Marilyn Olmer, an Individual John Kelly, an Individual Theresa Lane, an Individual and Michelle Mann, an Individual v. City of Lincoln, a Municipality William Austin, in His Official Capacity as Lincoln City Attorney and Thomas Casady, in His Official Capacity as Chief of the Lincoln Police Department
Docket: 98-4112
Court: Court of Appeals for the Eighth Circuit; October 14, 1999; Federal Appellate Court
An appeal was made against a preliminary injunction that prohibited the enforcement of a City of Lincoln ordinance aimed at restricting "focused picketing" near churches and religious locations during specified times surrounding religious activities. The ordinance was deemed facially invalid by the District Court, as it violated the Free Speech Clause of the First Amendment. The plaintiffs, four individuals protesting against abortion, objected to the appointment of a physician performing abortions within their church, engaging in demonstrations on public sidewalks with signs addressing this issue.
The City Council enacted the ordinance after receiving complaints, despite a veto from the Mayor, who was overridden. The ordinance's intent was to maintain peace at religious sites and protect community interests, including public order and individual freedoms. It specifically limited focused picketing in designated timeframes and locations, citing concerns that without such restrictions, picketing could disrupt individual religious freedoms, particularly impacting emotionally vulnerable children who might experience distress when exposed to protests. The ordinance aimed to prevent families from being forced into uncomfortable situations when attending religious services.
Focused picketing is defined as the act of individuals demonstrating outside religious premises, including adjacent sidewalks and rights of way, while displaying banners or signs, excluding leaflet distribution. Engaging in focused picketing within thirty minutes before or after scheduled religious activities is considered an unlawful disturbance of the peace. The ordinance prohibits such activities regardless of the content displayed or the presence of children.
Peaceful picketing is protected under the First Amendment, and public sidewalks and rights of way are recognized as traditional public forums where expressive activities are allowed. The government may not completely ban communication in these areas; any content-based restrictions must serve a compelling state interest and be narrowly tailored. The City defends the ordinance as a constitutionally valid, content-neutral regulation aimed at protecting significant interests: the well-being of children, citizens' religious rights, and public safety.
The court assumes, without ruling, that the ordinance in question is content-neutral and agrees with the District Court that the city's interest in protecting very young children from frightening images is significant and legitimate. However, it concludes that the city's legitimate interest does not extend to prohibiting the mere presence of individuals carrying signs on sidewalks, absent evidence that such signs are gruesome or harmful. The testimony presented by the city does not alter the District Court's finding regarding the lack of credible evidence supporting the ordinance's necessity.
The ordinance fails to be "narrowly tailored" to protect the identified interest, as it broadly prohibits sign-carrying at specified times and locations without regard for the content of the signs. This prohibition also extends to communication with adults, which is not justified by the First Amendment, as robust debate—even if upsetting—is protected speech. Furthermore, the ordinance restricts communication even when intended recipients wish to engage with it.
The city also argues a legitimate interest in preserving citizens' religious freedoms. While this interest is substantial, the ordinance overreaches by banning peaceful communication on public property, which does not interfere with access to the church. The court references a previous case that distinguishes between unlawful disruption of church services and the First Amendment right to peacefully demonstrate in proximity to a church.
The en banc Court, through Judge Heaney, affirmed that defendants have the right to express their views regarding the plaintiffs' obligations to the black community and to make requests of the plaintiffs, provided these do not involve threats or unlawful actions. Offensive opinions do not negate First Amendment protections. The Court referenced several Supreme Court decisions, emphasizing that free speech often invites dispute and can provoke unrest, which is protected unless it poses a clear and present danger of serious harm. The defendants are also entitled to engage in peaceful pamphleteering and picketing on public property, as long as it does not significantly interfere with public access or church activities.
The Court disagreed with the City's characterization of its previous opinion as merely dicta, noting that it upheld First Amendment rights to picket near churches while directing the District Court to amend its injunction to align with this opinion. The Court distinguished between churches and private residences, stating that while residential privacy is a significant governmental interest, churches should not be afforded the same level of protection against speech restrictions. This delineation aims to maximize constitutional protections for speech.
The City of Lincoln claims an interest in maintaining public order, specifically by keeping streets free from obstructions that could distract traffic, which could justify some regulation of speech, such as prohibiting individuals with signs from standing in the middle of the street. However, the ordinance in question is overly broad, extending to sidewalks and public rights of way without limitation to only those signs that may distract motorists. Even if the ordinance is considered content-neutral, it is not narrowly tailored to protect any significant governmental interest, leading to the conclusion that it is unconstitutional. The District Court’s decision to grant a preliminary injunction to the plaintiffs is affirmed.
Background information reveals that in 1998, the Lincoln City Council held a public hearing about an ordinance to prohibit certain picketing at religious services, prompted by disruptive protests outside Westminster Presbyterian Church. These protests targeted church member Dr. Winston Crabb, an obstetrician/gynecologist, and involved aggressive tactics such as displaying graphic images and shouting disturbing messages at parishioners. Testimonies from church members highlighted the emotional distress caused to families, particularly children, who experienced fear, nightmares, and adverse changes in their attitudes towards attending church. Psychologists also noted the vulnerability of the children to the protests.
A psychologist described a distressing atmosphere surrounding Westminster church due to large, graphic protest signs, indicating that attending services there is highly stressful. Some church members have taken extreme measures to avoid demonstrators, such as hiding in vehicles, while others have left the church altogether. In response, the Lincoln City Council enacted an ordinance prohibiting focused picketing near religious premises, effective thirty minutes before and after services, to maintain peace and ensure reasonable access for families, particularly those with young children. The council recognized that such picketing poses emotional risks to infants and young children, compelling families to choose between attending religious services and protecting their children from distress. The ordinance aims to prevent harassment through disruptive picketing that infringes on personal religious freedom.
The plaintiffs, four individuals opposed to abortion, have peacefully protested outside the church but admit that other demonstrators have displayed graphic abortion images. Following the ordinance's passage, the plaintiffs sought to have it declared unconstitutional, resulting in a preliminary injunction against its enforcement. The discussion references Supreme Court precedents affirming that municipalities can impose reasonable time, place, and manner restrictions on speech to protect public tranquility and safety, as long as these restrictions are content-neutral, narrowly tailored to serve significant interests, and provide alternative communication channels.
A significant government interest exists in protecting individuals attending religious services from unwanted messages, paralleling the interest upheld in Frisby v. Schultz regarding residential privacy. The Supreme Court affirmed a content-neutral ordinance that banned picketing in front of homes to preserve tranquility and privacy, noting the emotional distress such actions could cause residents. The Court emphasized that protecting the sanctity of the home is paramount, and that unwilling listeners should not be forced to endure objectionable speech. This reasoning extends to safeguarding the rights of churchgoers, as their ability to worship without substantial interference is akin to the privacy rights recognized in the home. Supporting this view, a related case, Edwards v. City of Santa Barbara, confirmed the government's legitimate interest in shielding church attendees from harassment. The First Amendment protects the freedom to worship as a fundamental right, comparable to the right to privacy in one's home. Furthermore, houses of worship serve as sacred spaces for rest and replenishment, akin to the home, underscoring the need for similar protective measures.
Westminster's parishioners face coercive and unwanted messages from picketers when attending church, leading to a disruptive worship experience. They must choose between enduring harassment during services or forfeiting their right to worship. The “unwilling listener” concept, highlighted in Frisby, applies here, as church members become captives of unwanted speech within their religious space. The First Amendment allows for the prohibition of intrusive speech when the audience cannot avoid it. The City of Lincoln aims to protect individuals' rights to practice their religion free from such coercive messages, similar to the privacy interests upheld in Frisby.
The ordinance in question must be narrowly tailored to serve a substantial government interest. In Frisby, the Supreme Court deemed an ordinance narrowly tailored as it restricted focused picketing in front of specific residences. Lincoln's ordinance similarly limits picketing to a half-hour before and after religious services, prohibiting demonstrations only in immediate proximity to the church, while allowing other forms of communication like leafleting. This approach is more limited than the Frisby ordinance, which banned all picketing at residences.
However, the majority argues that the ordinance is overbroad as it restricts all picketing regardless of content and is not justified simply based on the potential opposition from adults attending services. They contend that the regulation fails to differentiate between speech based on disagreement with the message and actual coercion, suggesting the law's application is not sufficiently narrow to protect churchgoers.
Adults attending their chosen church are subjected to severe psychological distress due to disruptive picketing, including graphic imagery and loud jeering, which goes beyond mere disapproval. Justice Stevens, in the case of Frisby, noted that picketing aimed at causing psychological harm is not constitutionally protected. The Lincoln ordinance specifically targets speech likely to impose harmful psychological impacts, and it is narrowly tailored to address this issue.
The ordinance allows ample alternative channels for communication, similar to Frisby's prohibition of focused picketing at residences. Protesters can express their views across the street or on sidewalks adjacent to places of worship at permitted times. Therefore, the plaintiffs have sufficient alternatives for protest.
The case of Action v. Gannon, where demonstrators disrupted church services, does not invalidate the Lincoln ordinance. In Action, the court upheld the right to enjoin disruptive actions while recognizing the need to preserve First Amendment rights. This current situation involves assessing the government's authority to impose time, place, and manner restrictions to protect the First Amendment rights of churchgoers. Action supports the position that the government can prevent interference with the free exercise of religion, justifying the ordinance's enforcement.
The ordinance applies uniformly to all violators and aims to prevent intrusive speech directed at individuals attending church services. Crafting a content-neutral ordinance that differentiates between types of signs is deemed impractical. Plaintiffs, identified as peaceful picketers, face minimal restrictions, being allowed to walk on sidewalks, distribute leaflets, and engage with willing listeners, with only a limited prohibition on carrying signs around scheduled church activities. This restriction is positioned as negligible compared to the disruptive and intimidating behavior experienced by church attendees from some protestors.
The Lincoln ordinance is justified by substantial government interests, being narrowly tailored to protect congregants from intimidation while ensuring access to worship. The dissent argues that the majority of the court overlooked the rights of churchgoers, particularly families, who should not be subjected to aggressive protests. The discussion also references similar cases emphasizing the government's role in regulating speech in public forums to prevent unwanted intrusion, highlighting the need for regulations to protect the sanctity of religious practices and the rights of individuals against coercive speech.
