William H. Rehnquist: We will hear argument now in No. 87-168, Russell Frisby v. Sandra C. Schultz and Robert C. Braun. Mr. Fuhrman, you may proceed whenever you are ready.
Harold H. Fuhrman: Mr. Chief Justice, and may it please the Court: This case is an appeal from a judgment of the United States Court of Appeals for the Seventh Circuit. This judgment was adopted by an equally divided court from a vote of five to five. The effect of the judgment was to affirm the order of the United States District Court for the Eastern District of Wisconsin. That order contained an injunction that enjoined the enforcement of an ordinance of the Town of Brookfield. That ordinance provided for the prohibition of picketing before and about any residence or dwelling in the Town of Brookfield. After that ordinance was adopted, the Appellees commenced this legal action seeking declaratory relief and an injunction against the enforcement of the ordinance. They immediately asked for a preliminary injunction, and that was granted. In the request for the preliminary injunction, it was argued that there was a violation of the equal protection clause as well as the First Amendment, and that particular part of the argument of the Appelles was not ruled upon favorably by the District Court, and there was no cross appeal from that particular part of the order. An appeal from the order as a whole was taken by the Appellants, that is by the Town of Brookfield, and proceeded to the United States Court of Appeals for the Seventh Circuit. Before all of this occurred, I should point out that the initial ordinance adopted by the Town of Brookfield provided an exception to the prohibition against picketing, namely an exception in favor of labor disputes. When the town attorney became aware of the fact that that ordinance had been adopted, he advised the chief of police not to enforce it until he had an opportunity to study its constitutionality. After he had reread the case of Carey v. Brown, he advised the town board to repeal that ordinance in deference to this Court's decision in Carey v. Brown. The town board did precisely that. Subsequently, they adopted the current ordinance, which has a uniform prohibition against residential picketing without any exception. And this also was in recognition of footnote number two of this Court's decision Carey v. Brown in which this Court stated that it was reserving judgment on the question of whether or not an ordinance that uniformly prohibited picketing without exception--
Byron R. White: Did it say prohibit; it just said regulate, did it not?
Harold H. Fuhrman: --The--
Byron R. White: Well, never mind, maybe I have it wrong.
Harold H. Fuhrman: --Well, footnote two reads as follows, "Because the Court of Appeals concluded that the labor dispute exception was not severable from the remainder of the statute, it invalidated the enactment in its entirety. " "The Court therefore found it unnecessary to consider the constitutionality under the First Amendment of the statute that prohibited all residential picketing. " "Because find the present statute defective on equal protection principles, we likewise do not consider whether a statute barring all residential picketing regardless of its subject matter would violate the First and Fourteenth Amendments. " And so that situation then is now a situation that is squarely before the Court today. Because we do have an ordinance that prohibits all residential picketing without the labor exception. The fact situation that gave rise to the adoption of these two ordinances was a period of picketing of approximately three weeks that had been conducted by the Appellees and their associates before the home of one Dr. Benjamin Victoria, a resident of the Town of Brookfield. The purpose of the picketing was to denounce him as an abortionist and as a killer of babies. The town board had no desire to get involved in this debate. However, it was appalled at the invasion of privacy that occurred, and also it was appalled at the very serious--
William J. Brennan, Jr.: Now this picketing was at the Doctor's home, was it not?
Harold H. Fuhrman: --It was at the Doctor's home.
William J. Brennan, Jr.: He did not operate a clinic, did he, from his home?
Harold H. Fuhrman: No, he did it.
William J. Brennan, Jr.: It was just where he lived?
Harold H. Fuhrman: That was just where he lived. In fact, he had two clinics, one in Milwaukee, and one in another city, but not in his home.
William J. Brennan, Jr.: None in Brookfield?
Harold H. Fuhrman: None in the Town of Brookfield, right. So in oral argument today, I propose to concentrate on three principal points. The first is that the District Court order was filed, and it was a final order. Second, that the residential streets of the Town of Brookfield are not public fora. And third, that assuming arguendo that the streets of the Town of Brookfield are public fora, that nevertheless that the ordinance is a valid and constitutional regulation of time, place and manner, and to achieve two important governmental interests, the one being residential privacy, and the other being public safety.
Sandra Day O'Connor: Mr. Fuhrman, we are reviewing, I guess, the preliminary injunction. So is our standard of review whether the lower court abused its discretion in the issuance of the injunction?
Harold H. Fuhrman: We contend that it is not. And I would like to point out perhaps at this point that although the order of the District Court is in form a preliminary injunction, actually however, it has finally decided the constitutional issue involved, at least from the standpoint of the District Court.
Sandra Day O'Connor: You still want to go to trial?
Harold H. Fuhrman: No. Let me explain. The preliminary injunction so-called said that it would become final in the event that there were no requests for a trial, number one, by any party; and number two, that an appeal would be taken. So to protect the interests of the Town of Brookfield, we did appeal and we did file a request for a trial. But it is clear from a reading of the order that the Court had already determined that it would be unnecessary to have an evidentiary hearing. And there were two reasons for that. Number one, it was stipulated by both parties that an evidentiary hearing was not necessary. And number two, the way in which this ordinance was attacked by the Plaintiffs was not in a factual context at all. They attacked it facially before it ever had an opportunity to be enforced. Shortly after the ordinance was adopted, there was a request for the preliminary injunction. And so this particular ordinance has yet to be enforced. And so there is no factual context within which the District Court could construe the ordinance. It is purely a matter of law. If there were to be a trial, the trial would be purely on that constitutional issue.
Antonin Scalia: Mr. Fuhrman, can I ask whether this ordinance would prohibit someone picketing generally, that is suppose a picket was not stationed in front of this Doctor's house, but would a group of people be able to parade through the neighborhood carrying signs and just leave?
Harold H. Fuhrman: Yes.
Antonin Scalia: What does picketing consist of under the ordinance?
Harold H. Fuhrman: Although the ordinance contains no definition section, in our opinion, picketing would be having the picket proceed on a definite course or route in front of a home. Because keep in mind, the ordinance only prohibits picketing before and about a dwelling or a residence.
Antonin Scalia: And that means that you have to be concentrating on one dwelling?
Harold H. Fuhrman: That is right.
Antonin Scalia: If you were just walking through the neighborhood, that would not qualify?
Harold H. Fuhrman: That would not qualify.
Thurgood Marshall: Suppose you were walking by a home with a picket sign that said, "I am against the war in the Asian Gulf. " would that be a violation of the statute?
Harold H. Fuhrman: In the Town of Brookfield, under this ordinance, it would be.
Thurgood Marshall: And what would that damage be to the city?
Harold H. Fuhrman: The damage would be to privacy. Because the ordinance is content neutral. It has nothing to do with the message at all.
Byron R. White: So if you had some people marching up and down these streets saying vote for so and so for sheriff, that would be banned, too?
Harold H. Fuhrman: If as Justice Scalia asked, it was a march, the answer would be that it would not be in violation of the ordinance. However, if the pickets actually pursued a route only in front of this particular house, any particular he use which is targeted, then it would be a violation.
Byron R. White: Do the findings of fact indicate that there is a commercial area or business area in which picketing can take place, was that a stipulation or a finding?
Harold H. Fuhrman: It is an uncontested fact, yes. There are two commercial areas in the Town of Brookfield along the Bluemound Road.
William J. Brennan, Jr.: Near this residence, is the commercial area anywhere near this residence?
Harold H. Fuhrman: No.
Antonin Scalia: Is the Doctor's clinic in Brookfield or is it elsewhere?
Harold H. Fuhrman: It is elsewhere.
William H. Rehnquist: How far away is the nearest commercial area on Bluemound Road from this residence?
Harold H. Fuhrman: I would estimate approximately three miles.
William J. Brennan, Jr.: What is the width of the street there?
Harold H. Fuhrman: The width of the residential streets in the Town of Brookfield are thirty feet.
William J. Brennan, Jr.: Any sidewalks?
Harold H. Fuhrman: And there are no sidewalks, and no curb and gutter. And this, of course, brings you into focusing upon the public safety aspect. And I should point out that in our brief that we incorporated by reference the opinion of Judge Coffey of the Seventh Circuit, and it was his dissenting opinion. And the reason that we did that was because among other things, he has in his opinion a very good analysis of the safety aspect of this case, and it is printed in the joint appendix. And if it has not been read by any member of the Court, I would urge its being read, because I think that it is very helpful to understand the case.
William J. Brennan, Jr.: We have no record as to the conduct of the pickets; there was picketing, was there not?
Harold H. Fuhrman: There was picketing. And there is a record of its conduct. The picketing occurred, however, prior to the adoption of the ordinance. And the reason why that record exists is because the picketers had to show their standing to bring the action. And they, of course, had been picketing right up until the time that the legislation was adopted. So when the legislation was adopted, they then commenced their action and applied for the preliminary injunction.
William J. Brennan, Jr.: And what was their conduct?
Harold H. Fuhrman: Well, there were pickets of eleven to forty people picketing off and on over a period of approximately three weeks. Their conduct was to denounce the Doctor.
William J. Brennan, Jr.: How, vocally or signs?
Harold H. Fuhrman: Both, both vocally and by sign. He was described as a baby killer, and there were other picturesque phrases that are in the record.
Thurgood Marshall: Stop abortion, and abortion is murder?
Harold H. Fuhrman: Yes, among other things. Yes, Justice Marshall.
Antonin Scalia: Here you are not complaining about that?
Harold H. Fuhrman: No, we are not complaining about that. We are complaining about two things. The invasion of the privacy of this residence, and also the threat to public safety.
Antonin Scalia: You are still relying on the threat to public safety?
Harold H. Fuhrman: Yes, we are.
Antonin Scalia: Although you just told me that there would be no problem if the picketers kept moving throughout the whole neighborhood, I mean it is less of a threat if it occurs in the whole neighborhood than if it occurs in front of one house?
Harold H. Fuhrman: As we pointed out in our brief, in the event that you have a parade rather than simply a picket, you do have a less hazardous situation. We concede, first of all, that any walking on the street by pedestrians is dangerous. But it is more dangerous if you have a picket line. Because you have these people not actually in continuing movement, but you have them moving only a short distance, and then following their picket route, you see.
Antonin Scalia: You will forgive me if I do not find that self-evident. I think that it surely depends on how people are walking and what they are doing. And you could be walking the same way throughout the whole neighborhood, two abreast or back and forth or whatever. It seems to me that if you are focusing on the fact that it is in front of one house, that it must have something to do with matters other than safety. Well, your record certainly contains instances of interference, does it not?
Harold H. Fuhrman: Well, the record contains instances of interference, which of course goes beyond picketing, such as obstructing the driveway and trespassing upon property. Now as has been pointed out by the Appellees, there are ordinances addressed to those particular problems. The point that we are discussing today really is the picketing ordinance itself.
Sandra Day O'Connor: Mr. Fuhrman, would the town prohibit Appellees from standing in the street in front of the house and handing out leaflets containing the same messages as on the signs?
Harold H. Fuhrman: No. It is our understanding that leafleting is not covered by this ordinance. Now I could conceive of a situation where a picketer might have leaflets and do two different things. But leafleting is not picketing.
Anthony M. Kennedy: But what is a picket, does a picket have to have a sign?
Harold H. Fuhrman: He does not have to have a sign.
Anthony M. Kennedy: Suppose he just stands there handing our leaflets, but he stands right at the one stop, is that picketing?
Harold H. Fuhrman: If he is following a picket route, he is picketing.
Anthony M. Kennedy: I will give you the facts. The lot is sixty feet. And just in order to amuse himself, he goes up on the sixty feet until somebody comes out, and then he gives him the leaflet.
Harold H. Fuhrman: All right. What I am saying is that he is performing two functions. One, he is picketing; and one, he is leafleting.
Anthony M. Kennedy: Suppose he just stands in one spot and hands out the leaflet, is that a picket?
Harold H. Fuhrman: Not a picket.
Anthony M. Kennedy: But if he moves ten feet of the way, then that is a picket?
Harold H. Fuhrman: If he is moving and following a picket route, he is a picket, right.
Sandra Day O'Connor: Even if he is not carrying a sign?
Harold H. Fuhrman: That is true. For instance, although I am not aware of any Appellate Court decisions on this, there have been instances where a member of the Ku Klux Klan has picketed from one point to another point following a picket route in a residential area. And that would be a violation of the ordinance.
Byron R. White: Let us assume that he was in a black neighborhood and he walked up and down a whole block and did not concentrate on one house, is that picketing?
Harold H. Fuhrman: Then it would not be picketing within the meaning of our ordinance.
Byron R. White: Well, he is concentrating on all of the houses there, all of the houses.
Harold H. Fuhrman: I understand what you are saying. And I am simply drawing a distinction between picketing and parade.
Sandra Day O'Connor: Mr. Fuhrman, do you say that a single picketer, let us say present one hour a day, in front of a residence substantially interferes with the residential privacy?
Harold H. Fuhrman: I certainly do. Let us just take the Ku Klux Klan picketer that I just mentioned before. Certainly, one picket making that route back and forth in front of one home that he is targeting would violate the privacy.
Sandra Day O'Connor: For one hour a day or half an hour a day?
Harold H. Fuhrman: Yes, ma'am. I would say so.
Sandra Day O'Connor: Or once a week?
Harold H. Fuhrman: I would say that if he did it once a week, that it would also be a violation of the privacy of that home.
Sandra Day O'Connor: Sufficiently substantial to justify the First Amendment infringement?
Harold H. Fuhrman: It certainly would. The second point that we planned to discuss was the matter of the streets of Brookfield not being a public fora. Now we realize, of course, that there are cases that have substantial dicta indicating a repetition of the cliche that streets are quintessential public fora since time immemorial. And we believe that the key word in that cliche is the word immemorial. We realize that--
Antonin Scalia: One man's cliche is another man's fundamental principle. Be careful here.
Harold H. Fuhrman: --Touche. Nevertheless, I think that we have to really realize the historical origin of this. Many, many years ago, the streets of Ancient Rome converged upon a public square known as the Forum. And all of the principal building were at the Forum, and that Forum was certainly the place of discussion and of debate. And all other forums have derive their names from that location. We submit, however, that in 20th Century United States that to say that every street is a public forum is simply a statement contrary to fact. Take for instance, the major arteries of the interstate highway system. Here you have a system of arteries that penetrate all of the major cities of the United States. And nevertheless, they are--
Antonin Scalia: Billboards are forbidden on some of them, are they not?
Harold H. Fuhrman: --I beg your pardon.
Antonin Scalia: Billboards are forbidden on some of them, are they not?
Harold H. Fuhrman: Right. But they are cordoned off by cyclone fences from the pedestrians and for a darn good reason. Because the volume of traffic and the velocity of traffic is such that to say that that would be a forum for picketing and other forensic activity is just ridiculous. And nevertheless, we have the old cliche or fundamental principle. And on the other hand, we have the opposite extreme. We have these thirty foot roads in suburban Brookfield which are so small and so narrow that only one car can travel in each direction at the same time, no curbs, no gutters, no sidewalks. Basically, it is an inherently hazardous situation for any pedestrian as a matter of res ipsa loquitur, simply by accepting these basic facts which are undisputed.
John Paul Stevens: That argument might cut two ways. Because if there are no sidewalks, I presume that when someone has to go for a walk, that person must walk on the street, so drivers should realize.
Harold H. Fuhrman: Or across his neighbor's lawn.
John Paul Stevens: They encourage trespassing in Brookfield.
Harold H. Fuhrman: Well, trespassing is a mater of intent, because of the neighbor consensus.
John Paul Stevens: But is it not normal that in a lot of neighborhoods like that that you do in fact walk along the edge of the road, do you not?
Harold H. Fuhrman: This does happen.
John Paul Stevens: So I would think that the drivers would be aware of the fact that it is not a heavily trafficked area, I am sure, and they would know that you have to drive rather carefully. What is the speed limit, about fifteen miles an hour?
Harold H. Fuhrman: No, it is twenty miles an hour.
John Paul Stevens: Twenty miles an hour. So it is not high traffic and high speed driving.
Harold H. Fuhrman: No. And of course, I would concede that any pedestrian on these streets is to some extent--
John Paul Stevens: That sounds like the ordinance is enacted for the protection of the picketer.
Harold H. Fuhrman: --Well, this is the reason why I am suggesting reading the dissenting opinion of Judge Coffey. Because he not only talks about the protection of the picketer, but he also discusses the responsibility of the municipality for the safety of all people on the public highways. This is quite a separate argument from frankly what to me is more persuasive, the interest of the resident in not having someone who is arguably hostile out in front all day long. That is the interest frankly that would concern me more than worrying about whether the fellow would step in front of fifteen mile an hour school bus or something like that.
Byron R. White: And that is the interest that Carey spoke about, Carey v. Brown.
Harold H. Fuhrman: Well, Carey v. Brown primarily dealt with the matter of privacy.
Byron R. White: Yes.
Harold H. Fuhrman: And in fact--
Antonin Scalia: Why do you not talk about that. I really think a whole lot of us want to hear about this.
Harold H. Fuhrman: --We believe that this Court should follow its own precedent that it established in the City of Renton case, and protect residential privacies. In Carey v. Brown, this Court stated, "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 issue. " "Our decisions reflect no lack of solicitude for the right of an individual to be let alone in the privacy of a home, sometimes the last citadel of the tired, the weary and the sick. "
Sandra Day O'Connor: Mr. Fuhrman, do you think that the First Amendment under that precedent would enable a city to prevent door to door solicitation and the actual ringing of the doorbell?
Harold H. Fuhrman: I would say that personally that an ordinance to that effect could be constitutionally valid. I would have to naturally recognize--
Sandra Day O'Connor: Do you think that this Court's precedence would support your view?
Harold H. Fuhrman: --First of all, I believe at this time, we are not arguing that point of course, and we believe that there has been a division among the Circuits on that issue. And as far as the Seventh Circuit is concerned, the Seventh Circuit in the Watseka case, had determined that this type of activity is unconstitutional.
Sandra Day O'Connor: I thought that this Court had spoken to that issue.
Harold H. Fuhrman: This Court did, because it actually confirmed the decision in the Watseka case.
William H. Rehnquist: The Green River ordinance cases, Murdock v. Pennsylvania, and Struthers, those are pretty much what Justice O'Connor is talking about, too, are they not?
Harold H. Fuhrman: Yes.
Thurgood Marshall: What about the Austin case and the City of Boston back in 1971. They said that door to door picketing was all right, door to door leafleting was all right.
Harold H. Fuhrman: Leafleting.
Thurgood Marshall: And you would draw a line between leafleting and picketing.
Harold H. Fuhrman: As a matter of fact, I said that I do draw a line between leafleting and picketing. And Justice O'Connor had asked that question before.
Thurgood Marshall: I still have not gotten your answer.
Harold H. Fuhrman: The ordinance of the Town of Brookfield only relates to picketing. It does not relate to leafleting.
Thurgood Marshall: And the difference between leafleting and picketing is what from a constitutional standpoint?
Harold H. Fuhrman: From a constitutional--
Thurgood Marshall: They both disturb, do they not?
Harold H. Fuhrman: --Well, they do to some extent. Although picketing is more invasive, because you are actually--
Thurgood Marshall: You are disturbing, are you not?
Harold H. Fuhrman: --I beg your pardon.
Thurgood Marshall: Is that not what you are against, disturbing the resident?
Harold H. Fuhrman: We are against invading the privacy of the home. And leafleting is less invasive in that regard than picketing.
Thurgood Marshall: It is less disturbing then?
Harold H. Fuhrman: Less disturbing, yes.
Byron R. White: I suppose that you suggest a bright line, that any street that could be classified as a residential street could be subject to an ordinance like this?
Harold H. Fuhrman: The rule that we believe that the Court should follow is the rule of Cornelius v. NAACP. We believe that like other publicly owned property, that each street should be determined as to whether or not it lends itself to the First Amendment activity.
Byron R. White: If the focus of the ordinance is an individual home, what difference would it make what kind of street it is, as long as the picketing is aimed at one home on a particular street, as the invasion of privacy is just as great?
Harold H. Fuhrman: I agree. But we have in our argument really two propositions. Number one, we are arguing that streets, the residential streets of Brookfield, are not public fora. And the reason that we are making that argument is because that establishes a different standard for evaluating the ordinance. But we are arguing, number two, that in the event that this Court should find that notwithstanding everything that I have said that all streets without exception are public fora, that then in that event that the ordinance is still constitutional as a valid time, place and manner, regulation of two important governmental interests.
Byron R. White: It is going to take a lot of litigation to litigate every street in the country to figure out whether they are public fora or not.
Harold H. Fuhrman: Well, if you had litigation on each and every street, yes. But on the other hand, we believe that reason would enter in here. Because if you look at the streets of the Town of Brookfield, and you know that they are thirty feet in width, you should know that you do not have public fora.
William H. Rehnquist: Thank you, Mr. Fuhrman. We will hear now from you, Mr. McDowell.
Steven Frederick McDowell: Mr. Chief Justice, and may it please the Court: Before this Court today is an attempted appeal from an order affirming a preliminary injunction. There is no finality, no ultimate determination on the merits of the constitutional issue, and therefore no appeal jurisdiction. In light of the preliminary nature of the case, this case may well be more appropriately handled by way of summary affirmance rather than a comprehensive review of the town's claims, claims which we contend lack support in either the record nor the decisions of this Court. The town's case rests fundamentally upon a challenge of two basic premises of First Amendment law. That streets are quintessential public fora; and that picketing, a legitimate peaceful forum of First Amendment expression is to be permitted in such public fora areas. The District Court, we contend and we believe, did not abuse its discretion in determining that the picketers were likely to prevail on the merits of their First Amendment claims.
William H. Rehnquist: The District Court or Court of Appeals, either one, Mr. McDowell, indicate that they thought more facts were necessary in order for them to reach a conclusion on the constitutional issue?
Steven Frederick McDowell: The District Court's opinion indicated that based upon the facts that are currently in the record that there were sufficient facts to grant the preliminary injunction and in fact to grant a final injunction. We believe that this is in fact an appropriate determination. Because based upon the normal assumptions that are normally made about streets, that they are normally public fora, and also based upon the normal conclusion that picketing is a legitimate form of expression, just based upon the facts as developed there, that there would be a sufficient record to make that determination. However, if other facts are sought to be introduced, such as for example, the question of whether one must move or remain stationary to constitute picketing in the Town of Brookfield, perhaps it may be necessary to go back for a further determination.
Byron R. White: But the town says that it does not have anything else to offer.
Steven Frederick McDowell: That is correct. And if that be the case, then it would seem that this Court may well wish to go ahead with a final decision on the merits. However, we would point out that there are a number of facts that the town has asserted in its brief, such as the lack of past use of the streets of the Town of Brookfield for picketing, which are not currently in the record. So if this Court wishes to rely on such facts, it may be necessary for a further determination. But based upon the facts now in the record, there is in fact evidence sufficient to support a preliminary injunction in favor of the picketers in this case.
Byron R. White: Well, if the town wants the issue decided on the present record, does that make it a final judgment?
Steven Frederick McDowell: I am not certain of that fact, because I am not certain of that point. Normally, a preliminary injunction is considered a non-final order. And secondly, there has not been a square holding on the constitutional issue as of yet. Because all that we have at this point is a preliminary injunction. A final injunction was never issued. The town could have simply allowed a final injunction to be issued, in which case there would be no problem with finality in this case. It chose not to do so.
John Paul Stevens: Did they not ask for a trial? I thought that they asked for a trial.
Steven Frederick McDowell: They did.
John Paul Stevens: So they obviously are not satisfied with the record.
Steven Frederick McDowell: Well, that is the way that the picketers have to construe the status of the case at this point.
Sandra Day O'Connor: But before us today, I guess that Mr. Fuhrman says that he does not now want a trial. Is that what you heard?
Steven Frederick McDowell: That is what I heard. So that is something that is Mr. Fuhrman's decision to make, and not the decision of the picketers, since we did not request a trial.
William H. Rehnquist: The problem here is not finality at all, I do not think, under the provisions of the statute. An order granting a preliminary injunction is appealable. The only question is what standard of review do you use in judging whether or not the preliminary injunction was correctly granted. Everybody concedes that there was at least a preliminary injunction. That is appealable to the Seventh Circuit, and we have jurisdiction to review a case that is in the Seventh Circuit.
Steven Frederick McDowell: Yes, it would be reviewed on the basis of an abuse of discretion standard in such a situation. However, there is a question of whether there is a square holding on the constitutional point. Because the lower court judge utilized the normal standard that is used in the Seventh Circuit, which is the standard of whether one is likely to prevail upon the merits.
Byron R. White: You were just talking about appellate jurisdiction, were you not, not certiorari jurisdiction?
Steven Frederick McDowell: That is correct. We were speaking of appellate jurisdiction.
Byron R. White: So if you are talking about jurisdiction, we can always just grant cert.--
Steven Frederick McDowell: Oh, certainly.
Byron R. White: --But that would still leave the standard of review that the Chief Justice was talking about.
Steven Frederick McDowell: That is correct. And in fact, the District Court did not abuse its discretion in granting the preliminary injunction in this case. When we turn to the substance of the case and the merits of the case on the free speech issue--
William J. Brennan, Jr.: Mr. McDowell, is this a facial attack on the ordinance?
Steven Frederick McDowell: --The attack is more in line of a facial attack, in that what the picketers are challenging is the application of the ordinance to picketers in general and into activity that they would wish to engage in. So it basically is a facial challenge.
William J. Brennan, Jr.: Well, if it is, then I take that if there is any set of facts that we can think about picketing to which the ordinance could constitutionally be applied, you lose, do you not, if it is a facial attack?
Steven Frederick McDowell: If it is a facial attack, there the question that this Court would have to determine is whether the ordinance could appropriately be subject to a limiting construction. In this case, the town in its brief indicated that limiting constructions might or might not be possible, but that the town wished to forbid all picketing.
Antonin Scalia: You are not relying on the overbreadth doctrine then, I take it?
Steven Frederick McDowell: The overbreadth doctrine is a point that we have relied upon at various points. It was not the key issue upon which the District Court granted its injunction. However, the overbreadth doctrine has been raised both at the District Court and at the Seventh Circuit. And in this case, there may well be that the ordinance sweeps substantially overbroadly with respect to protected expression.
Antonin Scalia: If you can only conceive of one instance in which it is okay and only one, one might suspect that it is overbroad.
Steven Frederick McDowell: That is absolutely correct.
Antonin Scalia: I would think so.
Steven Frederick McDowell: Yes.
John Paul Stevens: I must confess that I am a little puzzled. Your complaint suggests that you are concerned about your client's own right to picket.
Steven Frederick McDowell: Yes.
John Paul Stevens: Because they have been threatened with arrest. But the District Court found what kind of picketing that they had engaged in the past, namely eleven to forty people, and there were some unfortunate remarks and one thing or another of that kind. Should we ask the question whether that particular type of picketing is constitutionally protected?
Steven Frederick McDowell: That type of picketing serves as a background certainly that this Court can consider and can consider in terms of the motivation perhaps of the town in passing this ordinance.
John Paul Stevens: What if we were to assume that that is all that it really prohibits, and that is all that you really care about, because you want to engage in exactly what you have done before, and then focus on that issue instead of all of these hypothetical things like leafleting. Would you say that you could picket with forty persons out in front all day long seven days a week in front of this house?
Steven Frederick McDowell: The problem is that the ordinance forbids more than simply that.
John Paul Stevens: Well, first answer my question, would you.
Steven Frederick McDowell: We do not believe that the picketers have an absolute right to picket without respect to considerations.
John Paul Stevens: Do you think that they have a constitutional right to engage in the kind of picketing that the District Court found in this case?
Steven Frederick McDowell: Yes, I do.
John Paul Stevens: You do. Forty persons seven days a week right straight through. And if that is true and if we are focusing on this picketing, what was the audience at which this picketing was directed?
Steven Frederick McDowell: The picketing was directed at both Dr. Victoria and his neighbors.
John Paul Stevens: I see, thank you.
Steven Frederick McDowell: That is what the affidavits show and the record shows in this case.
Antonin Scalia: What do you mean directed at, was it in front of the neighbors' houses or in front of his house?
Steven Frederick McDowell: It was in front of his house.
Antonin Scalia: Well, that is generally referred to as picketing him, not picketing his neighbors.
Steven Frederick McDowell: That is correct. The question I believe that Justice Stevens had was a question as to who the proper audience was. Certainly, neighbors going back and forth would be able to see the signs, and obviously would be an audience.
Antonin Scalia: Mr. McDowell, you mentioned a couple of basic principles of First Amendment law when you started off. On another one, and we just issued an opinion today that averts to it indirectly, is that picketing is different from other First Amendment activities. It can be intimidating. It is different from leafleting, and it is different from pure speech. As far as the merely informative content of letting the neighbors know that this man is an abortionist and that you disapprove of it, as far as that is concerned, you would leaflet, you could slip information under the doors of the neighbors, and you could march around the whole neighborhood with a sign, as counsel for the city says is permissible under this ordinance. But you do not want to do that. You want to essentially hassle this doctor, to put it in the vernacular. You want to be in front of his house and bring home to him your displeasure with him in, maybe intimidating is not the word, but an annoying fashion essentially. Is that not what is going on, is there any other reason why you have to picket his house?
Steven Frederick McDowell: We do not claim a right to harass. And in this case, that is not what was involved. Because public issue picketing is in many ways quite similar to leafleting. Because what is involved is the transmission of a message, in this case a message of opposition to abortion. Picketing was a means utilized. However, what was involved here was not the type of perhaps signal that one might have in a labor picketing instance, but instead merely a use of the signs and the picketing to indicate disapproval.
Antonin Scalia: When you picket a store, that is a logical place to do that, because you are sending your message to the customers of that store or a business. Or you are picketing a plant that is on strike. You are sending the message to the other workers who might want to come in. To whom are you sending the message here, that they could not get it anywhere else, why is this a logical place to get this message across to anyone except the doctor whose privacy you are invading?
Steven Frederick McDowell: Well, it is a legitimate place, as the picketers noted in their affidavits, to transmit their message both to the doctor and also to his neighbors.
Antonin Scalia: You can get it to his neighbors very easily. His neighbors do not congregate in front of his house.
Steven Frederick McDowell: The reason why picketing may be a particularly sensible type of procedure by which to transmit such a message is that a picket sign is a sign that a neighbor or anyone going by can look at and notice what the opinions are of the picketers. It is in essence something like a mass media that can be done at a minimum amount of expense to the picketers involved.
Antonin Scalia: You can do that walking around the neighborhood. In fact, it would be better. You would not have to rely on the neighbors happening to come out by the house. You do not want to do that. You want to stand right in front of his house. You want to stick your thumb in his eye essentially. Is that not what it is about, the annoying nature of picketing?
Steven Frederick McDowell: I do not believe that it is in this case. Because the picketers' desire is a desire simply to transmit their message involved, and they wish to utilize picketing which has been recognized as a legitimate First Amendment protected means expression.
Thurgood Marshall: Why not picket him at his clinic? You can go up to Appleton or into Milwaukee and picket him at his clinic.
Steven Frederick McDowell: It is possible to picket at other locations. However, the mere fact that one can picket at another location does not permit a picketing ban in a certain location unless such a ban is narrowly tailored to support specific interests, either in safety or in residential privacy.
William H. Rehnquist: But I think that any court familiar with our cases might be more likely to uphold a ban on residential picketing if there was an opportunity to picket the individual that they desire to bring the message home to somewhere else.
Steven Frederick McDowell: Certainly, alternative channels can figure into the analysis. However, once again, the key point is is this ordinance which forbids all picketing flatly in the Town of Brookfield an ordinance which is narrowly tailored to support the interests involved.
William J. Brennan, Jr.: Why do you say that it is not narrowly tailored to support privacy and safety?
Steven Frederick McDowell: Turning first to safety, the reason why it is not narrowly tailored to support the safety interests is number one, because the ordinance prohibits only picketing but permits a number of expensive and non-expressive activities which can have just as severe an effect upon the interests of free vehicular movement and free pedestrian movement and the like as anything else. Furthermore, the ordinance addresses the problem in a way which does not make much sense. If the problem is with the picketers' safety and with the safety of the community with concerns about traffic, what is done is that the picketers are moved off of a property where perhaps there is less traffic and moved on to Bluemound Road, a busy highway. Where seemingly if one is concerned about safety, and traffic, and the like, that the distractions will be greater than in the residential neighborhood.
William J. Brennan, Jr.: As to privacy?
Steven Frederick McDowell: As to privacy, the reason--
William J. Brennan, Jr.: How do you tailor this more narrowly than an absolute prohibition?
Steven Frederick McDowell: --Well, a number of different options are available to the town. First, with respect to the adverse effects of picketing, the town has a number of ordinances currently in effect, ordinances banning such things as littering, obstruction of the streets and so forth, which apply equally to expressive and non-expressive activity, which could suitably apply to this case.
William J. Brennan, Jr.: For example, they have an ordinance or law of some kind under which the picketers for crowding and such numbers on the lawn could be arrested?
Steven Frederick McDowell: Well, there is a trespass ordinance which would apply to such activity on the lawn.
William J. Brennan, Jr.: Could they be arrested for violation of that ordinance?
Steven Frederick McDowell: That is correct. They could, if they were on the lawn, under the construction of the state constitution.
William J. Brennan, Jr.: Is there any way that they could not be on the lawn?
Steven Frederick McDowell: They would be on the streets. And there, you have the question of whether such activity would obstruct the street. And there, what one could do perhaps, and the town has not done this... the point is that the town has banned all picketing irrespective of numbers... the town could perhaps place some limitation on the numbers of picketers, some limitation on the time at which the picketers could be out there, but it has not done that.
John Paul Stevens: Let me interrupt you. You told me a minute ago that this picketing of forty persons all day long was constitutionally protected. How could they put a limit on, you mean no more than fifty would be the limit, or could they put a limit on no more than one or two?
Steven Frederick McDowell: We believe, and obviously this is a legislative question which the town would have to address, and it would present a different constitutional question.
John Paul Stevens: It is not a legislative question. You are telling us what they could constitutionally do, that they constitutionally could do these alternative things, all of which are different from what you a few minutes ago told me that they could not constitutionally do.
Steven Frederick McDowell: Let me clarify then my statement of a few minutes ago. The basic protection of picketing is something that is constitutionally protected. Certainly, numbers of picketers could be regulated to the extent that numbers of picketers interfere either with free use of the streets or with the interests of the town in privacy.
John Paul Stevens: Well, specifically, could they pass an ordinance saying that you may not picket with more than ten persons in front of a house for more than eight hours a day?
Steven Frederick McDowell: We would have with respect to that ordinance the similar analysis that would have to be applied. That is does the ordinance restrict picketing.
John Paul Stevens: I understand the analysis. I am curious to know what your answer is.
Steven Frederick McDowell: All right. My answer would be that ten picketers would raise a severe question, because there would be a question of whether a limitation--
John Paul Stevens: I understand that there is a severe question, but what is the answer to it?
Steven Frederick McDowell: --Okay. I would say that that would not be constitutional, because there would not be a significant enough impact upon public safety interests to justify the ordinance.
John Paul Stevens: In other words, you gave me the same answer that you did before, the picketing that you engaged in, you think was constitutionally protected. And therefore, these alternatives about changing numbers or hours are purely just argument. You do not really believe that.
Steven Frederick McDowell: The question with respect to whether the picketers would believe that or not, I think would largely be determined if the town passed such an ordinance, would the picketers then challenge it as an unreasonable limitation on their speech. And that is a question for a future case.
William H. Rehnquist: But it is not so much the picketers. You are giving answers saying that although the town cannot do what it has done, that it could do these other things. But then that seems inconsistent with the answer that you think that the Constitution protects the way that you actually picketed here, which would be prohibited by some of the alternatives that you propose. So the question is how serious you are about the alternatives.
Steven Frederick McDowell: I would answer the question this way. We are serious about the alternatives. It is possible that some of the picketers' activities might have violated the Constitution under a narrowly tailored ordinance. This ordinance, however, is not narrowly tailored.
Byron R. White: Suppose that we thought that as applied to the picketing that actually had taken place and presumably would take place again, that the ordinance was quite constitutional, what if we thought that. Should we not then just sustain the ordinance, or what else do you have to offer?
Steven Frederick McDowell: I would again go back to points that have been emphasized with respect to the entire discussion of this case. What is not involved here is an enforcement action on picketing which took place after the ordinance was passed.
Byron R. White: I know. But if this is a facial attack, and suppose we say that as applied to this picketing as applied by the District Court, that this ordinance is quite constitutional. Now is not your only rejoinder then, well, that may be so, but it is overbroad?
Steven Frederick McDowell: That is right. If our activity is not protected, then it becomes an overbreadth challenge.
Byron R. White: And then what do we have to do, do we have to imagine the reach of the ordinance. It may not be substantially overbroad.
Steven Frederick McDowell: That is perhaps a question that would then have to be determined at trial. There might have to be additional facts and so forth put out as to the enforcement policies of the town, which might need to be dealt with at that point.
Byron R. White: Well, that may be. But to do that, we should just reverse, we should reverse the Court of Appeals?
Steven Frederick McDowell: No, but--
Antonin Scalia: We could never decide an overbreadth case if we had to do that, to go back to see exactly how the statute would be applied in these situations. That is not how we do overbreadth.
Steven Frederick McDowell: --Overbreadth is--
Antonin Scalia: If it is overbroad, i is overbroad, is it not?
Steven Frederick McDowell: --Right. Overbreadth is basically a question of applying the sweep of the statute, and in essence determining that the statute can apply very clearly to protected activity. And that is apparent with respect to this ordinance which bans all residential picketing in a neighborhood without any concerns.
William H. Rehnquist: Have we ever applied overbreadth to an ordinance or a statute dealing just with picketing?
Steven Frederick McDowell: I believe that the Thornhill case, which overbreadth was first utilized, was a picketing case. So picketing cases are subject to overbreadth analysis.
Thurgood Marshall: Have you ever checked on how many times Thornhill has been cited?
Steven Frederick McDowell: I have not checked out how many times, but I believe with some degree of frequency in my reading of this Court's First Amendment cases in preparation here.
Anthony M. Kennedy: In your answer to Justice Stevens, you indicated that privacy is a protectable interest insofar as the state is concerned, the privacy of homes?
Steven Frederick McDowell: Privacy of homes is a protectable interest.
Anthony M. Kennedy: Can it be protected from picketing in any degree?
Steven Frederick McDowell: In applying such an analysis, what has to be determined is what precisely is the character of the privacy interest. For example, in the Keith case, this Court seemed to indicate that there were questions with respect to the application of--
Anthony M. Kennedy: Do you have a right to a quiet street?
Steven Frederick McDowell: --Excuse me.
Anthony M. Kennedy: Is there a right to a quiet street?
Steven Frederick McDowell: The residential privacy interests can extend to some extent to cover interests in tranquillity and quiet. A noise ordinance, for example, is a proper means to address that interest.
Anthony M. Kennedy: But some picketing can be regulated in order to preserve the character of the residential neighborhood?
Steven Frederick McDowell: The abuses that go with certain picketing could be regulated. However, an inherent proscription of all picketing--
Anthony M. Kennedy: So picketing can interfere with privacy and with residential character, and to that extent can be regulated?
Steven Frederick McDowell: --What we have in essence is a balance in such a situation. Picketing may have some impact upon residential privacy interests. However, in looking at that analysis, it is important to remember that normally, as in the Keith case, the interest in residential privacy does not extend to forbid activity taking place on a public forum property. Second, it is important to realize--
Anthony M. Kennedy: But you indicate that it can in some instances?
Steven Frederick McDowell: --The Court has not applied the analysis of residential privacy to forbid activity in a public forum of the picketing nature.
Anthony M. Kennedy: Well, has the Court confronted a case where the public forum doctrine has squarely measured against the interest of the homeowner and privacy and quiet?
Steven Frederick McDowell: The closest that this Court has come to that situation was the Carey case. And in the Carey case--
Anthony M. Kennedy: And that went off on equal protection grounds.
Steven Frederick McDowell: --Well, in the Carey case--
Anthony M. Kennedy: And in that case, we also said that there is a very strong interest, a very strong constitutional recognition, of the right of privacy.
Steven Frederick McDowell: --Granted, you are absolutely correct. However, I would also point out that in the Carey case in footnote that this Court indicated that its justification and the reason for its analysis in the Carey case was the presence of a public forum there. And so it would appear that public forum analysis does appropriately apply to residential streets, which are not significantly different in any major way from the streets and sidewalks in other particular areas. Furthermore, getting back to the residential privacy interests, it is important to remember--
Anthony M. Kennedy: And under Justice Stevens' question, this could go on 365 days a year as far as you are concerned?
Steven Frederick McDowell: --I believe that it could go on for a substantial period of time, yes.
Anthony M. Kennedy: 365 days a year?
Steven Frederick McDowell: Yes, I think it could. However, that is an issue that again is not precisely before the Court. Because what we have here is an absolute flat ban on all residential picketing irrespective of how long it extends.
Antonin Scalia: I do not understand how you can say that the length has anything to do with it. I mean either it invades the privacy or it does not invade the privacy. Does it not invade the privacy if it only happens one hour a day? That means that it is an one hour's invasion. I mean some activities you can say if they are at a lower volume, you can say that they do not annoy anybody. So a difference in degree can make a difference in kind. It is no longer an annoying activity. But if this is an invasion of privacy, it is an invasion of privacy if it occurs one hour or 24 hours, is it not?
Steven Frederick McDowell: We do not believe that... to a certain extent, there will always be a degree of privacy invasion. But the problem is that what has to be weighed in the balance is this privacy invasion, whatever it may be, vis-a-vis the important interests of the picketers in the First Amendment expression.
Antonin Scalia: Right. Now let us talk about that. What is it that you can only do by picketing that you cannot do by some other form of activity, handing out leaflets and parading around, picketing in the sense in which this ordinance uses the term, parading around the whole neighborhood, handing out leaflets, picketing or doing whatever you want in front of the doctor's offices, what is there distinctive about this, is there anything distinctive about this activity except the invasion of this man's privacy?
Steven Frederick McDowell: What is distinctive about picketing activity is that by use of signs and by use of perhaps a limited degree of movement that it creates a place where people can determine and people can see a message that is broadcast by way of signs. And there is a question that perhaps could be turned the other way with respect to that, what is the significant difference between picketing and marching. If marching is to be prohibited, what is there about picketing that makes it so substantially different that there is a more extensive need to regulate such activity.
Antonin Scalia: I suggest that if you have a parade in your neighborhood and then have a picket at your house, that you will see the difference.
Steven Frederick McDowell: Perhaps so, perhaps so. But the essential question though that has to be determined when one deals with the interest in residential privacy is that this interest is not an interest in restricting content. There mere emotional impact that one may receive from the content of speech is not relevant. That I believe is the message of the Boose case. What is involved here and what is critical to remember is that this ordinance would prohibit picketing activity where it were friendly or unfriendly. For example, one under this ordinance could go back and forth in front of Dr. Victoria's house indicating that Dr. Victoria adhered to the finest standards of the medical profession. If one were to do that, under this ordinance, it would be prohibited, under the definition that the town has utilized.
John Paul Stevens: The doctor would probably invite them in for a cup of coffee.
Steven Frederick McDowell: He might, he might, but he could also report them to the police. Anything is possible under this ordinance.
Antonin Scalia: If they liked him that much, of course, they would go away if he asked them, I am sure. I mean he would open the door and say, gee, I really like that, but you fellows are invading my privacy. The best to do if you really like me is to be gone.
Steven Frederick McDowell: The key point here though is that the ordinance sweeps so broadly that it prohibits all of these types of activity. And furthermore, the presence of the interest is residential privacy is an interest which must be considered without respect to the content of speech. If the town's real interest is in prevention of embarrassment to Dr. Victoria, then such an interest should be appropriately dealt with in other fashions. But the First Amendment does not seem to protect an interest in avoiding the embarrassment or other emotional harm which may result from this type of activity or from other types of content based activity.
Antonin Scalia: The town is willing to let you march around Dr. Victoria's neighborhood with a sign saying Dr. Victoria is an abortionist or whatever harsher language that you want to use. They are not worried about protecting him from criticism. They are willing to let you do that.
Steven Frederick McDowell: However--
Antonin Scalia: They just do not want you to annoy him in his home.
Steven Frederick McDowell: --The town's ordinance though--
Thurgood Marshall: Is there anything to stop you from picketing his office? No.
Steven Frederick McDowell: --No.
Thurgood Marshall: So he is right.
William H. Rehnquist: Thank you, Mr. McDowell. The case is submitted.
Speaker: The honorable Court is now adjourned until Monday next at 10 o'clock.