Marilyn Olmer v. City of Lincoln , 192 F.3d 1176 ( 1999 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
_____________
No. 98-4112NE
_____________
Marilyn Olmer, an Individual; John *
Kelly, an Individual; Theresa Lane, *
an Individual; and Michelle Mann, *
an Individual, *
*
Appellees, *
* On Appeal from the United
v. * States District Court
* for the District of
City of Lincoln, a Municipality; * Nebraska.
William Austin, in his official capacity *
as Lincoln City Attorney; and Thomas *
Casady, in his official capacity as *
Chief of the Lincoln Police Department, *
*
Appellants. *
___________
Submitted: June 17, 1999
Filed: October 14, 1999
___________
Before RICHARD S. ARNOLD, BRIGHT, and ROSS, Circuit Judges.
___________
RICHARD S. ARNOLD, Circuit Judge.
This is an appeal from a preliminary injunction enjoining the enforcement of an
ordinance of the City of Lincoln, Nebraska. The ordinance seeks to restrict to certain
areas the "focused picketing" of churches and other religious premises thirty minutes
before, during, and thirty minutes after any scheduled religious activity. The District
Court1 held that the ordinance was facially invalid because it violated the Free Speech
Clause of the First Amendment. For substantially the same reasons given in the District
Court's thorough Memorandum and Order, we affirm.
I.
The plaintiffs are four individuals who have engaged in demonstrations opposing
abortion in the vicinity of Westminster Presbyterian Church in Lincoln, Nebraska. The
plaintiffs believe that abortion is wrong, and they object to the appointment of Winston
Crabb, M.D., a physician who performs abortions, as a deacon and elder in the church.
The plaintiffs have engaged in protests and demonstrations on the public sidewalk that
adjoins the church, carrying signs which read, "Winston Crabb, Abortionist and Elder,"
"1 Corinthians 5:13," "Dr. Crabb is Unfit to be an Elder," "Jesus Loves the Little
Children," and "Life." Other protesters (not the plaintiffs) have demonstrated near the
church with other kinds of signs, including graphic representations of aborted fetuses.
The church objected to all of these demonstrations, and eventually these objections
came to the attention of the Lincoln City Council. The Council then passed the
ordinance at issue in this case, City of Lincoln Ordinance No. 17413 (September 21,
1998). The Mayor of Lincoln, Mike Johanns, vetoed the ordinance, but the Council
overrode his veto, and the ordinance became law as Section 9.20.090 of the Lincoln
Municipal Code.
The ordinance at issue states, in pertinent part:
1
The Hon. Richard G. Kopf, United States District Judge for the District of
Nebraska. The opinion of the District Court is reported at 23 F. Supp. 2d 1091 (D.
Neb. 1998).
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Section 1. Legislative Intent and Findings.
(a) It is the intent of this ordinance to preserve the peace at religious
premises in order to protect and secure several significant and compelling
interests of this city. Those interests include the health, safety and
welfare of all the citizens and especially of children, all citizens' freedoms
of expression, assembly, association and religion, and the ordinary, good
public order of the community.
...
(d) . . . This ordinance restricts a particular manner of picketing
defined herein as focused picketing, and only when performed in specified
time periods and in specified places in close proximity to religious
premises, for the reason that without a reasonable buffer zone of time and
space, focused picketing disrupts and endangers or outright destroys
individual freedom of religion.
(e) The mechanism of such injury to individual freedom of religion
operates as follows: infants and young children are emotionally vulnerable
to focused picketing in close proximity to them, which is a typical
characteristic of focused picketing at religious premises, and many of
these children tend to react with fear, unhappiness, anxiety and other
emotional disturbance when such activity is imposed on them. Families
with infants and young children who must pass through the ring of
focused picketing in order to attend or leave religious activities are for the
time of entrance to the time of departure, captive audiences. Their option
of foregoing their worship or other religious activity on the one hand, or
risking pain and injury to their children on the other, amounts to a
substantial and intolerable burden on their personal religious freedom.
Section 2. . . .
9.20.090 Disturbing the Peace by Focused Picketing at Religious
Premises.
(a) Definitions. . . .
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(3) The term "focused picketing" shall mean "the act of one or
more persons stationing herself, himself or themselves outside religious
premises on the exterior grounds, or on the sidewalks, streets or other part
of the right of way in the immediate vicinity of religious premises, or
moving in a repeated manner past or around religious premises, while
displaying a banner, placard, sign or other demonstrative material as a
part of their expressive conduct." The term "focused picketing" shall not
include distribution of leaflets or literature.
(b) It shall be deemed an unlawful disturbance of the peace for any
person intentionally or knowingly to engage in focused picketing of a
scheduled religious activity at any time within the period from one-half
hour before to one-half hour after the scheduled activity, at any place (1)
on the religious organization's exterior premises, including its parking lots;
or (2) on the portion of the right of way including any sidewalk on the
same side of the street and adjoining the boundary of the religious
premises, including its parking lots; or (3) on the portion of the right of
way adjoining the boundary of the religious premises which is a street or
roadway including any median within such street or roadway; . . .
Thus, the ordinance purports to make it unlawful for anyone to stand or walk on
public sidewalks or rights of way adjoining religious premises, if that person is
displaying a banner, placard, or sign, at certain specified times. It does not matter
whether children are the target of this activity, or even whether they are present at any
particular time. Nor does it matter whether the words or pictures on the banner,
placard, or sign are in any way gruesome or repulsive to children, or, instead,
completely benign and bland.
II.
It is undisputed that peaceful picketing is an expressive activity protected by the
First Amendment. In addition, the areas identified by the ordinance, such as sidewalks
and public rights of way, "have immemorially been held in trust for the use of the public
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and, time out of mind, have been used for purposes of assembly, communicating
thoughts between citizens, and discussing public questions." Hague v. CIO, 307 U.S.
496, 515 (1939) (opinion of Roberts, J.). Consequently, these places are regarded as
public fora, and the government's ability to regulate speech in such places is limited.
In these quintessential public forums, the government may not prohibit all
communicative activity. 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.
Perry Education Assoc. v. Perry Local Educators' Assoc., 460 U.S. 37, 45 (1983)
(citations omitted).
The City claims that the ordinance is constitutionally valid because it is a
content-neutral, narrowly tailored limitation on the time, place, and manner of speech
designed to protect significant government interests. The City has identified three such
interests: 1) the protection of the well-being of young children exposed to focused
picketing; 2) the preservation of the right of its citizens to exercise their religion; and
3) the maintenance of public safety.
Like the District Court, we assume without deciding that the ordinance is a
content-neutral regulation. Further, we agree with the District Court that "the city's
interest in protecting very young children from frightening images is constitutionally
important; that is, the interest is 'significant,' 'compelling,' and 'legitimate.' " 23 F. Supp.
2d at 1100 (footnote omitted). That is as far as the City's legitimate interest goes,
however. As the District Court said:
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Assuming the images are not gruesome, I do not agree that
the City has a legitimate interest in shielding young children
from the mere presence of persons carrying signs on the
sidewalk. Absent a picture of a dead body or the like, there
is no credible and unbiased evidence that the mere presence
of a sign-carrying antiabortion protestor harms young
children.
Id. at 1100 n.9. There was testimony, offered by the City, that contradicts this finding,
but it is for the District Court, in the first instance, to determine what evidence is
credible, and its resolution of this issue of fact is not clearly erroneous.
The question is whether the ordinance is a "narrowly tailored" effort to protect
the legitimate interest identified by the District Court. The answer is plainly no. The
ordinance purports to make the carrying of signs at the indicated times and places
unlawful, no matter what the signs say or depict, and this prohibition is much broader
than necessary to protect the psychological interest of young children as found by the
District Court. Moreover, the ordinance prohibits communication with adults as well
as with children. While most of the adults attending the Westminster Presbyterian
Church probably do not like the signs and disagree with them, that is hardly a sufficient
basis, under the First Amendment, to justify what the City is attempting to do here.
Expressive communication is frequently upsetting, even abrasive. The protection of
such robust debate is at the core of the First Amendment. Finally, the ordinance bans
certain forms of communication even if all of those to whom it is directed in fact wish
to hear it. In sum, the ordinance bans speech directed at adults, and is not narrowly
tailored to prohibit only that sort of speech that would be psychologically damaging to
children. For further elaboration, see 23 F. Supp. at 1100-1102.
The City also claims that it has a legitimate interest in preserving the right of its
citizens to exercise their religion freely. Such an interest, in the abstract, is
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undoubtedly substantial and important. If, for example, anti-abortion protestors were
to attempt to enter a church without permission, or to interrupt church services with
their own speech, the city could doubtless prosecute them under a general trespass or
disturbing-the-peace provision, or, if necessary, adopt a more specific prohibition
directed against disturbing or interrupting services of worship. The present ordinance
goes way beyond that. It goes beyond the church building and church property, and
seeks to forbid peaceful communication on property belonging to the public, even
though the communication may be completely truthful, and even though there is
absolutely no physical interference with access to the church.
What we have said in the context of another series of demonstrations against the
status quo is relevant here. In Action v. Gannon, 450 F.2d 1227 (8th Cir. 1971) (en
banc), we dealt with protests conducted by members of the black community against
a predominantly white church in St. Louis. In the course of that opinion, which was
rendered by the Court en banc, we drew a distinction between the illegitimacy of
actually intruding on church premises to disrupt services, and the First Amendment
right to demonstrate peacefully, even when the demonstrations occur in the vicinity of
a church.
Speaking through Judge Heaney, the en banc Court held as follows:
The defendants have a right to voice their opinion that the plaintiffs
have not fulfilled their obligation to the black community. The defendants
also have a right to make requests upon the plaintiffs if such requests are
not joined with threats to disrupt church services and are not otherwise
unlawful. The fact that the requests or opinions may be offensive to the
parishioners does not render them outside the protection of the First
Amendment. Organization for a Better Austin v. Keefe, 402 U.S. 415, 91
S. Ct. 1575, 29 L.Ed.2d 1 (1971); Bachellar v. Maryland, 397 U.S. 564,
90 S. Ct. 1312, 25 L.Ed.2d 570 (1970); Street v. New York, 394 U.S.
576, 89 S. Ct. 1354, 22 L.Ed.2d 572 (1969). As the Supreme Court has
said:
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" . . . [A] function of free speech under our system of
government is to invite dispute. It may indeed best serve its
high purpose when it induces a condition of unrest, creates
dissatisfaction with conditions as they are, or even stirs
people to anger. Speech is often provocative and
challenging. It may strike at prejudices and preconceptions
and have profound unsettling effects as it presses for
acceptance of an idea. That is why freedom of speech,
though not absolute, . . . is nevertheless protected against
censorship or punishment, unless shown likely to produce a
clear and present danger of a serious substantive evil that
rises far above public inconvenience, annoyance, or unrest.
. . ."
Terminiello v. Chicago, 337 U.S. 1, 4, 69 S. Ct. 894, 896, 93 L.Ed. 1131(1949).
The defendants also have a right to engage in peaceful
pamphleteering and picketing on public property, so long as they do not
"unduly interfere with the normal use of the public property by other
members of the public with an equal right of access to it," Amalgamated
Food Employees Union Local 590 v. Logan Valley Plaza, Inc., 391 U.S.
308, 320, 88 S. Ct. 1601, 1609, 20 L.Ed.2d 603 (1968), and cases cited
therein, provided, of course, that they do not interfere with those entering
or leaving the church.
Id. at 1232-33 (footnote omitted).
The City suggests that this passage in our Action opinion was dictum, but we
cannot agree. The District Court had issued an injunction to protect the rights of
churchgoers. In the main, we affirmed, but we directed the District Court, on remand,
to revise the injunction to make it consistent with the views stated in the opinion,
including the quoted passage. See id. at 1238. The opinion was joined by five of the
six members of the en banc Court, one judge choosing to concur only in the result.
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Thus, this Court in Action upheld the same First Amendment right to picket on public
property near a church that plaintiffs in the present case seek to vindicate.
The City cites Frisby v. Schultz, 487 U.S. 474 (1988), in which an ordinance
prohibiting focused picketing before or about a residence or dwelling was upheld by
the Supreme Court, if limited to picketing occurring in front of a particular residence.
Such a prohibition, the Court held, was narrowly tailored to the protection of residential
privacy, which is a significant governmental interest. We cannot agree with the City
that churches are indistinguishable from private residences for this purpose. As the
Supreme Court said in Frisby, 487 U.S. at 484, "the home is different," and, in our
view, unique. Allowing other locations, even churches, to claim the same level of
constitutionally protected privacy would, we think, permit government to prohibit too
much speech and other communication. We recognize that lines have to be drawn, and
we choose to draw the line in such a way as to give the maximum possible protection
to speech, which is protected by the express words of the Constitution.
Finally, the City asserts an interest in public order, which we take to mean, in the
present context, maintaining the streets free of obstructions or distractions to traffic.
Certainly this interest could, in some circumstances, be sufficient to justify some
regulation of speech. The City could, for example, prohibit someone with a sign from
standing in the middle of a street. No doubt the City of Lincoln has other ordinances
prohibiting exactly that. The present ordinance goes far beyond such an effect. It
extends to sidewalks and public rights of way, and is not limited to signs that would,
on account of their size or attractiveness, be a distraction to motorists.
To summarize: If we assume, in accordance with the City's arguments, that the
ordinance is content-neutral, it still cannot be upheld. The ordinance is not narrowly
tailored to the protection of any significant governmental interest established by the
record before us. We therefore agree with the District Court that the ordinance is
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unconstitutional on its face, and the order of that Court, granting the plaintiffs's motion
for a preliminary injunction, is
Affirmed.
BRIGHT, Circuit Judge, dissenting.
If speech is silver, silence may be golden. For its part, the United States
Supreme Court wrote in favor of silence in Frisby v. Schultz, 487 U.S. 474 (1988).
There, by finding the protection of residential privacy to be a substantial government
interest, the Court shielded residents from unwanted speech in their homes. The
present case raises a similar question; namely, whether an analogous principle of
religious freedom applies to churchgoers, and whether the government may reasonably
protect those who attend religious rites and observances at the church of their choice
from unwanted messages. The answer should be a resounding yes.
I. BACKGROUND
I amplify the factual background, some of which has already been stated in the
majority opinion.
In 1998, the City Council of Lincoln, Nebraska conducted a public hearing to
consider the adoption of an ordinance prohibiting certain picketing at religious services
and activities. For about a year and a half, picketers had been demonstrating outside
the Westminster Presbyterian Church in Lincoln ("Westminster"). The protests
occurred at the entrances, exits, and parking lot of Westminster's building. The
picketers protested against abortions performed by Dr. Winston Crabb, an
obstetrician/gynecologist and an elder and deacon of the church. At the hearing, many
church members testified that recent picketing outside their church had become
disruptive and was preventing them from peaceably attending church.
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An associate pastor at Westminster testified that "[f]ive to six foot images of
decapitations and mutilations are held in [parishioners'] faces, placed against their
family vehicles, and directed at them at a close range . . . . Statements about [fetuses]
being murdered, killed, and butchered by a member of their church [Dr. Crabb] are
shouted at them as they enter the church building." J.A. at 117.
Westminster members testified that their families, and especially young children,
have undergone emotional distress because of the picketing. One nine-year-old
member testified at the City Council hearing that "[t]his lady stuck a bloody baby
picture right in my face and she was about two to three feet away. My tummy was
queasy and it was horrifying. I have had some bad times in my life, but that time was
the worst ever." Id. at 122. Several churchgoers testified that their children
experienced nightmares, frequent crying, and a negative shift in attitude towards church
in general. See id. at 123. Psychologists testified that the children of Westminster
were the most vulnerable to the picketers' signs and shouting. One psychologist
testified that:
Frankly, I was shocked by the atmosphere I encountered as I drove
around the church. There was a siege like atmosphere with protestors
strategically positioned around the church. . . . I had no idea the posters
were so large or that the pictures were so graphic. The images on the
poster are truly the images of nightmares. . . . As an expert in anxiety, I
have little doubt that the experience of attending church at Westminster
is highly stressful.
Id. at 130-31.
In some instances, members have taken dramatic measures to avoid the
demonstrators. According to one church member, "Our six year old niece was forced
to ride on the floorboard of her car for protection while arriving for the service." Id.
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at 130. While some have done their best to circumvent the demonstrations, some have
left the church because of the picketing. See id. at 123.
The Lincoln City Council ultimately enacted an ordinance that banned focused
picketing on the sidewalks and entryways adjoining religious premises. The ban is
effective thirty minutes before and thirty minutes after any scheduled religious activity.
The purpose of Lincoln's ordinance was to "preserve the peace at religious premises .
. . ." J.A. at 173. In addition, the Lincoln City Council believed that picketing in such
a "time, place and manner as to disrupt religious activities or to hinder reasonable
access to them by families with young children, disturbs the peace essential to
individuals who wish to participate in such religious activities . . . ." Id. The City
Council also found that:
infants and young children are emotionally vulnerable to focused
picketing in close proximity to them, which is a typical characteristic of
focused picketing at religious premises, and many of these children tend
to react with fear, unhappiness, anxiety and other emotional disturbance
when such activity is imposed upon them. Families with infants and
young children who must pass through the ring of focused picketing in
order to attend or leave religious activities are for [sic] the time of
entrance to the time of departure, captive audiences. Their option of
foregoing their worship or other religious activity on the one hand, or
risking pain and injury to their children on the other, amounts to a
substantial and intolerable burden on their personal religious freedom.
The technique of using focused picketing to disturb the very young so
their families will feel coercion either to comply with picketers' wishes or
forego their chosen religious activity entirely, is a pernicious and
contemptible form of harassment.
Id. at 174.
The plaintiffs are four individuals who oppose abortion and have peacefully
picketed outside Westminster. There are no allegations that these four plaintiffs have
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ever carried graphic signs or have directed their protests toward children. The plaintiffs
admit, however, that other protestors have carried signs containing "graphic photos of
abortion." J.A. at 139. Two days after the ordinance was passed, the plaintiffs filed
a complaint in federal district court seeking to have the ordinance declared
unconstitutional. The district court issued a preliminary injunction against the
ordinance's enforcement, and this appeal followed.
II. DISCUSSION
The Supreme Court has declared that "[a] State or municipality may protect
individual privacy by enacting reasonable time, place, and manner regulations
applicable to all speech irrespective of content." Erznoznik v. City of Jacksonville, 422
U.S. 205, 209 (1975). Nothing in the Constitution leaves localities powerless to
legislate "to protect the public from the kind of boisterous and threatening conduct that
disturbs the tranquility of spots selected by the people either for homes, . . . or for
public and other buildings that require peace and quiet to carry out their functions, such
as courts, libraries, schools, and hospitals." Gregory v. Chicago, 394 U.S. 111, 118
(1969) (Black, J., concurring). Local governments may enforce time, place, and
manner restrictions on expressions that are content neutral, are narrowly tailored to
serve a significant government interest, and leave open ample alternative channels of
communication. See United States Postal Serv. v. Council of Greenburgh Civic Ass'ns,
453 U.S. 114, 132 (1981).2
2
The majority, like the District Court, did not rule on the content neutrality of the
ordinance, but instead assumed that it was content neutral. That issue is not disputed
here. I add that it is also undisputed that the ordinance regulates speech in a
traditionally public forum. See, e.g., Carey v. Brown, 447 U.S. 455, 460 (1980)
(sidewalks historically associated with First Amendment rights).
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A. Significant Government Interest
It must be determined whether the government has a significant interest in
protecting individuals who attend religious rites and observances from unwanted
messages during those rites and observances. While this precise issue is one of first
impression in this circuit, Frisby v. Schultz, 487 U.S. 474 (1988) provides the
precedent for which to decide this important question.
In Frisby, the Supreme Court upheld a content-neutral ordinance that prohibited
picketing in front of an individual's home. The purpose of that ordinance was to protect
and preserve the sanctity of the home by ensuring that people could "enjoy in their
homes and dwellings a feeling of well-being, tranquility, and privacy." Id. at 477. The
Town Board of Brookfield, Wisconsin, which had enacted the ordinance in Frisby,
believed that the ban was needed because "the practice of picketing before or about
residences and dwellings causes emotional disturbance and distress to the occupants
. . . ." Id.In upholding the ban, the Court found that the ordinance served a significant
government interest. It recognized that protecting the well-being, tranquility, and
privacy of the home was a goal of the "highest order" and that "'preserving the sanctity
of the home, [the place in which] men and women can repair to escape from the
tribulations of their daily pursuits, is surely an important value.'" Id. at 484 (quoting
Carey v. Brown, 447 U.S. 455, 471 (1980)). In deciding the case now before us, the
issue is whether similar interests are present here, and, if so, whether those interests
warrant similar methods of protection.
In Frisby, the Court recognized that preserving the well-being, tranquility and
privacy of the home was a significant interest. See Frisby, 487 U.S. at 484. An
important aspect of residential privacy, according to Frisby, was protecting the
unwilling listener. See id. The Court noted that "in many locations, we expect
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individuals simply to avoid speech they do not want to hear . . . ." Id. Nevertheless,
the fact "[t]hat we are often 'captives' outside the sanctuary of the home and subject to
objectionable speech . . . does not mean we must be captives everywhere." Id.(quoting Rowan v. Post Office Dep't, 397 U.S. 728, 738 (1970)) (omission in original).
As a result, the Court found no right on the part of picketers to "force speech into the
home of an unwilling listener." Id. at 485.
The government's interest in preserving the right of churchgoers to attend
religious services free from substantial interference is strikingly similar to the interest
in preserving the privacy of the home noted by the Frisby Court. One of our sister
circuits recently held, also in the context of a content-neutral ordinance, that the
government has a legitimate interest in protecting churchgoers from harassment and
ensuring their access to church premises. See Edwards v. City of Santa Barbara, 150
F.3d 1213 (9th Cir. 1998), cert. denied, 119 S. Ct. 1142 (1999).3 For the reasons that
follow, I agree.
3
In Edwards, the Ninth Circuit considered the validity of a content-neutral
ordinance that prohibited all demonstration activity within a certain distance of health
care facilities and places of worship. See Edwards, 150 F.3d at 1215. The Edwards
panel held that government's interest in protecting persons engaging in worship from
intimidation and harassment and its interest in ensuring access to places of worship was
a sufficient government interest to sustain the ordinance. See id. at 1216. The court
also held that the ordinance was narrowly tailored to ensure access to religious
premises and left open alternative means of communication. See id. at 1217. See also
Tompkins v. Cyr, 995 F. Supp. 664, 681 n.10 (N.D. Tex. 1998) ("The Court is troubled
by the notion that a person may be subjected to focused picketing at their place of
worship. Indeed, the right to engage in quiet and reflective prayer without being
subjected to unwarranted intrusion is an essential component of freedom of religion.
The government certainly has a significant interest in protecting this important First
Amendment right.")
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First, like the privacy of the home, the right of freedom to worship is one long-
recognized by our society. The First Amendment protects this fundamental right from
government interference. The Declaration of Independence recognizes it as an
unalienable right that permits individuals to pursue happiness. This nation's history
alone shows us that the fundamental right to worship is as important as the right to
privacy within the home.
Second, the government has a significant interest in protecting the well-being and
tranquility in a house of worship. Like the home, houses of worship—whether church,
synagogue, or mosque—are sacred places where people seek rest and replenishment.
Justice Black described the home as "the last citadel of the tired, the weary, and the
sick . . . ." Gregory v. Chicago, 394 U.S. 111, 125 (1969) (Black, J., concurring). This
description applies with equal force to houses of worship.
For Westminster's parishioners to attend their house of worship, they must listen
to the unwanted and coercive messages forced upon them by the picketers. For those
churchgoers, attending worship service is anything but tranquil. If members choose to
attend religious services or activities, they must withstand the harassment and
intimidation tactics of the protestors. Westminster members can either choose to attend
church and endure the demonstrations, or they can stay home and forfeit their right to
worship.
Third, the aspect of residential privacy that the Frisby Court found so important
– the "unwilling listener" – is present here.4 The members of Westminster are captives
4
The notion that individuals should not be captives to unwanted speech is not a
novel one, and government regulations that prohibit intrusive speech have been
repeatedly upheld. See FCC v. Pacifica Found., 438 U.S. 726, 748-749 (1978)
(offensive radio broadcasts); Rowan, supra (offensive mailings); Kovacs v. Cooper,
336 U.S. 77, 86-87 (1949) (sound trucks).
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of unwanted speech as they attend their church, their religious home. "The First
Amendment permits the government to prohibit offensive speech as intrusive when the
'captive' audience cannot avoid the objectionable speech." Frisby, 487 U.S. at 487.
Here, the City of Lincoln has every interest in ensuring that individuals may exercise
their religious beliefs free from intrusive and unduly coercive messages.5 As such, just
as the local government has a significant interest in protecting privacy within the home
in Frisby, so too does the government of the City of Lincoln in protecting the
fundamental rights of individuals to practice their religion undisturbed in the church of
their choice.
B. Narrowly Tailored
Even if an ordinance serves a substantial government interest, it must be
narrowly tailored to achieve that interest. See Perry Educ. Ass'n v. Perry Local
Educators' Ass'n, 460 U.S. 37, 45 (1988). In Frisby, the Court held that the ordinance
in question there was narrowly tailored because it prevented only focused picketing in
front of a particular residence. Because the ordinance targeted and eliminated "no more
than the exact source of the 'evil' it [sought] to remedy[,]" it was sufficiently narrow.
Frisby, 487 U.S. at 485 (quoting City Council of Los Angeles v. Taxpayers for Vincent,
466 U.S. 789, 808-10 (1984)). The Court found that the picketers "generally [did] not
seek to disseminate a message to the general public, but . . . intrude[d] upon the
targeted resident, and . . . [did] so in an especially offensive way." Id. at 486. In
5
Even Justice Brennan, who dissented in Frisby, recognized that "[w]ithout
question there are many aspects of residential picketing that, if unregulated, might
easily become intrusive or unduly coercive." Frisby, 487 U.S. at 494 (Brennan, J.,
dissenting). Justice Brennan noted that the protestors in Frisby trespassed and warned
young children not to go near the house of the abortion doctor because the doctor was
a "baby killer." Id. "Surely it is within the government's power to enact regulations as
necessary to prevent such intrusive and coercive abuses." Id.-17-
directing their message to a particular resident, the picketing had a "devastating effect
. . . on the quiet enjoyment of the home . . . ." Id.The same is true here. Lincoln's ordinance restricts focused picketing in a very
limited way. From one-half hour before to one-half hour after religious services or
activities, the protestors must not picket on the adjoining sidewalk and entryways to the
church. The picketers are free to leaflet and to give anyone a leaflet if that person will
accept it. The picketers may demonstrate as much as they wish across the street so
long as they do not interfere with the religious service.
Given these limitations, this ordinance is far more narrow in its application than
was the ordinance in Frisby. There, all picketing was banned at all times in front of a
residence. Here, the ordinance applies only to those limited times immediately before
and after a religious service or activity. In addition, only large demonstrative materials
such as placards, banners or signs are prohibited. The ordinance targets only those
places and forms of communication that are likely to have a coercive effect on the
churchgoer—the placards that are held up to the faces of all the churchgoers, rested
upon family vehicles, and targeted at the parishioners, at a very close range, as they
enter and exit the church. All other communication and speech by the protestors is
permitted. In light of Frisby, this ordinance is narrowly tailored.
The majority concludes that the ordinance is overbroad because it restricts all
picketing, regardless of what the signs communicate or depict, and as such the
regulation is not narrowly tailored to protect young children. The ordinance is also
overbroad, according to the majority, because it regulates communication with adults.
The majority states that the City of Lincoln is not justified to pass an ordinance simply
because "adults attending Westminster Presbyterian Church probably do not like the
signs and disagree with them." In so stating, the majority characterizes opposition to
the picketers as based on a simple disagreement with the message conveyed or a mere
dislike for the signs.
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But the record clearly shows that the adults are affected in a much more acute
way than by mere disapproval of the signs. To attend the church of their choice, those
adults must listen to jeering shouts and view graphic images, as large as six feet, of
decapitations and mutilations. See J.A. at 40 n.7. The parishioners' concerns about the
effects of the picketing are more than just disagreement with the message. They must
listen to messages that are intended to cause all churchgoers, adults and children alike,
psychological distress. As Justice Stevens stated in Frisby, "picketing for the sole
purpose of imposing psychological harm on a family" is not constitutionally protected.
Frisby, 487 U.S. at 498 (Stevens, J., dissenting). Lincoln's ordinance prohibits only
that limited range of speech that is likely to impose harmful psychological impact. In
this respect, the ordinance reaches no more speech than is necessary to prevent the evil.
Lincoln's ordinance is narrowly tailored.
C. Alternative Channels of Communication
The next issue is whether the Lincoln ordinance leaves open ample alternative
channels of communication. As noted above, the ordinance prohibits the use of
banners, placards, signs or other demonstrative materials. In this respect, it is similar
to the ban in Frisby because it prohibits only a discrete type of expression. In Frisby,
"focused picketing taking place solely in front of a particular residence" was prohibited.
Id. at 483. The Frisby Court found that protestors were not "barred from the residential
neighborhoods. They may enter such neighborhoods, alone or in groups, even
marching . . . . They may go door-to-door to proselytize their views. They may
distribute literature in this manner . . . or through the mails." Id. at 484 (omissions in
original). The same is true here. The picketers may protest as much as they wish
across the street, or anywhere else for that matter, except in the limited areas set forth
in the ordinance. In addition, they may also picket directly on the sidewalks abutting
houses of worship, provided they do so at times other than those proscribed. The
plaintiffs have more than ample alternatives to express their views.
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D. Action v. Gannon
Finally, I disagree that Action v. Gannon, 450 F.2d 1227 (8th Cir. 1971),
compels a holding that the Lincoln ordinance is unconstitutional. In that case, members
of the Black Liberation Front entered a cathedral on numerous occasions. They
engaged in various demonstrations within the church including marching down the
aisles, using amplifiers to communicate their "demands," approaching the lectern to
speak to the congregation, and blocking communion rails. Id. at 1229. The district
court issued a permanent injunction that prevented them from interrupting or disrupting
services.
This court held that the defendants had no right to enter the cathedral and disrupt
services because such disruption was an "intolerable violation of the rights of those
engaged in worship." Id. at 1233. The court held that the plaintiffs were "clearly
entitled to injunctive relief because the evidence established that the defendants had
disrupted religious services at the cathedral and that they would continue to do so
unless enjoined" id. at 1238, but held that the injunction must be revised so as to not
deprive the defendants of their First Amendment rights. Id.Action dealt with a different question than the one before us. At issue there was
whether the defendants could be enjoined from entering a cathedral and disrupting
services. This court held the district court could enjoin them. The court, however,
revised the injunction to preserve the defendants' right to protest. In this case we
consider whether it is within the government's power to enforce time, place and manner
restrictions on demonstrations near religious premises to protect the churchgoers' First
Amendment rights of freedom of assembly and worship.
In any event, Action supports the holding I reach. Action stands for the
proposition that individuals shall not interfere with the free exercise of religion. It
serves as a basis in this case to allow the government to prevent the interference of
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those entering and leaving the church. In this respect, Action supports a holding that
the ordinance is constitutional.
I add this final comment. The ordinance in question applies to all who violate
its terms. Obviously, it would be impossible to write a content-neutral ordinance that
drew a line between signs with graphic, bloody images as carried by some protestors
and informational messages as carried by others. The plaintiffs here as peaceful
picketers, which they claim they are, really face little restriction on their activities. At
all times they may walk on the sidewalk and entryways to church property, distribute
leaflets expressing their views, and ask to speak to those in the vicinity who are willing
to listen to them. They also may carry signs and banners except at very limited times,
that is, from one-half hour before to one-half hour after a scheduled activity or service.
This minor limitation on the plaintiffs' activities pales in comparison to the
incivility, invasion of tranquility, and intimidation tactics visited upon those seeking to
enter the church of their choice. That interference should not be countenanced.
The Lincoln ordinance bans speech directed principally at those unwilling
listeners attending church services or activities. The government's interest here is
substantial, the nature and scope of the ordinance make the prohibition narrowly
tailored, and the protestors retain ample alternative channels of communication. The
City Council of Lincoln has enacted a wise and fair ordinance. In declaring the
ordinance unconstitutional, the majority of this court disregards the rights of
churchgoing parents and children who suffer intimidating tactics from some protestors.
They should not be required to face such a gauntlet. Therefore, I strongly dissent.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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