KATHLEEN KIRKEBY v BRUCE FURNESS
No. 95-3098
Kathleen Kirkeby, David Habiger, *
Ronald Shaw, Martin Wishnatsky, *
Timothy Lindgren, and *
Darold Larson, *
*
Appellees, *
* Appeal from the United States
v. * District Court for the
* District of North Dakota.
Bruce Furness, in His *
Official Capacity as Mayor *
of the City of Fargo; *
Garylle B. Stewart, in His *
Official Capacity as City *
Attorney of the City of Fargo; *
Fargo City Commission; and *
City of Fargo, *
*
Appellants. *
Submitted: June 10, 1996
Filed: August 8, 1996
Before MAGILL, JOHN R. GIBSON, and MORRIS SHEPPARD ARNOLD, Circuit
Judges.
MORRIS SHEPPARD ARNOLD, Circuit Judge.
This case is before us for a second time. The plaintiffs are
pro-life activists who sometimes express their objection to
abortion by picketing near the residences of individuals who
provide abortion services. In 1994, they challenged the
constitutionality of a residential picketing ordinance passed by
the city of Fargo, North Dakota. After the district court refused
to issue a preliminary injunction enjoining enforcement of the
ordinance, we took up the case on appeal and reversed, holding that
a preliminary injunction was in order because the ordinance was
probably unconstitutional. Kirkeby v. Furness, 52 F.3d 772, 774-76
(8th Cir. 1995) ("Kirkeby I").
On remand, the district court held that the ordinance was
unconstitutional because it violated the plaintiffs' First
Amendment right of free expression. The court also held that two
"Restricted Picketing Zones" established pursuant to the ordinance
were unconstitutional. The court therefore granted summary
judgment for the plaintiffs and enjoined enforcement of the
ordinance.
This case presents two distinct issues. The first is whether
the ordinance violates the First Amendment on its face. The second
is whether the "Restricted Picketing Zone" that the city adopted
after amending the ordinance violates the plaintiffs' First
Amendment rights. We answer both questions in the affirmative and
affirm the judgment of the district court.(1)
I.
As a preliminary matter, we note that the ordinance at issue
here differs slightly from the one that we considered in Kirkeby I.
(Fargo amended its ordinance before our decision in that case.)
Because the plaintiffs amended their complaint below to include
allegations against the amendments, however, the new ordinance is
properly before us on this appeal.
The ordinance, as amended, prohibits "targeted residential
picketing." Fargo Municipal Code, art. 10-0802. Targeted
residential picketing is defined as picketing that identifies an
1The Honorable Rodney S. Webb, Chief United States District
Judge for the District of North Dakota.
occupant (either orally or in writing) within two hundred feet of
a dwelling, blocking access to a dwelling, or maintaining a
presence within seventy-five feet of a dwelling for longer than
five minutes at a time. Fargo Municipal Code, art. 10-0801(4).
The ordinance also gives the Board of City Commissioners the
authority to declare, at the request of a complaining resident, the
resident's block a "Restricted Picketing Zone" in which picketing
may be limited or prohibited outright. Fargo Municipal Code,
art. 10-0804.
A.
Plaintiffs first object to the definition of picketing in the
ordinance. In evaluating this claim, we must determine whether the
definition is content-based or content-neutral, because "the
appropriate level of scrutiny is initially tied to whether the
statute distinguishes between prohibited and permitted speech on
the basis of content." Frisby v. Schultz,
487 U.S. 474, 481
(1988). Content-based restrictions are unconstitutional unless
they are narrowly tailored to serve a compelling government
interest. Perry Education Ass'n v. Perry Local Educators' Ass'n,
460 U.S. 37, 45
(1983). Content-neutral regulations, on the other
hand, withstand scrutiny if they are "'narrowly tailored to serve
a significant governmental interest'" and if they "'leave open
ample alternative channels for communication.'" Ward v. Rock
Against Racism,
491 U.S. 781, 791
(1989), quoting Clark v.
Community for Creative Non-Violence,
468 U.S. 288, 293
(1984).
The ordinance defines picketing as "standing, marching,
sitting, lying, patrolling or otherwise maintaining a physical
presence inside of, in front, or about any premises for the purpose
of persuading the public or an occupant of such premises or to
protest some action, attitude or belief." Fargo Municipal Code,
art. 10-0801(2). We agree with the plaintiffs that this definition
is content-based. The picketing limitations that incorporate this
limitation are not "justified without reference to the content of
the regulated speech." Clark,
468 U.S. at 293
. It is impossible
to tell whether a stander, marcher, patroller, etc., is "picketing"
without analyzing whether he or she intends to convey a
"persuasive" message or to "protest some action, attitude or
belief." (We note that Fargo itself has conceded as much: when
asked in plaintiffs' request for admissions whether distributing
literature, soliciting donations, or otherwise disseminating
information would be considered picketing, Fargo replied that it
might be, "depending on the content of the communication.")
As we have already noted, because the definition of picketing
is content-based, any restriction on expression that incorporates
it must be justified by a compelling government interest. Perry,
460 U.S. at 45
. Although the interest asserted by Fargo
(protecting residential privacy and tranquility) is a "substantial"
one, Frisby,
487 U.S. at 488
, the Supreme Court has never held that
it is a compelling interest, see Carey v. Brown,
447 U.S. 455, 465
(1980), and we do not think that it is. Because the entire
ordinance is bottomed on this definition, it is unconstitutional.
We hold, moreover, that even if the definition of picketing
were not content-based, the restrictions incorporating it would be
unconstitutional. First, as we mentioned above, content-neutral
restrictions must be narrowly tailored. Frisby,
487 U.S. at 482
.
A regulation is narrowly tailored if it "targets and eliminates no
more than the exact source of the 'evil' it seeks to remedy." Id.
at 485. In this case, by defining picketing as persuasive or
protest activity "inside of, in front, or about any premises," the
ordinance arguably reaches a teenager pleading with her father to
extend her curfew, a child protesting when ordered to eat all of
his vegetables, or a husband trying to convince his wife that he
really needs a new set of golf clubs. While limiting such
activities might well improve domestic tranquility, Fargo is
certainly without power to do so.
The definition of picketing is also unconstitutionally vague.
"To survive a vagueness challenge, a statute must 'give the person
of ordinary intelligence a reasonable opportunity to know what is
prohibited' and 'provide explicit standards for those who apply
[the statute].'" Video Software Dealers Ass'n v. Webster, 968 F.2d
684, 689 (8th Cir. 1992), quoting Grayned v. City of Rockford,
408
U.S. 104, 108
(1972). In this case, it is unclear to us, and we
think to the ordinary person, precisely what activities are
considered picketing. Fargo itself apparently shares our
puzzlement. For example, Fargo claimed in response to requests of
admissions that door-to-door religious proselytizing and commercial
sales are not covered by the ordinance, but we think that these are
activities that are clearly "persuasive" as the word is generally
understood.
Finally, the ordinance fails to "'establish minimal guidelines
to govern law enforcement.'" Kolender v. Lawson,
461 U.S. 352, 358
(1983), quoting Smith v. Goguen,
415 U.S. 566, 574
(1974). When
asked in a request for admission how the police would determine
whether individuals were picketing within the meaning of the
ordinance, Fargo responded, "it obviously involves some judgment on
the part of the law enforcement officer who is charged with the
duty of enforcing the ordinance." Although we must necessarily
give law enforcement officials some discretion to make judgments
about whether someone is violating the law, they must be guided by
a reasonably discernible sense of what activities are prohibited.
Here, Fargo was unable to articulate standards to guide law
enforcement officers, stating instead, in response to a request for
admission, that "whether a particular activity constitutes
picketing must be determined in the context of all the activities
of the person doing the activity." This response illustrates that,
rather than providing a guide for law enforcement, the ordinance
"permit[s] 'a standardless sweep [that] allows policemen,
prosecutors, and juries to pursue their personal predilections.'"
Kolender,
461 U.S. at 358
, quoting Smith,
415 U.S. at 575
.
B.
The plaintiffs also contend that the total ban on "targeted
residential picketing" is unconstitutional. We agree. This
prohibition imposes a content-based restriction on expression by
prohibiting "[c]arrying written material" or "[s]houting or
otherwise verbalizing protests within 200 feet of a dwelling which
identifies the occupant." Fargo Municipal Code, art.
10-0801(4)(A), art. 10-0801(4)(B). These restrictions regulate
speech or conduct "based on hostility -- or favoritism -- towards
the underlying message expressed," R.A.V. v. City of St. Paul,
505 U.S. 377, 386
(1992). Whether an individual's expressive
activity is regulated depends entirely on whether the content of
his or her expression identifies a resident. See Boos v. Barry,
485 U.S. 312, 318-19
(1988) (opinion of O'Connor, J.). Our
conclusion is highlighted by the fact that the plaintiffs would be
unable to convey their intended message without identifying the
targeted resident. The statements "abortion is immoral" and "the
woman who lives in this house is immoral because she performs
abortions" are qualitatively distinct. Perhaps Fargo believes that
the latter message, because of its content, is more discomforting,
insulting, or embarrassing. But there is no constitutional right
to be free from insult, and shielding residents from it is not a
compelling governmental interest. See, e.g., Texas v. Johnson,
491 U.S. 397, 408-09
, 414 (1989), and Cohen v. California,
403 U.S.
15, 21
(1971).
The residential picketing restrictions would be invalid even
if they were not content-based, because they are not narrowly
tailored. They restrict far more speech than necessary to
"eliminate[] ... the 'evil' [Fargo] seeks to remedy." Frisby,
487 U.S. at 485
. For one thing, the ordinance restricts speech
that is completely unrelated to that interest. Justice Stevens's
observation in Frisby applies with even greater force here:
In Fargo, it is apparently illegal for a fifth-grader to carry a
sign in front of a residence that states "GET WELL CHARLIE --
OUR TEAM NEEDS YOU." Id. at 496 (Stevens, J., dissenting). The
ordinance also prohibits standing on the sidewalk while holding a
sign that states "Vote for Joe" or "Come wish Susan a happy
birthday."
Additionally, although the Supreme Court has held that it is
permissible to prohibit "focused picketing taking place solely
in front of a particular residence," Frisby,
487 U.S. at 483
,
it has also held that a three-hundred-foot buffer zone is
unconstitutional. Madsen v. Women's Health Center, 114 S. Ct.
2516, 2529-30 (1994). In this case, the ordinance prohibits
picketers from identifying an occupant within two hundred feet of
a dwelling. Fargo Municipal Code, art. 10-0801(4)(D), art.
10-0801(4)(B). We believe that the size of the area within which
speech is curtailed is too large. We recently held that a city
could restrict residential picketing within a three-house zone,
Douglas v. Brownell, No. 95-2234, slip op. at 17-19 (8th Cir.
1996), but we are quite certain that any extension beyond that zone
would be unconstitutional.
C.
The plaintiffs also object to the section of the ordinance
that empowers the Board of City Commissioners to establish a
"Restricted Picketing Zone" at the behest of a complaining
resident. Fargo Municipal Code, art. 10-0804. The ordinance
prohibits picketing in restricted picketing zones "except as
permitted in the resolution establishing the zone." Id. The Board
may ban picketing altogether for two hundred feet on either side
of the complaining resident's lot and may impose additional
restrictions on picketing for the resident's entire block. Fargo
Municipal Code, art. 10-0804(B).
We agree with the plaintiffs that this section of the
ordinance is invalid. The "200-foot zone is almost certainly too
restrictive of the right to speak freely in public." Kirkeby I,
52 F.3d at 774. (In fact, the 200-foot area might, depending on
the size of the lot, cover an area larger than the one struck down
in Madsen, 114 S. Ct. at 2530.) Madsen and Frisby make it clear
that an ordinance (like the one before us) that allows Fargo to
prohibit "[g]eneral marching through residential neighborhoods, or
even walking a route in front of an entire block of houses," is
unconstitutional. Madsen, 114 S. Ct. at 2530; Frisby,
487 U.S. at
483
. Although Fargo may pass an ordinance prohibiting protesters
from maintaining a constant presence outside of three residences,
Douglas, supra, we think it manifest that it cannot give the Board
the authority to create a "First-Amendment-free zone" that is
larger than two football fields.
The fact that the Board must make legislative "findings,"
Fargo Municipal Code, art. 10-0804(A), about the nature and extent
of previous picketing before establishing a zone does not change
our analysis. Fargo's protestations to the contrary, the
government may not legislate away the First Amendment.
Furthermore, although Fargo assures us that the Board will
establish a zone only if picketing interferes with residential
privacy and tranquility, the statute includes no such requirement.
The ordinance directs the Board to "investigate any request from a
resident of [Fargo] that intrusive or repeated picketing is
occurring," and states that "[u]pon review, the Board ... may adopt
a resolution establishing a Restricted Picketing Zone." Id. The
ordinance does not require the Board to base its decision about
whether to establish a zone upon any particular findings, nor does
it require that the zone be narrowly tailored to address
specifically identified difficulties.
Finally, the ordinance gives the Board the power to impose
additional picketing restrictions on an entire residential block.
Fargo Municipal Code, art. 10-0804(B). The ordinance does not
specify what other restrictions are permissible, and we are
concerned that permitting the Board to restrict speech on a
block-wide basis will lead to many unconstitutional restrictions on
free expression. (Indeed, as our discussion of the remaining
restricted picketing zone, below, demonstrates, it already has.)
II.
We turn now to whether the restricted picketing zone, adopted
by the city following amendment of the ordinance, is itself
unconstitutional. (The Board had established two other restricted
picketing zones under the old version of the ordinance, but it
admits that they do not comport with the amended version. Although
the zone we now consider expired in early July 1996, we believe
that the dispute about its constitutionality is not moot. The
restrictions imposed by the Board are "capable of repetition, yet
evading review" because there is "a reasonable expectation that the
[plaintiffs] will be subjected to the same action again." Murphy
v. Hunt,
455 US 473
, 482
(1982) (citations and quotation marks
omitted). The resolution establishing the zone restricts picketing
in several ways. First, it bans picketing altogether, on the
resident's side of the street, in front of and for one hundred
fifty feet on either side of her lot. For reasons that we have
already made amply clear, this part of the resolution is
unconstitutional. The "speech-free" zone is simply too large.
Madsen, 114 S. Ct. at 2530.
The resolution also imposes several block-wide picketing
limitations. It limits the duration of picketing to one hour per
day and restricts the hours within which picketing may occur.
(Picketing is permitted Monday through Friday, between the hours of
9 a.m. and noon, 1 p.m. to 4 p.m., and 7 p.m. to 8 p.m.; it is
prohibited all weekend.) The resolution also provides that no more
than five individuals may picket at any one time. In evaluating
the constitutionality of these restrictions, we turn again to the
standard articulated in Ward,
491 U.S. at 791
: Content-neutral
time, place, and manner restrictions are valid if "they are
narrowly tailored" and "leave open ample alternative channels for
communication of the information." Although the Supreme Court has
indicated that residential picketing difficulties are often best
addressed by "a limitation on the time, duration of picketing, and
number of pickets," Madsen, 114 S. Ct. at 2530, we believe that,
with the exception of the weekday time-of-day limitations, all of
the limitations in the resolution are too restrictive of the
plaintiffs' right to speak.
We turn first to the hour-per-day picketing limitation and the
total ban on weekend picketing. Although Fargo may set some time
limits on picketing (for example, the weekday hour restrictions
imposed here seem reasonable), we cannot accept Fargo's argument
that imposing such extreme restrictions upon the right to speak is
the most narrowly tailored way to protect residential privacy and
tranquility. We seriously doubt that residential privacy will be
dramatically undermined by permitting picketing on the public
streets for more than five hours per week.
Furthermore, the regulations do not leave open "ample
alternative channels for communication of the information" that the
plaintiffs wish to convey. Ward,
491 U.S. 791
(emphasis supplied).
As we emphasized in our discussion of the portion of the ordinance
that prohibits identifying the target of the picketer, plaintiffs
wish to express an opinion about an individual to that individual
and others, and they wish to direct their message at that
individual. That is precisely why they picket around the
individual's home: they wish to speak to her and they wish to
identify her to others. Therefore, allowing them to picket in the
town square or even on the next block does not satisfy the second
Ward requirement. These time limits do not give the plaintiffs
enough opportunity to direct their intended message at their
intended recipients.
Finally, we believe that it is also unconstitutional to limit
the total number of pickets per residential block to five. This
restriction is similar to one that we invalidated in United Food &
Commercial Workers Int'l Union v. IBP, Inc., 857 F.2d 422, 432
(8th Cir. 1988), that prohibited "more than two pickets at any one
time within ... fifty feet of any entrance to the premises being
picketed," id. In this case, because they apply to an entire
block, the restrictions impose even broader restrictions on free
expression, and, as in United Food, we cannot say that these
restrictions represent the most narrowly tailored way to protect
Fargo's stated interest. In fact, taken together, the duration and
number restrictions may well lead to a situation where most
residents are unaware that anyone is picketing at all.
III.
In closing, we emphasize that "[t]he antipicketing ordinance
operates at the core of the First Amendment," Frisby,
487 U.S. at
479
, because it restricts free expression on the public streets,
"the archetype of a traditional public forum," id. at 480.
"Because of the importance of 'uninhibited, robust, and wide-open'
debate on public issues," id. at 479, quoting New York Times Co. v.
Sullivan,
376 U.S. 254, 270
(1964), the government must be
extremely solicitous of the plaintiffs' desire to express
themselves and must carefully, narrowly, and meticulously craft any
restriction on that desire. In this case, the city of Fargo has
been neither solicitous nor careful.
For the foregoing reasons, we affirm the judgment of the
district court.
JOHN R. GIBSON, Circuit Judge, dissenting.
I respectfully dissent.
The court today holds that the ordinance is content-based, and
that the restriction is not justified by a compelling state
interest. I believe the court should simply hold as much, and go
no further. The court, however, decides that it must continue to
analyze the remainder of the ordinance, concluding that even if the
definition of picketing is content-neutral, the ordinance is
unconstitutional. This reduces the remainder of the court's
opinion to dictum, with no binding force. I will comment briefly
on these issues.
This case has taken an extremely curious path. In denying the
preliminary injunction, the district court made specific findings
of fact concerning the targeted residential picketing provisions of
the ordinance and expressly reserved ruling pending further
exploration on the residential picketing zones. When the court
heard the appeal on the preliminary injunction, it stated that "we
entertain grave doubts" as to whether the ordinance "can pass
constitutional muster." Kirkeby v. Furness, 52 F.3d 772, 774 (8th
Cir. 1995). We concluded that the "200-foot zone is almost
certainly too restrictive of the right to speak freely in public."
Id. We thought that the "200-foot area may well be an
impermissibly restrictive regulation of picketing . . . ." Id. at
775. Applying the considerations set forth in Dataphase Systems,
Inc. v. CL Systems, Inc., 640 F.2d 109, 113 (8th Cir. 1981) (en
banc), we concluded that "the protesters' right to speak has
probably been violated, [and] they will likely suffer an
irreparable injury," without the issuance of a preliminary
injunction. 52 F.3d at 775. We emphasized that we had not made a
final decision on the merits, but "have considered the merits only
to the extent that the Dataphase considerations have compelled us
to do so." Id. I dissented from the court's opinion in Kirkeby I.
The district court accepted the signals taken from our
tentative conclusions, and granted a permanent injunction. The
district court did so without making specific findings of fact or
conclusions of law. Thus, we are faced with the entry of a
permanent injunction running contrary to the district court's
original findings and based on this court's most tentative and
general comments. The district court's original findings with
respect to the picketing provisions have not been set aside or
reversed. In light of this court's discussion in Kirkeby I, the
district court simply abandoned its further exploration of the
residential picketing zones provisions. Thus, a permanent
injunction has simply been floated in the air, without a tether of
supporting factual findings.
I entertain some question as to whether under the analysis in
Carey v. Brown,
447 U.S. 455
(1980), and R.A.V. v. City of St.
Paul,
505 U.S. 377
(1992), the ordinance is content-based.
Although the ordinance defines picketing to include conduct for the
purpose of persuading the public or protesting some action, the
definition is a generic one and does not concern specific subjects
or issues. Cf. Carey,
447 U.S. at 460
(statute distinguished labor
picketing from other picketing); R.A.V.,
505 U.S. at 391
(ordinance
distinguished certain conduct directed at race, color, creed,
religion or gender.)
Furthermore, I believe that the court's holding that the
residential privacy interest at issue here is not compelling may be
premature. The court cites Carey v. Brown,
447 U.S. 455, 465
(1980), for its position that residential privacy does not
constitute a compelling state interest. The appellant in Carey
argued that the Court should uphold a content-based residential
picketing statute because the statute furthered the State's
compelling interest of ensuring privacy in the home. Id. at 465.
The statute barred picketing of residences, but exempted "the
peaceful picketing of a place of employment involved in a labor
dispute." Id. at 457. The Court declined to decide whether the
State's interest in residential privacy constituted a compelling
interest because it concluded that the State's asserted interest of
protecting residential privacy was not served by the statute. Id.
at 464-65. The ordinance neither distinguished among various sorts
of nonlabor picketing on the basis of the harms inflicted on
residential privacy nor explained how peaceful labor picketing is
less disruptive of residential privacy than peaceful picketing on
issues of broader social concern. Id. at 465.
The Court has never stated that residential privacy does not
constitute a compelling interest. Carey did not decide the
question, and the Court has, many times, emphasized "the unique
nature of the home, `the last citadel of the tired, the weary, and
the sick.'" Frisby v. Schultz,
487 U.S. 474, 484
(1988) (quoting
Gregory v. City of Chicago,
394 U.S. 111, 125
(1969) (Black, J.,
concurring)). "`The State's interest in protecting the well-being,
tranquility, and privacy of the home is certainly of the highest
order in a free and civilized society.'" Id. (quoting Carey,
447
U.S. at 471
).
As the Supreme Court recognized in Frisby, there is a special
part of the residential privacy interest accorded to "unwilling
listeners . . . within their own homes."
487 U.S. at 485
. After
discussing the consequences of targeted residential picketing in
Frisby, the Court stated: "[W]e have repeatedly held that
individuals are not required to welcome unwanted speech into their
own homes and that the government may protect this freedom." Id.
On several occasions, the Court has held that the government may
protect the freedom of individuals to avoid unwanted speech in
their own homes, upholding the rights of the "unwilling listener"
over the First Amendment rights of others. See, e.g., FCC v.
Pacifica Found.,
438 U.S. 726, 748-49
(1978) (offensive radio
broadcasts); id. at 759-60 (Powell J., concurring in part and
concurring in the judgment) (same); Rowan v. United States Post
Office Dep't.,
397 U.S. 728, 737
(1970) (offensive mailings);
Kovacs v. Cooper,
336 U.S. 77, 86-87
(1949) (plurality opinion)
(sound trucks).
In the privacy of the home, "[an] individual's right to be
left alone plainly outweighs the First Amendment rights of an
intruder." Pacifica Found.,
438 U.S. at 748
(citing Rowan,
397
U.S. at 737
). The Court further explained this interest in Kovacs:
The preferred position of freedom of speech in a society
that cherishes liberty for all does not require
legislators to be insensible to claims by citizens to
comfort and convenience. To enforce freedom of speech in
disregard of the rights of others would be harsh and
arbitrary in itself.
336 U.S. at 88
. Cf. Martin v. City of Struthers,
319 U.S. 141
(1943) (invalidating ban on door-to-door solicitation when the
homeowner can protect himself from the intrusion by an appropriate
sign that he does not want to be disturbed.)
In essence, the court today holds that the protesters' First
Amendment rights trump the rights of individuals to avoid unwanted
speech in their homes. This directly conflicts with the teaching,
particularly of Frisby, concerning the State's interest in
protecting the well-being, tranquility, and privacy of the home.
In its analysis, the court today simply gives little or no weight
to the privacy interests of the besieged homeowners, and allows
them to be trampled by the speech of the protesters despite the
Supreme Court's instruction that targeted residential picketing is
not accorded as much First Amendment protection as other forms of
communication. The Court reached this conclusion because
residential picketers "do not seek to disseminate a message to the
general public, but to intrude upon the targeted resident . . . in
an especially offensive way." Frisby,
487 U. S. at 486
.
I also disagree with the court's unduly restrictive reading of
Frisby and Madsen v. Women's Health Center, Inc., 114 S. Ct. 2516
(1994). Madsen struck down a portion of an injunction prohibiting
picketing, demonstrating, or using sound amplification equipment
within 300 feet of the residences of clinic staff. 114 S. Ct. at
2529-30. Madsen, however, also held constitutional a thirty-six
foot buffer zone around the clinic's entrances and exits. Id. at
2527. Madsen thus recognizes that the protected zone may extend
beyond the property lines of the building in question. Indeed, in
striking down the 300-foot zone, the court foresaw that "a
limitation on the time, duration of picketing, and number of
pickets outside a smaller zone could have accomplished the desired
result." Id. at 2530. Although Madsen concluded that the 300-foot
zone was too large, it certainly did not define the boundaries of
the restricted area. Madsen also differs from this case in three
other important ways. First, Madsen involved an injunction, which
is subject to a more rigorous degree of scrutiny. 114 S. Ct. at
2524-25. Second, Madsen involved different interests: ensuring
access to a clinic and ensuring the health and well-being of
patients at a clinic. Id. at 2527-28. This case involves the
substantial interest of protecting the peace and tranquility of the
home and the protection of the unwilling listener in his own home.
See Frisby,
487 U.S. at 484
-85. Third, the "zone" here is not
nearly as large as that in Madsen, nor does it curtail as much
speech. Madsen prohibited all picketing or demonstrating within
300 feet of the residences of clinic staff. 114 S. Ct. at 2529.
The zone at issue here only prohibits the identification of an
occupant within 200 feet of a residence. The 200 foot zone is
smaller and does not prohibit all picketing or demonstrating--only
picketing which identifies an occupant within two hundred feet of
the occupant's home.(2)
I also disagree with the court's conclusion that the two-
hundred foot area within which speech is curtailed is too large.(3)
Although the Court in Frisby construed the ordinance to prohibit
only "focused picketing taking place solely in front of a
particular residence,"
487 U.S. at 483
, I do not believe this
language defined the parameters of targeted picketing. I disagree
with the court today that we may only restrict residential
picketing within a three-house zone. In recent days, this court
approved an ordinance that restricts picketing in front of a
targeted residence, as well as the residences immediately adjacent
thereto. Douglas v. Brownell, No. 95-2234, 1996 WL 379953 (8th
Cir. July 9, 1996). We concluded that the Court in Frisby focused
on the impact the ban had on protected activity, not on the size of
the prohibited zone. Id. at *8. We acknowledged the direct
relationship between the size of the zone and the impact on speech,
but concluded we were not required to strike down an ordinance
simply because the zone extends beyond the area solely in front of
the targeted residence. Id. at *9. We did not define the outer
limits of a restricted picketing zone, but we reiterated that
Frisby requires us to ensure that the ordinance impacts protected
speech no more than necessary to eliminate the evil it seeks to
remedy. Id. (citing Frisby,
487 U.S. at 483
-88). Such an inquiry
requires a close examination of the record.
The record in Douglas, like the record in this case, shows the
numerous complaints made by neighbors of the targeted resident.
See id. These records are different from that in Frisby in which
the picketers congregated only in front of the targeted physician's
home.
487 U.S. at 476
. There is no question that the significant
residential privacy interests described in Frisby carry over to the
nearby neighbors. The neighbors have, at least, an interest in
privacy equal to the targeted resident. The neighbors are entirely
innocent bystanders, and are subject to the proximal fallout from
the picketing directed at the true target of the picketing. It is
entirely fortuitous that the neighbors are subject to the
picketing. The picketers, of course, seek to directly influence
the targeted resident. The picketers subject the neighbors to
picketing in an effort to have the neighbors' voice their
displeasure and also indirectly influence the targeted resident.
As the findings from the preliminary injunction hearing
demonstrate, neighbors of the targeted residents made numerous
complaints about the picketing.
The district court made findings about the impact the
picketing had on residents of the neighborhood who were not the
targets of the picketing. Many of the residents would not allow
children to play outside when the picketers were present, in part,
because they found the graphic signs offensive and felt children
should not be exposed to such materials. Results of neighborhood
surveys conducted by the Fargo Police Department showed that an
overwhelming majority of residents felt the picketing was annoying
and harassing, and negatively impacted their sense of neighborhood
well-being, tranquility, privacy, and the enjoyment of their homes.
The 200-foot zone takes into consideration the substantial
interests of these neighbors and does so in an area less than that
forbidden by Madsen. 114 S. Ct. at 2529-30. As a practical
matter, the 200-foot zone covers the neighboring house, and
possibly the house beyond that. The ordinance does not prohibit
general marching through the neighborhood, it only prohibits the
targeted picketing of an individual within 200 feet of that
person's home. Considering the specific and careful findings made
by the council before adopting the ordinance, as well as the
findings of the district court, I believe that the city adopted a
reasonable balance between the privacy interests of the
neighborhood residents and the First Amendment interests of the
picketers.
With respect to the restricted picketing zone, I believe that
the zone which bans picketing in front of the targeted residence
and for 150 feet on either side of the targeted resident's lot, is
sustainable under the authority of Frisby, Madsen, and Douglas.(4)
Considering the particular lots in question, the zone covers, at
most, two houses on each side of the targeted residence. The zone
is, in reality, much smaller than that in Madsen because the zone
here covers only the targeted residence plus an adjacent 150 feet.
The zone in Madsen covered an area 300 feet in any direction. 114
S. Ct. at 2522. The findings surrounding the entry of the
preliminary injunction specify the impact the picketing had on
these nearby residences. The court today does no more than say
that the speech free zone "is simply too large," totally ignoring
the facts in the record. I think this conclusionary approach to a
significant constitutional issue is too broad and too vague in
(4)I have no quarrel with the court's conclusion that the dispute
about the restricted picketing zone is not moot.
treating a serious and substantial concern to the residents of that
area.
Finally, I see no constitutional infirmity with allowing the
Board of City Commissioners to establish a Restricted Picketing
Zone upon an application of a resident. I simply point out that
before the Commissioners may authorize a restricted picketing zone,
an applicant must satisfy significant procedural requirements. I
think we must accept counsel for Fargo's assurances that the Board
will establish such a zone only if the picketing interferes with
residential privacy and tranquility.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
**FOOTNOTES**
(2)
Although the court today does not cite Vittitow v. City of
Upper Arlington, 43 F.3d 1100 (6th Cir.), cert. denied, 115 S. Ct.
2276 (1995), it relied on Vittitow in denying the preliminary
injunction, and much of the court's reasoning today appears to
follow Vittitow. I am more persuaded, however, by Judge Martin's
dissent in that case. After analyzing Frisby and Madsen, Judge
Martin concluded that a three-house zone was "no larger than
necessary to prevent the targeted homeowner and his family from
being captives and to protect their other residential privacy
interests." Id. at 1111.
(3)
The court does not discuss the provision of the ordinance
prohibiting picketers from remaining within seventy-five feet of a
dwelling for longer than five minutes. I believe this provision is
easily sustainable under the combined authorities of Frisby,
Madsen, and Douglas.