Frisby v. Schultz

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Frisby v. Schultz
Seal of the United States Supreme Court.svg
Argued April 20, 1988
Decided June 27, 1988
Full case nameRussell Frisby et al. V. Sandra Schultz et al.
Citations487 U.S. 474 ( more )
108 S. Ct. 2495; 101 L. Ed. 2d 420
Argument Oral argument
The Supreme Court upheld the state ordinance because it is "content neutral," "leaves open ample alternative channels of communication," and serves a "significant government interest."
Court membership
Chief Justice
William Rehnquist
Associate Justices
William J. Brennan Jr.  · Byron White
Thurgood Marshall  · Harry Blackmun
John P. Stevens  · Sandra Day O'Connor
Antonin Scalia  · Anthony Kennedy
Case opinions
MajorityO'Connor, joined by Rehnquist, Blackmun, Scalia, Kennedy
DissentBrennan, joined by Marshall
Laws applied
U.S. Const. amend. I

Frisby v. Schultz, 487 U.S. 474 (1988), was a case in which the Supreme Court of the United States upheld the ordinance by the town of Brookfield, Wisconsin, preventing protest outside of a residential home. In a 6–3 decision, the Court ruled that the First Amendment rights to freedom of assembly and speech was not facially violated. [1] The majority opinion, written by Justice Sandra Day O'Conner, concluding that the ordinance was constitutionally valid because it was narrowly tailored to meet a "substantial and justifiable" interest in the state; left open "ample alternative channels of communication"; and was content-neutral. [1]

Supreme Court of the United States Highest court in the United States

The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. Established pursuant to Article III of the U.S. Constitution in 1789, it has original jurisdiction over a narrow range of cases, including suits between two or more states and those involving ambassadors. It also has ultimate appellate jurisdiction over all federal court and state court cases that involve a point of federal constitutional or statutory law. The Court has the power of judicial review, the ability to invalidate a statute for violating a provision of the Constitution. Executive acts can be struck down by the Court for violating either the Constitution or federal law. However, it may act only within the context of a case in an area of law over which it has jurisdiction. The court may decide cases having political overtones, but it has ruled that it does not have power to decide non-justiciable political questions.

Brookfield, Wisconsin City in Waukesha

Brookfield is a city located in Waukesha County, Wisconsin, United States in the Milwaukee metropolitan area. It had a population of 37,920 in the 2010 census. Brookfield is the third largest city in Waukesha County.

First Amendment to the United States Constitution Law guaranteeing freedom of speech, religion, assembly, press and petitions and prohibiting establishment of an official religion

The First Amendment to the United States Constitution prevents the government from making laws which respect an establishment of religion, prohibit the free exercise of religion, or abridge the freedom of speech, the freedom of the press, the right to peaceably assemble, or the right to petition the government for redress of grievances. It was adopted on December 15, 1791, as one of the ten amendments that constitute the Bill of Rights.


Factual background

In the Milwaukee, Wisconsin suburb of Brookfield, Sandra C. Schultz and Robert C. Braun protested abortion by picketing outside the home of a doctor who performed abortions. The pair picketed on at least six occasions in April and May 1985, for between 60 and 90 minutes each time, with a group of protesters that ranged in size from 11 to more than 40. [1] The picketing was "generally orderly and peaceful"the town did not invoke ordinances on street obstructions, loud noises, or disorderly conduct but "generated substantial controversy and numerous complaints." [1]

Anti-abortion movements, also referred to as pro-life movements, are involved in the abortion debate advocating against the practice of abortion and its legality. Many anti-abortion movements began as countermovements in response to the legalization of elective abortions.

Picketing form of protest in which people is congregate outside a place of work or location where an event is taking place

Picketing is a form of protest in which people congregate outside a place of work or location where an event is taking place. Often, this is done in an attempt to dissuade others from going in, but it can also be done to draw public attention to a cause. Picketers normally endeavor to be non-violent. It can have a number of aims, but is generally to put pressure on the party targeted to meet particular demands or cease operations. This pressure is achieved by harming the business through loss of customers and negative publicity, or by discouraging or preventing workers or customers from entering the site and thereby preventing the business from operating normally.

Disorderly conduct is a crime in most jurisdictions in the United States, China, and Taiwan. Typically, "disorderly conduct" makes it a crime to be drunk in public, to "disturb the peace", or to loiter in certain areas. Many types of unruly conduct may fit the definition of disorderly conduct, as such statutes are often used as "catch-all" crimes. Police may use a disorderly conduct charge to keep the peace when people are behaving in a disruptive manner to themselves or others, but otherwise present no danger.

In response, Brookfield Town Board enacted an ordinance restricting picketing in residential neighborhoods, except for labor picketing. [1] The town later realized the Supreme Court had struck down a similar ordinance in Carey v. Brown , 447 U.S. 455 (1980), as a violation of the Equal Protection Clause, of the Fourteenth Amendment since it "makes an impermissible distinction between peaceful labor picketing and other peaceful picketing." [1] [2] As a result, the town repealed its ordinance and passed a new ordinance banning all residential picketing: "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." [1] The ordinance stated that its main purpose was to protect and preserve the home and assure "that members of the community enjoy in their homes and dwellings a feeling of well-being, tranquility, and privacy." [1] The Town Board also found that "the practice of picketing before or about residences and dwellings causes emotional disturbance and distress to the occupants ... [and] has as its object the harassing of such occupants." [1]

Equal Protection Clause Guarantee of law protecting all persons equally in the United States

The Equal Protection Clause is a clause within the text of the Fourteenth Amendment to the United States Constitution. The clause, which took effect in 1868, provides "nor shall any State [...] deny to any person within its jurisdiction the equal protection of the laws".

Fourteenth Amendment to the United States Constitution which grants citizenship to everyone born in the U.S. and subject to its jurisdiction and protects civil and political liberties

The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments. Arguably one of the most consequential amendments to this day, the amendment addresses citizenship rights and equal protection of the laws and was proposed in response to issues related to former slaves following the American Civil War. The amendment was bitterly contested, particularly by the states of the defeated Confederacy, which were forced to ratify it in order to regain representation in Congress. The amendment, particularly its first section, is one of the most litigated parts of the Constitution, forming the basis for landmark decisions such as Brown v. Board of Education (1954) regarding racial segregation, Roe v. Wade (1973) regarding abortion, Bush v. Gore (2000) regarding the 2000 presidential election, and Obergefell v. Hodges (2015) regarding same-sex marriage. The amendment limits the actions of all state and local officials, including those acting on behalf of such an official.

Procedural history

Schultz and Braun creased protesting after the law was set to be enforced beginning on May 21, 1985. They filed a lawsuit in the United States District Court for the Eastern District of Wisconsin claiming that the town ordinance infringed on their First Amendment rights. The district court granted the motion for a preliminary injunction, concluding "that the ordinance was not narrowly tailored enough to restrict protected speech in a public forum." [1] The Town appealed. In a divided decision, a panel of the United States Court of Appeals for the Seventh Circuit affirmed the decision of the district court. The Seventh Circuit later vacated that decision and ordered a rehearing en banc. After rehearing, the Seventh Circuit, in an equally divided vote, affirmed the district court's judgment. [1]

United States District Court for the Eastern District of Wisconsin federal trial court of limited jurisdiction

The United States District Court for the Eastern District of Wisconsin is a federal trial court of limited jurisdiction. The court is under the auspices of the United States Court of Appeals for the Seventh Circuit, although patent claims and claims against the federal government under the Tucker Act are appealed to the United States Court of Appeals for the Federal Circuit. The Eastern District was established on June 30, 1870.

Preliminary injunction injunction entered by a court prior to a final determination of the merits of a legal case,in order to restrain a party from going ahead with a course of conduct/compelling a party to continue with a course of conduct until the case has been decided

A preliminary injunction, in equity, is an injunction entered by a court prior to a final determination of the merits of a legal case, in order to restrain a party from going ahead with a course of conduct or compelling a party to continue with a course of conduct until the case has been decided. If the case is decided against the party that has been enjoined, then the injunction will usually be made permanent. If the case is decided in favor of the party that has been enjoined, the injunction will usually be dissolved or dismissed.

United States Court of Appeals for the Seventh Circuit

The United States Court of Appeals for the Seventh Circuit is a federal court with appellate jurisdiction over the courts in the following districts:

Supreme Court

Opinion of the Court

Justice Sandra Day O'Connor wrote the majority opinion in the 6–3 decision. Chief Justice William Rehnquist, and Justices Harry Blackmun, Antonin Scalia, and Anthony Kennedy joined in the majority opinion. [1]

Sandra Day OConnor Former Associate Justice of the Supreme Court of the United States

Sandra Day O'Connor is a retired Associate Justice of the Supreme Court of the United States, who served from her appointment in 1981 by President Ronald Reagan until her retirement in 2006. She was the first woman to serve on the Court.

William Rehnquist Chief Justice of the United States

William Hubbs Rehnquist was an American lawyer and jurist who served on the Supreme Court of the United States for 33 years, first as an Associate Justice from 1972 to 1986, and then as the 16th Chief Justice of the United States from 1986 until his death in 2005. Considered a conservative, Rehnquist favored a conception of federalism that emphasized the Tenth Amendment's reservation of powers to the states. Under this view of federalism, the court, for the first time since the 1930s, struck down an act of Congress as exceeding its power under the Commerce Clause.

Harry Blackmun American judge

Harry Andrew Blackmun was an American lawyer and jurist who served as an Associate Justice of the Supreme Court of the United States from 1970 until 1994. Appointed by Republican President Richard Nixon, Blackmun ultimately became one of the most liberal justices on the Court. He is best known as the author of the Court's opinion in Roe v. Wade, which prohibits many state and federal restrictions on abortion.

The majority held that public streets are a "traditional public forum" for purposes of forum analysis, despite the fact that the residential streets specifically at issue here were physically narrow. The Court thus acknowledged that "the antipicketing ordinance operates at the core of the First Amendment." [1] Nevertheless, the majority held that the ordinance prohibiting the protest of residential houses did not violate the First Amendment because it is "content neutral," "leaves open ample alternative channels of communication," and serves a "significant government interest." [1] With respect to alternative channels of communication, the Court noted that the Brookfield ordinance did not prohibit protestors from entering residential neighborhoods, marching, canvassing, leafleting, or telephoning. [1]

Canvassing systematic contact with individuals, commonly used during political campaigns

Canvassing is the systematic initiation of direct contact with individuals, commonly used during political campaigns. Canvassing operations are performed for many reasons: political campaigning, grassroots fundraising, community awareness, membership drives, and more. Campaigners will knock on doors to engage in personalized contact with an individual. It is used by political parties and issue groups to identify supporters, persuade the undecided, add voters to the voters list through voter registration, and it is central to get out the vote operations. It is the core element of what political campaigns call the ground game or field.

Flyer (pamphlet) form of paper advertisement intended for wide distribution

A flyer is a form of paper advertisement intended for wide distribution and typically posted or distributed in a public place, handed out to individuals or sent through the mail. In the 2010s, flyers range from inexpensively photocopied leaflets to expensive, glossy, full-color circulars.

The Court also found that the government had a significant interest in "the protection of residential privacy." Citing cases such as Rowan v. United States Post Office Department , FCC v. Pacifica Foundation , and Kovacs v. Cooper, the Court found that "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." [1] The Court distinguished its prior decisions invalidating "complete bans on expressive activity" in residential areas, such as Schneider v. New Jersey and Martin v. City of Struthers , stating that in these cases, "we have been careful to acknowledge that unwilling listeners may be protected when within their own homes." [1] The Court also found that the ordinance was narrowly tailored at the specific problem it intended to address: situations in which "[t]he resident is figuratively, and perhaps literally, trapped within the home, and, because of the unique and subtle impact of such picketing, is left with no ready means of avoiding the unwanted speech." [1]

Concurring opinion

Justice White wrote an opinion concurring in the judgment. White wrote that in his view, an ordinance banning picketing of a single residence "would not be unconstitutional on its face [and therefore, free of conflict with the First Amendment.]" [3] Acknowledging the loosely worded ordinance, White opposed the potential condition of the legislation, which, if interpreted as such, would place a limitation on picketing in front of any residence where passers-by or anyone else would receive a message from a protest. He agreed with the notion that the law should be interpreted to ban single-residence picketing, to maintain Constitutionality and conform with the standards set in the right of assembly and the right to protest, outlined in the First Amendment.

Dissenting opinion of Brennan and Marshall

Justice William J. Brennan, Jr., joined by Justice Thurgood Marshall, agreed with most of the Court's analysis, but dissent because they believed the ordinance was not narrowly tailoredi.e., it banned "significantly more speech than is necessary to achieve the government's substantial and legitimate goal." [4] Brennan argued that the ordinance failed the test of City Council of Los Angeles v. Taxpayers for Vincent because "the intrusive and unduly coercive elements of residential picketing can be eliminated without simultaneously eliminating residential picketing." [4] As an example, Brennan wrote that the government's ability to constitutionally impose "time, place, and manner" restrictions, such as limits on the number of residential picketers, "the hours during which a residential picket may take place, or the noise level of such a picket" meant that a total prohibition on residential picketing was not narrowly tailored. [4]

Dissenting opinion of Stevens

Justice John Paul Stevens wrote a separate dissent. Stevens wrote that:

I do not believe that picketing for the sole purpose of imposing psychological harm on a family in the shelter of their home is constitutionally protected. I do believe, however, that the picketers have a right to communicate their strong opposition to abortion to the doctor, but after they have had a fair opportunity to communicate that message, I see little justification for allowing them to remain in front of his home and repeat it over and over again simply to harm the doctor and his family. Thus, I agree that the ordinance may be constitutionally applied to the kind of picketing that gave rise to its enactment. [5]

Nevertheless, Stevens would have invalidated the ordinance as facially overbroad, finding "that it prohibits some communication that is protected by the First Amendment. [5] Stevens wrote that the ordinance could prohibit a fifth grader from carrying a sign saying "GET WELL CHARLIE — OUR TEAM NEEDS YOU" outside the home of a sick friend. [5]

Stevens acknowledged that "the town will probably not enforce its ban against friendly, innocuous, or even brief unfriendly picketing, and that the Court may be right in concluding that its legitimate sweep makes its overbreadth insubstantial," but dissent because (1) "The scope of the ordinance gives the town officials far too much discretion in making enforcement decisions" and (2) "it 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." [5]

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  1. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Frisby v. Schultz, 487 U.S. 474 (1988).
  2. Carey v. Brown, 447 U.S. 455 (1980).
  3. Frisby, 487 U.S. at 488-89 (White, J., concurring).
  4. 1 2 3 Frisby, 487 U.S. at 492 (Brennan, J., dissenting).
  5. 1 2 3 4 Frisby, 487 U.S. at 496 (Stevens, J., dissenting).