Dave Hoffman (PrawfsBlawg) suggests that trying to get Justice Souter's home condemned is "the same as if a mugger went to Justice Scalia on the street and asked for his wallet, on the ground that the Justice has, through his jurisprudence, eroded the protection against seizure on the thoroughfare."

Uh, no. It's actually the same as if someone asked the City Council wherever Scalia lives to impose a special surtax on Scalia's property. Asking the government for something — even something that may ultimately prove unconstitutional — is rather different from a mugging, no? (Perhaps radical libertarians might conclude that the government's actually taking the property would be identical to a mugging, but the mere request, especially one that is nearly certain to be rejected, surely wouldn't qualify.)

Nor is it sound, I think, to say that "Obviously, the takings claim itself is frivolous, given Kelo's intent language" (I assume this means the claim asking that the property be taken), though the error here I think is much less clear than the one I just discussed. Under Kelo, it does seem that the government couldn't seize Souter's property just because it doesn't like his policies. But Kelo speaks to the intentions of the government, not of those who are doing the development.

Developers' intentions are often not public-regarding; even if they aren't political retaliation, they're often simply private gain, which is perfectly fine. If the developer here persuaded the city that the taking would indeed be economically beneficial ("Clements, CEO of Freestar Media, LLC, points out that the City of Weare will certainly gain greater tax revenue and economic benefits with a hotel on 34 Cilley Hill Road than allowing Mr. Souter to own the land"), and the city was genuinely motivated by this public benefit, the developer's motives would, I think, be irrelevant. [UPDATE: There might also be non-Takings-Clause related constitutional objections, for instance based on the theory that certain kinds of state retaliation against federal officeholders for exercising their federal responsibilities violate federalism principles, but these would be far from "obvious" winners, partly because as best I can tell they would rest on largely novel theories.]

Of course, the request to the City Council does seem frivolous in the sense that it's extremely unlikely to be granted. (Among many other factors, surely it seems extremely unlikely that a small town would treat its most successful citizen this way; and few small towns would want the bad publicity that would come of what most people would see as a petty form of retaliation.) Yet this just further shows that despite the "this is not a prank" language in the press release, the petition is surely meant as a political statement, not as the first step in what is intended to be an actual real estate development.

So the petition to the city council, I think, is no crime (as Prof. Hoffman at first suggests it might be, though he concludes, seemingly with some regret, that it's not). If it's simply a request for legislative or executive action, it's just the exercise of Freestar Media's free speech and petition clause rights. If it triggers an adjudicative or quasi-adjudicative process, and it's frivolous in the legal sense (which as I argue above is far from clear) then it might lead to sanctions or civil litigation, simply as a form of frivolous litigation. But my tentative sense from the press release is that it's simply a request to a government body to do something that it has absolutely no interest in doing.

I agree with Randy that we shouldn't seriously want government agencies to retaliate against government officials by seizing their property. But I don't think there's any serious risk of this, and I suspect that many people who liked the press release did so because it makes a humorous political point of the "imagine him hoist by his own petard" variety, not because they actually endorse detonating any petards under Souter or his property. And analogies to muggings strike me as quite misplaced.