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Unconstitutional Residential Picketing Ban:

The Press-Enterprise reports on 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 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.

Related Posts (on one page):

  1. "County Supervisors Back Away from Anti-Picketing Measure":
  2. Unconstitutional Residential Picketing Ban:
J. Aldridge:
So being a public nuisance (expressing yourself) trumps public order? Something tells me these kinds of controversies have nothing to do with constitutional law.

Incidentally, I grew up not far from Gilman Hot Springs. Was a wonderful area to visit for over 100 years until Scientology took over the area.
11.30.2008 2:12pm
Smokey:
...but at a safe distance that prevents violence.
The 'violence' canard is getting a little old, no?
11.30.2008 2:50pm
Tony Tutins (mail):
Can't the court distinguish between picketing in front of a residence, and picketing in front of a "base" or "campus" that by some freak of zoning regulations happens to be sited in a residential neighborhood?
11.30.2008 2:53pm
Soronel Haetir (mail):
What seems odd about this to me is that these rules allow picketers to create an even greater burden on people other than the target. Why should the people across the road have to bear this cost?
11.30.2008 2:59pm
Brett Bellmore:
Sounds like another special accommodation for the Scientologists, gussied up as a law of general application.
11.30.2008 3:18pm
Mike G in Corvallis (mail):
At what point does it cease to be a freedom of speech issue and become a public order issue? A sincere question -- I'm unfamiliar with the laws and legal precedents.

Can picketers sing and chant? Can they use bullhorns? Can they use bullhorns at 3:00 a.m.? Searchlights? Some activities can be disruptive of public order (and a good night's sleep) from more than 300 feet away.

I am not specifically taking the side of the Scientologists here. Other establishments are are picketed by people who are convinced that their cause is just and their target is evil.
11.30.2008 4:13pm
Anderson (mail):
Why should the people across the road have to bear this cost?

Yeah, that's my issue.

We have to protect the offensive-to-some people ...

... so we move the nuisance to in front of the homes of neighbors who haven't offended anyone?

Picketing anyone's *residence* (as opposed to "residential-zoned location"), except perhaps for public figures who live behind walls anyway, should be illegal. Write a letter or a blog if you're mad at someone -- there's no reason to hang outside his house, yelling and waving signs. The expressive value is too heavily outweighed by the vexation.
11.30.2008 4:18pm
Jacob Berlove:
Why didn't Klein win the ninth circuit case on overbreadth grounds? He/She shouldn't have had to show that the ordinance was unconstitutional in every application.
11.30.2008 4:54pm
whit:

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." ...



a natural extension of so called "hate crime" laws. how is it even remotely relevant (whether true or not) that the protestors are hatemongers, and are on the bully pulpit of hate.

clearly, the 1st amendment is DESIGNED to protect (among other things) hateful speech.

but creeping into these debates is the assumption that hateful speech and hatemongers are somehow less protected in their rights. this is disturbing.
11.30.2008 5:24pm
NotedScholar (mail) (www):
Is it just me or is virtually everyone on Earth opposed to Scientology? How then do they get followers?!

It's amazing.

NS
http://sciencedefeated.wordpress.com/
11.30.2008 6:24pm
Oren:

The 'violence' canard is getting a little old, no?

Rhetorically speaking, I think the "last refuge of the weary" has a lot more bite. By English tradition, a man's home is his castle and he ought to have some right not to be left alone in peace.

This particular dispute seems especially unimportant because I cannot understand how, having accepted that there can be restrictions against protesting in a residential neighborhood, the details of how many feet and where to measure are relevant. I'm sure EV has a good reason for blogging about the case but I entirely fail to see it.
11.30.2008 9:18pm
ReaderY:
One has to remember that John Calhoun described anti-slavery speech as hate-mongering. It's an old stand-bye.
11.30.2008 9:38pm
Smokey:
Oren:
Rhetorically speaking, I think the "last refuge of the weary" has a lot more bite. By English tradition, a man's home is his castle and he ought to have some right not to be left alone in peace.
I guess I didn't make myself very clear. I was objecting to the endless quibbles, in which the self-serving bugaboo of 'violence' always seems to be thrown in to help make the case.

I would love to keep protesters about five miles away from my home, and I don't care what they're protest of the day is. I am in agreement with you and the other posters who want to be left alone.

The problem with protests is that I can avert my eyes, but I can not close my ears. Maybe if protesters tiptoed I could tolerate them better.
11.30.2008 9:51pm
Daniel Chapman (mail):
Yeah I don't understand the scientology obsession either. It's especially bad online.
11.30.2008 11:15pm
Redlands (mail):
300'? Forget it. I've driven the public road through the place many times and I don't think the security people would let you picket the nearest 7-ll store. I wish our courtroom security was half as good.
On second thought, the county statute is a great idea - to protect unsuspecting picketers.
12.1.2008 12:08am
TruePath (mail) (www):
The argument that the law is invalid as it adopts a one size fits all approach seems extremely week to me. Yes, the idea is that the law should be narrowly tailored but when interpreting that one has to include the governmental interest of having a simple straightforward rule rather than some complicated formula based on house size.

I mean if you take this objection to a one sized fits all approach to the extreme you'd have to strike down noise/bullhorn restrictions on protests that targeted deaf individuals.

It seems to me that this just comes down to balancing the interests in expression and the right to enjoy one's home in peace. Though I do agree with the way the balancing was done here (across the street=ok, 300 feet=too restrictive) and don't see any other way this could be handled.

---------

Soronel Haetir (and others):

The burden placed on the neighbors of the targeted individual is much less than that placed on the target. Standard noise, and time restrictions keep the actual annoyance from getting out of hand and these bystanders are far less likely to feel threatened by the protesters.

For instance if your a scientist targeted by the animal rights people merely walking opening the door to get your mail results in a torrent of abuse. You can't let your children play in the yard for fear they will be screamed at about how their parents are evil (in fact the animal rights protesters have been known to deliberately targeted the child's birthday party to make life miserable for the scientist parent).

On the other hand if you are merely a neighbor the protesters are likely to be polite to you and you deal with a bit of noise. Seems to me it's pretty clear whose ability to make enjoyable use of their home is more imperiled.
12.1.2008 2:33am
Sean O'Hara (mail) (www):
Question: If the residential area has a HOA, could they forbid picketing within their dominion? They could certainly have the protesters' cars towed, which could be a deterrent if there's no legal public parking nearby, but could they go after the protesters themselves for trespassing?
12.1.2008 4:36am
Brett Bellmore:

Yeah I don't understand the scientology obsession either.


What's to understand? You get in by mistake, and once you wise up and try to leave, you discover to your horror that you've joined a 'religion' for which blackmail is a sacrament, and which has enough people in the government on hook to be effectively beyond the law. After that, you're a fervent 'believer' or else.

Our belief in freedom of religion has made it impossible, (With a helping hand from well placed Scientologists in government, of course!) to recognize when a criminal conspiracy pretends to be a religion.
12.1.2008 6:54am
Oren:
Gah, thanks to Smokey for correcting my horrendous typo.

Perhaps you should invest in some heavy-duty earplugs?
12.1.2008 10:13am
Aultimer:

Soronel Haetir (and others):

The burden placed on the neighbors of the targeted individual is much less than that placed on the target. Standard noise, and time restrictions keep the actual annoyance from getting out of hand and these bystanders are far less likely to feel threatened by the protesters.

For instance if your a scientist targeted by the animal rights people merely walking opening the door to get your mail results in a torrent of abuse. You can't let your children play in the yard for fear they will be screamed at about how their parents are evil (in fact the animal rights protesters have been known to deliberately targeted the child's birthday party to make life miserable for the scientist parent).

On the other hand if you are merely a neighbor the protesters are likely to be polite to you and you deal with a bit of noise. Seems to me it's pretty clear whose ability to make enjoyable use of their home is more imperiled.


I suspect you don't have any personal experience of the situation you describe. I do - the owners of the house three lots south and across the street from mine (500 feet from my property line to the targets' line) were picketed by animal rights nuts. The targets have no kids and both work away from the house, whereas there are people at home in many of the neighboring houses all day. The protests also included some lovely graphic images and impolite language.

I'm now an advocate for testing drugs on protesters.
12.1.2008 10:50am
Guest12345:
The targets have no kids and both work away from the house, whereas there are people at home in many of the neighboring houses all day.


This suggests an obvious work around of the 300' rule: Don't picket your target, picket the guy 300' down the road.
12.1.2008 4:38pm