| Frisby v. Schultz
(No. 87-168)
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| Syllabus
| Opinion
[ O'Connor ] | Concurrence
[ White ] | Dissent
[ Brennan ] | Dissent
[ Stevens ] |
| HTML version
PDF version | HTML version
PDF version | HTML version
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Frisby v. Schultz
APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
JUSTICE STEVENS, dissenting.
"GET WELL CHARLIE -- OUR TEAM NEEDS YOU."
In Brookfield, Wisconsin, it is unlawful for a fifth grader to carry such a sign in front of a residence for the period of time necessary to convey its friendly message to its intended audience. [p497]
The Court's analysis of the question whether Brookfield's ban on picketing is constitutional begins with an acknowledgment that the ordinance "operates at the core of the First Amendment," ante at 479, and that the streets of Brookfield are a "traditional public forum," ante at 480. It concludes, however, that the total ban on residential picketing is "narrowly tailored" to protect "only unwilling recipients of the communications." Ante at 485. The plain language of the ordinance, however, applies to communications to willing and indifferent recipients as well as to the unwilling.
I do not believe we advance the inquiry by rejecting what JUSTICE BRENNAN calls the "rogue argument that residential streets are something less than public fora," ante at 492, n. 1. See Cornelius v. NAACP Legal Defense & Educational Fund, Inc., 473 U.S. 788, 833 (1985) (STEVENS, J., dissenting). The streets in a residential neighborhood that has no sidewalks are quite obviously a different type of forum than a stadium or a public park. Attaching the label "public forum" to the area in front of a single family dwelling does not help us decide whether the town's interest in the safe and efficient flow of traffic or its interest in protecting the privacy of its citizens justifies denying picketers the right to march up and down the streets at will.
Two characteristics of picketing -- and of speech more generally -- make this a difficult case. First, it is important to recognize that, "[l]ike so many other kinds of expression, picketing is a mixture of conduct and communication." NLRB v. Retail Store Employees, 447 U.S. 607, 618-619 (1980) (STEVENS, J., concurring in part and concurring in result). If we put the speech element to one side, I should think it perfectly clear that the town could prohibit pedestrians from loitering in front of a residence. On the other hand, it seems equally clear that a sign carrier has a right to march past a residence -- and presumably pause long enough to give the occupants an opportunity to read his or her message -- regardless of whether the reader agrees, disagrees, or is simply [p498] indifferent to the point of view being expressed. Second, it bears emphasis that:
[A] communication may be offensive in two different ways. Independently of the message the speaker intends to convey, the form of his communication may be offensive -- perhaps because it is too loud or too ugly in a particular setting. Other speeches, even though elegantly phrased in dulcet tones, are offensive simply because the listener disagrees with the speaker's message.
Consolidated Edison Co. v. Public Service Comm'n of New York, 447 U.S. 530, 546-547 (STEVENS, J., concurring in judgment) (footnotes omitted). Picketing is a form of speech that, by virtue of its repetition of message and often hostile presentation, may be disruptive of an environment irrespective of the substantive message conveyed.
The picketing that gave rise to the ordinance enacted in this case was obviously intended to do more than convey a message of opposition to the character of the doctor's practice; it was intended to cause him and his family substantial psychological distress. As the record reveals, the picketers' message was repeatedly redelivered by a relatively large group -- in essence, increasing the volume and intrusiveness of the same message with each repeated assertion, cf. Kovacs v. Cooper, 336 U.S. 77 (1949). As is often the function of picketing, during the periods of protest, the doctor's home was held under a virtual siege. I do not believe that picketing for the sole purpose of imposing psychological harm on a family in the shelter of their home is constitutionally protected. I do believe, however, that the picketers have a right to communicate their strong opposition to abortion to the doctor, but after they have had a fair opportunity to communicate that message, I see little justification for allowing them to remain in front of his home and repeat it over and over again simply to harm the doctor and his family. Thus, I [p499] agree that the ordinance may be constitutionally applied to the kind of picketing that gave rise to its enactment.
On the other hand, the ordinance is unquestionably "overbroad" in that it prohibits some communication that is protected by the First Amendment. The question, then, is whether to apply the overbreadth doctrine's "strong medicine," see Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973), or to put that approach aside "and await further developments," see ante at 491 (WHITE, J., concurring in judgment). In Broadrick, the Court framed the inquiry thusly:
To put the matter another way, particularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep.
413 U.S. at 615.
In this case, the overbreadth is unquestionably "real." Whether or not it is "substantial" in relation to the "plainly legitimate sweep" of the ordinance is a more difficult question. My hunch is that the town will probably not enforce its ban against friendly, innocuous, or even brief unfriendly picketing, and that the Court may be right in concluding that its legitimate sweep makes its overbreadth insubstantial. But there are two countervailing considerations that are persuasive to me. The scope of the ordinance gives the town officials far too much discretion in making enforcement decisions; while we sit by and await further developments, potential picketers must act at their peril. Second, it is a simple matter for the town to amend its ordinance and to limit the ban to conduct that unreasonably interferes with the privacy of the home and does not serve a reasonable communicative purpose. Accordingly, I respectfully dissent.
