Frisby v. Schultz, 487 U.S. 474 (1988)

Frisby v. Schultz

No. 87-168

Argued April 20, 1988
Decided June 27, 1988
487 U.S. 474

APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

Syllabus

Brookfield, Wisconsin, enacted an ordinance making it "unlawful for any person to engage in picketing before or about the residence or dwelling of any individual," and declaring that the primary purpose of the ban is to "protec[t] and preserv[e] the home" through assurance "that members of the community enjoy in their homes . . . a feeling of wellbeing, tranquility, and privacy." Appellees, who wish to picket a particular home in Brookfield, filed suit under 42 U.S.C. § 1983 against appellants, the town and several of its officials, alleging that the ordinance violated the First Amendment. The Federal District Court granted appellees’ motion for a preliminary injunction, concluding that the ordinance was not narrowly tailored enough to restrict protected speech in a public forum. The Court of Appeals ultimately affirmed.

Held: The ordinance is not facially invalid under the First Amendment. Pp. 479-488.

(a) Although the town’s streets are narrow and of a residential character, they are nevertheless traditional public fora, Carey v. Brown, 447 U.S. 455, and, therefore, the ordinance must be judged against the stringent standards this Court has established for restrictions on speech in such fora. Perry Education Assn. v. Perry Local Educators’ Assn., 460 U.S. 37. Pp. 480-481.

(b) The ordinance is content-neutral, and cannot be read as containing an implied exception for peaceful labor picketing on the theory that an express state law protection for such picketing takes precedence. This Court will defer to the rejection of that theory by the lower courts, which are better schooled in and more able to interpret Wisconsin law. Pp. 481-482.

(c) The ordinance leaves open ample alternative channels of communication. Although the precise scope of the ordinance’s ban is not further described within its text, its use of the singular form of the words "residence" and "dwelling" suggests that it is intended to prohibit only picketing focused on, and taking place in front of, a particular residence, a reading which is supported by appellants’ representations at oral argument. The lower courts’ contrary interpretation of the ordinance as banning "all picketing in residential areas" constitutes plain error, and runs afoul of the well-established principle that statutes will be interpreted to avoid constitutional difficulties. Viewed in the light of the narrowing construction, the ordinance allows protestors to enter residential neighborhoods, either alone or marching in groups; to go door to door to proselytize their views or distribute literature; and to contact residents through the mails or by telephone, short of harassment. Pp. 482-484.

(d) As is evidenced by its text, the ordinance serves the significant government interest of protecting residential privacy. An important aspect of such privacy is the protection of unwilling listeners within their homes from the intrusion of objectionable or unwanted speech. See, e.g., FCC v. Pacifica Foundation, 438 U.S. 726. Moreover, the ordinance is narrowly tailored to serve that governmental interest, since, although its ban is complete, it targets and eliminates no more than the exact source of the "evil" it seeks to remedy: offensive and disturbing picketing focused on a "captive" home audience. It does not prohibit more generally directed means of public communication that may not be completely banned in residential areas. Pp. 484-488.

822 F.2d 642, reversed.

O’CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and BLACKMUN, SCALIA, and KENNEDY, JJ., joined. WHITE, J., filed an opinion concurring in the judgment, post, p. 488. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 491. STEVENS, J., filed a dissenting opinion, post, p. 496.