Amicus Curiae Brief — Frisby v. Schultz

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No. 87-168 | 1OSEPH | SPAINIUL, Je

————

In The

Supreme Court of the United States

October Term, 1987

ray

Vv

RUSSELL FRISBY, ef al.,

Appellants,

SANDRA C. SCHULTZ, et al..,

Appellees.

ty)

Vv

On Appeal from the United States Court

of Appeals for the Seventh Circuit

ay

we

BRIEF AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION IN SUPPORT OF APPELLANTS

Ly

VV

Ronatp A. ZuMBRUN

*Ropin L. Rivetr

"COUNSEL OF RECORD

Pacific Legal Foundation

999 Capitol Mall, Suite 350

Sacramento, California 95814

Telephone: (916) 444-0154

Attorneys for Amicus Curiae,

Pacific Legal Foundation

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

or call collect (402) 342-2831

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES CITED ww. ii

Sm, UN a eeeeeseneesscnenaenniiel 1

Sees OE Bee CARS ............................ a 4

SUMMARY OF ARGUMENT _. Pease n a toe CARR 5

a scspuatitsiainnininca 5

I. THE COURT SHOULD ASSIGN SUPERSED-

ING IMPORTANCE TO THE PROTECTION

OF PRIVACY IN THE HOME. 5)

Il. EVEN IF THE STREETS OF BROOK-

FIELD’S BLACK FOREST SUBDIVISION

WERE CONSIDERED A PUBLIC FORUM,

BROOKEFIELD’S ORDINANCE BANNING

RESIDENTIAL PICKETING IS A CONSTI-

TUTIONAL TIME, PLACE, AND MANNER

REGULATION OF SPEECH ..W 12

A. Protection of Residential Privacy Standing

Alone Is a Legitimate State Interest 13

B. The Brookfield Ordinance Is Narrowly Tai-

lored to Meet Its Interest in Protecting Resi-

a eedieiiiandinene 0

C. Brookfield’s Ordinance Left Open Ample Al-

ternative Channels of Communication Even

Within the Black Forest Residential Com-

munity ........ Teal ween eA Ae ate cgeeiecalakene: ome

CONCLUSION ..................... Sacneatiaiecadehjadienichde al taideatiototenssestaitin 17

ii

TABLE OF AUTHORITIES CITED

Page

Cases

Adderley v. Florida, 385 U.S. 39 (1966) eee 0

Bakery and Pastry Drivers v. Wohl,

315 U.S. 760 (1968) 8

Breard v. Alexandria, 341 U.S. 622 (1951) oo. 10

Carey v. Brown, 447 U.S. 455 (1980) 0. «6G

City Council v. Taxpayers for Vincent, 466 U.S. 789

(HOGG) anna 14, 15

City of Renton v. Playtime Theatres, Ine.,

— U.S. —, 89 L. Ed. 2d 29 (1986) 14

City of Wauwatosa v. King, 49 Wis. 2d 38,

183 N.W.2d 530 (1971) — ee

Cox v. Louisiana, 379 U.S. 536 (1965) 200000. a 13

FCC v. Pacifica Foundation, 438 U.S. 726 (1978) ........... 13, 14

Garcia v. Gray, 507 F.2d 539 (10th Cir. 1974),

cert. denied, 421 U.S. 971 (1975) oe

Grayned v. City of Rockford, 408 U.S. 104

(1972) 5, 6

Gregory v. City of Chieago, 394 U.S. 111 (1969) 10,11

Hebrew v. Davis, 38 Mise. 2d 173, 235 N.Y.S.2d 318

11

Heffron v. International Society for

Krislina Consciousness, 452 U.S. 640 (1981) = s

Hughes v. Superior Court of California,

339 U.S. 460 (1950) 14

Kovaes v. Cooper, 336 U.S. 77 (1949) 000 7,9, 10, 17

Lehman v. City of Shaker Heights,

418 U.S. 208 (1974) ee

iii

TABLE OF AUTHORITIES—Continued

Page

Perry Edueation Association v. Perry Local

Educators’ Association, 460 U.S. 37 (1983) 0... 12,13

Pipe Machinery Co. v. De More, 76 N.E.2d 725

CE 11

Rowan v. United States Post Office Department,

ee 8, 9, 10, 17

Simpson v. Municipal Court, 14 Cal. App. 3d 591,

gS 14

State v. Perry, 196 Minn. 481, 265 N.W. 302 (1936) ..... 11

State v. Zanker, 179 Minn. 355, 299 N.W. 311 (1930) ... 11

United States v. Albertini, 472 U.S. 675 (1985) 20000... )=—«14

United States v. Grace, 461 U.S. 171 (1983) 200000

Virginia v. American Booksellers Association,

— US. —, 56 U.S.L.W. 4113 (January 25, 1988) 17

Rutes anp REGULATIONS

ne Pee Oe, OO l

MISCELLANEOUS

Town of Brookfield General Code § 9.17 000... 13

No. 87-168

ne.

Vv

In The

Supreme Court of the United States

October Term, 1987

ray

Vv

RUSSELL FRISBY, ef al.,

Appellants,

SANDRA C. SCHULTZ, ef al.,

Appellees.

fay

Vv

On Appeal from the United States Court

of Appeals for the Seventh Circuit

— |

—

BRIEF AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION IN SUPPORT OF APPELLANTS

INTEREST OF AMICUS

This amicus curiae brief of Pacific Legal Foundation

(PLF) is respectfully submitted pursuant to Supreme

Court Rule No. 36. Consent to the filing of this brief has

been granted by counsel for appellants and appellees;

these letters of consent have been lodged with the Clerk

of this Court.

Pacific Legal Foundation is a nonprofit, tax-exempt

organization incorporated under the laws of California for

the purpose of participating in litigation affecting public

policy. Policy for the Foundation is set by a Board of

Trustees composed of concerned citizens the majority of

whom are attorneys. The Board of Trustees evaluates

the merits of any contemplated legal action and authorizes

such action only where the Foundation’s position has

broad support within the general community. The Foun-

dation’s Board of Trustees has authorized the filing of an

amicus curiae brief in this matter.

Pacific Legal Foundation has extensive experience

with the intrusive and oppressive impacts of residential

picketing. PLF has represented agricultural employees

before the California Agricultural Labor Relations Board,

in actions taken as a result of mass labor picketing at

these employees’ homes. For example labor picketing oc-

eurred at Clyde W. Cornell’s home in Salinas, California,

on Sunday morning, April 29, 1979. Nearly 40 members

of the striking United Farm Workers of America marched,

sereamed, and yelled obscenities in front of Mr. Cornell’s

home terrifying his family and disrupting the tranquility

of the entire neighborhood. Before the demonstration was

ended by the police, 13 picketers had been arrested. The

administrative and judicial actions taken on behalf of

Mr. Cornell by PLF were initiated in the attempt to in-

sure that Mr. Cornell and his family would never again

have the privacy and sanctity of their home and neighbor-

hood so flagrantly violated.

PLF strongly believes that municipalities must be

permitted to adopt narrowly drawn statutes to protect

their citizens’ rights to privacy in their homes. Othe

frightening occurrences of picketing in residential neigh-

borhoods will continue needlessly.

The lower court’s decision to set aside the residential

picketing ordinance of Brookfield, Wisconsin, when there

is no constitutional need to allow the picketing, sets a

dangerous precedent. PLF considers the lower court’s

decision to be extremely significant as it interferes with

citizens’ fundamental right to privaey in the home and

overrides the state’s compelling interest in protecting that

right. The lower court failed to recognize this superseding

interest in domestic tranquility; yet past Supreme Court

decisions as well as federal and state court decisions have

recognized and protected the fundamental right to privacy

in the home when confronted with uninvited speech.

The state’s compelling need to protect both the right to

privacy and the right to free speech is undeniable; yet

neither right is absolute. When these rights conflict they

must be weighed and balanced by the courts. It is the opin-

ion of amicus curiae that the constitutionally protected pri-

vaey right in the home is superseding and was not properly

considered or weighed by the District Court. If it had,

the court would have ruled the right to privacy in the

home so compelling as to sustain Brookfield’s residential

picketing ordinance. PLIF, due to its unique perspective

and experience concerning the protection of residential

privacy interests, believes that it can provide this Court

with a more complete argument on the need to balance

the important publie interest at stake in this litigation.

STATEMENT OF THE CASE

This case arises from the Town of Brookfield,

Wisconsin’s, attempt to protect its residents, adults ana

children alike, from having their homes picketed.

Between April 20 and May 20, 1985, demonstrators

picketed the home of Dr. Benjamin M. Victoria.

Dr. Victoria lives in the Black Forest subdivision of

Brookfield, a small residential suburb of Milwaukee. Con-

siderable business and commercial development is clustered

along one major highway running through town and the

remainder of town is residential like the Black Forest

subdivision. The picketing created significant unrest in

Brookfield. For the local residents to think that their

homes could be invaded by strangers patrolling or posting

themselves in front of their homes was alarming. As a

result an ordinance was passed which stated ‘‘it is un-

lawful for any person to engage in picketing before or

about the residence or dwelling of any individual in the

Town of Brookfield.’ The constitutionality of this or-

dinance is the subject of this case. The appellees filed a

complaint in federal District Court arguing that their

free speech rights under the First and Fourteenth

Amendments of the United States Constitution were be-

ing deprived. The ordinance now comes before the

Supreme Court having been invalidated by the District

Court, and affirmed by the Cireuit Court, as likely to fail

the test of a constitutional time, place, and manner reg-

ulation of speech.

2)

SUMMARY OF ARGUMENT

The judgment of the Seventh Cirenit Court of Appeals

should he overturned for the following reasons:

1. The protectior of the right of privacy in the home

should be assigned superseding importance when evaluat-

ing the constitutionality of Brookfield’s residential picket-

ing ordinance.

2. Application of the correct test demonstrates that

the Brookfield residential picketing ordinance is a consti-

tutional time, place, and manner regulation of speech.

°

ARGUMENT

I

THE COURT SHOULD ASSIGN

SUPERSEDING IMPORTANCE TO THE

PROTECTION OF PRIVACY IN THE HOME

**Although American constitutional jurisprudence,

in the light of the First Amendment, has been jealous

to preserve access to public places for purposes of

free speech, the nature of the forum and the confliet-

ing interests involved have remained important in de-

termining the degree of protection afforded by the

Amendment to the speech in question.’’ Lehman v.

City of Shaker Heights, 418 U.S. 298, 302-03 (1974).

Moreover,

‘*(t]he nature of a place, ‘the pattern of its normal

activities, dictate the kinds of regulations of time,

place, and manner that are reasonable.’ Although

a silent vigil may not unduly interfere with a publie

6

library ... making a speech in the reading room al-

most certainly would. That same speech should be

perfectly appropriate in a park. The crucial question

is whether the manner of expression is basically in-

compatible with the normal activity of a partiewlar

place at a particular time.”’ Grayned rv. City of

Rockford, 408 U.S. 104, 116 (1972).

These principles demonstrate the totally inappropri-

ate nature of picketing around someone’s home. The pat-

terns of a residential neighborhood’s normal activity are

incompatible with picketing. The scenes are varied but

each demands similar atiributes—security and privacy

from unfriendly intrusions. Picture three or four young

girls playing with their dolls, pushing them along the

streeis in their buggies; picture a young mother walking

her newborn child; picture a father and son playing catch

in the front yard, or even the neighborhood kids playing

a game of baseball on the street in front of their homes.

Then erase these pictures from sight, for when a band of

picketers enters a neighborhood there is no room for any-

one else. Little girls will be hurried inside by their fright-

ened parents. New mothers will seek refuge away from

the picketers taking up a menacing watch over some

neighbor’s home. No kids will be found in the streets

because their haven, their last retreat, has been taken over.

Make no mistake, the picketers intend this result for

it is more than words they wish to convey—their message

is intimidation no matter how peaceful they may super-

ficially appear. Their purpose is to communicate that

until their subject repents or recants that he or she and

all those around will have to live with constant concern.

This result is argued by plaintiffs to be protected by the

First Amendment. To the contrary the framers of the

7

Constitution never intended the right of free speech as a

weapon of harassment or intimidation of individuals in

the very privacy of their own homes.

Privacy in the home constitutes a compelling state

interest which only the state through the exercise of its

police power has the capability of ensuring. See Kovacs v.

Cooper, 336 U.S. 77, 87 (1949). Brookfield, Wisconsin,

recognized its heavy responsibility and indeed duty. It

recognized that picketing around homes is an oppressive,

emotionally disturbing form of conduct which deprives a

residential area of its feeling of well-being and privacy.

Brookfield did the only thing it could responsibly do under

these circumstances: it prohibited all picketing before or

about homes within its jurisdiction. Nevertheless the

District Court struck down Brookfield’s attempt to protect

its residents and the Cireuit Court affirmed, ruling in

effect that at all times privacy in the home must be sub-

ordinated to the right of picketers to invade the tranquility

of the home environment. In the words of the District

Court, ‘‘[a]n absolute ban ... against a form of protected

speech [residential picketing] cannot be permitted to

stand’? Schultz v. Frisby, 619 F. Supp. 792, 797

(.D. Wis. 1985).

Yet this Court stated in United States v. Grace.

461 U.S. 171, 177 (1983), “‘fwle have regularly re-

jected the assertion that people who wish ‘to propagandize

protests or views have a constitutional right to do so

whenever and however and wherever they please.’ ”’ (not-

ing Adderley te. Florida, 385 U.S. 89, 47-48 (1966). The

District Court’s absolutist approach fails to recognize that

speech coupled with eonduet such as picketing ean indeed

be limited, and in some cirenmstances banned altovether as

to a particular location. J/effron v. International Society

for Krishna Consctousness, 452 U.S. 640, 651-52 (1981);

Bakery and Pastry Drivers v. Wohl, 315 U.S. 769 (1942).

It is imperative that the District Court’s analysis be

corrected,

The state must be permitted to exercise its duty to

protect the residential privacy of its citizens, because with-

out safeguarding statutes a citizen can and will be subject-

ed to the true horrors of residential picketing, for its

purpose is not just to educate or simply communicate, but

to harass, intimidate, and embarrass. The right of privacy

in the home is so cherished and fundamental to a tree

and democratic society that on balance there is no justifi-

cation to exalt picketing under the guise of free speech

to a protected, unassailable status. When weighed against

the right to have a safe and private home, ihe right to

pickei pales in constitutional importance and can be seen

in its true light—not as a tool to express and communicate

ideas but as a weapon of injustice.

The right to be free from invasion of privacy encom-

passes the right to have one’s home, family, and personal

life protected from disruption. A clear line of case author-

ity demonstrates that the privacy and sanctity of the home

are to be given the highest safeguards against intrusive

speech ina variety of factual settings.

In Rowan v. United States Post Office Department,

397 U.S. 728 (1970), this Court uphe!d the constitutionality

of a federal statute which permitted a resident to have his

name removed from mailing lists thereby prohibiting mail

houses from sending mailings to the resident’s home if the

subject matter of the mailings was found by the resident

9

to be sexually offensive. Chief Justice Burger stated in

his opinion: :

‘Weighing the highly important right to communi-

cate, but without trying to determine where it fits

into constitutional imperatives, against the very basic

right to be free from sights, sounds, and tangible

matter we do not want, it seems to us that a mailer’s

right to communicate must stop at the mailbox of an

unreceptive addressee.’’ Rowan, 397 U.S. at 736-37.

In explaining his opinion the Chief Justice continued :

‘‘The ancient concept that ‘a man’s home is his castle’

into which ‘not even the king may enter’ has lost none

of its vitality, and none of the recognized exceptions

includes any right to communicate offensively with

another.

‘“*We therefore categorically reject the argument

at a vendor has a right under the Constitution or

otherwise to send unwanted material into the home

of another, If this prohibition operates to impede the

flow of even valid ideas, the answer is that no one

has a right to press even ‘good’ ideas on an unwilling

recipient. That we are often ‘captives’ outside the

sanctuary of the home and subject to objectionable

speech and other sound does not mean we must be

captives everywhere.’? Rowan, 397 U.S. at 737-38.

In an earlier case, Kovacs v. Cooper, supra, this Court

upheld an ordinance prohibiting the use of sound trucks

emitting ‘‘loud and raucous noises,’’ reasoning that a

person in his home or even in the street is particularly

helpless to escape interference with his privacy except

through protection of the municipality. Kovacs, 336 U.S.

at 87.

10

In addition, the Court stated:

‘“‘The police power of a state extends beyond health,

morals and safety, and comprehends the duty, within

the constitutional limitations, to protect the well-being

and tranquility of a community. A state or city may

prohibit acts or things reasonably thought to bring

evil or harm to its people.’’ Kovacs, 336 U.S, at 83,

In Breard v. Alexandria, 341 U.S. 622, 625-26 (1951),

this Court, in upholding a municipal ordinance regulating

door-to-door magazine solicitations at private residences,

retained this rationale, noting

‘that opportunists ... cannot be permitted to arm

themselves with an acceptable principle, such as...

a free press, and proceed to use it as an iron stan-

dard to smooth their path by crushing the living

rights of others to privacy and repose.’’

In commenting on the effects of unregulated picket-

ing, Justice Black in his concurring opinion in Gregory v.

City of Chicago, 394 U.S. 111 (1969), emphasized that the

family home should be protected:

‘*And perhaps worse than all other changes, homes,

the sacred retreat to which families repair for their

privacy and their daily way of living, would have to

have their doors thrown open to all who desire to

convert the occupants to new views, new morals, and

a new way of life. Men and women who hold public

office would be compelled, simply because they did

hold publie office, to lose the comforts and privacy

of an unpicketed home. I believe that our Constitu-

tion, written for the ages. to endure except as changed

in the manner it provides, did not create a government

with such monumental weaknesses. Speech and press

are, of course, to be free, so that public matters can

be discussed with impunity. But picketing and dem-

onstrating can be regulated like other conduct of men.

11

I believe that the homes of men, sometimes the last

citadel of the tired, the weary, and the sick, ean be

protected by government from noisy, marching, tramp-

ing, threatening picketers and demonstrators bent on

filling the minds of men, women, and children with

fears of the unknown.’’ Gregory, 394 U.S. at 125-26.

Many other federal and state decisions also hav. de-

termined residential picketing to be disruptive of the feel-

ings of well-being and privacy that one is entitled to enjoy

in his home and, thus, subjeet to prohibition or regulation.

These cases have held that regulation is not an infringe-

ment of the First Amendment right to free speech in that

the restriction of picketing and concomitant speech is in

furtherance of a legitimate, substantial, and compelling

state interest—protection of the right of privacy. See

City of Wauwatosa v. King, 49 Wis. 2d 38, 182 N.W.2d 530

(1971); State v. Zanker, 179 Minn, 355, 356, 299 N.W. 311

(1930); State v. Perry, 196 Minn. 481, 482, 265 N.W. 302

(1955); Pipe Machinery Co. v. De More, 76 N.E.2d 725, 727

(1947); Hebrew v. Davis, 38 Mise. 2d 173, 177-78, 235

N.Y.S.2d 318, 323-24 (1962); Garcia v. Gray, 507 F.2d

539 (10th Cir. 1974), cert. denied, 421 U.S. 971 (1975).

Picketing is completely ineompatible with the home

environment. As established by these cases, the right of

privacy in the home may be protected from intrusive and

disruptive speech through the regulatory efforts of states

and municipalities. The District Court, however, failed

to assign to Brookfield’s residential picketing ordinance

the proper constitutional weight, a superseding weight for

protecting privacy in the home. It instead assigned to

‘*nicketing’’ a constitutional preeminence found neither in

case law nor the Constitution itself,

12

II

EVEN IF THE STREETS OF BROOKFIELD’S

BLACK FOREST SUBDIVISION WERE

CONSIDERED A PUBLIC FORUM, BROOKFIELD’S

ORDINANCE BANNING RESIDENTIAL PICKETING

IS A CONSTITUTIONAL TIME, PLACE, AND

MANNER REGULATION OF SPEECH

The lanes and byways of Brookfield’s Black Forest

subdivision are only 30 feet wide. They have no lighting

and are not bordered by sidewalks. There is no evidence

that they have ever been reserved much less used for

picketing purposes.’ Picketing on these narrow lanes would

be unsafe and a clear infringement on residential tran-

quility. Under these circumstances, forbidding residential

picketing is constitutionally valid as long as the ordinance

is *‘reasonable and not an effort to suppress expression

merely because public officials oppose the speaker’s view.”’

Perry Education Association v. Perry Local Educators’

Association, 460 U.S. 37, 46 (1983). This standard is easily

met by Brookfield’s ordinance but amicus urges the Court

to recognize that Brookfield’s ordinance also stands even

under much stricter standards. Even if the Black Forest

subdivision’s streets were wide enough so that picketing

did not conflict with safe traffic, and even if there were

lighting and sidewalks along the streets, Brookfield’s or-

dinance is constitutional as a reasonable time, place, and

manner restriction on speech,

There is no question that the state can impose content-

neutral regulations of time, place, and manner on speech

, Except for the April and May picketing which precipitated

the ordinance.

13

as long as the regulations serve a legitimate state interest,

are narrowly tailored, and leave open ample alternative

channels of communication. Perry, 460 U.S. at 45. Also

beyond question is the character of Brookfield’s ordinance.

It is not content based because it unequivocally restricts

all residential picketing regardless of the message of the

picketers. Brookfield’s ordinance also meets the test of

constitutional validity because it: (1) serves a legitimate

state interest, (2) is narrowly tailored to meet that in-

terest, and (3) leaves open ample alternative channels

of communication.

A. Protection of Residential Privacy

Standing Alone Is a Legitimate State Interest

Brookfield clearly articulated that the interests it

wanted to protect were both publie safety of those using

its streets and the peace, privacy, and security of its citi-

zens When at home. See Town of Brookfield General Code

§ 9.17.

This Court has long held that the state has a legiti-

mate interest in regulating expressive conduct that inter-

feres with the safe or orderly use of public streets.

Cox v. Louisiana, 379 U.S. 536 (1965). But Brookfield’s

interest in protecting the privacy of its citizens while at

home is alone more than adequate to satisfy the legitimate

state interest prong of the Perry test. Indeed privacy in

the home constitutes a compelling state interest of super-

seding importance. See Argument I, supra.

As already recognized by this Court, within the con-

text of one’s home, ‘the individual’s right to be left alone

14

plainly outweighs the First Amendment Rights of an in-

truder.’”’ FCC v. Pacifica Foundation, 488 U.S. 726, 748

(1978). There can be no doubt of the legitimate interest

Brookfield sought to protect.

B. The Brookfield Ordinance Is

Narrowly Tailored to Meet Its

Interest in Protecting Residential Privacy

The District Court erred in determining that the or-

dinance was not narrowly tailored. In so deciding the

lower court suggested that means less restrictive of the

picketers’ conduct were available to the town, such as limit-

ing the time of picketing, or the number of picketers, or

the season of picketing. Schul/z, 619 F. Supp. at 797. But

the District Court misconstrued the proper test, for a

content-neutral regulation is narrowly drawn if it ‘‘re-

sponds precisely to the substantive problem which legiti-

mately concerns the City.’’ City Council v. Taxpayers for

Vincent, 466 U.S. 789, 810 (1984). See also Uniled States

v. Albertini, 472 U.S. 675 (1985); City of Renton v. Play-

time Theatres, Inc., — U.S. —, 89 L. Ed. 2d 29 (1986). The

substantive problem Brookfield is attempting to curtail

is picketing around its citizens’ homes. Limiting the time

or season for picketing, or number of picketers, will not

cure the substantive problem. That problem is picketing,?

for picketing is at times terrifying and always intimidating

and harassing.

2 “The verb ‘picket’ is a commonly understood, widely used

term describing the conduct of one who patrols an area or

stations himself at a place bearing some insignia or sign designed

to persuade or protest.” Simpson’ vy. Municipal Court,

14 Cal. App.3d 591, 92 Cal. Rptr. 417 (1971). See also Hughes v.

Superior Court of California, 339 U.S. 460, 464-65 (1950). Many

forms of communication, including expressive conduct, fall out-

side of the recognized, specific conduct described as picketing.

The problem is the presence of even one individual,

an unwelcome visitor to your home, who you know is not

there for your benefit, but quite the contrary, to protest,

harass, frighten, and intimidate.

‘¢*'T]o those inside... the liome 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 privaey and

truly domestic tranquility.’’’ Carey v. Brown,

447 U.S. 455, 478 (1980) (Rehnquist, J., dissenting

(quoting City of Wauwatosa v. King, 49 Wis. 2d 398,

411-12, 182 N.W.2d 530, 537 (1971)).

Picketing is a manner of expression which is com-

pletely incompatible with the normal activity of a peaceful

residential area, an area commonly teaming with com-

munal activity such as busy tots playing, and family

members coming and going. The problem faced by

Brookfield was the posting of menacing individuals who

were strangers to the families in the neighborhood. The

only way to cure the problem is to prohibit it. That is

what Brookfield did, and under City Council v. Taxpayers

for Vincent, supra, such a response is narrowly tailored

to serve the legitimate interest in protecting residential

privacy.

C. Brookfield’s Ordinance Left Open

Ample Alternative Channels of

Communication Even Within the

Black Forest Residential Community

The District Court correctly found that Brookfield’s

ordinance allows for ample alternative channels of com-

munication. This finding is supported by the record.

16

Unfortunately the District Court’s overriding belief that

‘*fajn absolute ban ... against a form of speech (here

residential picketing), cannot be permitted to stand,’’

Schultz v. Frisby, 619 F. Supp. 792, 797 (E.D. Wis. 1985),

tainted its thinking and decision.

The District Court reached the wrong result but did

make some salient observations. When addressing the

term ‘‘ample alternative channels,’’ the court emphasized

that it should not be asked to assess whether alternative

channels for plaintiffs’ speech must be equally effective,

so that plaintiffs are still able ‘‘to stir up the... family,

the family’s neighbors, the town... and allow plaintiffs

to garner as much publicity, as they would by home picket-

ing.’’ Id. at 797. If this were the test there would seldom

be ample alternative channels because ‘‘[p]icketing sub-

ject to legal challenge will almost always attract more

media attention’? than other channels of communication.

Id. ‘*Thus, if an alternative channel must be ample in

the sense that it affords the same publicity to speech as

does the challenged channel, the speech which intrudes on

people’s privacy and is more outrageous (and therefore,

unfortunately, more newsworthy) will be... more likely

to receive the protection of the First Amendment.’’ 7d.

This fortunately is not the standard for ‘‘ample alternative

channels.’’ Nowhere has this Court ruled that communiea-

tors are owed under the First Amendment the privilege of

forcing others to receive their message with the same co-

ercive, intimidating force as through picketing.

Plaintiffs herein had more than ample alternative

methods to communicate in the Town of Brookfield their

displeasure with Dr. Victoria’s conduct. They could have

17

distributed leaflets to the neighbors, they could have

marched past the Victorias’ home, they could have adver-

tised on the radio or television or in the newspaper, they

could have even picketed the public, commercial areas of

Brookfield Jd. at 797. Each of these methods provides

plaintiffs access to many listeners including the media to

express their concerns. Likewise, and unlike picketing,

each of these methods also allows the listeners whom plain-

tiffs seek to reach, the right to turn off the message at

any time. Rowan; Kovacs. The constitution demands no

more and no less.

Ly

—

CONCLUSION

The right to privacy in one’s home is of superseding

importance and at times outweighs other constitutional

protections. Picketing is incompatible with the normal

activities of a neighborhood, and when ample alternative

channels for presenting a message are available, it is not

the security and privacy of a home that must give way,

but the picketing. The Town of Brookfield was faced with

this conflict and it struck the constitutionally correct bal-

ance, Its ordinance forbidding picketing must be upheld.

; The ordinance which is attacked not as it is applied but

facially prohibits only “picketing,” not other ample means of

communication within Black Forest itself. (See definition of

picketing, infra at Footnote No. 2.) Thus a claim that the statute

could be overbroad in its application would not stand because

“it has long been a tenet of First Amendment law that in deter-

mining a facial challenge to a statute, if it be ‘readily susceptible’

to a narrowing construction that would make it constitutional,

it will be upheld. Frznoznik v. City of Jacksonville, 422 U.S. 205

(1975); Broadrick v. Oklahoma, 413 U.S. 601 (1973).” Virginia v.

American Booksellers Association, — U.S. —, 56 US.L.W.

4113, 4117 (January 25, 1988).

18

For these reasons, this Court should set aside the de-

cision of the District Court as affirmed by the Seventh

Circuit Court of Appeals.

DATED: February, 1988.

Respectfully submitted,

Roxavtp A. ZuMBRUN

*Rosin L. Riverr

*COUNSEL OF RECORD

Pacifie Legal Foundation

555 Capitol Mall, Suite 350

Sacramento, California 95814

Telephone: (916) 444-0154

Attorneys for Amicus Curiae,

Pacific Legal Foundation