Amicus Curiae Brief — Frisby v. Schultz

Supreme Court, U;

FILED

FEB 25 1998

No. 87-168 WOSEPH F. sPaivoy,

erie

IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

RUSSELL FRISBY, et al.

Appellants,

Vv.

SANDRA C. SCHULTZ, et al.,

Appellees.

On Appeal from the United States Court

of Appeals for the Seventh Circuit

BRIEF AMICUS CURIAE OF THE NATIONAL

INSTITUTE OF MUNICIPAL LAW OFFICERS IN

SUPPORT OF APPELLANT, TOWN OF

BROOKFIELD

ROY D. BATES DOUGLAS N. JEWETT

City Attorney City Attorney

City Hall Municipal Building

P.O. Box 147 Tenth Floor, Law Department

Columbia, SC 29217 Seattle, WA 98104

WHALAS fH. TAUBE WILLIAM I. THORNTON, JR.

Corporation Counsel City

. ity Attorney

of Chebanse 101 Citv Hall

359 E. Hickory D a NC 27701

P.O. Box 51 ae -

Kankakee, IL 60901

MARVA JONES BROOKS

City Attorney

Department of Law

1100 Omni International

Atlanta, GA 30335

(Attorneys continued on inside front cover)

CASILILAS PRESS @ TNC K STREET, NW. SUITE 10. WASHINGTON. DE e

ROGER F. CUTLER

City Attorney

Salt Lake City

324 S. State, 5th Floor

Salt Lake City, UT 84111

ROBERT J. ALFTON

City Attorney

A-1700 Hennepin County

Government Center

Minneapolis, MN 55487

JAMES K. BAKER

City Attorney

600 City Hall

Birmingham, AL 35203

JOSEPH N. deRAISMES

City Attorney

P.O. Box 791/1777 Broadway

Boulder, CO 80306

FRANK B. GUMMEY, III

City Attorney

City Hall, Suite 213

P.O. Box 551

Daytona Beach, FL 32015

ROBERT J. MANGLER

Corporation Counsel

1200 Wilmette Avenue

Wilmette, IL 60091

NEAL E. McNEILL

City Attorney

200 Civic Center

Room 316

Tulsa, OK 74103

ANALESLIE MUNCY

City Attorney

1500 Marilla

Room 7DN

Dallas, TX 75201

DANTE R. PELLEGRINI

City Solicitor

313 City-County Building

Pittsburgh, PA 15219

CLIFFORD D. PIERCE, JR.

City Attorney

Room 314, City Hall

Memphis, TN 38103

CHARLES S. RHYNE

Counsel of Record

BENJAMIN L. BROWN

JAN MAJEWSKI

RACHEL S. ULLMAN

1000 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 466-5424

Attorneys for National Institute

of Municipal Law Officers as

Amicus Curiae

TABLE OF CONTENTS

Page

TABLE OF CONTENTS

TABLE OF AUTHORITIES ii

INTEREST OF THE AMICUS CURIAE

STATEMENT OF THE CASE 3

SUMMARY OF ARGUMENT 3

ARGUMENT 4

I LOCAL GOVERNMENTS MAY REQUIRE THAT

PICKETING NOT TAKE PLACE IN

RESIDENTIAL AREAS IN ORDER TO

ADVANCE PRIVACY AND PUBLIC SAFETY

GOALS 4

A. AN ORDINANCE RESTRICTING

PICKETING AT RESIDENCES IS

NARROWLY TAILORED TO SERVE

SIGNIFICANT GOVERNMENTAL

INTERESTS. : ; egere 6

B. AMPLE ALTERNATIVE CHANNELS

OF COMMUNICATION REMAIN OPEN

WITH A BAN ON RESIDENTIAL

PICKETING ... . : 13

Il. AN ORDINANCE BANNING PICKETING AT

RESIDENTIAL DWELLINGS IS NOT

SUBSTANTIALLY OVERBROAD BECAUSE

IT DIRECTLY ACCOMPLISHES PRIVACY

AND SAFETY GOALS WITHOUT INFRINGING

UPON CONSTITUTIONALLY PROTECTED

ACTIVITIES 15

CONCLUSION 19

TABLE OF AUTHORITIES

Cases

Berman v. Parker,

348 U.S. 26 (1954). .

Broadrick v. Oklahoma,

413 U.S. 601 (1973)

Carey v. Brown,

447 U.S. 455 (1980)

Clark v. Community for Creative Non-Violence,

468 U.S. 288 (1984)

Gregory v. Chicago,

394 U.S. 111 (1969)

Kovacs v. Cooper,

336 U.S. 77 (1949)

Martin v. City of Struthers,

319 U.S. 141 (1943)... .

Members of the City Council v. Taxpayers

for Vincent, 466 U.S. 789 (1984) .

Metromedia, Inc. v. City of San Diego,

453 U.S. 490 (1981). .

New York v. Ferber,

458 U.S. 747 (1982)

Perry Education Assn. v. Perry Local

Educators’ Assn., 460 U.S. 37 (1983)

Police Department of Chicago v. Mosley,

408 U.S. 92 (1972)

Secretary of State of Maryland v. Joseph H.

Munson Co., 467 U.S. 947 (1984)

15

5,6, 11

13,14

14

7, 8,9, 12,13

6, 10

15, 16

16,17

Page

Schultz v. Frisby,

619 F.Supp. 792 (E.D. Wis. 1985),

affd mem., No. 85-2950 (7th Cir. April 30, 1987) passim

Taxpayers for Vincent v. Members of the City

Council, 682 F.2d 847 (9th Cir. 1982),

rev'd, 466 U.S. 789 (1984) 7

United States v. Albertini.

472 U.S. 675 (1985).

United States v. O'Brien.

391 U.S. 367 (1968)

United States Constitution

U.S. Const. amend | 3,4, 8.15

Ordinances

Brookfield, Wis., Gen. Code § 9.17 (1985) 5, 6, 10, 13, 17

IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

No. 87-168

RUSSELL FRISBY, et al.,

Appellants,

v.

SANDRA C. SCHULTZ, et al.,

Appellees.

On Appeal from the United States Court

of Appeals for the Seventh Circuit

BRIEF AMICUS CURIAE OF THE NATIONAL

INSTITUTE OF MUNICIPAL LAW OFFICERS IN

SUPPORT OF APPELLANT, TOWN OF

BROOKFIELD

INTEREST OF THE AMICUS CURIAE

This brief amicus curiae is filed pursuant to Rule 36

of the Rules of this Court on behalf of the more than

1,900 local governments that are members of the Na-

tional Institute of Municipal Law Officers (NIMLO).

Both parties have consented to the filing of this brief

and their letters of consent have been lodged with the

Court

NIMLO is a national organization comprised of

municipalities and local government units, which are

political subdivisions of states. NIMLO is operated by

the chief legal officers of its members, variously called

city attorney, county attorney, city or county

solicitor, corporation counsel, director of law, and

other titles. The Appellant, Town of Brookfield, is a

member of NIMLO.

The accompanying brief is signed by the municipal

attorneys constituting the governing body of

NIMLO, both on behalf of NIMLO and for the

political subdivision of the state, territory, or com-

monwealth of which they are the authorized legal of-

ficer. thereof.

The local government attorneys who operate

NIMLO are responsible for advising their city govern-

ments on the best lawful methods for promoting

health and safety within their jurisdictions. These at-

torneys also represent their governments in litigation

resulting from the implementation of municipal

regulations, such as the non-picketing ordinance

before this Court. The United States Court of Appeals

for the Seventh Circuit has held that the Town of

Brookfield’s ordinance prohibiting picketing before or

about a residence or dwelling was unconstitutional.

NIMLO believes that the Brookfield residential

non-picketing ordinance challenged in this case is a

valid exercise of the town’s broad municipal police

power. The Seventh Circuit's decision does not proper-

ly recognize a municipality's broad power to restrict

expressive conduct when it interferes with the public

good. If allowed to stand, this decision will severely

curtail the ability of local governments to use their

police powers to foster and protect the health, safety

and welfare of their citizens. Accordingly, NIMLO has

a significant interest in the issues raised by this case.

STATEMENT OF THE CASE

Amicus adopts the statement of the case and the

facts as presented by Anpellants.

SUMMARY OF ARGUMENT

Local governments possess the requisite police

power to enact ordinances which protect the public, in-

cluding public safety, health, and welfare (peaceful ond

quiet enjoyment). The Town of Brookfield ordinance is

a valid exercise of that power because it protects the

public safety and privacy interests of its residents.

T he ordinance does not violate the First Amendment

in accomplishing its public safety and welfare goals

since it is content neutral, is narrowly tailored to serve

a significant government interest and leaves open am-

ple alternative channels of communication.

The . ordinance is content neutral as it bans all

picketing in certain designated areas. It is narrowly

tailored to achieve its goal of protecting public safety

and welfare concerns because even one picketer would

disrupt traffic and tranquility in the neighborhoods.

The U.S. Constitution does not guarantee the right

to maximum media coverage of one’s views, only the

right to express them. Several alternative channels of

communication remain open which would not interfere

with the interests the ordinance is trying to protect.

Finally, the ordinance is not substantially over-

broad as it directly accomplishes its privacy and

public safety goals without infringing upon constitu-

tionally protected activities. The ordinance does not

operate on a fundamentally mistaken premise. It

realistically attempts to regulate conduct that

harasses those at home and presents substantial risks

to public safety.

ARGU MENT

I LOCAL GOVERNMENTS MAY REQUIRE THAT

PICKETING NOT TAKE PLACE IN RESIDENTIAL

AREAS IN ORDER TO ADVANCE PRIVACY AND

PUBLIC SAFETY GOALS.

Local governments, by virtue of their police

power, may enact ordinances to promote public

welfare. See Berman v. Parker, 348 U.S. 26, 33-34

(1954). Public welfare is a broad concept which in-

cludes “public safety, public health, morality,

peace and quiet, [and] law and order.” Jd. at 32-33.

An ordinance that advances public welfare but

also restricts expressive activities protected by

the First Amendment will be upheld if it is a

“reasonable time, place, or manner restriction.”

Clark v. Community for Creative Non-Violence,

468 U.S. 288, 293 (1984). In Perry Education

Assn. v. Perry Local Educators’ Assn., 460 U.S.

37, 45 (1983), the Court determined that restric-

tions on expression meet the reasonable time,

place or manner standard if they are “content-

neutral, are narrowly tailored to serve a signifi-

cant government interest, and leave open ample

alternative channels of communication.”

‘This Court has also used the framework set torth in United

States v. O'Brien, 391 U.S. 367, 377 (1968) for determining

whether a restriction on expression is valid under the First

Amendment. According to O'Brien,

ja] government regulation is sufficiently justified if it

is within the constitutional power of the Government:

if it furthers an importart or substantial government

interest; if the governmental interest is unrelated to

the suppression of free expression; and if the incidental

restriction on alleged First Amendment freedoms is no

Brookfield’s ordinance promotes residential privacy,

tranquility and public safety by prohibiting picketing

at a dwelling or residence. This ordinance is clearly

content-neutral and serves significant governmental

interests.

The Bruokfield ordinance makes it “unlawful for any

person to engage in picketing before or about the

residence or dwelling of any individual in the Town of

Brookfield.” Brookfield, Wis., Gen. Code § 9.17 (1985).

Ordinances that have been struck down for discri-

minating against picketers based on the content of

their expression have afforded preferential treatment

to expression on a particular topic? The Brook-

field ordinance does not exempt any type of residen-

tial picketing from its prohibition. It is, therefore,

content-neutral.

By removing picketing activities from residential

areas, the Brookfield ordinance seeks to promote the

“well-being, tranquility, and privacy” of those at

home. Brookfield, Wis., Gen. Code § 9.17 (1985). It

greater than is essential to the furtherance of that in-

terest.

Id. at 377.

In Clark v. Community for Creative Non-Violence, 468 U.S.

288, 298 (1984), the Court determined that the O'Brien

framework was “little, if any, different from the stanaard applied

to time, place or manner restrictions.” (footnote omitted).

*In Police Department of Chicago v. Mosley, 408 U.S. 92 (1972)

the Court invalidated an ordinance which exempted peaceful

labor picketing from its ban on picketing at a school. In Carey v

Brown, 447 U.S. 455 (1980), the Court invalidated an ordinance

for exempting labor picketing from its ban on residential

picketing. On the face of these ordinances, preferential treatment

was given to labor disputes.

also eliminates an activity that “obstructs and in-

terferes with the free use of public sidewalks and

public ways of travel.” Jd. It is well established that a

government has a significant interest in protecting

public safety, Metromedia, Inc. v. City of San Diego,

453 U.S. 490, 507-08 (1981), as well as in protecting

the tranquility of the home, Carey v. Brown, 447 U.S.

455, 471 (1980). That the Brookfield ordinance serves

significant governmental interests is not in question.

Amicus submits that a residential ban on picketing

is narrowly tailored to serve these significant govern-

mental interests and leaves open alternative channels

of communication.

A. AN ORDINANCE RESTRICTING PICKETING AT

RESIDENCES IS NARROWLY TAILORED TO

SERVE SIGNIFICANT GOVERNMENTAL IN-

TERESTS.

This Court requires that content neutral time, place,

or manner restrictions be narrowly tailored to serve

significant governmental interests. Perry Education

Assn. v. Perry Local Educators’ Assn., 460 U.S. 37, 45

(1983)

The Frisby trial court determined that Brookfield’s

ordinance was not a narrowly tailored manner of ad-

vancing privacy and safety interests. Schultz v.

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

mem., No. 85-2950 (7th Cir. April 30, 1987). The court

said that “[o]ne can imagine neutral time, place, and

manner regulations short of a ban on residential pick-

eting, which would go a long way toward the Town's

safety and domestic privacy goals...An absolute

ban, however, against a form of protected speech can-

not be permitted to stand.” Jd. (emphasis added).

On several occasions this Court has considered the

meaning of “narrowly tailored,” and has never inva-

lidated an otherwise constitutional time, place and

manner regulation merely because it is possible to “im-

agine” less restrictive alternatives to achieve a given

objective. Amicus submits, therefore, that the deci-

sion of the trial court was the result of the court's

misapplication of the “narrowly tailored” prong of the

time, place or manner test.

In Members of the City Council v. Taxpayers for

Vincent, 466 U.S. 789 (1984), this Court considered

whether an ordinance which banned the posting of

signs on public property was narrowly tailored to

serve the City’s interest in reducing blight. The Court,

of Appeals had invalidated the ordinance because, in

its opinion, less restrictive alternatives were available

to achieve the City’s interests. Taxpayers for Vincent

v. Members of the City Council, 682 F.2d 847,852 (9th

Cir. 1982), rev'd, 466 U.S. 789 (1984). The court stated,

“Instead of a general ban, the City might regulate

the size, design, and construction of the posters . . .in-

stitute clean up or removal requirements... or pro-

vide more stringent regulations for the areas of the Ci-

ty more in need of protection.” Jd. at 852-53. This Court

reversed, and did not consider less restrictive alter-

natives when determining whether the ordinance, as

applied, was a narrowly tailored time, place and man-

ner restriction on expression’ 466 U.S. at 808-10. The

‘The Court implied that a “least drastic means” analysis is only

appropriate when reviewing a facial challenge based on over-

breadth. 466 U.S. at 801

correct inquiry, this Court determined is, “whether the

scope of the restriction on appellee's expressive activi-

ty is substantially broader than necessary to [serve]

the City’s [legitimate governmental interest].” 466

U.S. at 808 (emphasis added).

In United States v. Albertini, 472 U.S. 675 (1985),

the Court again emphasized that a government entity

has a degree of leeway in determining reasonable

restrictions on speech under the First Amendment.

Respondent had received a letter barring him from the

Hickam military base and was subsequently convict-

ed of violating a statute prohibiting those who had re-

ceived such letters from entering a military base.

Respondent asserted that the statute violated the

First Amendment because its restriction on speech

was greater than what was essential to further the

government's interest in security. The Court found

that barring respondent from Hickam was

not “essential” in any absolute sense to the

security at the military base. The military

presumably could have provided him with a

military police chaperone during the open

house. This observation, however, provides

an answer to the wrong question by focusing

on whether there were conceivable alterna-

tives to enforcing the bar letter in this case.

The First Amendment does not bar applica-

tion of a neutral regulation... merely

because... there is some imaginable alter-

native that might be less burdensome on

speech... Instead, an incidental burden on

speech is no greater than is essential... so

long as the neutral regulation promotes a

substantial government interest that would

7]

be achieved less effectively absent the regula-

tion.

472 U.S. at 688-89 (emphasis added).

A regulation is, therefore, narrowly tailored if it is

not “substantially broader than necessary,” Vincent,

466 U.S. at 808, or “promotes a substantial govern-

ment interest that would be achieved less effectively

absent the regulation,” Albertini, 472 U.S. at 689. The

Brookfield ordinance satisfies both the Vincent and

the Albertini tests. Moreover, although this Court has

not required that a regulation be the least restrictive

way to achieve significant governmental interests,

Brookfield’s ordinance also satisfies that standard.

The Frisby trial court said that the Town's safety

concerns could be achieved “by limiting the time of

picketing and the number of persons who may picket

at one time.” Schultz v. Frisby, 619 F.Supp. 792, 797

(E.D. Wis. 1985), affd mem., No. 85-2950 (7th Cir.

April 30, 1987). This reasoning does not take into ac-

count the physical layout of the Town's subdivisions

or the limited number of traffic safety officers which

are available.

Brookfield is a residential suburb with eight police

officers and a police chief. Jd. at 793. It has a subdivi-

sion of residential homes with streets that are only

thirty feet wide and have no sidewalks, curbs or street

lights. Id. at 793-94.

In the present case, picketers carried signs and

shouted, /d. at 795, while standing on streets just

wide enough to accommodate one car in each direc-

tion, J.A. 49-50. This type of behavior is inherently

distracting and posses a significant risk to public safe-

10

ty. Indeed, the trial court agreed that “[t]he safety of

picketers and passers-by is a serious concern where

streets are narrow, there are no sidewalks, and traffic

may be heavy.” Jd. at 796.

Because picketing increases the risk of traffic

hazards, it is similar in this respect to billboards,

which are “real and substantial hazards to traffic safe-

ty.” Metromedia, Inc. v. City of San Diego, 453 U.S.

490, 509 (1981). In Metromedia this Court considered

whether an ordinance banning most offsite billboards

was constitutional. Although the ordinance was ulti-

mately declared invalid for favoring commercial

speech over noncommercial speech, the Court said

that “we cannot conclude that the City has drawn an

ordinance broader than is necessary to meet its inter-

est.” 453 U.S. at 512.

Picketers pose a greater threat to public safety than

do billboards. They move about, approach those pass-

ing by, carry signs and shout their messages, while

billboards are stationary. In light of the distracting

actions of picketers, the narrow streets, lack of

sidewalks, and small police force available to ade-

quately regulate traffic problems, limiting the time

and number of picketers would not eliminate the risk

to public safety. Brookfield’s ordinance restricting

picketing to areas other than “before or about’

residential dwellings, Brookfield, Wis., Gen. Code

§ 9.17 (1985), is no broader than necessary to protect

public safety.

Another stated purpose of the ordinance is to

eliminate the emotional disturbance, distress and

harassment caused by picketers to those in their

homes. It is well established that a government's “in-

terest in protecting the well-being, tranquility, and

privacy of the home is certainly of the highest order in

a free and civilized society.” Carey v. Brown, 447 U.S.

455, 471 (1980). In Carey, the Court determined that,

although a local government may not discriminate

against picketers based on the content of their expres-

sion, “[wJe are not to be understood to imply... that

residential picketing is beyond the reach of uniform

and nondiscriminatory regulation.” 447 U.S. at 470.

“Preserving the sanctity of the home, the one retreat

to which men and women can repair to escape from the

tribulations of their daily pursuits, is surely an

important value. Our decisions reflect no lack of

solicitude for the right of an individual ‘to be let alone’

in the privacy of the home, ‘sometimes the last citadel

of the tired, the weary, and the sick.’ ” Carey, 447 U.S.

at 471, quoting Gregory v. Chicago, 394 U.S. 111, 125

(1969).

The Frisby trial court determined that Brookfield’s

interest in protecting its residents from emotional

disturbance, distress and harassment while in their

homes or in process of ingress thereto or egress

therefrom, could be adequately served by limiting

picketers to certain hours and by limiting the number

of picketers who may congregate at any one time.

Schultz v. Frisby,619 F. Supp. at 797. The trial court

has not considered the disturbing effect that even a

restricted number of persons picketing at limited

times would have on those captive in their homes. In

the present case, the picketers carried signs with emo-

tionally charged slogans and sang and cheered other

slogans that made uncharitable references to the

father of the family being picketed. /d. at 795. Adults

and children living in the subdivision found the pick-

| >)

eters’ activities to be objectionable and/or frightening.

(J.A. 50-53). As a result, one neighbor felt compelled

to reroute her trips to avoid the picketers, J.A. 76,

while a child who had been frightened by the picketers

refused to go to destinations near the picketing for a

week and a half, J.A. 82-83. Another neighbor was

disturbed by the picketers’ comments while at her

home. (J.A. 58-59). The police subsequently received

numerous complaints and reports from the communi-

ty. (J.A. 50-53). Limiting the hours of picketing and

the number of picketers might lessen the harassment

and emotional disturbance that such activities inflict

upon the residents of the community. This, however,

is not sufficient. Residents living in the community

have the right to be let alone in the privacy of their

homes. Nothing short of a total prohibition of residen-

tial picketing can adequately accomplish this goal.

A total ban of expression in a particular place has

been upheld as a reasonable time, place or manner

restriction. See Members of the City Council v. Tax-

payers for Vincent, 466 U.S. 789 (1984). In Vincent,

the Court upheld an ordinance which totally banned

the posting of signs on public property. It held that

“(bly banning these signs, the City did no more than

eliminate the exact source of the evil it sought to

remedy.” 466 U.S. at 808. The Court went on to say

that “the substantive evil — visual blight — is not

merely a possible by-product of the activity, but is

created by the medium of expression itself.” 466 US.

at 810.

The harm caused by picketing is not an incidental

by-product of the picketing. It is the act of picketing

itself that adversely impacts the tranquility of resi-

ential areas. The tactics employed by the picketers in

the present case were calculated to harass the

picketed family and their friends and neighbors. This

type of disturbance is the very problem that the Town

of Brookfield is seeking to avoid. The presence of even

one picketer engaged in this type of intrusive behavior

would disturb the peace and tranquility of home

dwellers. Thus, the Town's ordinance, as with the or-

dinance upheld in Vincent, does “no more than

eliminate the exact source of evil it sought to remedy.”

466 U.S. at 808.

B. AMPLE ALTERNATIVE CHANNELS OF COM-

MUNICATION REMAIN OPEN WITH A BAN ON

RESIDENTIAL PICKETING.

It has long been recognized by this Court that it “is

not enough to call forth constitutional protection for

what those charged with public welfare reasonably

think is a nuisance when easy means of publicity are

open.” Kovacs v. Cooper, 336 U.S. 77, 88-89 (1949).

The Town of Brookfield has determined that residen-

tial picketing has as its object the harassment of

residents “and without resort to such practice full op-

portunity exists... for the exercise of freedom of

speech and other constitutional rights.” Brookfield,

Wis., Gen. Code § 9.17 (1985). Indeed, Appellees have

not argued that easy alternative means of publicity

are unavailable to them. The basis of Appellees’ objec-

tion to the ordinance is that other available avenues of

communication might not enable them to receive as

extensive media coverage and would, therefore, not be

the easiest and most effective method of reaching the

greatest audience.

I4

This Court has rejected the notion that those wish-

ing to speak are entitled to use the easiest and most ef-

fective way to reach the greatest number of people.

See Kovacs v. Cooper, 336 U.S. at 88-89. Local govern-

ments may prohibit intrusions into the home that a

home dweller is incapable of avoiding. In Kovacs, the

Court upheld a municipal ordinance which prohibited

trucks from blaring amplified messages throughout

the municipality. The Court weighed the need for this

particular manner of expression against the loss of

tranquility that the activity inflicted upon those in

their homes. Jd. at 86-87. It determined that although

“more people may be more easily and cheaply reached

by [this expressive activity]” this could not justify the

resulting intrusion into a home dweller’s sanctuary.

Id. at 87-89. The Court stated other forums of com-

inunication were available which do not have this

disruptive effect. Jd. at 89.

Here, too, other methods of communication are

available for the picketers to effectively spread their

message in Brookfield’s residential areas. As the

Frisby trial court observed, the picketers “may

distribute leaflets in the. . neighborhood, (citing Mar-

tin v. City of Struthers, 319 U.S. 141, 146-49 (1943),

they may march past the. . .home [they seek to picket]

(citing Gregory v. Chicago, 394 U.S. 111 (1969)); and,

of course, they may picket other more public sites.”

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

1985), affd mem., No. 85-2950 (7th Cir. April 30,

1987). Not mentioned by the trial court is the oppor-

tunity for the picketers to promote their views over

the telephone, through door-to-door appeals or

through the mail. All of these alternatives are current-

ly available to the picketers and would not significant-

ly, if at all, increase their expenses. Brookfield’s or-

dinance, therefore, satisfies the last prong of the time,

place, or manner test and should be upheld under the

First Amendment.

Il. AN ORDINANCE BANNING PICKETING AT

RESIDENTIAL DWELLINGS IS NOT

SUBSTANTIALLY OVERBROAD BECAUSE IT

DIRECTLY ACCOMPLISHES PRIVACY

AND SAFETY GOALS WITHOUT

INFRINGING UPON CONSTITUTIONALLY

PROTECTED ACTIVITIES.

Appellees have suggested that regardless of whe-

ther Brookfield’s ordinance may constitutionally be

applied to them, it is facially overbroad and must be

invalidated.

This Court has indicated that invalidating an or-

dinance on facial overbreadth grounds is “strong

medicine” which should be used “sparingly and only as

a last resort.” Broadrick v. Oklahoma, 413 U.S. 601,

613 (1973). When an ordinance regulates activities

involving expression plus conduct, its overbreadth

“must not only be real but substantial as well, judged

in relation to the [ordinance]’s plainly legitimate

sweep. /d. at 615.

An ordinance is not “substantially” overbroad mere-

ly because one might be able to conceive of situations

where it infringes upon constitutionally protected ex-

pression without contributing to the general welfare

of those residing in a municipality. See New York v.

Ferber, 458 U.S. 747 (1982). In Ferber, this Court

upheld a statute prohibiting persons from promoting

sexual performances by children despite the existence

of constitutionally protected activities that would be

prohibited. The Court acknowledged

16

that some protected expression, ranging

from medical textbooks to pictorials in the

National Geographic would fall prey to the

statute. How often, if ever, it may be neces-

sary to employ children to engage in conduct

clearly within the reach of the [statute] in

order to produce educational, medical, or ar-

tistic works cannot be known with certainty.

Yet we seriously doubt, and it has not been

suggested, that these arguable impermissible

applications of the statute amount to more

than a tiny fraction of the materials within

the statute’s reach.

458 U.S. at 773.

Here, Brookfield’s ordinance is limited to residential

areas. Because of the significant governmental in-

terest in protecting public safety and the peace and

tranquility of those in their homes, the legitimate

sweep of the ordinance encompasses most, if not all,

residential picketing. If any impermissible applica-

tions of the ordinance exist, they pale in comparison

to the ordinance’s plainiy legitimate reach.

Generally, an ordinance will not be invalidated on

substantial overbreadth grounds unless it prohibits a

substantial amount of conduct which does not inter-

fere with a legitimate goal of government. See Sec-

retary of State of Maryland v. Joseph H. Munson Co.,

467 U.S. 947, 967-68 (1984). In Munson, a statute

which imposed a twenty five percent limit on chari-

table fund raising expenses was struck down as being

facially overbroad. According to the Court the

statute’s overbreadth was substantial because the

statute was based “on a fundamentally mistaken

premise that high solicitation costs are an accurate

| 7

measure of fraud. That the statute in some of its

applications actually preventied] the misdirection of

funds from the organization’s purported charitable

goal [was] little more than fortuitous.” 467 U.S. at

966-67.

The Brookfield ordinance does not operate on a “fun-

damentally mistaken premise.” It was enacted based

on the premise that residential picketing harasses

those at home and presents substantial risks to public

safety. Brookfield, Wis., Gen. Code §9.17 (1985). It is

not “fortuitous” that this ordinance eliminates these

problems. The act of picketing before or about resi-

dences creates these problems; the ordinance elimi-

nates them.

Because the sweep of the Brookfield ordinance does

not encompass a substantial number of impermissible

applications, it should not be invalidated on over-

breadth grounds.

CONCLUSION

For the foregoing reasons, Amicus respectfully

urges that this Court reverse the decision of the

United States Court of Appeals for the Seventh Cir-

cuit.

Respectfully submitted,

ROY D. BATES

City Attorney

City Hall

P.O. Box 147

Columbia, SC 29217

WILLIAM H. TAUBE

Corporation Counsel

of Chebanse

359 E. Hickory

P.O. Box 51

Kankakee, IL 60901

MARVA JONES BROOKS

City Attorney

Department of Law

1100 Omni International

Atlanta, GA 30335

DOUGLAS N. JEWETT

City Attorney

Municipal Building

Tenth Floor, Law Department

Seattle, WA 98104

WILLIAM I. THORNTON, JR.

City Attorney

101 City Hall

Durham, NC 27701

ROGER F. CUTLER

City Attorney

Salt Lake City

324 S. State, 5th Floor

Salt Lake City, UT 84111

ROBERT J. ALFTON

City Attorney

A-1700 Hennepin County

Government Center

Minneapolis, MN 55487

JAMES K. BAKER

City Attorney

600 City Hall

Birmingham, AL 35203

JOSEPH N. deRAISMES

City Attorney

P.O. Box 791/1777 Broadway

Boulder, CO 80306

FRANK B. GUMMEY, III

City Attorney

City Hall, Suite 213

P.O. Box 551

Daytona Beach, FL 32015

ROBERT J. MANGLER

Corporation Counsel

1200 Wilmette Avenue

Wilmette, IL 60091

NEAL E. McNEILL

City Attorney

200 Civic Center

Room 316

Tulsa, OK 74103

ANALESLIE MUNCY

City Attorney

1500 Marilla

Room 7DN

Dallas, TX 75201

DANTE R. PELLEGRINI

City Solicitor

313 City-County Building

Pittsburgh, PA 15219

CLIFFORD D. PIERCE, JR.

City Attorney

Room 314, City Hall

Memphis, TN 38103

19

CHARLES S. RHYNE

Counsel of Record

BENJAMIN L. BROWN

JAN MAJEWSKI!

RACHEL S. ULLMAN

1000 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 466-5424

Attorneys for National Institute

of Municipal Law Officers as

Amicus Curiae