Frisby v. Schultz, 487 U.S. 474; 108 S. Ct. 2495; 101 L. Ed. 2d 420 (1988)

Facts—Brookfield, Wisconsin, is a residential suburb of Milwaukee. It has a population of about 5,000. Antiabortionists Sandra Schultz and Robert Braun, along with others, targeted the home of a doctor who allegedly performed abortions. The picketing was orderly and peaceful but generated substantial controversy and numerous complaints. The town board passed an ordinance that held: “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 federal District Court granted appellees’ motion for a preliminary injunction, concluding that the ordinance was not narrowly tailored enough to restrict protected speech in a public forum. The Court of Appeals ultimately affirmed.

Question—Does the Brookfield ordinance that permits picketing “before or about” private residences violate the First Amendment?

Decision—No.

Reasons—J. O’Connor (6–3). The ordinance itself recites the primary purpose of the picket ban, as “the protection and preservation of the home.” The practice of picketing before or about residences and dwellings causes emotional disturbance and distress to the occupants. The ordinance also evinces a concern for public safety. Speech in a public forum should be uninhibited, and restrictions should be carefully scrutinized. A public street does not lose its status as a traditional public forum simply because it runs through a residential neighborhood. The ordinance is readily subject to a narrow construction for the words “residence” and “dwelling” are singular and suggest “that the ordinance is intended to prohibit only picketing focused on, and taking place in front of, a particular residence.” We construe the ban to be a limited one—“only focused picketing taking place solely in front of a particular residence.” It does not cover marching through the area or walking in front of an entire block. There are other alternatives. Protesters can visit a neighborhood, singly or in groups, may go from door to door or distribute mail by hand or by delivery. “A statute is narrowly tailored if it targets and eliminates no more than the exact source of the “evil” it seeks to remedy. Largely because of its narrow scope, the facial challenge to the ordinance must fail.”

Note—Even the Supreme Court is not immune to litigation. A federal law prohibits the “display of any flag, banner, or device designed or adapted to bring into public notice any party, organization, or movement” in the Supreme Court Building or on its grounds, which include the public sidewalks constituting the outer boundaries of the grounds. The Court held that the sidewalks are public areas under the free speech provision of the First Amendment. United States v. Grace (461 U.S. 171, 1983).