The District of Columbia Court of Appeals reversed a court order today barring protesters from demonstrating at Goldman Sachs' Washington office and at the home of a Goldman manager, although not on the First Amendment grounds the protesters argued.
In a partially split decision, the court found that Goldman and Michael Paese, managing director of Goldman's Washington office, failed to show that they were likely to succeed on their claims of private nuisance and, in Paese's case individually, intentional infliction of emotional distress. By deciding the case in that way, the court didn't address the protesters' argument that their actions were protected under the First Amendment.
Local solo practitioner Jeffrey Light, lead counsel for the protesters, said he was "very pleased" with the outcome and that the ruling would offer important guidance to protesters in the future.
"I think the courts a lot of times have this sense that First Amendment expression needs to be pristine, and not too loud, not too annoying, and when they see protests that are a little bit more, well, loud, and have messages that are a little bit further outside the mainstream, they seem to be oftentimes kind of hostile to the protesters," Light said. "It's really good to see the court issue a thorough and very reasonable opinion."
Arthur Spitzer, legislative director of the ACLU and part of an amicus brief supporting the protesters, said that he was disappointed the court didn't touch on the First Amendment issues. "It came out the right way, even if not for the reasons we would have preferred," he said.
A Goldman spokesman declined to comment and Paese couldn't be immediately reached. Hogan Lovells partner Christopher Handman represented Goldman and Paese. He also couldn’t be reached for comment.
Animal rights protesters held demonstrations in Washington targeting Goldman in late August 2010, according to the opinion. The group was protesting Goldman's dealings with an investment group that did business with Huntingdon Life Sciences, a company that the protesters claimed mistreated animals.
Between August and October 2010, according to the opinion, the group held eight demonstrations at Goldman's Washington office and five at Paese's home. The demonstrators, using bullhorns and airhorns, chanted and made speeches outside Goldman's office and Paese's home, and in some cases they went inside the lobby of Goldman's office.
Following what the court called a "tense encounter" involving neighbors outside Paese's home, Goldman and Paese sued in District of Columbia Superior Court and sought a temporary restraining order and preliminary injunction to halt the protests. Judge Brian Holeman granted the injunction, finding that Goldman and Paese were likely to succeed on their private nuisance claim and on Paese's individual claim of intentional infliction of emotional distress.
On Paese's individual emotional distress claim, Senior Judge Inez Smith Reid writing for the majority said that the protests were "loud and disturbing," but that Paese didn't show that they met the standard for "extreme and outrageous conduct." The protests, for the most part, took place on public streets and involved conduct that can be part of "life in a society that recognizes a right to public political protest," she wrote.
Paese said he found the protests "humiliating, embarrassing and intimidating," but Reid said that wasn't akin to the usual hallmarks of "severe" emotional distress, such as sleeplessness or problems concentrating.
Reid wrote that Goldman and Paese failed to prove elements of a private nuisance claim. Even if the protests did interfere with the enjoyment of their respective properties – Goldman's office and Paese's home – the protests lasted about 30 minutes, so Reid said they couldn't show that they suffered from "substantial harm" because the activity had "some degree of permanence."
Judge Anna Blackburne-Rigsby joined Reid's opinion. Judge Roy McLeese III agreed that that court should reverse the preliminary injunction with respect to Goldman's offices, but thought that the order barring protests at Paese's home should have been upheld. McLeese also found that the injunction was overly broad under the First Amendment.