Carol Douglas Michael Allen Henry Deena Shelton v. Robert Brownell, in His Official Capacity as Mayor of the City of 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
Docket: 95-2234
Court: Court of Appeals for the Eighth Circuit; July 9, 1996; Federal Appellate Court
Carol Douglas, Michael Allen Henry, and Deena Shelton challenge the constitutionality of two ordinances enacted by the City of Clive, Iowa: a residential picketing ordinance and a parade permit ordinance. These ordinances were created in response to protests at the home of Dr. Herbert Remer, an abortion provider. The district court ruled the case moot due to Dr. Remer's relocation and found both ordinances constitutional. On appeal, it was determined that the protesters have standing to challenge the ordinances, reversing the district court's mootness ruling. The appellate court affirmed the constitutionality of the residential picketing ordinance but reversed the finding regarding the parade ordinance, concluding that it was not narrowly tailored.
The residential picketing ordinance prohibits picketing near any individual's residence in Clive. In response to the ordinance, protesters extended their activities to nearby blocks, prompting the City Council to amend the parade ordinance, which requires a permit for any organized procession of ten or more persons. The permit application must be submitted at least five days prior, and the Chief of Police can deny it based on potential disruption or conflicts with existing permits or laws.
The protesters filed a 42 U.S.C. § 1983 action alleging violations of their constitutional rights, including freedom of speech and assembly, and sought damages as well as declaratory and injunctive relief.
The district court issued a preliminary injunction preventing the City from enforcing its residential picketing ordinance outside a defined "zone of privacy," which encompasses the targeted resident's home and the adjacent residences. The court denied the protesters' request to enjoin the parade permit ordinance, deeming their constitutional challenge unlikely to succeed. Following the arrest of three protesters for picketing outside Dr. Remer's home, the court clarified the injunction to specify that picketing was prohibited only directly in front of Dr. Remer’s residence and the two adjacent homes, but allowed picketing across the street.
Subsequently, the City sought summary judgment, asserting that the case was moot due to Dr. Remer's relocation and that the protesters were not entitled to damages. The protesters countered with their own summary judgment motion, seeking to declare both ordinances unconstitutional and to permanently enjoin their enforcement, while also attempting to strike certain affidavits, including Dr. Remer’s statement about his move.
On November 3, 1994, the City amended its picketing ordinance to align with the court's directives. The district court then ruled in favor of the City, determining the case moot since Dr. Remer no longer lived in Clive. The court also upheld the constitutionality of the parade and amended picketing ordinances. It granted the protesters nominal damages of one dollar for prior injuries and ruled on their motions to strike, allowing only Dr. Remer’s supplemental affidavit. The protesters appealed, claiming standing despite Dr. Remer’s departure, asserting the ordinance remains in effect. The district court concluded that the protesters lost standing as they could not identify any other residences affected by the ordinance. The City argued their position was similar to a prior case where a plaintiff lost standing after the primary subject of the dispute was no longer present.
Zwickler's case became moot after the congressman he criticized left the House to become a judge, as he was no longer a candidate. The Court determined that the dispute lacked immediacy since it was unlikely the congressman would run for office again, making future prosecution of Zwickler for distributing anonymous handbills conjectural. In contrast, the current plaintiffs, who object to abortion, maintain a continuing interest despite Dr. Remer's move from Clive, as their objections are broader and the ordinance still applies to residential areas in Clive. The protesters provided affidavits expressing their intention to protest in various locations, indicating a continuing actual or threatened injury under the ordinance, which sustains their standing to challenge it. The district court's ruling that the challenge was moot due to Dr. Remer's relocation is reversed. The protesters claim the residential picketing ordinance is unconstitutional on its face and as applied, referencing the Supreme Court's rulings in Frisby v. Schultz and Madsen v. Women's Health Center. In Frisby, the Court emphasized the significance of the speech affected by such ordinances, recognizing the need for careful scrutiny when evaluating restrictions on picketing related to public issues, especially in traditional public forums.
In a public forum, the government cannot completely prohibit communicative activity. For a content-based exclusion to be enforceable, the state must demonstrate that the regulation is essential for a compelling state interest and is narrowly tailored to achieve that goal. Content-neutral regulations regarding the time, place, and manner of expression are permissible if they serve a significant government interest and allow for ample alternative communication channels.
The Court determined that the street and sidewalks qualify as traditional public fora, deferring to lower courts that deemed the ordinance content-neutral. The analysis then focused on whether the ordinance was narrowly tailored to serve a significant government interest and whether it left open sufficient alternative communication channels. The Court concluded that the ordinance maintained ample alternative channels, as it only restricted focused picketing in front of specific residences while allowing for broader forms of expression such as marching and walking in neighborhoods.
The ordinance was recognized as serving the significant interest of protecting residential privacy, emphasizing the importance of tranquility and privacy within the home. It was noted that individuals are not obliged to accept unwanted speech in their homes, and the government can safeguard this right.
In evaluating whether the ordinance was narrowly tailored, the Court found that a complete ban on picketing is justified if it specifically targets a harmful activity. The ordinance's prohibition on focused picketing was distinguished from other forms of communication, as it was aimed directly at individual households and constituted an intrusive form of expression. The Court concluded that the ordinance effectively addressed the issue of unwanted and unavoidable speech directed at residents, thereby affirming its narrow tailoring.
The Supreme Court addressed the constitutionality of an injunction limiting abortion protesters' activities near clinics. The injunction included a provision that prohibited protesters from gathering or demonstrating within thirty-six feet of clinic property. The Court determined that injunctions are subject to stricter scrutiny than ordinances due to the potential for censorship and discriminatory enforcement. It ruled that an injunction must not restrict more speech than necessary to serve a significant government interest.
The Court upheld the thirty-six-foot buffer zone in front of the clinic, reasoning it was essential for protecting access and ensuring traffic flow. However, it invalidated the buffer zone at the back and sides of the clinic, citing a lack of evidence that protesters there impeded access or disrupted operations.
Additionally, the Court struck down provisions prohibiting picketing within 300 feet of clinic staff residences, stating that the zone was excessive and not justified by the record. It distinguished this case from a previous ruling (Frisby) by noting that the 300-foot restriction would inhibit general movement in residential neighborhoods, rather than focused picketing.
Protesters argued that a local ordinance in Clive was not narrowly tailored and did not provide ample alternative communication channels. They contended the ordinance was broader than the one approved in Frisby, as it prohibited picketing on both sides of a residence, restricted all expressive activities, including prayer, and applied to commercial establishments adjacent to residences, which they argued violated precedent set in Pursley v. City of Fayetteville. The document indicates that these claims will be addressed in detail.
Protesters argue that based on the Supreme Court's rulings in Frisby and Madsen, free speech can only be completely restricted in the area directly in front of a residence. They assert that Frisby limits prohibitions to "focused picketing" solely in front of the targeted home. Citing the Sixth Circuit's decision in Vittitow v. City of Upper Arlington, they note that an ordinance prohibiting picketing in front of a targeted home and adjacent homes was deemed inconsistent with Frisby and Madsen, as it extended beyond the permissible area. The Sixth Circuit had allowed conditional enforcement, permitting picketing strictly in front of the targeted residence and adjacent homes.
In Kirkeby v. Furness, the Eighth Circuit found a Fargo ordinance that banned picketing within 200 feet of a residential dwelling unconstitutional, indicating that such a broad restriction was overly limiting of the right to free speech. The court emphasized that the ordinance's provisions were not narrowly tailored to meet legitimate goals.
The protesters maintain that Supreme Court decisions establish that an absolute ban on picketing should only apply directly in front of the targeted residence, arguing that any wider prohibition is not sufficiently tailored to meet constitutional standards. They criticize the Clive ordinance for penalizing not only demonstrators in front of the targeted and adjacent homes but also individuals merely passing by those properties.
Frisby does not establish a definitive rule limiting picketing solely to the area directly in front of a targeted residence; rather, it focuses on the effect of the ban on protected activities. The Court highlighted that the ordinance applies specifically to picketing aimed at a particular residence, distinguishing it from other communicative acts like door-to-door solicitation and handbill distribution, as residents cannot avoid encountering picketers. The Court asserted that there is no right to impose speech on an unwilling listener within their home. While Madsen reiterated that Frisby prohibited only focused picketing in front of a specific residence, the context involved an injunction and a broader 300-foot buffer zone, not a restriction limited to just the targeted home and its immediate neighbors. The decision in Kirkeby did not clearly define the boundaries of focused residential picketing. Further, the court upheld that police officers were entitled to qualified immunity for arresting protesters outside the homes adjacent to a targeted dwelling under the Fargo residential picketing ordinance. The court acknowledged that Frisby did not clarify whether an ordinance could restrict abortion protesters from picketing adjacent houses. Although there is a clear link between the size of the prohibited zone and its effect on protected speech, the court does not interpret Frisby as necessitating the invalidation of the ordinance merely due to its extension beyond the immediate area in front of the targeted residence.
The ordinance in question aims to protect residents of Clive from unwanted speech while not infringing on First Amendment rights. It is deemed narrowly tailored, allowing picketing in the neighborhood but prohibiting it directly in front of the targeted residence and adjacent homes. However, picketers may still demonstrate on the sidewalk across the street. The ordinance is distinct from prior injunctions in Madsen and Kirkeby, as it permits broader picketing while addressing specific concerns from neighbors about maintaining domestic peace. Evidence indicates that the protesters' actions, including using binoculars to view the targeted residence, interfered with neighbors' daily activities. The extension of the no-picket zone is only slightly more than previously upheld buffer zones, reinforcing the ordinance's focus on the targeted residences. The ordinance does not equate to a complete ban on residential picketing, as determined in the Sixth Circuit's Vittitow case, which involved an injunction rather than an ordinance. Furthermore, the ordinance's critics argue it restricts all forms of communication within the three-structure zone, not just focused picketing, potentially conflicting with established precedents and the Free Exercise Clause.
The ordinance in question prohibits picketing directly in front of a targeted resident's home and the homes on either side, with the definition of picketing encompassing various activities, including prayer. Protesters retain the right to engage in these activities throughout the residential area, except within the specified three-structure zone, which still allows for activities across the street from the targeted residence. The ordinance is deemed to provide adequate alternative channels for communication.
The argument that the ordinance's prohibition on prayer within this zone is particularly offensive is rejected, as the conduct was aimed at the targeted residence rather than general religious practice. Additionally, the claim that the ordinance is not narrowly tailored due to its application to commercial establishments is dismissed since it explicitly applies only to residential properties.
Concerns regarding the ordinance as a prior restraint on First Amendment rights are addressed, recognizing that while such restraints carry a presumption against constitutionality, reasonable regulations governing speech in public places are permissible. These regulations must not grant excessive discretion to officials and must adhere to narrow, objective standards. A permit requirement for speech must be content-neutral, serve a significant governmental interest, and provide ample alternative means of communication.
Protesters challenge the parade ordinance, claiming it grants excessive discretion to the Chief of Police, who could potentially suppress free speech by determining that a parade's time, route, or size might disrupt traffic. They argue the lack of guiding standards allows for subjective, content-based permit denials. The Supreme Court in Cox v. New Hampshire upheld the authority of cities to regulate parades for public convenience, provided it does not infringe upon assembly rights, and emphasized fair administration of the statute. Conversely, in Shuttlesworth, the Court invalidated a permit ordinance that allowed permit denial based on vague criteria related to public welfare, citing evidence of its discriminatory application. In Forsyth County, a permit fee ordinance was struck down for lacking standards and permitting content-based discretion. In contrast, the Clive parade ordinance requires a permit unless disruption is objectively determined based on time, route, or size, without consideration of parade content. The City has not demonstrated any application of the ordinance that restricts free speech or assembly rights.
Protesters argue that the second exception in the permitting ordinance grants excessive discretion to the Chief of Police, allowing for potential bias in approving permit requests based on content, as the City has until the second business day to respond. However, the ordinance does not prioritize competing applications, and there is no evidence suggesting that the City has mismanaged the permit process. The Chief of Police's affidavit asserts that he will not use the approval window to deny permits based on conflicts with other applications. The ordinance stipulates that permits are to be issued on a "first-in, first-out" basis, and there is no indication of manipulation.
Regarding the third exception, which allows the Chief of Police to deny a permit if the proposed parade violates another law, protesters contend it poses a risk of censorship based on the Chief’s subjective judgment of potential unlawful conduct. The Supreme Court case Hague v. Committee for Industrial Organization is referenced, where a similar ordinance was struck down for granting public officials too much discretion. In contrast, the Clive ordinance restricts the Chief's authority to deny permits only when the proposed event explicitly violates existing laws.
Protesters also claim the five-day notice requirement for permits is not narrowly tailored, hindering spontaneous speech without serving a legitimate government interest. They cite case law, including Grossman v. City of Portland, where a seven-day notice requirement was invalidated for similarly restricting timely expression in public demonstrations. The court in that case identified issues with both the delay and the broad application of the ordinance to small groups.
A permit requirement may be warranted for large groups due to potential strain on park facilities and interference with other users. However, the court rejected the notion that a small group of six to eight individuals carrying signs poses a significant enough threat to justify restrictions on their speech. In a related case, the court invalidated a twenty-day notice requirement, determining it was not the least restrictive means to protect the City’s interest in traffic regulation. Although the district court upheld a five-day notice requirement based on the City’s limited resources, this requirement was found not to be narrowly tailored, as it unnecessarily restricts speech and does not adequately align with the City’s aims of public convenience. Comparisons with other cities indicated that shorter notice periods are common, and the five-day requirement was deemed excessively burdensome. Concerns were also raised regarding the application of permit requirements to groups of ten or more, questioning its relevance to public safety and convenience. The court ultimately concluded that the parade ordinance was unconstitutional and reversed the district court's ruling. Additionally, the protesters challenged the ordinance as applied, specifically citing the City’s denial of a permit application for an event that did not involve picketing.
The Chief of Police denied a parade permit, citing a violation of the residential picketing ordinance. Protesters contend that the application, when evaluated, warranted permit approval since any potential violation was speculative. They also argue that the ordinance is unconstitutional due to unequal enforcement, highlighting a city-sponsored running race that did not require a parade permit. The court has determined the parade ordinance unconstitutional on its face, thus negating the need to address these claims. The district court's ruling declaring the case moot is reversed, and the constitutionality of Clive's picketing ordinance is upheld. The intent of the picketing ordinance is to safeguard residents' privacy and well-being by prohibiting picketing near residences, which is seen as a source of emotional distress. The ordinance defines prohibited picketing as occurring within one house on either side of a residence. The court also ruled that the district court acted within its discretion by accepting a supplemental affidavit regarding jurisdiction. The case is not moot; therefore, the argument about it being capable of repetition yet evading review is unnecessary. Clarification on the injunction referenced is noted, as its specifics are ambiguous. Additionally, the Supreme Court has granted certiorari on a related decision from the Second Circuit regarding picketing cases.
In U.S. 116 S.Ct. 1260, 134 L.Ed.2d 209 (1996), the Second Circuit evaluated the constitutionality of an injunction aimed at abortion clinic protesters. The court upheld a provision establishing a fifteen-foot buffer zone around clinic entrances, requiring protesters to maintain this distance from women and staff accessing the clinic, while allowing two designated "counselors" to enter the zone for non-threatening conversations. The court determined that the buffer zone was not excessively burdensome and aligned with precedents set in Madsen. Additionally, the "cease and desist" provision prohibiting counseling patients who wish to be left alone was also upheld; the court found it essential for protecting access to abortion services and the well-being of women seeking these services. The Supreme Court's upcoming decision in Pro-Choice Network is expected to be only instructive due to its focus on an injunction rather than an ordinance, and the context of a clinic buffer zone compared to a residential area. The protesters argued that the city ordinance lacked narrow tailoring due to insufficient procedural safeguards if a permit is denied. The city's response highlighted a two-day decision window for permit applications, followed by a three-day period for judicial intervention, but this argument was dismissed as unresponsive since a total delay of five days was deemed unconstitutional. The court referenced that a reasonable period for permit decisions is typically permitted.
