City of Seven Hills v. Aryan Nations , 76 Ohio St. 3d 304 ( 1996 )

Cook, J.

This case presents the single issue of whether the permanent injunction’s prohibition on simultaneous picketing by groups with opposing viewpoints violates the United States Constitution’s guarantee of free speech.¹ Seven Hills does not appeal the ruling that the ordinance was unconstitutional, nor does Weiss challenge the injunction’s registration requirements, time restrictions, or limitation on the number of picketers. For the following reasons, we reverse the court of appeals and find that the trial court abused its discretion in completely banning simultaneous expression of contrary views.

It is well settled that picketing is a “pristine and classic” exercise of First Amendment freedoms, Edwards v. South Carolina (1963), 372 U.S. 229, 235, 83 S.Ct. 680, 683, 9 L.Ed.2d 697, 707, striking at the core of our nation’s commitment to the principle that “debate on public issues should be uninhibited, robust, and wide-open.” New York Times Co. v. Sullivan (1964), 376 U.S. 254, 270, 84 S.Ct. 710, 721, 11 L.Ed.2d 686, 701. While citizens do not enjoy the absolute right to free speech, neither does the state enjoy the absolute right to regulate speech. Rather, the degree to which a state may regulate speech depends upon the place of that speech. Frisby v. Schultz (1988), 487 U.S. 474, 479, 108 S.Ct. 2495, 2500, 101 L.Ed.2d 420, 428, citing Perry Edn. Assn. v. Perry Local Educators’ Assn. (1983), 460 U.S. 37, 44, 103 S.Ct. 948, 954, 74 L.Ed.2d 794, 804. In this case, the picketing takes place on the street in front of Demjanjuk’s home, a traditional or “quintessential” public forum regardless of its physical narrowness and residential character. See Frisby, 487 U.S. at 481, 108 S.Ct. at 2500, 101 L.Ed.2d at 429.

The constitutionality of restrictions on speech in a public forum is measured by whether the particular restriction is content-based or content-neutral. Perry Edn. Assn., 460 U.S. at 45, 103 S.Ct. at 955, 74 L.Ed.2d at 804. Content-neutral speech restrictions are those that are “ ‘justified without reference to the content of the regulated speech.’ ” Ward v. Rock Against Racism (1989), 491 U.S. 781, 791, 109 S.Ct. 2746, 2753, 105 L.Ed.2d 661, 675, quoting Clark v. Community for Creative Non-Violence (1984), 468 U.S. 288, 293, 104 S.Ct. 3065, 3069, 82 L.Ed.2d 221, 227; Boos v. Barry (1988), 485 U.S. 312, 320, 108 S.Ct. 1157, 1163, 99 L.Ed.2d 333, 344. On the other hand, restrictions that focus on the direct impact of the speech on its audience are properly analyzed as content-based. Boos, 485 U.S. at 321, 108 S.Ct. at 1163-1164, 99 L.Ed.2d at 344.

In determining whether a restriction is content-based or content-neutral, our primary consideration is the purpose of the restriction. Madsen v. Women’s Health Ctr., Inc. (1994), 512 U.S. -, -, 114 S.Ct. 2516, 2523, 129 L.Ed.2d 593, 606; Ward, 491 U.S. at 791, 109 S.Ct. at 2753-2754, 105 L.Ed.2d at 675. In Madsen, the court held that an injunction which restricted speech by antiabortion picketers was not content-based because it was premised on that group’s repeated violations of court orders. 512 U.S. at -, 114 S.Ct. at 2523-2524, 129 L.Ed.2d at 606. Because the restrictions were remedial in nature and thus incidental to the speech, the court determined that the injunction was content-neutral. Id. We find that the prohibition on simultaneous picketing by groups with opposing viewpoints in the present case focuses directly upon the impact the speech will have on its audience rather than on the prior misconduct of the speakers. Therefore, we analyze this injunction as content-based.

Seven Hills sought the prohibition at issue because of the potential for serious problems if two antagonistic groups, such as the KKK and the CJC, demonstrated simultaneously. The primary justification for seeking this portion of the injunction was Seven Hills’ fear of a hostile reaction among listeners. The speech restriction in this case is directly related to the speech’s impact on listeners rather than being incidental to the purpose. “Listeners’ reaction to speech is not a content-neutral basis for regulation.” Forsyth Cty., Georgia v. Nationalist Movement (1992), 505 U.S. 123, 134, 112 S.Ct. 2395, 2403, 120 L.Ed.2d 101, 114, citing Boos, 485 U.S. at 321, 108 S.Ct. at 1163, 99 L.Ed.2d at 344.

Moreover, the prohibition on counterdemonstration in the present case is not based on the prior misconduct of the parties, as was the content-neutral injunction in Madsen. Here, there have been no arrests, no threats of arrest, no violence, no injuries, and no violations of the temporary or preliminary injunctions. To the contrary, the KKK and CJC have engaged only in peaceful picketing. Rather than being a remedial injunction to correct past misconduct, the injunction in this case is prospective, applying to all groups regardless of past conduct.

This content-based injunction may also be properly characterized as a prior restraint upon speech. See Northeast Women’s Ctr., Inc. v. McMonagle (C.A.3, 1991), 939 F.2d 57, 63. “The term prior restraint is used ‘to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur.’ M. Nimmer, Nimmer on Freedom of Speech § 4.03, p. 4r-14 (1984) (emphasis added). * * * [Pjermanent injunctions — i.e., court orders that actually forbid speech activities — are classic examples of prior restraints.” Alexander v. United States (1993), 509 U.S. 544, 550, 113 S.Ct. 2766, 2771, 125 L.Ed.2d 441, 450.

Having determined that the injunction in this case is a content-based restriction in a public forum, we now turn to the standard to apply in determining whether it is a constitutionally permissible restriction. We initially note that a prior restraint on speech carries a “ ‘heavy presumption’ against its constitutional validity.” Organization for a Better Austin v. Keefe (1971), 402 U.S. 415, 419, 91 S.Ct. 1575, 1578, 29 L.Ed.2d 1, 5; New York Times Co. v. United States (1971), 403 U.S. 713, 723, 91 S.Ct. 2140, 2146, 29 L.Ed.2d 822, 830. Content-based restrictions in a public forum are also subjected to the most exacting scrutiny. Boos, 485 U.S. at 321, 108 S.Ct. at 1164, 99 L.Ed.2d at 345. To be victorious, Seven Hills must show that the “regulation is necessary to serve a compelling state interest and * * * is narrowly drawn to achieve that end.” Perry Edn. Assn., 460 U.S. at 45, 103 S.Ct. at 955, 74 L.Ed.2d at 804.

We first consider whether the restriction advances a compelling government interest. The court of appeals, in applying an intermediate level of scrutiny for content-neutral restrictions, found “beyond question” that Seven Hills demonstrated a “significant government interest” justifying the challenged provisions— the “protection of its citizens by preventing potentially dangerous confrontations from occurring in a residential neighborhood.” (Emphasis added.) Weiss concedes, as he must, that Seven Hills has a “ ‘strong interest in ensuring public safety and order.’ ” Nonetheless, he argues that avoiding a potential threat to public order through provocative speech is not a compelling government interest. We agree.

An essential function of free speech is to invite dispute. Terminiello v. Chicago (1949), 337 U.S. 1, 4, 69 S.Ct. 894, 896, 93 L.Ed. 1131, 1134. Speech may “best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. * * * [F]reedom of speech, though not absolute, * * * is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.” Id.

The United States Supreme Court has repeatedly affirmed the proposition that speech cannot be prohibited because it risks inciting others to violence unless there is a clear and present danger of imminent violence or lawlessness. See Schenck v. United States (1919), 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470, 473-474; Cantwell v. Connecticut (1940), 310 U.S. 296, 308, 60 S.Ct. 900, 905, 84 L.Ed. 1213, 1220; Fed. Communications Comm. v. Pacifica Found. (1978), 438 U.S. 726, 745, 98 S.Ct. 3026, 3038, 57 L.Ed.2d 1073, 1090. Speech may be suppressed only if it is both directed to inciting imminent lawless action and likely to produce such action. Brandenburg v. Ohio (1969), 395 U.S. 444, 447, 89 S.Ct. 1827, 1829, 23 L.Ed.2d 430, 434; Texas v. Johnson (1989), 491 U.S. 397, 409, 109 S.Ct. 2533, 2542, 105 L.Ed.2d 342, 357. Accordingly, avoiding the potential for violence is not a compelling government interest.

Furthermore, evidence presented at the hearing does not support a finding that violence or lawlessness was either likely or imminent. Seven Hills relies on the protestors’ reputation for violence and prior violent behavior in Cleveland and Columbus to support a finding of imminent violence in Seven Hills. However, none of the protestors at Seven Hills engaged in violence, threatened violence, was arrested, or violated police or court orders. The Grand Dragon of the Ohio branch of the KKK, the group that actually protested at the Demjanjuk residence, testified, “It would be possible [to protest at the same time] because we can contain ourselves. If they can contain theirselves [sic ], that’s fine.” He further testified that other branches of the KKK “probably wouldn’t become violent unless somebody brought them on to it.” Weiss also testified that he was committed to nonviolent protest. Protests between antagonistic groups in other cities actually support the contention that violence was not imminent in Seven Hills — no arrests were made during the Cleveland incident, nor was the Ohio branch of the KKK involved in the Columbus incident. The evidence presented by Seven Hills lacks the immediacy and specificity necessary to show that violence or lawlessness was likely and imminent.

Seven Hills also advances the neighborhood residents’ interest in privacy, peace and tranquillity, and the city’s interest in preserving police resources as compelling. Because society should bear the expense of guaranteeing free speech no matter how offensive, the city’s desire to reduce its burden in providing police resources is not a compelling government interest. See Invisible Empire Knights of the KKK v. City of W. Haven (D.Conn.1985), 600 F.Supp. 1427, 1434, citing Wolin v. Port of New York Auth. (1968), 392 F.2d 83, 94 (individuals exercising First Amendment rights are entitled to police protection).

The city’s interest in protecting the “ ‘well-being, tranquility, and privacy of the home’ ” has been recognized as significant. Frisby, 487 U.S. at 484, 108 S.Ct. at 2502, 101 L.Ed.2d at 431, quoting Carey v. Brown (1980), 447 U.S. 455, 471, 100 S.Ct. 2286, 2296, 65 L.Ed.2d 263, 276. However, Frisby limited its consideration to an individual’s right to privacy and well-being within his own home. The court expressly preserved the right of protesters to march through a residential neighborhood or go door-to-door within the residential neighborhood regardless of the residents’ rights to privacy and well-being. Frisby, 487 U.S. at 483-484, 108 S.Ct. at 2502, 101 L.Ed.2d at 431.

Were we, for argument’s sake, to assume that Seven Hills’ interests were compelling, the restriction would nonetheless have to be narrowly tailored to serve those interests. Perry Edn. Assn., 460 U.S. at 45, 103 S.Ct. at 955, 74 L.Ed.2d at 804. The record before us does not support a complete ban on the simultaneous expression of contrary views, but rather demonstrates that lesser, more exact restrictions may achieve the city’s desired results. For example, Seven Hills’ own expert in mob and riot control testified that the Seven Hills police could control the picketers if they were limited in numbers. Because Seven Hills could have achieved its desired results by limiting the number of picketers, the duration of the pickets, or the time of the pickets, we find that the complete prohibition on simultaneous picketing by groups with opposing viewpoints is not narrowly tailored to serve a compelling state interest.

A trial court abuses its discretion where its decision is clearly erroneous and unreasonable. See Alexander v. Mt. Carmel Med. Ctr. (1978), 56 Ohio St.2d 155, 10 O.O.3d 332, 383 N.E.2d 564; Ohio Civ. Rights Comm. v. Case W. Res. Univ. (1996), 76 Ohio St.3d 168, 666 N.E.2d 1376. We hold that in fashioning an injunction limiting picketing in a residential area, a trial court abuses its discretion by completely banning simultaneous picketing by groups expressing contrary views rather than narrowly tailoring the injunction to serve compelling government interests. Accordingly, we reverse the judgment of the court of appeals.

Judgment reversed.

Moyer, C.J., Douglas, Resnick, F.E. Sweeney, Pfeifer and Stratton, JJ., concur. Douglas and Stratton, JJ., separately concur.

1 . The First Amendment to the United States Constitution states, “Congress shall make no law * ** * abridging the freedom of speech * * * ” and is applicable to the states via the Fourteenth Amendment.