James Vittitow v. City of Upper Arlington , 43 F.3d 1100 ( 1995 )

GUY, J., delivered the opinion of the court, in which KENNEDY, J., joined.

MARTIN, J. (pp. 1107-1112), delivered a separate dissenting opinion.

RALPH B. GUY, Jr., Circuit Judge.

Plaintiffs brought this action against defendant, the City of Upper Arlington, alleging that the City’s enforcement of an ordinance banning residential picketing violated their First Amendment rights. After issuing a preliminary injunction prohibiting enforcement of the ordinance as written, the district court modified its injunction to prohibit residential picketing in front of a targeted home as well as the two homes on either side of the targeted home. Both the plaintiffs and the City appeal the court’s modified injunction. We reverse and remand.

I.

Plaintiffs are anti-abortion activists who reside in Dayton, Ohio. In addition to employing various other tactics, plaintiffs support their cause by means of residential picketing. Plaintiffs engage in such picketing “in order to bring their message to the community and to call the abortionist to repentance and to change what he does for a living for the sake of preborn babies.”

In 1991, plaintiffs began a picketing campaign that had as its target Raymond Robinson, a doctor who lives in Upper Arlington and performs abortions in Dayton. Robinson’s house is on a cul-de-sac that is approximately 465 feet from one end to the other. There are only a few other houses on the same cul-de-sac.

After their initial visit in 1991, plaintiffs again travelled to Robinson’s neighborhood in April 1992. Plaintiffs made numerous passes back and forth in front of four houses, including Robinson’s house. Plaintiffs were then confronted by officers of the Upper Arlington Police Department (UAPD), who ordered plaintiffs to cease picketing. After plaintiffs ignored the order, plaintiffs James and Marisa Vittitow were “arrested” and detained in separate police vehicles. The Vitti-tows were released after the other pieketers agreed to leave the area.

In August 1992, the Upper Arlington City Council responded to citizens’ complaints regarding residential picketing by revising section 517.17 of the City’s codified ordinances to read: “No person shall engage in picketing before or about the residence or dwelling of any individual in this City.”

Plaintiffs returned to Upper Arlington in October 1992.¹ Although the group, which numbered roughly 20,² traversed the entire cul-de-sac, they paid particular attention to the area in front of Robinson’s house. The pieketers spread themselves out and moved slowly, but as Glen Wilier, a UAPD detective, explained, “once they got to the front of Dr. Robinson’s house, the line appeared to compress to some degree.” Wilier added: “They slowed to a very slow pace [in front of Robinson’s home], but however, I wouldn’t describe it as having stopped.”

A police report prepared by UAPD Sergeant Dwight Holcomb recounted:

Dispatched to the area on a report of picketers in the area. On arrival found approx. 20 people with signs concerning abortion. Some signs were directed to the resident who lives at 4556 Benderton Court. The protesters were on the Court and walking directly [in front] of the above address. The protesters were spread out over a distance of approx. 200 feet and continued to walk around the court. A person identified as the group leader and I had a conversation concerning the matter and that I felt there was probable cause to believe a crime was being committed. After a short discussion on the matter, the gentleman took his group and removed them from the court. They continued their march down Rosebury Dr. to Cromp-ton, then came back to their autos. The subjects left the area without incident at 14:20 hours.³

Once plaintiffs left the cul-de-sac, the protest proceeded without incident. Plaintiffs continued to march for approximately 35 minutes, during which only one UAPD officer, Holcomb, stayed at the scene.

Plaintiffs initiated this action on October 29, 1992, seeking declaratory and injunctive relief. In their complaint, plaintiffs claimed that section 517.17, as interpreted and enforced by the City of Upper Arlington, violated their constitutional rights to free speech and assembly on residential streets and sidewalks. In addition, plaintiffs filed a motion for a temporary restraining order or a preliminary injunction. After a hearing was held on plaintiffs’ motion, the district court issued an order preliminarily enjoining the City from enforcing the ordinance as written. The court’s order, however, did provide for conditional enforcement:

Enforcement of the ordinance is subject to the following:

1) Picketers shall continue moving at all times and shall not stop or gather in front of or around any residence;

2) Picketers shall not give undue emphasis to directing their activities to one residence;

3) The presence or absence of signs, banners, etc. shall not in any way diminish or enhance the activities of the picketers;

4) Picketers shall at all times be mindful of the legitimate and compelling interest of the City of Upper Arlington to maintain traffic and safety — particularly as it applies to children. Picketers are directed to obey any legitimate orders of the police concerning the safety of those in the area being picketed;

5) The City of Upper Arlington shall adopt, issue and post appropriate written authority to comply with this Order within thirty (30) days of the issuance of the Court’s pending Opinion and Order.

In issuing its order, the district court noted that a comprehensive order and opinion would be forthcoming. Apparently, the process of crafting an opinion caused the court to rethink its earlier position somewhat. In its opinion, the court explained: “Upon further review of the preliminary injunction, the Court finds that the interests of justice require that the order be sua sponte modified.” Vittitow v. City of Upper Arlington, 830 F.Supp. 1077, 1078 (S.D.Ohio 1993). This modified version stated as follows:

1.Defendants may not prevent plaintiffs from picketing in any particular residential neighborhood, street, or cul-de-sac.

2. Defendants may, however, properly prevent plaintiffs from picketing in front of: (a) the doctor’s home, and (b) the two homes on either side of the doctor’s home.

3. Similarly, defendants may properly prevent plaintiffs or others from picketing in front of: (a) the home of anyone defendants have probable cause to believe is the target, focus or subject of the picketing, as well as (b) the two homes on either side of the home just described.

Id. at 108S.⁴

Both parties appeal this later injunction.

II.

Plaintiffs first contend that the district court’s modified injunction is content-based and that therefore the injunction must be reversed under a strict scrutiny standard. With respect to plaintiffs’ premise, the Supreme Court’s recent decision in Madsen v. Women’s Health Center, Inc., — U.S. -, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994), is instructive. In Madsen, a group of antiabortion protesters were enjoined by a Florida state court from interfering with public access to an abortion clinic and from physically abusing people attempting to enter or exit the clinic. Six months after the clinic had obtained this injunction, it successfully sought to broaden the injunction, arguing that the protesters had persisted in blocking access to the clinic. The Florida Supreme Court subsequently upheld the modified injunction. Finding the injunction to be content-based, however, the Eleventh Circuit invalidated the injunction. The Eleventh Circuit concluded “that the asserted interests in public safety and order were already protected by other applicable laws and that these interests could be protected adequately without infringing upon the First Amendment rights of others.” Id. at -, 114 S.Ct. at 2523.

The Madsen Court took issue with the Eleventh Circuit’s conclusion that the injunction was content-based. The Court- observed:

To accept petitioners’ claim [that the injunction is content or viewpoint based] would be to classify virtually every injunction as content or viewpoint based. An injunction, by its very nature, applies only to a particular group (or individuals) and regulates the activities, and perhaps the speech, of that group. It does so, however, because of the group’s past actions in the context of a specific dispute between real parties. The parties seeking the injunction assert a violation of their rights; the court hearing the action is charged with fashioning a remedy for a specific deprivation, not with the drafting of a.statute addressed to the general public.

The fact that the injunction in the present case did not prohibit activities of those demonstrating in favor of abortion is justly attributable to the lack of any similar demonstrations by those in favor of abortion, and of any consequent request that their demonstrations be regulated by injunction. There is no suggestion in this record that Florida law would not equally restrain similar conduct directed at a target having nothing to do with abortion; none of the restrictions imposed by the court were directed at the contents of petitioner’s message.

Our principal inquiry in determining content neutrality is whether the government has adopted a regulation of speech “without reference to the content of the regulated speech.” We thus look to the government’s purpose as the threshold consideration. Here, the state court imposed restrictions on petitioners incidental to their antiabortion message because they repeatedly violated the court’s original order. That petitioners all share the same viewpoint regarding abortion does not in itself demonstrate that some invidious content- or viewpoint-based purpose motivated the issuance of the order. It suggests only that those in the group whose conduct violated the court’s order happen to share the same opinion regarding abortions being performed at the clinic. In short, the fact that the injunction covered people with a particular viewpoint does not itself render the injunction content or viewpoint based.

Id. at ---, 114 S.Ct. at 2523-24 (citations omitted).

The language in Madsen applies with equal force in this case. Here, too, “none of the restrictions imposed by the court were directed at the contents of [plaintiffs’] message.” The injunction (as well as the ordinance) seeks to regulate not plaintiffs’ message, but rather the means by which plaintiffs seek to convey their message. That plaintiffs are anti-abortion activists, as opposed to union or environmental activists, is immaterial. So long as they focus their picketing effort on the residence of a particular individual, they are subject to prosecution. Cf. Ater v. Armstrong, 961 F.2d 1224, 1227 (6th Cir.) (restriction at issue deemed content-neutral because it “applies evenhandedly to all those who wish to distribute written materials or solicit funds”), cert. denied, — U.S. -, 113 S.Ct. 493, 121 L.Ed.2d 431 (1992).

Because we reject plaintiffs’ premise that the modified injunction is content-based, we do not subject the injunction in dispute to strict scrutiny analysis. See Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45, 103 S.Ct. 948, 955, 74 L.Ed.2d 794 (1983) (“[Under strict scrutiny analysis, f]or 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.”); see also id. (“[Under intermediate scrutiny analysis, t]he State may ... 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.”). Instead, we must abide by the standard the Supreme Court devised in Madsen. As the Court noted: “[W]hen evaluating a content-neutral injunction ... [ui]e must ask instead whether the challenged provisions of the injunction burden no more speech than necessary to serve a significant government interest.” — U.S. at -, 114 S.Ct. at 2525 (emphasis added).

Initially, we note that a significant government interest is, indeed, at stake in this case. As the Supreme Court has made clear:

“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. Our prior decisions have often remarked on the unique nature of the home, “the last citadel of the tired, the weary, and the sick,” and have recognized that “[preserving the sanctity of the home, the one retreat to which men and women can repair to escape from the tribulations of their daily pursuits, is surely an important value.”

One important aspect of residential privacy is protection of the unwilling listener. Although in many locations, we expect individuals simply to avoid speech they do not want to hear, the home is different. “That we are often ‘captives’ outside the sanctuary of the home and subject to objectionable speech ... does not mean we must be captives everywhere.” Instead, a special benefit of the privacy all citizens enjoy within their own walls, which the State may legislate to protect, is an ability to avoid intrusions. Thus, we have repeatedly held that individuals are not required to welcome unwanted speech into their own homes and that the government may protect this freedom.”

Frisby v. Schultz, 487 U.S. 474, 484-85, 108 S.Ct. 2495, 2502, 101 L.Ed.2d 420 (1988) (citations omitted).

Having determined the existence of a significant government interest, we now consider whether the challenged provisions burden no more speech than is necessary to serve that interest. Plaintiffs would have us answer this question in the negative. They contend that the district court’s modified injunction would “allow[] the City to arrest and prosecute individuals for doing little more than walking down a city sidewalk.”

Two cases in particular inform our analysis of this issue. First, in Frisby, a group of anti-abortion activists challenged a Brook-field, Wisconsin, ordinance that, like the Upper Arlington ordinance discussed above, prohibited residential picketing. Specifically, the ordinance provided: “It is unlawful for any person to engage in picketing before or about the residence or dwelling of any individual in the Town of Brookfield.” 487 U.S. at 477, 108 S.Ct. at 2498. In upholding the ordinance, the Court, unlike the lower courts, construed it narrowly to avoid constitutional difficulties.⁵ Under the Court’s reading, “to fall within the scope of the ordinance the picketing must be directed at a single residence.” Id. at 483, 108 S.Ct. at 2502. The Court added: “General marching through residential neighborhoods, or even walking a route in front of an entire block of houses, is not prohibited by this ordinance. Accordingly, we construe the ban to be a limited one; only focused picketing taking place solely in front of a particular residence is prohibited.” Id. (citation omitted) (emphasis added).

In Madsen, the Court reviewed what it deemed to be a content-neutral injunction directed at the conduct of anti-abortion protesters. This injunction, like the district court’s modified injunction here, established a zone of protection; the injunction prohibited the protesters from “picketing, demonstrating, or using sound amplification equipment within 300 feet of the residences of clinic staff.” — U.S. at -, 114 S.Ct. at 2529. Although the Court acknowledged the significant state interest in protecting the ‘“well-being, tranquility, and privacy of the home,’ ” id. at -, 114 S.Ct. at 2530 (quoting Frisby, 487 U.S. at 484, 108 S.Ct. at 2502), it nevertheless struck down the 300-foot zone, ruling that it was excessive in scope. Hewing closely to its prior decision in Frisby, the Court observed:

[T]he 300-foot zone around the residences in this case is much larger than the zone provided for in the ordinance which we approved in Frisby. ... 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 “[gjeneral marching through residential neighborhoods, or even walking a route in front of an entire block of houses.”

Madsen, — U.S. at -, 114 S.Ct. at 2530 (citations omitted).

Madsen, however, makes it clear that any linear extension beyond the area “solely in front of a particular residence” is at best suspect, if not prohibited outright.⁶ The Court counseled in this regard: “[I]t appears 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 City also takes issue with the bright-line standard adopted by the district court. The City maintains that “[pjrinciples of federalism dictate deference to the City of Upper Arlington’s choice about how to enforce its laws.” The City adds: “Absent a finding of fact or conclusion of law that good faith probable cause determinations are an unconstitutional way to enforce an ordinance prohibiting residential picketing, the District Court had no right to impose its enforcement mechanism on the City of Upper Arlington.”

Although this argument is less than clear, we assume the City is saying that, if the ordinance is facially valid, whether its enforcement violates the Constitution will have to be decided on a case-by-case basis. We have no quarrel with this principle in the abstract, but, here, the court was faced with a videotape and testimony demonstrating how the City did enforce the ordinance. The record made in the district court indicates the City was enforcing this ordinance in a manner contrary to the teaching of Madsen.

III.

Although one resolution of the issues presented in this appeal simply would be to remand for reconsideration in light of Mad-sen, we elect not to take this approach.

The language of the ordinance adopted by the City of Upper Arlington is identical to that construed by the Supreme Court in Frisby v. Schultz, 487 U.S. 474, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988). The ordinance construed by the Court in Frisby was unconstitutionally overbroad as written but was saved by the extraordinary measure of accepting counsel’s representation at oral argument before the Supreme Court as to how the ordinance would be enforced. Although there is precedent for this approach, four Justices were highly critical of saving the ordinance by this device. In his dissent, Justice Stevens offered a simple and practical alternative:

[I]t is a simple matter for the town to amend its ordinance and to limit the ban to conduct that unreasonably interferes with the privacy of the home and does not serve a reasonable communicative purpose.

487 U.S. at 499, 108 S.Ct. at 2510 (Stevens, J., dissenting).

Notwithstanding the procedure adopted in Frisby, we know of nothing that requires us to accept representations from the City’s counsel under the circumstances presented here. To begin with, it is not at all clear what representations we received, if any. Second, it is not clear that counsel can bind either the legislative body of the City or its police department. And third, the record in this case demonstrates that the City’s idea of what constitutes an enforcement procedure that does not offend the Constitution, conflicts with the Madsen holding.

Recently, in construing another municipal ordinance, Judge Martin wrote:

It is well recognized that federal “courts do not rewrite statutes to create constitutionality.” Eubanks v. Wilkinson, 937 F.2d 1118, 1122 (6th Cir.1991). As this Court recently emphasized:

A federal court must always be aware of the federalism concerns that arise whenever it deals with state statutes. ‘The principles of federalism forbid a federal appellate court to arrogate the power to rewrite a municipal ordinance.’

Id. at 1125 (citation omitted). It would therefore be improper for this Court to supply limiting language for Akron’s public indecency ordinance in order to preserve its constitutionality.

Triplett Grille, Inc. v. City of Akron, 40 F.3d 129, 136 (6th Cir.1994).

The City enacted this ordinance long after the decision in Frisby was issued and should have been well aware of the pitfalls in attempting to enforce an ordinance worded this broadly. Common sense would dictate that the City build on what could be learned from Frisby and not adopt wording so questionable that a federal district judge, a divided Seventh Circuit Court of Appeals, and four Supreme Court Justices found it to be over-broad.

Finally, and most important, the videotape and the testimony in this case indicate how the City reads Frisby in enforcing this ordinance. The videotape (Plaintiffs’ Exhibit H) demonstrates that the City’s police view the ordinance as violated when they can discern one residence as being the target of picketing. In our view, that is a misreading of Frisby. All picketing of this nature will have a target, otherwise it is not really picketing. Frisby could not be more clear: “[0]nly focused picketing taking place solely in front of a particular residence is prohibited.” 487 U.S. at 483, 108 S.Ct. at 2502 (emphasis added).

The trial judge tried to save this ordinance with a one-size-fits-all injunction, but narrowing the ordinance, at least in the first instance, is the job of the City, not the trial judge. This is not a case where the target of the picketing has come to court seeking an injunction. In such a case, the trial judge rightfully undertakes to define the rights of the parties in an appropriately worded injunction, if an injunction is called for. Here, however, an ordinance was at issue. The City is right in this regard. If the ordinance passes muster, the City is entitled to enforce it. A plaintiff is not entitled to an advisory opinion as to how the ordinance might be enforced.

Since we find the complete ban on residential picketing mandated by the ordinance to be inconsistent with the most recent pronouncements of the Supreme Court, we reverse and remand with instructions to enter a permanent injunction barring enforcement of this ordinance as written. Obviously, we pass no judgment on what the City may come up with as a substitute.

REVERSED and REMANDED.

1 .. This visit was publicized via the following recorded message on the Dayton Pro-Life Action Line:

Hi. Thanks for calling the Dayton Pro-Life Action Line. Well, I want to let you know right away that there is a picket this Saturday, October 3rd, there in Columbus outside the office or home of abortionist Raymond Robinson. He is the abortionist who comes to Dayton and does abortions at 1829 North Main Street.

Although James Vittitow denied having recorded the message himself, he did admit to having heard the message prior to embarking on the October trip to Upper Arlington. Vittitow further admitted that he knew the woman who had recorded the message — a woman he identified as Dawn Thomas — and that he had associated with her in the past "doing pro-life activities.”

2 . Approximately 12 had participated in the April 1992 demonstration.

3 . Holcomb explained how he arrived at his probable cause determination:

I looked at the totality of everything that I knew at the time, the history for Dr. Robinson's home, the history for 4556 Benderton Court.

I looked at the information that we had, that we suspected on Saturday, October 3 of 1992 that a group would appear. We had the tape recording that we had monitored that was recruiting people to come to Upper Arlington and to specifically to Dr. Robinson's home.

On my arrival, I observed signs, specifically, talking about Dr. Robinson's house by address and by his name, and the group was compacted on Benderton Court, which is a vety small court....

Looking at the entire amount of information that I had, at that time, I felt that the group was targeting and focusing on Dr. Robinson's home.

4 . ‘ The district court shed light on what changed its mind:

Without the luxury of having constitutional scholars accompany them on their assignments, the police officers must make virtually instantaneous, on-the-spot decisions as to whether particular conduct is protected First Amendment expression, or a violation of the ordinance for which a person may properly be arrested. Such decisions are difficult for judges and lawyers even when they have had time to reflect on them, and reasonable judges and lawyers do not even agree on the correct answer.

These real life circumstances have led the Court to modify its original preliminary injunction. The original injunction in this case requires the parties to evaluate such subjective criteria as whether plaintiffs have significantly slowed down in front of the doctor’s house, or whether plaintiffs have given a particular residence undue emphasis. These standards are simply unworkable.

The Court finds that application of a bright line standard will best serve the competing interests involved.... This bright line zone of residential privacy is designed to protect plaintiffs' right to free speech as well as defendants' equally significant interest in protecting residential privacy. Moreover, this rule will allow law enforcement officers easily to determine whether a violation of the ordinance has occurred. In the same way, the bright line rule will also allow plaintiffs to comply with the law, as they say they have always intended to do.

830 F.Supp. at 1081-82 (footnotes omitted).

5 . The lower courts read the ordinance as “banning ‘all picketing in residential areas.’" 487 U.S. at 482, 108 S.Ct. at 2501.

6 . We additionally note in this case that the court’s injunction was vague as to the exact scope of the zone created. The parties could not agree, nor could we discern on our own, whether the protected zone was one house on each side of a targeted residence (a three-house zone) or two houses on each side of a targeted residence (a five-house zone).