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):

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  2. Unconstitutional Residential Picketing Ban: