Frisby v. Schultz
Decided on June 27, 1988; 487 US 474


A. Issues Discussed: Free speech

B. Legal Question Presented:

Does a city ordinance that completely bans picketing "before or about" any residence violate the First Amendment?


A. Background:

"Brookfield, Wisconsin, is a residential suburb of Milwaukee with a population of approximately 4,300. The appellees, Sandra C. Schultz and Robert C. Braun, are individuals strongly opposed to abortion and wish to express their views on the subject by picketing on a public street outside the Brookfield residence of a doctor who apparently performs abortions at two clinics in neighboring towns. Appellees and others engaged in precisely that activity, assembling outside the doctor's home on at least six occasions between April 20, 1985, and May 20, 1985, for periods ranging from one to one and a half hours. The size of the group varied from 11 to more than 40. The picketing was generally orderly and peaceful; the town never had occasion to invoke any of its various ordinances prohibiting obstruction of the streets, loud and unnecessary noises, or disorderly conduct. Nonetheless, the picketing generated substantial controversy and numerous complaints.

The Town Board therefore resolved to enact an ordinance to restrict the picketing. On May 7, 1985, the town passed an ordinance that prohibited all picketing in residential neighborhoods except for labor picketing. But after reviewing this Court's decision in Carey v. Brown which invalidated a similar ordinance as a violation of the Equal Protection Clause, the town attorney instructed the police not to enforce the new ordinance and advised the Town Board that the ordinance's labor picketing exception likely rendered it unconstitutional. This ordinance was repealed on May 15, 1985, and replaced with the following flat ban on all residential picketing:

'It is unlawful for any person to engage in picketing before or about the residence or dwelling of any individual in the Town of Brookfield.'

The ordinance itself recites the primary purpose of this ban: 'the protection and preservation of the home' through assurance 'that members of the community enjoy in their homes and dwellings a feeling of well-being, tranquility, and privacy.' The Town Board believed that a ban was necessary because it determined that 'the practice of picketing before or about residences and dwellings causes emotional disturbance and distress to the occupants . . . [and] has as its object the harassing of such occupants.' The ordinance also evinces a concern for public safety, noting that picketing obstructs and interferes with the free use of public sidewalks and public ways of travel.'

On May 18, 1985, appellees were informed by the town attorney that enforcement of the new, revised ordinance would begin on May 21, 1985. Faced with this threat of arrest and prosecution, appellees ceased picketing in Brookfield and filed this lawsuit in the United States District Court for the Eastern District of Wisconsin....

The District Court granted appellees' motion for a preliminary injunction. The court concluded that the ordinance was not narrowly tailored enough to restrict protected speech in a public forum. The District Court's order specified that unless the appellants requested a trial on the merits within 60 days or appealed, the preliminary injunction would become permanent. Appellants requested a trial and also appealed the District Court's entry of a preliminary injunction.

A divided panel of the United States Court of Appeals for the Seventh Circuit affirmed. The Court of Appeals subsequently vacated this decision, however, and ordered a rehearing en banc. After rehearing, the Court of Appeals affirmed the judgment of the District Court by an equally divided vote...."

On appeal the US Supreme Court reversed the judgment of the US Seventh Circuit Court of Appeals.

B. Counsel of Record:
Opposing Side
Unavailable Unavailable
C. The Arguments:
Opposing Side
Unavailable Unavailable
Opposing Side
Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Harrey Grossman, Jane M. Whicher, Jonathan K. Baum, John A. Powell, Steven R. Shapiro, and William Lynch; for the American Federation of Labor and Congress of Industrial Organizations by Marsha S. Berzon and Laurence Gold; and for the Rutherford Institute et al. by Robert R. Melnick, William Bonner, John F. Southworth, Jr., W. Charles Bundren, Alfred J. Lindh, Ira W. Still III, William B. Hollberg, Randall A. Pentiuk, Thomas W. Strahan, John W. Whitehead, A. Eric Johnston, and David E. Morris.

Steven Frederick McDowell argued the cause for appellees. With him on the brief was Walter M. Weber.

Briefs of amici curiae urging reversal were filed for the National Institute of Municipal Law Officers by William I. Thornton, Jr., Roy D. Bates, William H. Taube, Roger F. Cutler, Robert J. Alfton, James K. Baker, Joseph N. deRaismes, Frank B. Gummey III, Robert J. Mangler, Neal E. McNeill, Analeslie Muncy, Dante R. Pellegrini, Clifford D. Pierce, Jr., Charles S. Rhyne, and Benjamin L. Brown; for the National League of Cities et al. by Benna Ruth Solomon and Mark B. Rotenberg; and for the Pacific Legal Foundation by Ronald A. Zumbrun and Robin L. Rivett.

Harold H. Fuhrman argued the cause and filed briefs for appellants.

"To ascertain what limits, if any, may be placed on protected speech, we have often focused on the 'place' of that speech, considering the nature of the forum the speaker seeks to employ. Our cases have recognized that the standards by which limitations on speech must be evaluated 'differ depending on the character of the property at issue.' Specifically, we have identified three types of fora: 'the traditional public forum, the public forum created by government designation, and the nonpublic forum.'...

...[O]ur decisions identifying public streets and sidewalks as traditional public fora [forum] are not accidental invocations of a 'cliche,' but recognition that '[w]herever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public.'...[T]he anti-picketing ordinance must be judged against the stringent standards we have established for restrictions on speech in traditional public fora:

'In these quintessential public for[a], the government may not prohibit all communicative activity. For the State to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. . . . The State may also enforce regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.'...

The precise scope of the ban is not further described within the text of the ordinance, but in our view the ordinance is readily subject to a narrowing construction that avoids constitutional difficulties. Specifically, the use of the singular form of the words 'residence' and 'dwelling' suggests that the ordinance is intended to prohibit only picketing focused on, and taking place in front of, a particular residence.... Accordingly, we construe the ban to be a limited one; only focused picketing taking place solely in front of a particular residence is prohibited.

So narrowed, the ordinance permits the more general dissemination of a message. As appellants explain, the limited nature of the prohibition makes it virtually self-evident that ample alternatives remain:

'Protestors have not been barred from the residential neighborhoods. They may enter such neighborhoods, alone or in groups, even marching. . . . They may go door-to-door to proselytize their views. They may distribute literature in this manner . . . or through the mails. They may contact residents by telephone, short of harassment.'

We readily agree that the ordinance preserves ample alternative channels of communication and thus move on to inquire whether the ordinance serves a significant government interest. We find that such an interest is identified within the text of the ordinance itself: the protection of residential privacy....

One important aspect of residential privacy is protection of the unwilling listener. Although in many locations, we expect individuals simply to avoid speech they do not want to hear, the home is different.... Thus, we have repeatedly held that individuals are not required to welcome unwanted speech into their own homes and that the government may protect this freedom....

Because the picketing prohibited by the Brookfield ordinance is speech directed primarily at those who are presumptively unwilling to receive it, the State has a substantial and justifiable interest in banning it. The nature and scope of this interest make the ban narrowly tailored. The ordinance also leaves open ample alternative channels of communication and is content neutral. Thus, largely because of its narrow scope, the facial challenge to the ordinance must fail. The contrary judgment of the Court of Appeals is Reversed."

The US Supreme Court reversed the judgment of the US Seventh Circuit Court of Appeals.

Justice Vote: 3 Pro vs. 6 Con

  • O'Connor, S.D. Con (Wrote majority opinion)
  • Rehnquist, W. Con (Joined majority opinion)
  • Blackmun, H. Con (Joined majority opinion)
  • Scalia, A. Con (Joined majority opinion)
  • Kennedy, A. Con (Joined majority opinion)
  • White, B. Con (Wrote concurring opinion)
  • Brennan, W. Pro (Wrote dissenting opinion)
  • Marshall, T. Pro (Joined dissenting opinion)
  • Stevens, J.P. Pro (Wrote dissenting opinion)

The ACLU, as amicus, urged affirmance of the U.S. Seventh Circuit Court of Appeals' judgment; the Supreme Court reversed in a 6-3 vote, giving the ACLU an apparent loss.