Carol Douglas v. Robert Brownell , 88 F.3d 1511 ( 1996 )


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  •                                  ___________
    No. 95-2234
    ___________
    Carol Douglas; Michael Allen         *
    Henry; Deena Shelton,                *
    *
    Plaintiffs - Appellants,*
    *
    *
    v.                            *
    * Appeal from the United States
    Robert Brownell, in his official* District Court for the
    capacity as Mayor of the City of* Southern District of Iowa.
    Clive; James C. Wine, in his        *
    official capacity as the city       *
    attorney of the City of Clive;      *
    Dean Dymond, in his official        *
    capacity as Chief of Police of      *
    the City of Clive; Clive City       *
    Council, Sued as: City of Clive *
    City Council; Clive, IA, City of*
    *
    Defendants - Appellees.    *
    ___________
    Submitted:   December 11, 1995
    Filed:   July 9, 1996
    ___________
    Before MCMILLIAN, JOHN R. GIBSON, and BEAM, Circuit Judges.
    ___________
    JOHN R. GIBSON, Circuit Judge.
    Carol Douglas, Michael Allen Henry and Deena Shelton1
    1
    The appellants refer to themselves as abortion protesters in
    their brief, based on their "firm belief that abortion is the
    intentional destruction of life." Accordingly, we will likewise
    refer to the appellants as "protesters," their preferred
    descriptive title, in this opinion.
    challenge the constitutionality of a residential picketing ordinance and
    a parade permit ordinance enacted by the City of Clive, Iowa.      The City
    enacted the ordinances in response to complaints about weekly protests held
    in front of the home of Dr. Herbert Remer, a physician who performs
    abortions.    The district court held that Dr. Remer's move from Clive
    rendered the case moot, and, alternatively, that the picketing and parade
    ordinances were constitutional as written and applied.       On appeal, the
    protesters argue that they still have standing to challenge the residential
    picketing ordinance and that the two ordinances violate their First
    Amendment rights.      We hold that the protesters have standing, and we
    reverse the district court's ruling on mootness.     We affirm the district
    court's holding that the residential picketing ordinance is constitutional,
    but we conclude that the parade ordinance is not narrowly tailored, and
    therefore, reverse the district court's holding that the parade ordinance
    is constitutional.
    In the summer of 1992, members of Operation Rescue began picketing
    at Dr. Remer's home.    Dr. Remer lived at 
    1637 N.W. 100th
    Place, a short,
    angular street between two larger streets.      Dr. Remer and his neighbors
    complained to the City, and the City enacted a residential picketing
    ordinance.   The ordinance makes it unlawful:   "for any person to engage in
    picketing before, about, or immediately adjacent to, the residence or
    dwelling of any individual in the City."2
    2
    The intent of the ordinance is stated in Section 1:
    Section 1. INTENT. It is the intent of this Ordinance to
    protect the public health and welfare of the citizens of
    Clive, and the good order of the community, by preserving
    the right of privacy and the feeling of well-being and
    tranquility that members of the community should enjoy in
    their residence or dwelling. The practice of picketing
    before or about residences or dwellings causes emotional
    disturbances and distress to the occupants, disturbs the
    sense of peace and tranquility traditionally enjoyed by
    individuals in their residences, and obstructs and
    interferes with the free use of public sidewalks and
    public streets. Picketing before or about residences or dwellings
    has, as its object, the harassment of the occupants of the dwelling
    or residence. Without resort to this practice, full opportunity
    -2-
    The protesters reacted to the ordinance by expanding their picketing
    to cover the 1500-1700 blocks of N.W. 100th Place surrounding Dr. Remer's
    home.     The City Council then amended its parade ordinance, requiring a
    written permit from the Chief of Police for a parade.                     A "parade" is
    defined to include "any march or procession of ten (10) or more persons
    . . . organized for marching or moving on the streets, sidewalks, or other
    public ways in an organized fashion. . . ."            A permit application must be
    submitted at least five days before the parade, and the City must issue the
    permit       no   later   than   the   second   business   day    after   receiving   the
    application unless:        (1) the Police Chief determines that the time, route
    or size of the parade will disrupt the use of any street or sidewalk which
    is ordinarily subject to significant congestion or traffic; (2) another
    parade permit has already been issued for that day; or (3) the proposed
    parade violates any other governing law or ordinance.3
    The protesters brought a 42 U.S.C. § 1983 action against the City,4
    alleging that the residential picketing ordinance and parade ordinance
    violated their constitutional rights to freedom of speech, freedom of
    assembly, freedom of association, freedom to petition, free exercise of
    religion, and equal protection under the law.                    The protesters sought
    damages, as well as declaratory and
    exists, and will continue to exist, in other appropriate locations,
    for the free flow of ideas, and the exercise of freedom of speech
    or expression and other constitutional rights.
    3
    The        applicant must also state the date and time of the
    parade; the        name, address and telephone number of the applicant;
    the parade         route; and the approximate number of persons and
    vehicles in        the parade.
    4
    The protesters named as defendants the Clive Mayor, city
    attorney, city council, and chief of police in their official
    capacities.
    -3-
    injunctive relief.
    The    istrict court issued a preliminary injunction, enjoining the
    he residential picketing ordinance outside the "zone
    of privacy."    The cou
    of                                                                        s
    immediately adjacent to the target resident's ho
    protesters' motion to enjoin enforcement of
    concluding that it was unlikely that the protesters would prevail on their
    that the ordinance was unconstitutional on its face or as applied.
    rs for picketing on the sidewalk
    acr      from Dr. Remer's home, the district court clarified its original
    The court stated that the preliminary injunction only "prohibit[ed
    picketing in the area, including the
    Remer's residence and in front of the two residences immediately adjacent
    eto."    The court clarified that the injunction did "not prohibi
    picketing on the sidewalk across the street from those three residences."
    mmary judgment, arguing that the
    protesters                               or punitive damages, and the case
    was now moot because Dr. Remer had moved from Cl
    a cross motion for summary judgment,
    ordinances unconstitutional and to permanently enjoin
    The pr                                                                    ,
    including the supplemental affidavit of Dr. Remer stating that he no longer
    The City amended its picketing ordinance on November 3, 1994
    to conform with the district court's orders.5
    ict court then entered summary judgment for the City.          The
    court first ruled that the case was now moot bec
    protesters'                                                                          e
    alternative,                                                                         d
    picketing ordinance were constitutional.            The court granted the protesters'
    to strike certain affidavits and exhibits, except for Dr. Remer's
    plemental affidavit.         The court awarded the protesters one dollar i
    nominal damages for damages sustained prior to the preliminary injunction.
    I.
    The protesters first argue that they have standing.            They asser
    Dr.                                                                                  l
    in place.
    iction
    of      deral courts to actual, ongoing cases or controversies.               Lewis v
    Continental Bank Corp., 
    494 U.S. 472
    , 477 (1990)            Arkansas AFL-CIO v. FCC,
    th Cir. 1993) (en banc).    A "case or controversy" is
    "a definite and concr
    every stage in the litigation."                  (citation omitted).    A case is moot
    when             ies no longer have a "personal stake in the outcome of the
    "           , 494 U.S. at 478 (internal quotation and citation
    5
    It       shall   be    unlawful   for
    any person to engage in
    mediately adjacent to, the
    res       or dwelling of any individual in the City of
    s section, "before, about,
    or immediately adjacent to" means in front of or within
    -5-
    Arkansas 
    AFL-CIO, 11 F.3d at 1435
    .
    The district court concluded that the protesters lost their standing
    to challenge the ordinance when Dr. Remer moved from Clive.6        The court
    reasoned that the protesters did not "identify any residence in Clive for
    which the ordinance restricts their picketing activity."
    The City maintains that the protesters lost their standing when Dr.
    Remer moved from Clive, and that the circumstances of this case are
    analogous to those in Golden v. Zwickler, 
    394 U.S. 103
    (1969).        In that
    case, a New York statute made it a crime to distribute anonymous literature
    in connection with an election campaign.          
    Id. at 104.
       Zwickler was
    convicted of violating the New York statute by distributing anonymous
    handbills criticizing a candidate in a 1964 congressional election.          
    Id. at 105.
      Although the New York Supreme Court reversed Zwickler's conviction
    on state law grounds, Zwickler sought a declaratory judgment that the
    statute was unconstitutional.
    Following   Zwickler's   conviction,   the   congressman   criticized    by
    Zwickler left the House of Representatives to become a judge with a
    fourteen-year term.   
    Id. at 106,
    109 n.4.    The case was moot because the
    sole target of Zwickler's handbills was no longer a candidate or potential
    candidate.   The Court reasoned that it was doubtful that the congressman
    would run for Congress again and, therefore, the dispute lacked "immediacy
    and reality."     
    Id. at 109.
       It was "wholly conjectural that another
    occasion might arise when
    6
    The protesters also argue that the district court abused its
    discretion in allowing the submission of Dr. Remer's supplemental
    affidavit.    Dr. Remer's affidavit concerned the issue of the
    court's jurisdiction, and we have no trouble concluding that it was
    well within the court's broad discretion to accept the affidavit.
    See Bueford v. Resolution Trust Corp., 
    991 F.2d 481
    , 485 (8th Cir.
    1993) (party or court may raise issue of subject matter
    jurisdiction at any stage of the litigation).
    -6-
    Zwickler might be prosecuted" for distributing anonymous handbills.                 
    Id. at 109.
    The record in this case differs from that in Zwickler.           The plaintiff
    in Zwickler distributed the handbills because he objected to a specific
    candidate.      When the candidate left his elected office and effectively
    resigned from politics, Zwickler no longer had a personal stake in the
    outcome of the case.     
    Lewis, 494 U.S. at 477-78
    .        The protesters here have
    a much more general objection:          abortion.   Dr. Remer's move from Clive has
    not eliminated their objection to abortion.           Moreover, the protesters did
    not specify that they wanted the ordinance struck down in order to picket
    Dr. Remer's residence.         The protesters provided affidavits stating that
    they wished to participate in protests at N.W. 100th Place and "other
    residential areas," and in "other public ways in residential areas in the
    city of Clive, Iowa."      Contrary to the view of the district court, we do
    not believe that the protesters are required to identify a specific home
    they wish to target in order to challenge the picketing ordinance.              Even
    though Dr. Remer has moved from Clive, the protesters have stated an actual
    or threatened injury because the ordinance continues to apply to all the
    residential areas in Clive.              Dr. Remer's move does not nullify the
    protesters allegations of actual and threatened injury caused by the
    ordinance.   Cf. Beck v. Missouri State High Sch. Activities Ass'n., 
    18 F.3d 604
    ,   605-06    (8th   Cir.    1994)    (per    curiam)   (student's   challenge    to
    eligibility requirement became moot when student subsequently complied with
    requirement); McFarlin v. Newport Special Sch. Dist., 
    980 F.2d 1208
    , 1210-
    11 (8th Cir. 1992) (student's challenge to high school regulation became
    moot when student graduated).            Thus, the protesters have satisfied the
    mandates of Article III, and have standing to challenge the
    -7-
    ordinance.7    See Valley Forge Christian College v. Americans United for
    Separation of Church and State, Inc., 
    454 U.S. 464
    , 472 (1982).
    We reverse the district court's ruling that the protesters' challenge
    to the residential picketing ordinance is moot because Dr. Remer has moved
    from Clive.
    II.
    The protesters argue that the residential picketing ordinance is
    unconstitutional on its face and as applied.
    The protesters and the City agree that the constitutionality of the
    residential picketing ordinance is determined by the Supreme Court's
    decisions in Frisby v. Schultz, 
    487 U.S. 474
    (1988), and Madsen v. Women's
    Health Ctr., Inc., 
    114 S. Ct. 2516
    (1994).
    In Frisby, the town of Brookfield, Wisconsin, passed an ordinance
    making it "unlawful for any person to engage in picketing before or about
    the residence or dwelling of any individual in the Town of 
    Brookfield." 487 U.S. at 477
    .
    In determining the constitutionality of the anti-picketing ordinance,
    the Court first recognized the importance of the speech inhibited by the
    ordinance.    
    Id. at 479.
      "The antipicketing ordinance operates at the core
    of the First Amendment by prohibiting . . . picketing on an issue of public
    concern."     
    Id. Because of
    these concerns, the Court determined that the
    antipicketing ordinance was subject to "careful scrutiny."         
    Id. (citing Boos
    v. Barry, 
    485 U.S. 312
    , 318 (1988)).
    7
    Because we conclude that the case is not moot, we need not
    consider the protesters' alternative argument that the case falls
    within an exception to the mootness doctrine because it is "capable
    of repetition yet evading review." See Arkansas 
    AFL-CIO, 11 F.3d at 1435
    .
    -8-
    The Court then considered the appropriate limits which the City could
    place on such protected speech.     The Court recognized that the limits vary
    according to the type of forum, applying the most stringent standard to
    protected speech in a "traditional public forum:"
    [In a public forum] 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.
    
    Id. at 481
    (quoting Perry Ed. Ass'n. v. Perry Local Educators' Ass'n, 
    460 U.S. 37
    , 45 (1983)).
    In applying these standards to the Brookfield ordinance, the Court
    first held that the street and sidewalks were traditional public fora.     
    Id. at 480-81.
          After deferring to the lower courts' interpretation that the
    ordinance was content neutral, the Court focused on the remaining two
    questions:        whether the ordinance was narrowly tailored to serve a
    significant government interest and whether the ordinance left open ample
    alternative channels of communication.       
    Id. at 482
    (quotation omitted).
    The Court first answered the latter question, ruling that the
    ordinance preserved ample alternative channels of communication.       
    Id. at 484.
        The Court narrowly construed the ordinance as prohibiting only
    "focused picketing taking place solely in front of a particular residence."
    
    Id. at 483.
       The Court specifically found that the ordinance, among other
    activities, did not prohibit "[g]eneral marching through residential
    neighborhoods, or even walking a route in front of an entire block of
    houses."     
    Id. This being
    the case, the ordinance preserved ample
    alternative channels
    -9-
    of communication.    
    Id. at 484.
    The Court then recognized that the ordinance served the significant
    government interest of protecting residential privacy. 
    Id. "The State's
    interest in protecting the well-being, tranquility, and privacy of the home
    is certainly of the highest order in a free and civilized society."             
    Id. (quoting Carey
    v. Brown, 
    447 U.S. 455
    , 471 (1980)).        The Court emphasized
    "the unique nature of the home, ``the last citadel of the tired, the weary,
    and the sick,'" 
    id. (quoting Gregory
    v. Chicago, 
    394 U.S. 111
    , 125 (1969)
    (Black, J., concurring)), and acknowledged the special protection accorded
    to unwilling listeners within their own homes:    "[W]e have repeatedly held
    that individuals are not required to welcome unwanted speech into their own
    homes and that the government may protect this freedom."         
    Id. at 485.
    After discussing these competing interests, the Court considered
    whether the ordinance was narrowly tailored.       
    Id. The Court
    recognized
    that a complete ban on picketing is narrowly tailored only if each
    prohibited activity is an "appropriately targeted evil."         
    Id. The Court
    concluded that the focused picketing prohibited by the ordinance is
    fundamentally     different   from    more   generally     directed     forms    of
    communication, such as handbilling, soliciting, and marching, because
    focused picketing "is narrowly directed at the household, not the public,"
    and the picketers "do not seek to disseminate a message to the general
    public, but to intrude upon the targeted resident . . . in an especially
    offensive way."     
    Id. at 486.
       Even assuming the picketers have a broader
    communicative purpose, the Court concluded that residential picketers
    inherently and offensively intrude on residential privacy much more than
    more general forms of communication, because the targeted resident cannot
    avoid the picketers' message in his own home.    
    Id. The Court
    concluded the
    anti-picketing ordinance was narrowly tailored, as it sought to eliminate
    the "evil" of subjecting a resident to unwanted and
    -10-
    unavoidable speech.          
    Id. at 487.
    More recently, the Supreme Court decided the constitutionality of an
    injunction prohibiting several activities of abortion protesters.                    One
    provision of the injunction prohibited protesters from "congregating,
    picketing, patrolling, demonstrating or entering" any portion of the public
    right-of-way or private property within thirty-six feet of the property
    line of an abortion clinic.         
    Madsen, 114 S. Ct. at 2522
    .         The Court first
    decided that an injunction is subject to a more rigorous standard than an
    ordinance.      
    Id. at 2525.
        The Court explained that it applied more rigorous
    scrutiny to an injunction which restricts expression than to legislation
    which     does so because "[i]njunctions . . . carry greater risks of
    censorship and discriminatory application than do general ordinances."               
    Id. at 2524.
          An injunction must not burden "more speech than necessary to
    serve a significant government interest."            
    Id. at 2525.
    The    Court   then    upheld   the   provision   of   the    injunction   which
    prohibited picketing within thirty-six feet of the clinic's entrance and
    driveway.       
    Id. at 2526-27.
        The Court concluded that the buffer zone did
    not burden more speech than necessary to accomplish the government interest
    in protecting access to the clinic and facilitating traffic flow on the
    street.       
    Id. at 2527.
       The Court struck down, however, the thirty-six foot
    buffer zone enforced on the back and side of the clinic.              
    Id. at 2528.
      The
    Court reasoned that there was no evidence that the protesters on the
    clinic's back and side obstructed access to the clinic, blocked traffic,
    or unlawfully interfered with the clinic's operation.                Thus, this portion
    of the buffer zone failed to serve the identified interests.                
    Id. The Court
    also struck down two other parts of the injunction. One
    part of the injunction prohibited picketing, demonstrating, or using sound
    amplification equipment within 300 feet of the
    -11-
    residences of clinic staff, and also prohibited protesters from impeding
    access to any street that provides the sole access to streets for those
    residences.        
    Id. at 2522.
       Although the Court reiterated the important
    government interest in protecting the tranquility and privacy of the home,
    
    id. at 2529-30,
    the Court concluded the 300-foot zone was too large, 
    id. at 2530.
       The Court distinguished the 300-foot zone from the zone approved
    in Frisby, stating that the prohibition in Frisby was "limited to ``focused
    picketing taking place solely in front of a particular residence.'                     By
    contrast,     the    300-foot    zone   would    ban   '[g]eneral   marching    through
    residential neighborhoods, or even walking a route in front of an entire
    block of houses.'"          
    Id. at 2530
    (quoting 
    Frisby, 487 U.S. at 483
    ).            The
    Court held that the record did not justify the 300-foot buffer zone, and
    suggested that "a limitation on the time, duration of picketing, and number
    of pickets outside a smaller zone could have accomplished the desired
    result."     
    Id. The protesters
    do not argue that the Clive picketing ordinance fails
    the content-neutrality test.            The protesters contend that the Clive
    ordinance fails because it is not narrowly tailored and does not leave open
    ample alternatives for communication.              The protesters contend that the
    ordinance is much broader than that approved in Frisby on several grounds.
    First, they contend that the ordinance is not narrowly tailored because it
    prohibits picketing on both sides of the targeted residence, and prevents
    protesters from even passing by the targeted residence or the houses on
    each side.    Next, the protesters contend that the ordinance is not narrowly
    tailored because it prohibits all expressive activity, including prayer,
    within the three-house zone.        Finally, the protesters say the ordinance is
    not narrowly tailored because it applies to the picketing of commercial
    establishments, if the commercial establishment happens to be next door to
    a   residence,      which    violates   our     decision   in   Pursley   v.   City    of
    Fayetteville, 
    820 F.2d 951
    , 956-57 (8th Cir. 1987).                 We address these
    grounds in turn.
    -12-
    The protesters contend that under Frisby, the maximum space that free
    speech can be totally banned in a residential area is the area "solely in
    front of a particular 
    residence." 487 U.S. at 483
    . As additional support,
    the protesters rely on language from Madsen explaining that Frisby only
    prohibited "focused picketing taking place solely in front of a particular
    residence."   
    Madsen, 114 S. Ct. at 2530
    (quoting 
    Frisby, 487 U.S. at 483
    ).
    Finally, the protesters cite for support a decision from the Sixth Circuit,
    Vittitow v. City of Upper Arlington, 
    43 F.3d 1100
    (6th Cir.), cert. denied,
    
    115 S. Ct. 2276
    (1995), and a decision from this circuit, Kirkeby v.
    Furness, 
    52 F.3d 772
    (8th Cir. 1995).
    In Vittitow, the Sixth Circuit reviewed an ordinance similar to the
    Clive ordinance.   The ordinance prohibited picketing in front of a targeted
    home, and the two homes on either side of the targeted home.   
    Id. at 1101.
    The district court issued an order preliminarily enjoining the city from
    enforcing the ordinance as written.     
    Id. at 1102.
      The court provided,
    however, for conditional enforcement of the ordinance.     The court stated
    that the city could prevent the protesters from picketing in front of the
    doctor's home and the two homes on either side of the doctor's home.8   
    Id. at 1103.
      The Sixth Circuit concluded that the ordinance, as written, was
    inconsistent with Frisby and Madsen, making "suspect," if not prohibiting
    outright, a ban on picketing which extends "beyond the area solely in front
    of a particular residence."    
    Id. at 1105
    (internal quotations omitted).
    In Kirkeby, this court considered a residential picketing ordinance
    enacted by the city of Fargo, North Dakota, which banned picketing within
    200 feet of a residential dwelling and in "restricted picketing 
    zones." 52 F.3d at 773-74
    .   We concluded
    8
    It is impossible to tell from the wording of the injunction
    in Vittitow if the injunction created a three-house zone like the
    Clive ordinance or a five-house 
    zone. 43 F.3d at 1105
    , n.6.
    -13-
    that the protesters were entitled to a preliminary injunction enjoining
    enforcement of the ordinance.   
    Id. at 775-76.
       In considering whether the
    protesters were likely to succeed on the merits, we first concluded that
    the 200-foot zone was unconstitutional on its face under the combined
    authority of Frisby and Madsen as "almost certainly too restrictive of the
    right to speak freely in public."   
    Id. at 774.
      We concluded that the 200-
    foot zone made the case "much closer to Madsen than to Frisby.   
    Id. at 775.
    We characterized the zone picketing provisions as "even more dubious."   
    Id. at 775.
       The zone picketing provisions authorized the Board of City
    Commissioners to establish a restricted picketing zone in a neighborhood
    for up to one year.   
    Id. at 774.
       We concluded that the zones were not
    narrowly tailored to accomplish the permissible goals of the ordinance.
    
    Id. at 776.
    The protesters read the Supreme Court's decisions in Frisby and
    Madsen and our decision in Kirkeby to allow an absolute ban on picketing
    only in the area directly in front of the targeted residence.9           The
    9
    The Supreme Court recently granted certiorari from the Second
    Circuit's decision in Pro-Choice Network v. Schenck, 
    67 F.3d 377
    (2d Cir. 1995) (en banc), cert. granted, 
    116 S. Ct. 1260
    (1996).
    In that case, the Second Circuit considered the constitutionality
    of two provisions of an injunction directed to abortion clinic
    protesters.    
    Id. at 381.
        The Second Circuit first upheld a
    provision of the injunction establishing a fifteen-foot buffer
    zone.    
    Id. at 387.
       The buffer zone required demonstrators to
    remain at least fifteen feet from all entrances to the abortion
    clinic as well as women and staff seeking access to the clinic
    except that two "counselors" could enter the buffer zone to engage
    in "non-threatening conversation" with each person or group of
    persons approaching or leaving the clinic. 
    Id. at 387.
    The Second
    Circuit rejected the protesters' argument that the fifteen-foot
    buffer zone is more burdensome than necessary, concluding that the
    zone was consistent with Madsen. 
    Id. at 390.
    The Second Circuit also upheld the "cease and desist"
    provision   of  the   injunction,  prohibiting   protesters  from
    "counseling" patients within the zones when the patient expresses
    a desire to be left alone. 
    Id. at 390,
    392. The court rejected
    the argument that the provision was overbroad and found the
    provision necessary to protect access to abortions and to protect
    the well-being of women seeking access to abortion services. 
    Id. -14- protesters
    say that any prohibition which goes
    at 392-93. The Supreme Court's decision in Pro-Choice Network will
    be, at best, only instructive because the case involves an
    injunction, not an ordinance, and also considers a buffer zone
    around a clinic, not a home.
    -15-
    beyond the area solely in front of the targeted residence is not narrowly
    tailored.    The protesters characterize Frisby as permitting a very limited
    ban:   "only focused picketing taking place solely in front of a particular
    
    residence." 487 U.S. at 483
    .    The protesters complain that the Clive
    ordinance condemns not only those who demonstrate in front of a targeted
    residence and the adjacent houses, but also the individuals who merely pass
    by the targeted residence and the adjacent houses.
    We do not read Frisby as establishing a bright-line rule authorizing
    a limit on picketing only in the area directly in front of a targeted
    residence.    The Court's concern in Frisby was not so much the size of the
    prohibited zone, but the impact the ban had on protected activity.              The
    Court stressed that the ordinance applied to picketing "focused on" and
    "directed at" a particular residence.           
    Id. at 482
    -83.    The Court found
    residential    picketing    different    from    other   forms   of   communicative
    activities, such as door-to-door solicitation and the distribution of
    handbills, because the targeted resident cannot avoid the picketers.            The
    Court emphasized:     "[t]here simply is no right to force speech into the
    home of an unwilling listener."    
    Id. at 485.
         Although the Court in Madsen
    repeated the language that Frisby prohibited only "focused picketing taking
    place solely in front of a particular residence," the Court considered an
    injunction, not an ordinance, and a 300-foot buffer zone, not an area
    covering the particular residence and the two adjacent houses.            Nor do we
    believe our decision in Kirkeby defined the outer limits of focused
    residential picketing.     Indeed, we recently concluded that police officers
    were entitled to qualified immunity for arresting protesters, who were
    picketing
    -16-
    houses adjacent to the targeted dwelling, pursuant to the Fargo, North
    Dakota, residential picketing ordinance.           Veneklase v. City of Fargo, 
    78 F.3d 1264
    , 1267-68 (8th Cir. 1996).          We acknowledged that Frisby did not
    resolve   the   question   of   whether    an    ordinance   may    restrict   abortion
    protesters from picketing houses adjacent to the targeted dwelling.                
    Id. at 1268-69.
    Obviously, there is a direct relationship between the size of the
    prohibited zone and the impact on protected speech.10              Nevertheless, we do
    not read Frisby as requiring us to strike down the ordinance as not
    narrowly tailored simply because the ordinance extends beyond the area
    solely in front of the targeted residence.
    Rather, the question is whether the ordinance is specifically aimed
    at protecting the residents of Clive from unwanted and unavoidable speech
    and does not sweep within its ambit other activities that constitute an
    exercise of First Amendment rights.        
    Frisby, 487 U.S. at 483
    -88.         See also
    Ward v. Rock Against Racism, 
    491 U.S. 781
    , 799-800 & n.7 (1989); Thornhill
    v. Alabama, 
    310 U.S. 88
    , 97 (1940).        We are satisfied that the three-house
    zone is narrowly tailored.      Unlike the injunctions in Madsen and Kirkeby,
    the picketing ordinance allows picketing through the neighborhood and on
    the sidewalk directly across from the targeted residence.                Although the
    ordinance prohibits protesters from standing directly in front of the
    targeted residence and the residences on each side, the ordinance does not
    prohibit the picketers from picketing on the sidewalk directly across the
    street    from those three houses.          The protesters' argument that the
    ordinance prevents them from "passing by" the targeted residence is
    foreclosed by the district court's interpretation, following Frisby, that
    the ordinance applies only to "focused" 
    picketing. 487 U.S. at 483
    .
    Moreover, in Frisby, the protesters congregated only in front of the
    targeted physician's
    10
    Dr. Remer's former home and the adjacent houses sit on lots
    75 feet in width.
    -17-
    
    home. 487 U.S. at 476
    .     Here, the protesters congregated not only in front
    of Dr. Remer's home, but also in front of his neighbor's homes.                            Dr.
    Remer's    neighbors      objected    to     the    protesters    and    the     protesters
    interference with their "domestic peace and tranquility."                      Many of Dr.
    Remer's neighbors signed a petition stating that the protesters prevented
    them from "go[ing] about our own daily activities."                   There was evidence
    that at least on one occasion one of the protesters used binoculars to look
    into the Remer residence from the sidewalk across the street from the
    residence.      The extension into the adjacent 75 foot lots is only slightly
    more than the 36 foot buffer zone approved in Madsen.              More significantly,
    however, is that the ordinance is limited to the particular focus of the
    picketing and the houses on each side.                Thus, the record supports the
    conclusion that the ordinance is narrowly tailored to serve an important
    government interest.
    Although the Sixth Circuit decision in Vittitow is not binding on
    this court, we do not believe it is entirely inconsistent with our holding.
    In that case, the Sixth Circuit interpreted the ordinance to result in a
    "complete ban on residential 
    picketing." 43 F.3d at 1107
    .      As discussed,
    the Clive ordinance does not result in a complete ban on residential
    picketing.          In   addition,    Vittitow,       like     Madsen,     involved       the
    constitutionality of an injunction, not an ordinance.              As the Supreme Court
    instructed, an injunction must be more precise than an ordinance.                   
    Madsen, 114 S. Ct. at 2524-25
    .           An injunction must "burden no more speech than
    necessary," 
    id. at 2525,
    while an ordinance must only be "narrowly
    tailored," 
    Frisby, 487 U.S. at 482
    .
    The protesters also contend that the ordinance is not narrowly
    tailored     and    fails   to    leave    open     ample    alternative       channels     of
    communication because the ordinance prohibits all modes of communication
    within    the    three-structure     zone,    not   just    focused   picketing.          They
    characterize       the   ordinance   as    prohibiting      all   expressive      activity,
    including prayer, within the three-structure
    -18-
    zone.    They contend that banning all expressive activity does not line up
    with Frisby, which permits only a ban on focused picketing, and also
    violates the Free Exercise Clause.
    We reject the protesters' construction of the ordinance.    The only
    protected activity the ordinance prohibits is picketing directly in front
    of the targeted resident's home and directly in front of the house on each
    side of the targeted residence.      "Picketing" does not require that the
    protesters carry a sign, 
    Frisby, 487 U.S. at 483
    , and "picketing" can
    include a wide variety of activities, including prayer, see 
    id. at 486
    (defining the conduct falling within the picketing ordinance as conduct not
    for the purpose of disseminating a message to the general public, but for
    the purpose of intruding on the targeted resident).       The protesters can
    picket, march, preach, or pray anywhere in the residential area except in
    the three-structure zone.       Indeed, the protesters can picket, march,
    preach, or pray directly across the street from the targeted house and the
    house on each side of the targeted house.     The ordinance preserves ample
    alternative channels of communication.
    We are unpersuaded by the protesters' argument that the ordinance is
    particularly offensive because it prohibits prayer within the three-
    structure zone.     The protesters' prayer was only part of a pattern of
    conduct "focused on" and "directed at" the targeted residence.   See 
    Frisby, 487 U.S. at 482
    -83.     The Supreme Court rejected an analogous argument in
    Cox v. New Hampshire, as "beside the point," concluding that a parade
    permit ordinance did not interfere "with religious worship or the practice
    of religion in any proper sense . . . [and] only [constituted] the exercise
    of local control over the use of streets . . . ."         
    312 U.S. 569
    , 578
    (1941).
    Finally, we reject the protesters' argument that the ordinance is not
    narrowly tailored because it applies to picketing of
    -19-
    commercial establishments.           First, the Clive ordinance, on its face, does
    inance restricts itself to
    "one            on either side of a residence or dwelling."         Second, this court
    Pursley v. City of Fayetteville before the Supreme Court decided
    Fri     , and therefore,                's viability is at least suspect.          Third,
    is no suggestion in the record that the City applies the ordinance
    commercial establishments.                 Ward                                     g
    plaint              argument in light of city's policy in administering the
    III.
    The          esters next contend that the parade permit ordinance is an
    A prior restraint on the exercise of First Amendment rights bears "a heavy
    tion against its constitutional validity."                                      l
    Amus           Co., 
    445 U.S. 308
    , 317 (1980) (per curiam).                  Nevertheless
    certain restrictions on speech in public places are valid.                    A city ma
    issue                                                                                     f
    speech.       See   e.g.,        , 491 U.S. at 791.     Such regulations, however, must
    to a government official,"
    Forsyth                                             , 
    505 U.S. 123
    , 130 (1992), and
    ntain narrow, objective, and definite standards to guide licensin
    authorities.         Shuttlesworth v. City of Birmingham, 
    394 U.S. 147
    , 150-5
    (1969).       A permit requirement controlling
    speech    must      also    be   content-neutral,     narrowly   tailored    to   serve
    significant                                                                               e
    channels for communication.                , 491 U.S. at 791.
    A.
    The protesters first attack the parade ordinance on the ground that
    protesters point out that the Chief of Police can stifle free speech under
    the guise of determining that "the time, route or size" of the parade "will
    disrupt"   the    use    of   any     street    ordinarily    subject   to    "significant
    congestion or traffic."             The protesters complain that there are no
    standards to guide the Chief of Police in determining if the route, time,
    or size of the parade will be disruptive.                 For example, the protesters
    contend that the Chief of Police can simply deny the permit based on his
    belief that the proposed timing of a controversial event will disrupt the
    use of a main street, and therefore, apply the exception in a content-based
    fashion.
    In Cox v. New Hampshire, the Supreme Court recognized that a city may
    control the use of its public streets for parades "to promote the public
    convenience in the interest of all," so long as the control does not "deny
    or unwarrantedly abridge the right of assembly" and the opportunity for the
    exchange of ideas "immemorially associated with . . . public 
    places." 312 U.S. at 574
    .     The Court authorized a permit requirement in order to provide
    the   public   with     notice   of    the     parade   and   to   assure    proper   police
    protection, thereby minimizing the inconvenience to the public caused by
    the parade.      
    Id. at 576.
           The state supreme court construed the parade
    permit statute to require the licensing authority to issue a permit to
    anyone who applied, subject only to the licensing authority's ability to
    specify the "time, place and manner" of the parade in order to accommodate
    competing demands for the public use of the streets.                The Court emphasized
    that there was no evidence that the City had administered the statute other
    than in a fair and non-discriminatory 
    manner. 312 U.S. at 577
    .
    In Shuttlesworth, the Court invalidated a parade permit ordinance
    which allowed the City to deny a permit whenever the City                     thought "the
    public welfare, peace, safety, health, decency, good order, morals or
    convenience require[d] that it be 
    refused." 394 U.S. at 156
    .      Despite the
    Alabama Supreme Court's construction of
    -21-
    the ordinance as an "objective and even-handed regulation of traffic,"
    at                                                                           e
    ordinance had been administered to "deny or unwarrantedly abridge the right
    emorially associated with . . . public places,"     
    id. Cox, 312
    U.S. at 574).
    Court struck down a parade permit imposing a permit fee i
    Forsyth 
    County, 505 U.S. at 130
    .    The ordinance
    thousand dollars for each day "such parade, procession, or open air public
    shall take place."        at 126.   Because the ordinance did not
    rds for prescribing the amount of the permit fee and
    allowe     the administrator to examine the content of the prospective
    message in assessing the fee, the Court invalidated the ordinanc
    as vesting "unbridled discretion in a government official."        
    Id. The Clive
    parade permit is not as opaque as the protesters suggest.
    s the Chief of Police to issue the permit unless the
    time,         , or size of the parade will disrupt the use of a street
    traffic."   This exception
    is                                 the time, route, and size of the parade.
    Cf. Forsyth County                                                           e
    Chief        Police to consider the content or purpose of the parade.
    applied the parade permit
    ordinance so as to restrict freedom of speech or assembly rights.
    The prot                                                             o
    muc     discretion to the Chief of Police because it allows the Chief of
    ivities.   Because the City
    has                                                                          e
    pro          argue that the City can select one application over another,
    It is true that the ordinance does not prioritize competing permit
    applications.     Nevertheless, there is no evidence or indication that the
    City has administered the permit requirement so as to pick and choose over
    competing applications based on content.   The Chief of Police submitted an
    affidavit stating that he does not intend to use "the two day approval
    window to seek out other applicants so that a proposed parade by Operation
    Rescue . . . could be denied on grounds of conflict or use the provision
    in any other way to censor or burden the speech of Operation Rescue or
    anyone else."     Moreover, the ordinance states that the second exception
    applies only if a parade permit "already" has been granted.        The City
    states in its brief that the only way the exception can be administered is
    to issue permits on a "first-in, first-out" basis.     There is no evidence
    or indication that the City will manipulate the ordinance as suggested by
    the protesters.    See Poulos v. New Hampshire, 
    345 U.S. 395
    , 404-08 (1953).
    The protesters allege that the third exception, allowing the Chief
    of Police to deny a permit on the basis that the proposed parade violates
    another law or ordinance, creates the greatest danger of censorship because
    this provision allows the Chief of Police to deny a permit based on his
    opinion that future conduct will be unlawful.
    In Hague v. Committee for Industrial Organization, the Supreme Court
    struck down a parade permit ordinance which authorized a public official
    to deny a parade permit if the official thought the proposed conduct would
    cause a riot, disturbance, or disorderly assemblage.    
    307 U.S. 496
    , 502 &
    n.1 (1939).   Although recognizing that the City had a substantial interest
    in protecting streets and parks for the use of all, the ordinance did "not
    make comfort or convenience in the use of streets or parks the standard of
    official action."     
    Id. at 516
    (opinion of Roberts, J., joined by Black,
    J.); 
    Poulos, 345 U.S. at 407-08
    ("we have consistently condemned licensing
    systems which vest in an administrative official
    -23-
    discretion to grant o
    proper                                                                            n
    omitted)).                                                                        e
    believ        that the parade would cause riots, disturbances, or disorderly
    The exception in the Clive ordinance, however, is aimed at
    public places, not speech.       The Chief of Police may not apply
    exception based on his belief that the proposed parade might caus
    unlawful                                                                          y
    when, on its face, the proposed parade will viol
    B.
    The                                                                       t
    narrowly tailored bec
    that                                                                               y
    legitimate                                                                         .
    .                     event occurs, it is often necessary to have one's voice
    heard promptly, if it is to be considered at all."          Shuttlesworth         .
    at 163 (Harlan, J., concurring).
    support, the protesters cite                                    , 33
    1200 (9th Cir. 1994), and                                  , 
    743 F.2d 1346
          h Cir. 1984).    In           , the Ninth Circuit struck down a parade
    it ordinance requiring seven-days advance notice for permission t
    participate                                                                       t
    1204.                           infirmities with the ordinance, the seven-day
    del      and    the   application   of   the    ordinance   to   small   groups   of
    rators.        at 1206.   The court resolved:       "Some type of permit
    may be justified in the case of larg
    placed on park facilities and the
    park users is more substantial," 
    id. mply cannot
    agree that six
    to eight people carrying signs in a public park constituted
    -24-
    enough of a threat to the safety and convenience of park users . . . to
    justify the restrictions imposed on their speech . . . ," 
    id. at 1207.
                   In
    Richmond, the court struck down a twenty-day notice requirement, concluding
    the requirement was not the least restrictive means for protecting the
    City's interest in regulating 
    traffic. 743 F.2d at 1355-57
    .
    The district court concluded that the City could impose the five-day
    notice requirement reasoning that the City's limited resources and small
    police force justified the requirement.            We are convinced, however, that
    the five-day notice requirement is not narrowly tailored.                   In City of
    Richmond, the court compared the twenty-day notice requirement with the
    notice requirements of other cities.            
    Id. at 1357.
      The court pointed out
    that there is "no basis in logic for cities to demand notice far in advance
    of parades.      Policemen and newsmen are frequently deployed on less than two
    days   notice," 
    id. at 1357
    (citing Vince Blasi, Prior Restraints on
    Demonstrations, 
    68 Mich. L
    . Rev. 1482, 1526 (1970)), and that "[t]he only
    advance notice requirements to be upheld by courts have been dramatically
    shorter than 20 days," referring to cities with one, two, and three day
    notice requirements, and some with no notice requirements at all.                   
    Id. (citing cases
    with notice requirements of no more than two days).                    The
    five-day notice requirement restricts a substantial amount of speech that
    does not interfere with the city's asserted goals of protecting pedestrian
    and    vehicle    traffic,   and    minimizing     inconvenience     to   the   public.
    Accordingly,      we   conclude    that   the   parade   ordinance   is   not   narrowly
    tailored.
    We are also concerned about the application of the permit requirement
    to groups of ten or more persons.         We entertain doubt whether applying the
    permit requirement to such a small group is sufficiently tied to the City's
    interest in protecting the safety and convenience of citizens who use the
    public sidewalks and streets.         See 
    Cox, 312 U.S. at 576
    (recognizing that
    permit
    -25-
    requirement, applied to a "parade or procession" of five groups of fifteen
    st of public convenience).
    See also              , 33 F.3d at 1207 n.13 (comparing the Portland ordinance
    the participant requirements of other cities, and concluding that the
    cities' ordinances which, in general, had participant requirements
    at least 50 persons, "appear much more narrowly tailored"); Rosen v
    Port of P             , 
    641 F.2d 1243
    , 1248 n.8 (9th Cir. 1981) (stating that
    if 24-hour notice requirement were justified for large groups, it
    regulating small groups.)   We need say little more,
    as             otesters have not raised this issue.     We only point out that
    the permit requirement to groups as small as ten persons compound
    our conclusion that the parade permit ordinance is not narrowly tailored.
    reverse the district court's ruling on the constitutionality of
    11
    The p                                                                 e
    ordinance         The protesters cite the City's denial of an April 21, 1993,
    rmit application as an illustration of the City's unconstitutiona
    application                                                                   t
    to           uct a parade on N.W. 100th Place, and did not mention Dr. Remer.
    11
    The protesters also argue th
    tailored                                                                     l
    safeg       in the event the City denies their permit.                The City
    receiving the application, allowing a disappointed applicant three
    e five-
    day    tal delay is unconstitutional, the City's argument is not
    is granted a reasonable period to rule on a permit application.
    Slate v. McFetridge, 
    484 F.2d 1169
    , 1177 (7th Cir. 1973).
    the marchers planned to pray, sing, and read from the Bible, but that they
    would not picket.      The Chief of Police denied the permit on the ground that
    the parade violated the residential picketing ordinance.        The protesters
    argue that if the Chief of Police evaluated the application on its face,
    the Chief had no choice but to grant the permit because it was clearly
    speculation as to whether the protesters would violate the residential
    picketing ordinance.        The protesters also argue that the ordinance is
    unconstitutional because of unequal enforcement, particularly referring to
    a 10-kilometer running race through Clive, co-sponsored by the City, which
    was not subject to the parade permit process.         Because we have held the
    parade ordinance to be unconstitutional on its face, we need not reach
    these issues.
    IV.
    In conclusion, we reverse the district court's ruling that the case
    is moot.   We reverse the district court's alternative ruling upholding the
    parade ordinance, and hold the parade ordinance is unconstitutional.        We
    affirm     the   district     court's   alternative   ruling   upholding   the
    constitutionality of Clive's picketing ordinance.
    A true copy.
    Attest:
    CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
    -27-
    

Document Info

Docket Number: 95-2234

Citation Numbers: 88 F.3d 1511

Judges: Beam, Gibson, John, McMILLIAN

Filed Date: 7/9/1996

Precedential Status: Precedential

Modified Date: 10/19/2024

Authorities (24)

Thornhill v. Alabama , 60 S. Ct. 736 ( 1940 )

Cox v. New Hampshire , 61 S. Ct. 762 ( 1941 )

Golden v. Zwickler , 89 S. Ct. 956 ( 1969 )

Gregory v. City of Chicago , 89 S. Ct. 946 ( 1969 )

Valley Forge Christian College v. Americans United for ... , 102 S. Ct. 752 ( 1982 )

Frisby v. Schultz , 108 S. Ct. 2495 ( 1988 )

Forsyth County v. Nationalist Movement , 112 S. Ct. 2395 ( 1992 )

dr-dow-pursley-dr-doty-murphy-rev-mark-brooks-and-rev-paul-sagan-v , 820 F.2d 951 ( 1987 )

tammie-mcfarlin-pinkey-mcfarlin-as-next-friends-of-christy-hardaway-a , 980 F.2d 1208 ( 1992 )

kathleen-kirkeby-david-habiger-martin-wishnatsky-and-timothy-lindgren-v , 52 F.3d 772 ( 1995 )

pro-choice-network-of-western-new-york-buffalo-gyn-women-services-erie , 67 F.3d 377 ( 1995 )

Lewis v. Continental Bank Corp. , 110 S. Ct. 1249 ( 1990 )

naacp-western-region-and-berkeley-albany-richmond-kensington-chapter , 743 F.2d 1346 ( 1984 )

Charlotte Bueford v. Resolution Trust Corporation, as ... , 122 A.L.R. Fed. 815 ( 1993 )

Boos v. Barry , 108 S. Ct. 1157 ( 1988 )

Martin Slate v. William F. McFetridge , 484 F.2d 1169 ( 1973 )

Ward v. Rock Against Racism , 109 S. Ct. 2746 ( 1989 )

Shuttlesworth v. City of Birmingham , 89 S. Ct. 935 ( 1969 )

Madsen v. Women's Health Center, Inc. , 114 S. Ct. 2516 ( 1994 )

Sean Beck, by His Parent and Next Friend Marlene Beck v. ... , 18 F.3d 604 ( 1994 )

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