FRISBY V.

SCHULTZ, PROTESTERS' RIGHTS

Hurlimann 1

FRISBY V. SCHULTZ (1988): SUPREME COURT DECISION ON PROTESTERS' RIGHTS AND WHETHER OR NOT AN ORDINANCE RESTRICTING THE FIRST AMENDMENT IS CONSTITUTIONAL

By: Michael R. Hurlimann Jr.

Communication Law, 13-410-02 Dr. Barnett, Spring 2013

May 9, 2013

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Picketing in a public forum is protected under the First Amendment of the United States Constitution meaning that no law can be made to violate "the right of people to peaceably assemble." ("Freedom of assembly," ) The Frisby v. Schultz Supreme Court case in 1988 dealt with a controversial town ordinance that put a ban on picketing in residential areas in the town of Brookfield, Wisconsin. (Frisby v. Schultz, 1988) This essay discusses the current and possible future implications of the Supreme Court reversing the original ruling of the U.S. Court of Appeals of the 7th Circuit, which in doing so, allowed the town of Brookfield to restrict protesting in a residential area in order to "protect and preserve the home." (Frisby v. Schultz, 1988) Facts of Frisby v. Schultz (1988) Frisby v. Schultz was a case appealed to the Supreme Court by the town of Brookfield against Sandra Schultz and Robert Braun, who won the original 7th District U.S. Court of Appeals case, Schultz v. Frisby. The ruling of Schultz v. Frisby was against the town's flat ban on residential protesting because it was an overbroad restriction on the protesters first amendment right to picket in the public forum of residential areas. (O'Halloran, 1987) The flat ban stated, "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" (Frisby v. Schultz, 1988). This flat ban was put into place by Brookfield because protesters, led by Schultz and Braun, picketed six or more times between April 20, 1985 and May 20, 1985 against abortion in front of an abortion doctor's home in Brookfield. According to Frisby v. Schultz (1988) "the picketing generated substantial controversy and numerous complaints." The reasoning behind Brookfield enacting the ban on picketing in residential areas was "the protection and preservation of the home, that members of the community enjoy in their homes and dwellings a feeling of well-

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being, tranquility, and privacy." (Frisby v. Schultz, 1988) In the eye's of the Brookfield Town Board, "the practice of picketing before or about residences and dwellings cause emotional disturbance and distress to the occupants... and has as its object the harassing of such occupants." (Frisby v. Schultz, 1988) According to the case, the major argument from Schultz was that the ban violated the protesters' first amendment rights to protest in a public forum, which would make the ban unconstitutional. Majority Ruling and Rationale of Frisby v. Schultz (1988) The majority ruling of the U.S. Supreme Court reversed the ruling of the U.S. Court of Appeals in favor of the town of Brookfield. Justice O'Connor, writing for the Supreme Court, said: "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." (Frisby v. Schultz, 1988) The general rationale presented by O'Connor that supports this reversal of the ruling and finds the ordinance established to be constitutional says: "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

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manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication." (Frisby v. Schultz, 1988) One of the arguments against the ordinance was that it prohibited free speech in a public forum because, according to O'Connor, "our prior holdings make clear that a public street does not lose its status as a traditional public forum simply because it runs through a residential neighborhood." (Frisby v. Schultz, 1988) However, the ordinance doesn't ban protesters from entering the residential area to protest or express their views through other means of communication besides picketing. The ordinance doesn't prohibit protesters from spreading literature to residents door-to-door, or promoting their views by phone or mail, so "ample means of communication" (Frisby v. Schultz, 1988) are available even with the ordinance in place. A point stressed by O'Connor was residential privacy because the protesting of Schultz, Braun, and the anti-abortion picketers caused the residents of the doctor's home emotional distress. According to the majority opinion, "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." (Frisby v. Schultz, 1988) O'Connor rationalized the nature of picketing within the scope of the ordinance and found that in the wording of the ordinance, there was a narrowing nature to the ban, "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." (Frisby v. Schultz, 1988) Drawing this conclusion allowed O'Connor and the majority to assume that Brookfield would enforce the ordinance in a way that picketing would

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need to continuously flow through a residential area, rather than protest outside of someone's home repeatedly. O'Connor used Carey v. Brown to illustrate the point that the home is where people go to escape from the troubles of daily life. She continued to say that protection of the unwilling listener is crucial to the concept of residential privacy. "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." (Carey v. Brown, 1980) O'Connor raises the point that in order for the ordinance to be narrowly tailored, it must only eradicate the negative aspect of the protesting and go no further to be viewed as constitutional under the first amendment. She references Schneider v. State (1939) when she says, "The type of focused picketing prohibited by the Brookfield ordinance is fundamentally different from more generally directed means of communication that may not be completely banned in residential areas." (Frisby v. Schultz, 1988) Finally, the last point O'Connor makes that stands out as significant is that the First Amendment grants the government permission to prohibit intrusive speech if the audience it is being directed at can't avoid it. The residents of the doctor's home were considered a captive audience because they could not leave their home without being subjected to the protesters. Significance of Frisby v. Schultz on Communication Law The Frisby v. Schultz (1988) case was the first case reviewed by the Supreme Court involving protesting near a doctor's home or an abortion clinic worker's home. (Belmas & Overbeck, 2011) According to the Freedom of Assembly, "While the right to peaceful assembly is primarily intended to protect freedom of people to express themselves in public places, the courts have interpreted that, in some instances, this constitutional protection may be extended to

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private property as well." ("Freedom of Assembly,") While freedom of expression in a public place is protected by the First Amendment, protesting in front of someone's home for an extended period of time, or even multiple times, can have a negative emotional effect on the residents of that home. Although the majority opinion makes many good points in regard to the issue of protesting in front of someone's residence, the dissenting opinions in the Frisby v. Schultz case have significant value to the future of protesting rights. The dissenting opinion of Justice Stevens in Frisby v. Schultz (1988) makes the point that "picketing is a mixture of conduct and communication." Stevens separates conduct and communication and views them as individual aspects of the picketing expression of protest. If you take away the communication aspect, a group of people "loitering in front of a residence" can be prohibited. (Frisby v. Schultz, 1988) If you take away the loitering aspect, the communication can't be prohibited because it's a point of view that is being displayed on the picket sign. The point Stevens made is that the picketing that took place in front of the abortion doctor's home had an intent "to cause him and his family substantial psychological distress." (Frisby v. Schultz, 1988) "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." (Frisby v. Schultz)

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I agree with Stevens dissenting opinion in the fact that the ordinance was overbroad despite the narrowly tailored wording of the ban. The specifics of what would cause residents of a home emotional distress from picketing and protesting are not outlined by the ordinance. Stevens' separation of communication and conduct could eventually develop into a test that could measure whether or not the protesting or picketing should be prohibited or allowed. If the protesting group has an appropriate message, but is out of control with promoting it to the point where people are complaining about it, as in Frisby v. Schultz, then prohibiting or restricting the protesting would be constitutional if the scope of the restriction is tailored to the issue at hand without limiting other forms of communication for the protesting group. The major emphasis is on peaceful protest because if the protest is out of control then it is more susceptible to restriction. If the message is offensive in some way, then it is more susceptible to restriction as well. According to Justice Brennan's dissenting opinion, "it is the intrusion of speech into the home or the unduly coercive nature of a particular manner of speech around the home that is subject to more exacting regulation." (Frisby v. Schultz, 1988) The message the protesters were attempting to convey was to a specific resident rather than the entire public, which caused the resident emotional distress. As abortions have become an increasingly debated topic, more and more cities have adopted similar restrictions to anti-abortion protests as the ones examined in by Frisby v. Schultz (1988). (Belmas & Overbeck, 2011) In 1994, the Freedom of Access to Clinic Entrances Act was passed by Congress to prohibit protesters from blocking the entrance to a clinic or bothering people coming for an abortion. (Belmas & Overbeck, 2011)

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Currently, I believe the decision of Frisby v. Schultz (1988) still has significant implications on picketing, especially when it comes to abortions and other controversial medical procedures. However, the majority opinion from this case, which holds the most legal precedent, could still be considered overbroad. The dissenting opinions from Frisby v. Schultz raise the best points when it comes to determining what is offensive, intrusive protesting and what is considered peaceful protesting. Figuring out the motive and main goal or objective of the protesting group would help tailor an ordinance or restriction to the first amendment without making the ordinance unconstitutional. By being overbroad, an ordinance has an increased risk of being unconstitutional for restricting too much free speech. The protest must be peaceful and directed at the general public in an accepted public forum in order to avoid restriction or at least question, and if restriction is necessary, it must be tailored so that it is effective in restricting only that which needs restriction. In conclusion, Frisby v. Schultz was a controversial issue for protesters' rights because it was the first case that allowed a restriction on the First Amendment in a public forum due to offensive and intrusive picketing directed at a resident.

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References:

Belmas, G., & Overbeck, W. (2011). Modern prior restraints. In Major Principles Of Media Law (pp. 84-90). Carey v. Brown, 447 U.S. 455 (1980). Freedom of assembly. (n.d.). Retrieved from http://www.lincoln.edu/criminaljustice/hr/Assembly.htm Frisby v. Schultz, 487 U.S. 474 (1988). O'Halloran, H. (1987). Constitutional law: Balancing first amendment rights to freedom of expression against the rights of an individual to privacy in the home. Marquette Law Review, 71(201), 201-216. Retrieved from http://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=1794&context=mulr