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Frisby v. Schultz

Citation. 22 Ill.487 U.S. 474, 108 S. Ct. 2495, 101 L. Ed. 2d 420 (1988)
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Brief Fact Summary.

The Appellees, Sandra Schultz and Robert Braun (Appellees), challenge a Brookfield, Wisconsin ordinance that prohibits picketing in front of residences in the town. In their challenge, the Appellees claim that the ordinance unconstitutionally restricts their right to free speech. In district court they were granted an injunction, which was upheld by the Court of Appeals. The Appellant, the City of Brookfield (Appellant) appeals to the United States Supreme Court (Supreme Court).

Synopsis of Rule of Law.

An ordinance that restricts speech directed primarily at those who are presumptively unwilling to receive it, is a substantial and justifiable interest for the State and is a constitutional restriction of speech so long as the nature and scope of the ban is narrowly tailored and the ordinance leaves ample alternative channels of communication and is content neutral.


The Appellees, being individuals who are strongly opposed to abortion, picketed in front of the home of a doctor who performs abortions. The Appellees picketed in front of his house between April 20, 1985 and May 20, 1985 on several occasions. This violated the Appellees’ ordinance that completely bans picketing “before or about” any residence. The picketing was generally orderly and peaceful and the town never had occasion to invoke any of its ordinances prohibiting obstruction of the streets, loud and unnecessary noises, or disorderly conduct. Nonetheless the picketing generated numerous complaints. On May 7, 1985, the town outlawed all picketing in residential neighborhoods except for labor picketing, which was repealed several days later for fear of being declared unconstitutional because of the labor exception. The town then passed the flat ban that was described earlier. The Appellees ceased picketing in Brookfield and filed this lawsuit in Federal District Court seeking
declaratory as well as preliminary and permanent injunctive relief on the grounds the ordinance violated the First Amendment of the United States Constitution (Constitution). The district court granted the injunction, which was upheld by the Court of Appeals. The Appellant town appealed to the Supreme Court.


Is the Appellant town ordinance, which restricts picketing in residential neighborhoods narrowly tailored to serve the government’s substantial interest in banning it?


Yes. On its face the Appellant town ordinance is narrowly tailored to protect only unwilling recipients of the communications. This ordinance targets and eliminates no more than the exact source of the evil it seeks to remedy. The devastating effect of targeted picketing on the quiet enjoyment of the home is beyond doubt and thus deterring such conduct is a legitimate government interest. Furthermore, this ordinance is content neutral and does not seek to limit the flow of ideas, just a certain conduct regardless of content. The First Amendment of the Constitution permits the government to prohibit offensive speech as intrusive when the captive audience cannot avoid the objectionable speech. The target of the focused picketing, banned by the ordinance is just such a captive, figuratively, and sometimes literally trapped into their home by the protesters. These individuals who object to the speech have no means of avoiding this unwanted speech. The Brookfield ordinance ban of th
is particular medium of expression is therefore narrowly tailored and therefore a constitutional restriction of First Amendment rights of free speech.


One dissenting justice agrees with the legal tests and standards governing the question presented. But feels the Supreme Court erred in the final step of its analysis by approving an ordinance that bans significantly more speech than is necessary to achieve the government’s substantial and legitimate goal. The justice also feels the ordinance is not narrowly tailored because it prohibits picketing entirely rather than regulating it to minimize intrusiveness.
Another dissenting justice disagrees with rejecting the argument that residential streets are something less than public fora. Furthermore, the scope of the ordinance gives town officials too much discretion in making enforcement decisions.
Concurrence. Agrees that an ordinance that only forbids picketing before a single residence is not unconstitutional on its face.


This case states several key ideas to free speech and free assembly. For one, the Supreme Court states that residential streets are as much public fora as much as any other street. While not central to the holding of the case, this finding can be important in any similar analysis. This case also shows that the Supreme Court will uphold a regulation on its face if it restricts no more than the conduct it is targeting. But, it is also important to understand that the prohibition must be content neutral and focus on the means of expression rather than the expression itself. The dissents worry that too much discretion is given by the ordinance and this level of discretion provides the town with the ability to restrict more than is absolutely necessary. The Supreme Court’s decision also provided one important caveat in this opinion, when it declared the ordinance valid on its face, but warned that the enforcement of this statute could still potentially lead to violations of in
dividual’s First Amendment rights, depending entirely on how the town chooses to enforce this provision. One final thought from this statute, is given this analysis, what would the decision of the Supreme Court have been if the labor exception in the original ordinance was left in? The most likely answer is that this would have resulted in distinguishing content in addition to medium of expression, causing the Supreme Court to declare that ordinance unconstitutional.

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