"GET WELL CHARLIE—
OUR TEAM NEEDS YOU."

One of the most unique features of the United States constitutional form of government is its guarantee of certain rights to all citizens. Of these rights, one of the most cherished is the Freedom of Speech which is provided for in the First Amendment to the Constitution. However, the right is not unbridled. For example, Freedom of Speech does not permit a disgruntled theater patron to yell "fire" in a crowded theater thereby endangering the health and safety of other patrons. Conversely, the United States Supreme Court has zealously protected the rights of individuals and groups to proclaim messages that may not be popular. In addition, various attempts at municipal regulation of public pronouncements, demonstrations, solicitations and other public expressions have been struck down or severely limited by the Supreme Court. However, in a case decided on June 27, 1988, the United States Supreme Court has upheld a municipal ordinance limiting picketing in a residential area.

Schultz vs. Frisby, _ U.S. _,
_S.Ct._(1988)

The City of Brookfield, Wisconsin is a community of approximately 4,300 individuals which could be considered a "bedroom community" for the City of Milwaukee. In 1985, the municipal officials of this community saw the need to regulate picketing in residential neighborhoods. Therefore, they adopted an ordinance prohibiting, in residential areas, all picketing except labor picketing. Upon receiving advice from their City Attorney, they repealed the initial ordinance and passed an ordinance which prohibited all picketing in a residential area. The appellees in this case, Sandra Schultz and Robert Braun, are antiabortion activists residing in the area. The appellees and other non-parties, had been engaged in the picketing of the home of a physician who is allegedly performing abortions at two clinics in a nearby community. Apparently, from the record of the case, all of the picketing had been orderly without unnecessary disruption of the private enjoyment of the neighborhood and the pickets apparently conducted themselves in an orderly fashion.

Upon being notified by the City that enforcement of the ordinance which banned all picketing was about to begin, the appellees filed the lawsuit resulting in this decision in the United States District Court, Milwaukee, Wisconsin. The suit alleged that action of the municipal officials was depriving them of their right to free speech in violation of the Civil Rights Statute (42 U.S.C. 1983). The Federal District Court granted a preliminary injunction barring enforcement of the ordinance by the municipality pending final resolution of the case. From the granting of the preliminary injunction, the City appealed its case to the Court of Appeals for the Seventh Circuit. Initially, the decision of the United States District Court was affirmed, then vacated by the Appellate Court and finally affirmed on a divided vote of the Appellate Court en banc. From that decision, the City appealed and was granted a hearing by the United States Supreme Court. The Court upheld the ordinance and, hence, the power of a municipality to restrict activities generally protected by the First Amendment.

The opinion of Justice O'Connor writing for a five justice majority provides three clear benchmarks by

July 1988 / Illinois Municipal Review / Page 9

which any enactment of a municipality seeking to regulate First Amendment rights will be judged. Justice White applying a different rationale, filed an opinion concurring in the judgment. Justices Brennan, Marshall and Stephens dissented from the judgment of the Court with Brennan and Stephens filing separate opinions.

After a recitation of the facts, Justice O'Connor identifies the type of speech to be regulated, the place where the regulation is to occur and the standards which the Court will apply in judging a law purporting to regulate particular types of speech in a public forum, all from previous decisions of the Supreme Court.

"The Anti-picketing Ordinance operates at the core of the First Amendment by prohibiting appellees from engaging in picketing on an issue of public concern... We have traditionally subjected restrictions on public issue picketing to careful scrutiny . . . 'even protected speech is not equally permissible in all places and at all times' (citations omitted) . . . we have often focused on the single '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.' . . . We have repeatedly referred to public streets as the archetype of a traditional public forum."

Later in this portion of the opinion, Justice O'Connor concisely states the test that is to be employed in analyzing, for First Amendment purposes, an ordinance such as that enacted by Brookfield. Citing Perry Education Association v. Perry Local Educators Association, 460 U.S. 37 (1983), the Justice writes:

"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 Court finds that the ordinance under consideration is content-neutral in its regulation of time, place and manner regulation because it prohibits all picketing. The Court finds that the picketing ban is sufficiently narrow to avoid a First Amendment violation. The opinion distinguishes picketing from "hand billing", "solicitation", and "marching." According to Justice O'Connor,

"The picketing is narrowly directed at the household, not the public. The type of picketers banned by the Brookfield ordinance generally do not seek to disseminate a message to the general public, but to intrude on the targeted resident, and to do so in an especially offensive way. Moreover, even if some such picketers have a broader communitative

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purpose, their activity nonetheless inherently and offensively intrudes on residential privacy."

In addition, there is a finding in the opinion that the State has a compelling State interest in regulating this type of conduct to protect the "residential privacy" of the "unwilling listener." Justice O'Connor cites numerous cases which uphold this principle.

"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 (citations omitted) . . . our prior decisions have often remarked on the unique nature of the home, 'the last citadel of the tired, the weary and the sick,' (citations omitted) . . . and have recognized that 'preserving the sanctity of the home, the one retreat to which men and women can repair to escape from the tribulations of their daily pursuits, is surely an important value.' (Citations omitted.)"

Finally, the ordinance passes the third prong of the test enunciated in the Perry case because of the alternative channels of communications which are available to persons wishing to communicate their message in areas where picketing is prohibited. Justice O'Connor rejects the broad reading of the ordinance advocated by the appellees and states:

"Generally speaking, picketing would be having the picket proceed on a definite course or route in front of a home... the picket need not be carrying a sign, but in order to fall within the scope of the ordinance the picketing must be directed at a single residence ... general marching through residential neighborhoods, or even walking a route in front of an entire block of houses is not prohibited by this ordinance ... accordingly, we construe the ban to be a limited one; only focused picketing taking place solely in front of a particular residence is prohibited."

Having disposed of all of the questions raised by the test quoted from Perry, Justice O'Connor concisely states the holding of the Court in a manner that provides guidance to other municipalities seeking to similarly regulate conduct.

"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 may 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 dissent of Justice Stephens, however, illustrates the difficulty that can be encountered in enacting such an ordinance. He opens his dissent by stating:

"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."

He continues by disputing the analysis employed by Justice O'Connor in upholding the ordinance and con-

July 1988 / Illinois Municipal Review / Page 11

cludes by pointing out the difficulty that a municipality enacting such an ordinance can encounter:

"My hunch is that the town will probably not enforce its ban against friendly, innocuous, or even brief unfriendly picketing, . . . 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."

Implied in this statement is that any municipality seeking to enact or enforce such an ordinance must do so fairly and uniformly to all persons regulated by the ordinance. The municipality runs the risk of violating the constitutional rights of persons seeking to picket by selectively enforcing the ban to prohibit "unpopular" messages and to permit the conveying of a get well message to a fellow teammate.

The amount of press coverage and media attention that this case received at the time of the issuance of the Opinion certainly was warranted. Many communities both in Illinois and across the United States encounter difficulties with picketing of various types. However, the ordinance upheld by the Supreme Court in this case does not grant a broad license to municipalities to prohibit varying types of public communications on public streets and in public places. The ordinance is very narrowly drawn and, most importantly, is content-neutral. The First Amendment rule of law remains unchanged. A municipality may ban all expressions of certain types of communications, like picketing, when the ban is content-neutral, narrowly drawn and does not attempt to cut off all avenues of potential communication. Municipal officials in Illinois who read the press and media reports of this decision may be lulled into thinking that it provides more. However, in considering such an ordinance the municipality should remember that not only will issue-oriented picketers be prohibited but also the get well message to Charlie will not be permitted. •

Page 12 / Illinois Municipal Review / July 1988