Posted by Eugene Volokh:
Unconstitutional Residential Picketing Ban:
http://volokh.com/archives/archive_2008_11_30-2008_12_06.shtml#1228068392
The [1]Press-Enterprise reports on [2]this new ordinance:
The Church of Scientology's concerns about protesters outside their
Gilman Hot Springs base led Riverside County Supervisor Jeff Stone
to seek and gain approval Tuesday for county restrictions on
picketing in residential neighborhoods....
[T]he ordinance ... forbids demonstrators from coming within 300
feet of a home they are targeting in unincorporated Riverside
County....
Stone said that protesters can still present their message, but at
a safe distance that prevents violence.
"We need to do what we can locally to allow people to have freedom
of expression but not provide a bully pulpit for hate," he said....
Stone described mask-wearing protesters who have appeared in recent
months outside Scientology's Golden Era campus off Gilman Springs
Road as "hatemongers." ...
While the Supreme Court has upheld ordinances that ban all picketing
in front of a residence, the Court has struck down an injunction
banning picketing within 300 feet of a residence, and other courts
have (in my view quite correctly) concluded that a 300-foot zone is
too wide. Here's an excerpt from [3]Klein v. San Diego County, 463
F.3d 1029 (9th Cir. 2006), which rejected a facial challenge to such
an ordinance, but strongly suggested that such ordinances will be
unconstitutional in many applications:
[In] Madsen v. Women's Health Center, Inc., 512 U.S. 753, ... the
Court considered an injunction that prohibited picketing within 300
feet of the residence of abortion clinic employees. The Court
noted, again, that the house is the �last citadel of the tired, the
weary, and the sick.� Id. at 775 (quoting Frisby v. Schultz, 487
U.S. at 484). It found, however, that the 300-foot prohibition was
�much larger� than the zone of protection provided in Frisby. It
held that the ordinance burdened more speech than necessary to
protect the government's interest because �limitation[s] on the
time, duration of picketing, and number of pickets outside a
smaller zone could have accomplished the desired result.� Such
measures would both protect residents from being a captive audience
in the home and protect picketers' First Amendment rights. [fn4]
Thus, the Court found this provision of the injunction to be
unconstitutional.
[fn4] Madsen does not necessarily foreclose the County's argument
that its 300-foot zone is proper. In Madsen, the Court was
reviewing the constitutionality of an injunction, which must be �no
more burdensome ... than necessary� to protect the government
interest. In contrast, a generally applicable ordinance must be
�narrowly tailored� to the government's interest. The standard
governing ordinances is less stringent than the standard governing
injunctions, although neither the Supreme Court nor this court has
articulated a practical distinction between the two standards.
The combined teaching of Frisby and Madsen is that the government's
interest in residential privacy does not trump all other rights.
The government certainly has a significant interest in preventing
picketing that renders the targeted resident a captive audience to
the picketers' message. But the right to residential privacy does
not encompass a right to remain blissfully unaware of the presence
of picketers. See Murray v. Lawson, 138 N.J. 206 (1994) (�[K]eeping
[picketers] at such a great distance, thereby rend[er]ing [the
resident's] awareness of the picketing most unlikely as a practical
matter, is unnecessary to protect [the resident's]
residential-privacy interest�).
Thus the district court erred when it stated that residential
occupants are entitled to �an unencumbered enjoyment of the
tranquility and privacy of their homes.� Instead, residential
picketing ordinances must carefully balance two valid and competing
interests: the right of residents not to be captive audiences to
unwanted speech and the right of picketers to convey their message.
Residential picketing ordinances require a more nuanced approach
than the one implied by the district court's formulation of the
right to residential privacy.
Even though we disagree with the district court on this point, we
nonetheless affirm its conclusion that Plaintiffs cannot state a
valid facial challenge to the County's ordinance. The ordinance is
problematic in several aspects: The 300-foot ban imposed by the
County will, in many cases, put picketers farther away from the
targeted residence than they would be under those ordinances that
have been deemed constitutional by other courts. See Thorburn v.
Austin, 231 F.3d 1114, 1120 (8th Cir.2000) (upholding an ordinance
that prohibited picketing within fifty feet of the targeted
resident's property line, but that allowed picketing on the
sidewalk across the street from the targeted residence); Douglas v.
Brownell, 88 F.3d 1511, 1520-21 (8th Cir.1996) (upholding an
ordinance that banned picketing in front of the targeted house and
one house on either side, but that permitted picketing on the
sidewalk across the street from the targeted residence); see also
Kirkeby v. Furness, 92 F.3d 655, 660 (8th Cir.1996) (striking down
an ordinance that banned picketing within 200 feet of a targeted
residence); Murray (striking down an injunction that banned
picketing within 300 feet of the targeted residence). [fn5] In
addition, the ordinance imposes a one-size-fits-all approach to
residential picketing, which in some cases will allow picketing
directly in front of the targeted home if the home is situated on a
large lot, but will put the picketers several lots away from the
targeted audience if the residence is situated on a small lot.
Moreover, as in Madsen, the ordinance does not consider more
limited restrictions, such as limitations on the number of
picketers, the time of day, or the duration of picketing.
[fn5] In defending its ordinance, the County points to the
California Court of Appeal's decision in City of San Jose v.
Superior Court, 32 Cal.App.4th 330 (Ct.App.1995), which upheld an
ordinance banning picketing within 300 feet of a targeted
residence. We believe City of San Jose wrongly characterized the
right at issue -- it concluded that residential picketing is
�highly offensive conduct,� a �disfavored activity not entitled to
a high level of First Amendment protection.� Contrary to the
California court's characterization, the United States Supreme
Court has called public issue picketing on streets and sidewalks
�an exercise of ... basic constitutional rights in their most
pristine and classic form.� Carey v. Brown, 447 U.S. 455 (1980).
Moreover, Frisby and Madsen make clear that residential picketing
enjoys First Amendment protection. While Frisby noted that targeted
picketing is inherently intrusive on residential privacy, it did
not suggest that, where the two clash, the right to residential
privacy necessarily trumps the rights of picketers. That is to say,
residential picketing is not the black sheep of the First Amendment
family.
Despite the problematic aspects of the ordinance, we cannot say
that the ordinance is unconstitutional in every application,
primarily because the ordinance did not have an unconstitutional
effect in the test case that led to the instant suit. A correct
interpretation of the ordinance would have allowed Plaintiffs to
picket on the sidewalk or street directly in front of Caires's
home, or anywhere else in the neighborhood, because Caires's home
was set back more than 300 feet from the street. Thus, for all
practical purposes, had the officers correctly interpreted the
ordinance, the ordinance would have had no impact on the
Plaintiffs' right to picket at Caires's residence. Had a Frisby
ordinance been in place in the County, Plaintiffs would have been
pushed farther away from the residence than they were under the
County's ordinance. Courts have accepted ordinances that prohibit
picketing directly in front of the targeted resident's home. See,
e.g., Frisby, 487 U.S. at 483 (�[O]nly focused picketing taking
place solely in front of a particular residence is prohibited.�);
Vittitow v. City of Upper Arlington, 43 F.3d 1100, 1105 (6th
Cir.1995) (noting that �any linear extension beyond the area
�solely in front of a particular residence� is at best suspect, if
not prohibited outright�). Because the ordinance functions as a
more narrow prohibition than the one at issue in Frisby in some
circumstances, we cannot say that the ordinance is unconstitutional
in every application. Plaintiffs' claim is therefore not
appropriate for a facial challenge.
References
1.
http://www.pe.com/localnews/politics/stories/PE_News_Local_W_supes26.479ae4e.html
2.
http://www.clerkoftheboard.co.riverside.ca.us/agendas/2008/11_25_08/03.02.pdf
3. http://caselaw.findlaw.com/data2/circs/9th/0455819p.pdf
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