City banned picketing near residences
Brookfield, Wis., had enacted an ordinance that prohibited picketing “before or about any residence or dwelling.” It did so in response to disruptive tactics used by members of the anti-abortion movement who objected to the abortion practice of Dr. Benjamin Victoria. Demonstrators picketed Victoria’s home for months in 1985.
During this time, the doctor and his family also received death threats. The lower federal courts ruled that the ordinance was too broad and could be interpreted as banning all picketing in residential neighborhoods. They concluded that residential neighborhoods were a public forum from which the city could not bar all picketing.
Court did not think ordinance was overly broad
In a subsequent appeal, the Supreme Court disagreed and reversed.
Writing for the majority, Justice Sandra Day O’Connor interpreted the phrase “before or about any residence or dwelling” as applying to a single residence or dwelling. O’Connor did not accept the lower courts’ reading of the ordinance as overly broad. In fact, she held that the ordinance did not prohibit picketers from alternative free speech activities such as distributing pamphlets in the community, mailing information to residents of the neighborhood, and going door-to-door to talk with residents about the issue.
O’Connor also interpreted the ordinance as permitting picketers to march through residential areas and assemble in public streets so long as they did not congregate around one particular house. She argued that governments had the authority to protect unwilling listeners from unwanted speech when in the privacy of their homes and thus ensure residential tranquility.
In this case, Justice O’Connor argued, the picketers were not simply trying to express their views to the public; rather, they were trying to intrude on the doctor’s privacy and pressure him to stop performing abortions. In summary, the majority ruled that the ordinance was narrowly tailored to target picketing that intruded upon individual residential privacy and therefore was constitutional.
Dissent said ordinance restricted protected expression
Justice William J. Brennan Jr., joined by Justice Thurgood Marshall, dissented, believing that the ordinance restricted too much expression and that the majority “condone[d] a law that suppresses substantially more speech than is necessary.”
Justice John Paul Stevens also wrote a dissent, reasoning that the law was overbroad and would suppress even friendly messages such as “GET WELL, CHARLIE — OUR TEAM NEEDS YOU!”
Anti-abortion advocates say decision violated the First Amendment
Anti-abortion advocates argue that the Frisby decision disrespected the free speech rights of anti-abortion protesters and that the kind of quiet, peaceful protest involved in this case did not intrude on residential privacy.
Others see the Frisby ruling as a reasonable time, place, and manner restriction on the exercise of free speech. In the 1990s, those on the fringe of the anti-abortion movement murdered three doctors and four workers at abortion clinics, convincing many observers that the picketing restrictions on anti-abortion demonstrators were justified.
This article was originally published in 2009. Ruth Ann Strickland was a professor at Appalachian State University.