Frisby v. Schultz

Overview

In the Milwaukee suburb of Brookfield, Wisconsin, Sandra C. Schultz and Robert C. Braun protested abortion by picketing outside the residential home of Dr. Victoria, a doctor who performed abortions. The pair garnered support in time and amassed larger protests in groups ranging from 11 to more than 40, on at least 6 occasions between April 20, 1985, and May 20, 1985. The picketing was "generally orderly and peaceful," but controversy and complaints followed the demonstrations. In response the Brookfield Town Board took action, enacting an ordinance that restricted the picketing. Unable to legally protest in the neighborhood, Schultz and Braun filed a lawsuit claiming that the town ordinance infringed on their First Amendment liberties.

Background

On May 7, 1985, after numerous anti-abortion protests outside the home of Dr. Victoria, the Town Board enacted an ordinance restricting picketing in residential neighborhoods, except for labor picketing. In accordance with the principle of "the protection and preservation of the home[,]" as well as the notion that "[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[,]" the Town Board justified the necessity for the law, but determined that the law was too similar to a previously invalidated ordinance in Illinois voided during the decision in Carey v. Brown. Instead, the rule was modified and replaced with a ban on all picketing entirely in residential neighborhoods.

In 1980 in Carey v. Brown, an Illinois statute, similar to the one issued in Frisby v. Schultz, was deemed unconstitutional under the Equal Protection Clause of the Fourteenth Amendment since it "makes an impermissible distinction between peaceful labor picketing and other peaceful picketing." Discrimination in legality of conduct based upon the content of the demonstrator's communication clearly violates the rights granted in the First Amendment. Prohibition of picketing that would violate residential privacy, while permitting picketing that would not, does not protect the dignity, "tranquility and privacy of the home[.]" Deciding which issues are worth debating is not in the jurisdiction of the government and does not remain consistent with the standard set by the Equal Protection Clause.

Historical context

The issue of abortion was controversial in the 1980s in the wake of the Court's decision in Roe v. Wade, guaranteeing a woman's decision to have an abortion as protected by a right to privacy under the Due Process Clause of the Fourteenth Amendment. In 1974, the year the Court's decision was handed down, the International Planned Parenthood Federation estimated 30-55 million abortions occurred annually worldwide. Despite the Court's decision in Roe, a political and moral firestorm, rooted in personal values, continued to rage in the abortion debate; people remained divided over a woman's right to choose and the right to life.

Conflict

With the threat of arrest and prosecution if Schultz and Braun continued to picket, the pair filed a lawsuit in federal district court, claiming that the ordinance the Town Board enacted had violated the First Amendment. The law in question was designed to "[protect] and [preserve the] home [by eliminating emotional disturbance and distress to the occupants,]" caused by harassment from picketing.

The protests took place on the street, which was deemed to be a public forum. "The devastating effect of targeted picketing on the quiet enjoyment of the home [was a reason the government took interest in Shultz and Braun's actions.]" Based on the venue of the picketing, the ordinance had to be judged against existing standards and precedents the Supreme Court set for restrictions on freedom of speech in a public forum. The principle of residential privacy was threatened by the demonstrations.

Summary of Majority Opinion

Justice O'Connor captained the 6-3 decision by the Supreme Court that determined the ordinance prohibiting the protest of residential houses did not violate the First Amendment because it is "content neutral," "leaves open ample alternative channels of communication," and serves a "significant government interest." Chief Justice Rehnquist, Justice Blackmun, Justice Scalia and Justice Kennedy joined in the majority opinion. Although the streets are "narrow and of a residential character," they are public and need to be treated accordingly regarding protests. "The traditional public forum, the public forum created by government designation, and the nonpublic forum [are the classification of venues]" and the Court maintains that a street, which has been used for public assembly and debate, is fundamentally a traditional public forum.

Justice O'Connor and the Court ruled that the ordinance "operates at the core of the First Amendment" and has provisions within it to prevent intrusive action, similar to the reasons that there are limits on free speech. The scope of the reach of the ordinance was determined to mean a single residence, as hinted at through words like "residence" and "dwelling[,]" implying one house, but a larger scale would be unconstitutional and prove to interfere with specified rights of the people. The narrow and specific ordinance, as it was interpreted by the Supreme Court, is self-evident because of its limited nature. Alternate channels of communication remain open. The State's interest is protected by providing relief from invasion of residential privacy and the ordinance was deemed to be "narrowly tailored" enough to pass the regulations of the Supreme Court and the US Constitution.

Concurrence

Justice White maintained the opinion of the Court, saying an ordinance banning picketing of a single residence "would not be unconstitutional on its face [and therefore, free of conflict with the First Amendment.]" Acknowledging the loosely worded ordinance, White opposed the potential condition of the legislation, which, if interpreted as such, would place a limitation on picketing in front of any residence where passers-by or anyone else would receive a message from a protest. He agreed with the notion that the law should be interpreted to ban single-residence picketing, to maintain Constitutionality and conform with the standards set in the right of assembly and the right to protest, outlined in the First Amendment.

Dissenting Opinion

Justice Brennan, joined by Justice Marshall agreed that prohibition of a certain kind of speech would be "narrowly tailored" and require tests to fit stringent criteria set by the Court in determining appropriate protest. He acknowledged a present need for regulation to ensure demonstrations didn't become "intrusive [and destructive.]" With crowds of up to 40 people, Justice Brennan could not see the narrowly tailored option he suggested be in use.

In his dissent, Justice Stevens famously said "GET WELL CHARLIE — OUR TEAM NEEDS YOU." Stevens thought the outlaw of protest would stunt personal freedoms so much to the point that the right of a fifth grader to carry a sign encouraging his sick friend to get well would be stripped. The artful mix of "conduct and communication" called picketing is a concept heavily supported by Stevens, who champions the right of people to not have their demonstrations be discriminated against through classifications based on behavior. Justice Stevens did not condone the manner of protest, doubting that "picketing for the sole purpose of imposing psychological harm on a family in the shelter of their home" was constitutionally protected, but did argue for the right to communicate strong feelings about abortion, whether they be positive or negative. The broadness and scope of the ordinance enacted by the Town Board gives officials too much discretion in determining what type of protest is allowed and forces a transgression of jurisdiction.

Subsequent developments

The decision gave rise to a throng of Supreme Court precedents for where protest is proper and acceptable within the boundaries of the First Amendment. The Court also established that "residential streets are as much public fora as any other street," and if a law restricts no more than the conduct it is targeting, the Supreme Court will uphold it. Similarly, a loosely written law that has the potential to violate First Amendment rights will be declared unconstitutional if it restricts more than is necessary.