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

___________
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
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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
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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
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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
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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
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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
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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
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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.
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