.
Rather,

"States may impose reasonable restrictions on the time,

place, or manner of protected speech and assembly provided
the restrictions are justified without reference to the
content of the regulated speech, that they are narrowly
tailored to serve a significant governmental interest, and
that they leave open ample alternative channels for
communication of the information" (quotations and citation
omitted).

Desrosiers v. Governor, 486 Mass. 369, 390-391 (2020), cert.

denied, 142 S. Ct. 83 (2021). In the circumstances, the 200-
foot buffer zone meets the "reasonable restriction"
requirements.

First, notwithstanding the petitioners' argument to the

contrary, the restriction created by the buffer zone is content
neutral. "The principal inquiry in determining content
neutrality, in speech cases generally and in time, place, or
manner cases in particular, is whether the government has
adopted a regulation of speech because of disagreement with the
message it conveys." Ward v. Rock Against Racism, 491 U.S. 781,
791 (1989), citing Clark v. Community for Creative Non-Violence,
468 U.S. 288, 295 (1984). The fact that the protestors who have
appeared outside the court house in connection with the trial
have all, according to the petitioners, been in support of the
defendant in the underlying criminal trial had no bearing on the
establishment of the buffer zone. Any protest against the
defendant, and in support of the Commonwealth, would be equally
subject to the restrictions of the buffer zone. "Government
regulation of expressive activity is content neutral so long as
it is 'justified without reference to the content of the
regulated speech.'" Ward, supra, quoting Clark, supra at 293.
Additionally, and to the petitioners' argument that the buffer
zone is not content neutral because commercial speech is still
allowed, the fact that the restriction created by the buffer
zone "has an incidental effect on some speakers or messages but
 5

not others" does not render the buffer zone unconstitutional.

See Ward, supra ("A regulation that serves purposes unrelated to
the content of expression is deemed neutral, even if it has an
incidental effect on some speakers or messages but not others").

Second, the restriction -- the 200-foot buffer zone -- is

"narrowly tailored to serve a significant governmental
interest." The buffer zone, which is smaller than the 500-foot
zone requested by the Commonwealth, will help ensure a fair
trial -- a significant governmental interest -- by physically
clearing the path for jurors, witnesses, and other individuals
to come and go from the court house complex without obstruction
or interference by protestors or demonstrators, and any
concomitant intimidation or harassment, within 200 feet of the
court house complex. The buffer zone also helps protect the
jurors, who, as the trial judge noted, must remain fair and
unbiased, from extraneous influence that might result from, for
example, viewing pictures of putative evidence directly in their
path. The buffer zone does not preclude the petitioners, or
anyone else, from engaging in the same forms of protest they
have previously done; it simply constrains them from doing so
within a limited zone tied to court house property. In so
doing, it leaves open "ample alternative channels for
communication of the information."

Third, we reject the argument that the buffer zone order

must be analyzed under strict scrutiny as a prior restraint on
speech. The term "prior restraint" "describe[s] administrative
and judicial orders forbidding certain communications when
issued in advance of the time that such communications are to
occur." Commonwealth v. Barnes, 461 Mass. 644, 651 (2012),
quoting Alexander v. United States, 509 U.S. 544, 550 (1993).
Here, the buffer zone order does not forbid protestors and
demonstrators from expressing their chosen message; they simply
must do so outside the buffer zone.

Finally, we note that, notwithstanding assertions in their

briefing to this court, the petitioners have not provided record
evidence sufficient to establish that the 200-foot buffer zone
ordered by the Superior Court extends beyond the court house
grounds onto public sidewalks or other areas that constitute a
public forum with respect to which "the government's ability to
permissibly restrict expressive conduct is very limited."
United States v. Grace, 461 U.S. 171, 177 (1983). A map
supplied by the Commonwealth is not sufficiently clear to
resolve any ambiguity on this score, and does not appear, in any
event, to have been a part of the record before the single
 6

justice. Based on the petitioners' failure to establish

otherwise, the single justice did not err in denying their
petition on the basis that the establishment of the buffer zone
did not violate the petitioners' First Amendment rights.

Conclusion. Ultimately, the trial judge struck a balance

between the right to protest or demonstrate and the defendant's
right to a fair trial. As the Commonwealth notes, it too has
the right to, and an interest in the defendant receiving, a fair
trial, see Commonwealth v. Underwood, 358 Mass. 506, 511 (1970),
which is also supported by the judge's order. The single
justice did not commit an error of law or abuse his discretion
in denying the petitions pursuant to G. L. c. 211, § 3, seeking
relief from that order, or from the denial of the motion to
intervene. For the foregoing reasons, we issued an order on
April 26, 2024, affirming the judgment.

The cases were submitted on the papers filed, accompanied

by memoranda of law.
Mark Trammell, of Maryland, Marc J. Randazza, & Jay M.
Wolman for the petitioners.
Pamela Alford & Adam C. Lally, Assistant District
Attorneys, for the Commonwealth.
Ruth A. Bourquin & Rachel E. Davidson, for American Civil
Liberties Union of Massachusetts, Inc., amicus curiae, submitted
a brief.
Bharani Padmanabhan, pro se, amicus curiae, submitted a
brief.