Frisby v. Schultz
487 U.S. 474 (1988)
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Rule of Law:
A municipal ordinance that completely bans targeted, focused picketing taking place solely in front of a particular residence is a constitutional time, place, and manner restriction on speech. Such a ban serves the significant government interest in protecting residential privacy and is narrowly tailored because the evil it targets is the intrusive nature of the focused picketing itself.
Facts:
- Sandra Schultz and Robert Braun, who were opposed to abortion, wished to express their views by picketing on the public street outside the home of a doctor who performed abortions.
- On at least six occasions between April and May 1985, Schultz, Braun, and groups ranging from 11 to over 40 people assembled outside the doctor's home to picket.
- While the picketing was generally orderly and peaceful, it generated numerous complaints from the community.
- In response to the complaints, the Town of Brookfield passed an ordinance on May 15, 1985, making it unlawful for any person to picket 'before or about the residence or dwelling of any individual'.
- The stated purposes of the ordinance were to protect the 'well-being, tranquility, and privacy' of the home and to prevent the harassing of occupants.
- On May 18, 1985, the town attorney informed Schultz and Braun that the new ordinance would be enforced against them.
- Faced with the threat of arrest and prosecution, Schultz and Braun ceased their picketing activities.
Procedural Posture:
- Sandra Schultz and Robert Braun filed a lawsuit in the U.S. District Court for the Eastern District of Wisconsin, seeking an injunction against the ordinance.
- The District Court, a court of first instance, granted a preliminary injunction, concluding that the ordinance was not narrowly tailored enough to restrict protected speech.
- The Town of Brookfield (appellants) appealed to the U.S. Court of Appeals for the Seventh Circuit.
- A divided three-judge panel of the Seventh Circuit initially affirmed the District Court's decision.
- The Seventh Circuit then vacated the panel's decision and reheard the case en banc (with a larger panel of judges).
- The en banc Court of Appeals affirmed the District Court's judgment by an equally divided vote.
- The Town of Brookfield appealed to the U.S. Supreme Court, which granted a petition for a writ of certiorari.
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Issue:
Does a municipal ordinance that completely bans picketing 'before or about' any residence violate the First Amendment's protection of free speech?
Opinions:
Majority - Justice O'Connor
No, the ordinance does not violate the First Amendment. A complete ban on focused residential picketing is a valid time, place, and manner restriction on speech. The Court first established that public streets, even in residential areas, are traditional public forums where speech restrictions receive careful scrutiny. The ordinance is content-neutral and must therefore be narrowly tailored to serve a significant government interest while leaving open ample alternative channels for communication. The Court construed the ordinance narrowly to apply only to 'focused picketing taking place solely in front of a particular residence,' not to general marching through a neighborhood. This narrow scope leaves open ample alternatives like door-to-door canvassing or distributing literature. The government's interest in protecting residential privacy and the well-being of the 'unwilling listener' within the home is of the 'highest order.' The ban is narrowly tailored because the targeted picketing itself is the 'evil' it seeks to remedy; its very purpose is to intrude upon the 'captive' resident. Therefore, a complete ban on this specific, intrusive medium of expression is permissible.
Concurring - Justice White
No, the ordinance as applied is not unconstitutional. While an ordinance banning only single-residence picketing is permissible, this ordinance's language is broad and could be interpreted to unconstitutionally ban all picketing in any residential area. Such a broad reading would likely render it facially unconstitutional due to overbreadth. However, given the town counsel's representations at oral argument that the ordinance would only be enforced against focused, single-residence picketing, the 'strong medicine' of the overbreadth doctrine should be withheld. Therefore, the ordinance should be sustained as applied in this case, and the Court should 'await further developments' regarding its enforcement.
Dissenting - Justice Brennan
Yes, the ordinance violates the First Amendment because it is not narrowly tailored. While the government has a substantial interest in protecting residents from intrusive or coercive conduct, this ordinance bans far more speech than necessary to achieve that goal. The government could have enacted less restrictive regulations, such as limiting the number of picketers, the time of day, or the noise level of the protest. By failing to do so, the town unconstitutionally prohibits peaceful, non-coercive expression, such as a lone, silent picketer. The ordinance fails to distinguish between the intrusive elements of picketing, which can be regulated, and the expressive act of picketing, which should be protected.
Dissenting - Justice Stevens
Yes, the ordinance violates the First Amendment because it is substantially overbroad. The ordinance's plain language prohibits all residential picketing, including communications to willing recipients and innocuous messages, such as a child holding a 'GET WELL CHARLIE' sign for a sick friend. While the specific picketing that prompted the ordinance was intended to cause psychological distress and could be prohibited, the ordinance goes too far. This overbreadth gives town officials excessive discretion in enforcement and chills protected speech. The town could have easily amended the ordinance to target only conduct that unreasonably interferes with residential privacy, but it failed to do so.
Analysis:
This case significantly reinforces the concept of the home as a sanctuary deserving special protection from intrusive speech, establishing residential privacy as a significant government interest that can justify speech restrictions. By upholding a ban on 'focused' picketing, the Court carved out an exception to the general principle that all communicative activity in a traditional public forum is protected. The decision's reliance on a 'narrowing construction' to save the ordinance from a facial overbreadth challenge demonstrates the Court's methodology of avoiding constitutional invalidation where possible. This precedent makes it more difficult to conduct protests that target individuals at their homes, forcing activists to use alternative, less direct means of communication.
