Valenzuela v. Aquino

GONZALEZ, Justice,

dissenting.

This case squarely presents the issue of whether an otherwise lawful picketing operation may be directed toward a private home. When a residence is used exclusively for residential purposes, I would hold that the persons living in that home have a right to enjoy the home without intrusion of their privacy by the sights and sounds that they might have to endure at the office. Under the facts of this case, I would hold that as a matter of law, the Aquinos showed invasion of privacy with evidence that petitioners intentionally intruded into respondents’ solitude in a manner that is highly offensive to a reasonable person. In short, under this record, the state has a compelling interest in protecting the common law right of privacy of an individual, 1 and can therefore place reasonable restrictions on the picketers’ constitutional right of free expression. The injunction at issue was sufficient to accomplish this end. ' I would thus affirm the judgment of the court of appeals.

I.

Dr. Eduardo Aquino is an obstetrician and gynecologist in Corpus Christi, Texas. Part of his practice includes performing abortions. Mercedes Aquino, Dr. Aquino’s wife, is the office manager of his practice.

Since 1982, petitioners have picketed the two clinics where Dr. Aquino performs abortions. In March 1988, the petitioners began to also picket his residence which faces a cul-de-sac. On four consecutive Tuesdays, between 4:30-6:00 p.m., a group of picketers (the size of the group varied from 11 to 25), walked up and down the sidewalk and street where Dr. Aquino’s residence stands. The picketers walked in front of the Aquinos’ residence, two houses over and two houses back carrying signs which, among other things, read “Abortion is Murder” and “God Gives Life, Aquino Takes Away.” The picketers did not block *515 the driveway or interfere with access to the property. Law enforcement officers who observed the activity testified that the picketers breached no state law or city ordinance. Nonetheless, as one can imagine, the effect the picketers had on the family was devastating. It severely disrupted the tranquility of the home and some of the family members became ill.

After the fourth protest, Dr. and Mrs. Aquino, individually and on behalf of their minor children, filed suit against nine individuals and a pro-life organization seeking injunctive relief and damages for negligent infliction of emotional distress that the picketing allegedly caused them and their family. They obtained a temporary restraining order denying the petitioners the right to picket closer than one-half mile from the Aquinos’ house. The court of appeals invalidated this order as overly broad. Valenzuela v. Aquino, 763 S.W.2d 43 (Tex.App.—Corpus Christi 1989, no writ).

The Aquinos subsequently proceeded to trial on their suit for a permanent injunction and damages. After a jury trial, the case was submitted to the jury on the theories of negligent and grossly negligent infliction of mental distress. The jury answered the questions favorably for the Aquinos and also found that the picketing was focused or directed upon the Aquino residence. In conformity with the jury verdict, the trial court rendered an $810,000 judgment against the petitioners as well as a permanent injunction which prohibited the petitioners from engaging in any type of picketing within 400 feet of the center-line of Dr. Aquino’s property.

The petitioners perfected an appeal to the court of appeals asserting that the judgment infringed upon their rights of freedom of speech under both the federal and Texas constitutions. The court of appeals reversed the damage award but affirmed the injunction. I would affirm the judgment of the court of appeals.

II.

The petitioners assert that the permanent injunction is invalid under both the United States and the Texas Constitutions’ guarantees of freedom of speech. In Davenport v. Garcia, 834 S.W.2d 4 (Tex.1992), we held that article I, section 8 of the Texas Constitution provides greater rights of free expression than its federal equivalent, and that we could benefit from the insights of well-reasoned and developed federal and state jurisprudence concerning corresponding constitutional guarantees.

The First Amendment to the United States Constitution provides, among other things, that “Congress shall make no law ... abridging the freedom of speech.” U.S. Const, amend. I. In 1925, the Supreme Court decided that the First Amendment applied to all state action through the Fourteenth Amendment, thus prohibiting any governmental body, including the courts, from unwarrantedly restricting a citizen’s speech. See Gitlow v. New York, 268 U.S. 652, 666 , 45 S.Ct. 625, 630 , 69 L.Ed. 1138 (1925). The Supreme Court subsequently recognized that the First Amendment’s speech clause protects certain expressive conduct, such as burning the United States flag at a political convention, wearing black arm-bands to protest a war, conducting a silent sit-in against segregationist policies, picketing a supermarket’s unfair labor practices, and flying a red flag as a political statement. See, e.g., Texas v. Johnson, 491 U.S. 397, 404-05 , 109 S.Ct. 2533, 2539-40 , 105 L.Ed.2d 342 (1989); Tinker v. Des Moines Ind. Community Schools, 393 U.S. 503, 505 , 89 S.Ct. 733, 735 , 21 L.Ed.2d 731 (1968); Amalgamated Food Employees Union Local 509 v. Logan Valley Plaza, Inc., 391 U.S. 308, 313-14 , 88 S.Ct. 1601, 1605-06 , 20 L.Ed.2d 603 (1968); Brown v. Louisiana, 383 U.S. 131, 141-42 , 86 S.Ct. 719, 723-24 , 15 L.Ed.2d 637 (1966); Stromberg v. California, 283 U.S. 359, 369-70 , 51 S.Ct. 532, 535-36 , 75 L.Ed. 1117 (1931). Although governmental authorities may regulate expressive conduct more easily than the written or spoken word, such conduct nevertheless will obtain First Amendment protection if the government prohibits it “precisely because of its communicative attributes.” See Barnes v. Glen Theatre, Inc., — U.S. -, -, 111 *516 S.Ct. 2456, 2461 , 115 L.Ed.2d 504, 518 (1991); see also Johnson, 491 U.S. at 404-05 , 109 S.Ct. at 2539-40 ; Young v. New York Transit Auth., 903 F.2d 146 , 154 (2d Cir.1990), cert. denied, 498 U.S. 984 , 111 S.Ct. 516 , 112 L.Ed.2d 528 (1990) (panhandling in subway not expressive conduct deserving First Amendment protection).

Peaceful picketing is one type of expressive conduct that usually merits First Amendment protection. See, e.g., Boos v. Barry, 485 U.S. 312, 318 , 108 S.Ct. 1157, 1162 , 99 L.Ed.2d 333 (1988) (struck down ordinance restricting embassy picketing because content based); United States v. Grace, 461 U.S. 171 , 103 S.Ct. 1702 , 75 L.Ed.2d 736 (1983); Carey v. Brown, 447 U.S. 455 , 100 S.Ct. 2286 , 65 L.Ed.2d 263 (1980); Thornhill v. Alabama, 310 U.S. 88 , 60 S.Ct. 736 , 84 L.Ed. 1093 (1940) (first recognized picketing as protected “speech”); but see Frisby v. Schultz, 487 U.S. 474, 484 , 108 S.Ct. 2495, 2502 , 101 L.Ed.2d 420 (1988) (restricted residential picketing).

The United States Supreme Court held in Carey v. Brown that peaceful picketing in a residential area is protected speech. Carey involved an Illinois statute that prohibited all picketing of residences or dwellings except for picketing of a place of employment as part of a labor dispute. In Carey , the Court did acknowledge the tension that exists between freedom of speech, and the states’ interest in preserving the sanctity of the home, noting “that the one retreat to which men and women can repair to escape from the tribulation of their daily pursuits is surely an important value.” 447 U.S. at 460 , 100 S.Ct. at 2290 . Nonetheless, the Court invalidated the statute. The Court specifically stated that the First Amendment protects picketing on the public streets and sidewalks of residential neighborhoods from unjustified state interference. Carey, 447 U.S. at 460 , 100 S.Ct. at 2290 . See also Gregory v. Chicago, 394 U.S. 111, 113 , 89 S.Ct. 946, 947 , 22 L.Ed.2d 134 (1969) (reversing conviction for disorderly conduct that stemmed from picketing of mayor’s house); Flores v. City of Denver, 122 Colo. 71 , 220 P.2d 373, 376 (1950) (reversing conviction for picketing in front of governor’s house); State v. Anonymous, 6 Conn.Cir. 372, 274 A.2d 897 (1970) (reversing conviction for residential picketing); State v. Schuller, 280 Md. 305 , 372 A.2d 1076, 1082 (1977). Cf. Garcia v. Gray, 507 F.2d 539 (10th Cir.1974) (upheld ordinance banning residential picketing except if related to labor dispute as valid exercise of police powers); Degregory v. Giesing, 427 F.Supp. 910, 913 (D.Conn.1977) (legislature properly regulated labor picketing in residential areas but “[o]ther considerations might apply to other types of picketing approaching more closely to pure speech”); Hall v. Hawaiian Pineapple Co., 72 F.Supp. 533, 537 (D.Haw.1947) (residential picketing ban valid exercise of police powers).

III.

Peaceful picketing is generally considered protected speech; it nevertheless sometimes may be regulated. The validity of such regulation generally depends on the nature of the public forum within which the activity occurs. See, e.g., Greer v. Spock, 424 U.S. 828, 836 , 96 S.Ct. 1211, 1216 , 47 L.Ed.2d 505 (1976) (upheld prohibition of picketing on military installation); Adderley v. Florida, 385 U.S. 39, 47 , 87 S.Ct. 242, 247 , 17 L.Ed.2d 149 (1966) (picketing prohibited on jailhouse grounds).

The Supreme Court has developed three categories to analyze expressive conduct in varying public forums, namely: 1) the traditional public forum; 2) the quasi-public forum; and 3) the non-public forum. See, e.g., International Soc. for Krishna Consciousness, Inc. v. Lee, — U.S. -, -, 112 S.Ct. 2701, 2706 , 120 L.Ed.2d 541, 550 (1992); Perry Educ. Ass’n v. Perry Local Educators Ass’n, 460 U.S. 37, 45-46 , 103 S.Ct. 948, 954-55 , 74 L.Ed.2d 794 (1983) (establishing tri-partite method of public forum analysis). Traditional public forums include those places historically devoted to assembly and debate; quasi-public forums consist of places the state has designated for open public discourse. Compare Grace, 461 U.S. at 177 , 103 S.Ct. at 1706 (streets and public sidewalks are traditional public forums) with Widmar v. Vincent, *517 454 U.S. 263 , 102 S.Ct. 269 , 70 L.Ed.2d 440 (1981) (state university meeting facilities are designated public forums). A state may regulate expressive conduct occurring in either of these forums if the state demonstrates a compelling interest or implements a valid time, place, and manner restriction. See Ward v. Rock Against Racism, 491 U.S. 781, 790-91 , 109 S.Ct. 2746, 2753-54 , 105 L.Ed.2d 661 (1989) (time-place-manner restriction must be content neutral, narrowly tailored to serve significant state interest, and leave open alternative communication channels). The third category involves non-public forums, such as municipal buses or military bases, within which the state may regulate expressive conduct if the regulation is rationally based and content neutral. See, e.g., United States v. Kokinda, 497 U.S. 720, 730 , 110 S.Ct. 3115, 3121 , 111 L.Ed.2d 571 (1990) (upheld regulation of expressive conduct on post office sidewalk because sidewalk was non-public forum for solicitation of funds); Greer, 424 U.S. at 836 , 96 S.Ct. at 1216 ; Lehman v. City of Shaker Heights, 418 U.S. 298, 303 , 94 S.Ct. 2714, 2717 , 41 L.Ed.2d 770 (1974) (upheld municipal ordinance banning political advertising on city buses). The forum at issue in this case is a public sidewalk in a residential neighborhood; a traditional public forum. Thus, the state may implement reasonable time, place, and manner restrictions on conduct occurring in this forum.

Frisby v. Schultz presented the United States Supreme Court with an issue quite similar to the one that now faces this Court, namely, whether abortion opponents have the constitutional right to picket a doctor’s residence. The protests in Frisby occurred on six separate occasions in 1985 in Brookfield, Wisconsin. Police who observed the Brookfield protestors noted that the protestors did not violate any state laws or municipal ordinances, and no arrests were made. The town council, not the affected doctor, acted to curtail the protests, and it did so by passing an ordinance, rather than securing an injunction, that banned all picketing “before or about” any residence in Brookfield. 2 See Frisby, 487 U.S. at 476 , 108 S.Ct. at 2498 . The United States Supreme Court upheld the Brookfield ordinance as a valid time, place, and manner restriction by narrowly construing it to prohibit only “the evil of targeted residential picketing.” Id. at 488 , 108 S.Ct. at 2504.

In its “time, place and manner” analysis, the Court briefly dispensed with three of the four operative factors by accepting the lower court’s conclusion that the ordinance was content neutral, relying on Brook-field’s oral argument to hold that it was narrowly tailored, and agreeing with Brookfield’s assertion that ample alternative communication channels self-evidently existed. The Court devoted most of its inquiry to the fourth factor, namely, that the ordinance furthered a significant government interest “in protecting the well-being, tranquility, and privacy of the home.” Id. at 484, 108 S.Ct. at 2502 (quoting Carey, 447 U.S. at 471 , 100 S.Ct. at 2295 ). The right of persons to privacy in their own homes includes the right to be free from undue intrusions. See, e.g., Ward, 491 U.S. at 796 , 109 S.Ct. at 2756 (city may protect residents from offensive noise intruding into home); FCC v. Pacifica Foundation, 438 U.S. 726, 748-49 , 98 S.Ct. 3026, 3039-40 , 57 L.Ed.2d 1073 (1978) (offensive radio broadcast intruded on privacy of home); Rowan v. Post Office Dep’t, 397 U.S. 728, 738 , 90 S.Ct. 1484, 1491 , 25 L.Ed.2d 736 (1970) (restricted offensive mailings); Kovacs v. Cooper, 336 U.S. 77, 86-87 , 69 S.Ct. 448, 453 , 93 L.Ed. 513 (1949) (restricted sound amplification in residential neighborhood); see also United States v. Lee, 935 F.2d 952, 956-57 (8th Cir.1991) (burning cross 400 feet from apartment complex not protected by First Amendment because intimidating intrusion).

*518 Other state courts have reached just such a conclusion in contexts quite similar to the case before us. In Boffard v. Barnes, 248 N.J.Super. 501 , 591 A.2d 699 (Ch.Div.1991), a New Jersey court relied exclusively on First Amendment forum analysis to hold that an injunction prohibiting picketing within 200 feet of the doctor’s house was a valid time, place, and manner restriction. The court’s decision depended on what it called “the balance to be struck between the defendant’s right of free speech and the plaintiffs’ right to privacy.” Id. at 701. The court concluded that the “disruptive potential inherent in the conduct” of residential picketing offsets any injury to the protestor’s right of free expression. Id.

In Klebanoff v. McMonagle, 380 Pa.Super. 545 , 552 A.2d 677 (1989), a Pennsylvania superior court relied on the United States and Pennsylvania constitutions to uphold a permanent injunction against picketing directly in front of a doctor’s house. Id. at 682 . The court’s analysis of the constitutional issues, however, focused exclusively on the First Amendment, and thus the court employed a standard time, place, and manner test to scrutinize the injunction. The court relied on Frisby to validate this injunction; its language parroted the “focused picketing” restriction of which Frisby approved. Id. at 678 . In Northeast Women’s Center, Inc. v. McMonagle, 939 F.2d 57 , 66-67 (3rd Cir.1991), anti-abortion activists engaged in physical attacks on patients and doctors at an abortion clinic. They were found guilty of civil Rico, and state torts of trespass and intentional interference with contract. An injunction was entered prohibiting the activists from approaching more than 2500' of the residence of any of the employees of the abortion clinic. The injunction was promptly disobeyed and one of the individuals incarcerated. The court of appeals left the 2500' limitation in place for sound equipment and bullhorns, and modified the injunction’s limitation of picketing to 500' in an attempt to reconcile the inherent conflict between the privacy interests of the residents and the freedom of expression of the protestors.

As is readily evident, courts have struggled with the issue of reconciling the privacy interests of a homeowner and the First Amendment guarantee of freedom of expression. A significant government interest exists in protecting the privacy of residents and the right of privacy must be placed on the scales with the right of free expression in a public forum. This is a close call and in my opinion, under the facts of this case, the scales are tilted in favor of privacy. I thus conclude that this injunction is sufficiently narrowly tailored to serve the interest of protecting the privacy of the Aquinos. The evils caused by the picketers cannot be eliminated without the injunction. Justice Rehnquist eloquently articulated the state’s interest in guaranteeing its citizens’ privacy in his dissent in Carey v. Brown, 447 U.S. 455, 478 , 100 S.Ct. 2286 , 2299 where he observed that “there are few of us that would feel comfortable knowing that a stranger lurks outside our home.” He quotes from Wauwatosa v. King, 49 Wis.2d 398, 411-12 , 182 N.W.2d 530, 537 (1971):

To those inside ... the home becomes something less than a home when and while the picketing ... continue[s]_ [The] tensions and pressures may be psychological, not physical, but they are not, for that reason, less inimical to family privacy and truly domestic tranquility.

447 U.S. at 478 , 100 S.Ct. at 2299 .

IY.

Article I, section 8 of the Texas Constitution says that:

Every person shall be at liberty to speak, write or publish opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or the press.

Tex. Const, art. I, sec. 8. It differs from the federal constitution’s speech clause in its more expansive language. See Davenport v. Garcia, 834 S.W.2d at 10 ; see also Casso v. Brand, 776 S.W.2d 551, 564 (Tex.1989) (Gonzalez, J., concurring and dissenting); KGBT v. Briggs, 759 S.W.2d 939, 944 (Tex.1988) (Gonzalez, J., concurring) (article *519 I, section 8 more expansive than federal right); O’Quinn v. State Bar of Texas, 763 S.W.2d 397, 403 (Tex.1988). Contrary to section eight’s affirmative grant, the First Amendment casts its freedom of speech clause negatively. As broad as the Texas guarantee of freedom of speech is, it is not absolute, but must yield to other compelling state interests, such as the right to be let alone in one’s home where no business in the traditional sense is transacted.

In Davenport v. Garcia, 834 S.W.2d 4 (Tex.1992), we applied the guarantees of free expression of article I, section 8 of the Texas Constitution to determine the validity of prior restraints in the form of a trial court gag order. We set forth a two-prong test with regard to gag orders, requiring evidence of an imminent and irreparable harm to the judicial process which would deprive the litigants of a just resolution of their dispute, and the judicial restriction would be the least restrictive means to prevent that harm. Davenport, 834 S.W.2d at 10 .

Assuming for the sake of argument that the injunction in question could be considered a prior restraint, the harm to the Aquino’s peace and tranquility was imminent and irreparable, for which an injunction would be the only meaningful remedy. In the context of the facts of this case, the injunction represents as narrowly tailored a remedy as possible in balancing the right of privacy and the right of speech. There was no limitation on the protestors’ right to communicate to the doctor and his wife at the clinic. There are no limitations on place, provided the communications do not constitute picketing activity. The distance requirement is reasonably necessary to insure the Aquino’s privacy. Thus even assuming the injunction could be classified as prior restraint, I would uphold it under the Texas Constitution.

V.

I disagree with Justice Gammage’s conclusion that the damages award should stand. The court of appeals reversed the award, holding that damages for expressive speech are prohibited under constitutional guarantees of free speech. 800 S.W.2d 301, 309 . I agree with the court of appeals. See also Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 , 108 S.Ct. 876 , 99 L.Ed.2d 41 (1988). 3 The uncertainty of not knowing where one might be penalized for expressive speech would have an unacceptable chilling effect on the right of free speech. Such concerns are not present, however, once an injunction is in place. Defendants may be held accountable for damages should they violate such an injunction in the future which results in injury-

. See Billings v. Atkinson, 489 S.W.2d 858 (Tex.1973).

. The ordinance read:

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.

Schultz v. Frisby, 807 F.2d 1339, 1342 (7th Cir.1986).

. Permitting damages for expressive speech has a stifling effect on the free speech guarantees. Thus, the Court held in Falwell that granting Falwell damages for intentional infliction of emotional distress would violate the prohibition on damage awards where the speech in question may have an adverse emotional impact on the audience. Falwell, 485 U.S. at 55 , 108 S.Ct. at 881 .