Lead Opinion
delivered the opinion of the Court.
Brookfield, Wisconsin, has adopted an ordinance that completely bans picketing “before or about” any residence. This case presents a facial First Amendment challenge to that ordinance.
I
Brookfield, Wisconsin, is a residential suburb of Milwaukee with a population of approximately 4,300. The appellees, Sandra C. Schultz and Robert C. Braun, are individuals strongly opposed to abortion and wish to express their views on the subject by picketing on a public street outside the Brookfield residence of a doctor who apparently performs abortions at two clinics in neighboring towns. Appellees and others engaged in precisely that activity, assembling outside the doctor’s home on at least six occasions between April 20, 1985, and May 20, 1985, for periods ranging from one to one and a half hours. The size of the group varied from 11 to more than 40. The picketing was generally orderly and peaceful; the town never had occasion to invoke any of its various ordinances prohibiting obstruction of the streets, loud and unnecessary noises, or disorderly conduct. Nonetheless, the picketing generated substantial controversy and numerous complaints.
The Town Board therefore resolved to enact an ordinance to restrict the picketing. On May 7, 1985, the town passed an ordinance that prohibited all picketing in residential neighborhoods except for labor picketing. But after reviewing this Court’s decision in Carey v. Brown,
“It is unlawful for any person to engage in picketing before or about the residence or dwelling of any individual in the Town of Brookfield.” App. to Juris. Statement A-28.
The ordinance itself recites the primary purpose of this ban: “the protection and preservation of the home” through assurance “that members of the community enjoy in their homes and dwellings a feeling of well-being, tranquility, and privacy.” Id., at A-26. The Town Board believed that a ban was necessary because it determined that “the practice of picketing before or about residences and dwellings causes emotional disturbance and distress to the occupants . . . [and] has as its object the harassing of such occupants.” Id., at A-26 — A-27. The ordinance also evinces a concern for public safety, noting that picketing obstructs and interferes with “the free use of public sidewalks and public ways of travel.” Id., at A-27.
On May 18, 1985, appellees were informed by the town attorney that enforcement of the new, revised ordinance would begin on May 21, 1985. Faced with this threat of arrest and prosecution, appellees ceased picketing in Brookfield and filed this lawsuit in the United States District Court for the Eastern District of Wisconsin. The complaint was brought under 42 U. S. C. § 1983 and sought declaratory as well as preliminary and permanent injunctive relief on the grounds that the ordinance violated the First Amendment. Ap-pellees named appellants — the three members of the Town Board, the Chief of Police, the town attorney, and the town itself — as defendants.
A divided panel of the United States Court of Appeals for the Seventh Circuit affirmed.
Appellees argue that there is no jurisdiсtion under § 1254 (2) due to the lack of finality. They point out that the District Court entered only a preliminary injunction and that appellants requested a trial on the merits, which has yet to be conducted. These considerations certainly suggest a lack of finality. Yet despite the formally tentative nature of its order, the District Court appeared ready to enter a final judgment since it indicated that unless a trial was requested a permanent injunction would issue. In addition, while appellants initially requested a trial, they no longer adhere to this position and now say that they would have no additional arguments to offer at such a trial. Tr. of Oral Arg. 7. In the context of this case, however, there is no need to decide
II
The antipicketing ordinance operates at the core of the First Amendment by prohibiting appellees from engaging in picketing on an issue of public concern. Because of the importance of “uninhibited, robust, and wide-open” debate on public issues, New York Times Co. v. Sullivan,
To ascertain what limits, if any, may be placed on protected speech, we have often focused on the “place” of that speech, considering the nature of the forum the speaker seeks to employ. Our cases have recognized that the standards by which limitations on speech must be evaluated “differ depending on the character of the property at issue.” Perry Education Assn. v. Perry Local Educators’ Assn.,
The relevant forum here may be easily identified: appellees wish to picket on the public streets of Brookfield. Ordinarily, a determination of the nature of the forum would follow automatically from this identification; we have repeatedly referred to public streets as the archetype of a traditional public forum. See, e. g., Boos v. Barry, supra, at 318; Cornelius, supra, at 802; Perry,
We reject this suggestion. Our prior holdings make clear that a public street does not lose its status as a traditional public forum simply because it runs through a residential neighborhood. In Carey v. Brown — which considered a statute similar to the one at issue here, ultimately striking it down as a violation of the Equal Protection Clause because it included an exception for labor picketing — we expressly recognized that “public streets and sidewalks in residential neighbоrhoods,” were “public for[a].”
In short, our decisions identifying public streets and sidewalks as traditional public fora are not accidental invocations of a “cliché,” but recognition that “[w]herever the title of
“In these quintessential public for[a], the government may not prohibit all communicative activity. For the State to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. . . . The State may also enforce regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.” Penny, supra, at 45 (citations omitted).
As Perry makes clear, the appropriate level of scrutiny is initially tied to whether the statute distinguishes between prohibited and permitted speech on the basis of content. Appellees argue that despite its facial content-neutrality, the Brookfield ordinance must be read as containing an implied exception for labor picketing. See Brief for Appellees 20-26. The basis for appellees’ argument is their belief that an express protection of peaceful labor picketing in state law, see Wis. Stat. §103.53(1) (1985-1986), must take precedence over Brookfield’s contrary efforts. The District Court, however, rejected this suggested interpretation of state law,
Because the last question is so easily answered, we address it first. Of course, before we are able to assess the available alternatives, we must consider more carefully the reach of the ordinance. The precise scope of the ban is not further described within the text of the ordinance, but in our view the ordinance is readily subject to a narrowing construction that avoids constitutional difficulties. Specifically, the use of the singular form of the words “residence!’, and “dwelling” suggests that the ordinancе is intended to prohibit only picketing focused on, and taking place in front of, a particular residence. As Justice White’s concurrence recounts, the lower courts described the ordinance as banning “all picketing in residential areas.” Post, at 490. But these general descriptions do not address the exact scope of the ordinance and are in no way inconsistent with our reading of its text. “Picketing,” after all, is defined as posting at a particular place, see Webster’s Third New International Dictionary 1710 (1981), a characterization in line with viewing the ordinance as limited to activity focused on a single residence.
So narrowed, the ordinance permits the more general dissemination of a message. As appellants explain, the limited nature of the prohibition makes it virtually self-evident that ample alternatives remain:
*484 “Protestors have not been barred from the residential neighborhoods; They may enter such neighborhoods, alone or in groups, even marching. . . . They may go door-to-door to proselytize their views. They may distribute literature in this manner ... or through the mails. They may contact residents by telephone, short of harassment.” Brief for Appellants 41-42 (citations omitted).
We readily agree that the ordinance preserves ample alternative channels of communication and thus move on to inquire whether the ordinance serves a significant government interest. We find that such an interest is identified within the text of the ordinance itself: the protection of residential privacy. See App. to Juris. Statement A-26.
“The State’s interest 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,
One important aspect of residential privacy is protection of the unwilling listener. Although in many locations, we expect individuals simply to avoid speech they do not want to hear, cf. Erznoznik v. City of Jacksonville, supra, at 210-211; Cohen v. California,
This principle is reflected even in prior decisions in which we have invalidated complete bans on expressive аctivity, including bans operating in residential areas. See, e. g., Schneider v. State,
It remains to be considered, however, whether the Brook-field ordinance is narrowly tailored to protect only unwilling recipients of the communications. A statute is narrowly tailored if it targets and eliminаtes no more than the exact source of the “evil” it seeks to remedy. City Council of Los Angeles v. Taxpayers for Vincent,
The same is true here. The type of focused picketing prohibited by the Brookfield ordinance is fundamentally different from more generally directed means of communication that may not be completely banned in residential areas. See, e. g., Schneider, supra, at 162-163 (handbilling); Martin, supra (solicitation); Murdock v. Pennsylvania,
“‘To those inside . . . the home becomes something less than a home when and while the picketing . . . continue^]. . . . [The] tensions and pressures may be psychological, not physical, but they are not, for that reason, less inimical to family privacy аnd truly domestic tranquility.’” Carey, supra, at 478 (Rehnquist, J., dissenting) (quoting Wauwatosa v. King,49 Wis. 2d 398 , 411-412,182 N. W. 2d 530 , 537 (1971)).
The First Amendment permits the government to prohibit offensive speech as intrusive when the “captive” audience cannot avoid the objectionable speech. See Consolidated Edison Co. v. Public Service Comm’n of New York,
Of course, this case presents only a facial challenge to the ordinance. Particular hypothetical applications of the ordinance — to, for example, a particular resident’s use of his or her home as a place of business or public meeting, or to picketers present at a particular home by invitation of the resident-may present somewhat different questions. Initially, the ordinance by its own terms may not apply in such circumstances, since the ordinance’s goal is the protection of residential privacy, App. to Juris. Statement A-26, and since it speaks only of a “residence or dwelling,” not a place of business, id., at A-28. Cf. Carey, supra, at 457 (quoting an antipicketing ordinance expressly rendered inapplicable by use of home as a place of business or to hold a public meеting). Moreover, since our First Amendment analysis is grounded in protection of the unwilling residential listener, the constitutionality of applying the ordinance to such hypothetical remains open to question. These are, however, questions we need not address today in order to dispose of appellees’ facial challenge.
Because the picketing prohibited by the Brookfield ordinance is speech directed primarily at those who are presumptively unwilling to receive it, the State has a substantial and justifiable interest in banning it. The nature and scope of this interest make the ban narrowly tailored. The ordinance also leaves open ample alternative channels of communication and is content neutral. Thus, largely because of its narrow scope, the facial challenge to the ordinance must fail. The contrary judgment of the Court of Appeals is
Reversed.
Concurrence Opinion
concurring in the judgment.
I agree with the Court that an ordinance which only forbade picketing before a single residence would not be unconstitutional on its face. If such an ordinance were applied to the kind of picketing that appellees carried out here, it
This leaves the question, however, whether the ordinance at issue in this case forbids only single-residence picketing. The Court says that the language of the ordinance suggests that it is so limited. But the ordinancе forbids “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(2), App. to Juris. Statement A-28. That language could easily be construed to reach not only picketing before a single residence, but also picketing that would deliver the desired message about a particular residence to the neighbors and to other passersby. Arguably, it would also reach picketing that is directed at the residences which are located in entire blocks or in larger residential areas. Indeed, the latter is the more natural reading of the ordinance, which seems to prohibit picketing in any area that is located “before or about” any residence or dwelling in the town, i. e., any picketing that occurs either in front of or anywhere around the residences that are located within the town.
Furthermore, there is ho authoritative construction of this ordinance by the Wisconsin state courts that limits the scope of the proscription. There is, however, the interpretation that has been rendered in this case by both the lower federal courts with jurisdiction over the town whose law is at issue, which we rarely overturn and to which we routinely defer unless there is some fairly compelling argument for not doing so — an established practice that the Court relies on to resolve another aspect of this case. Ante, at 482. As I understand
The Court endorses a narrow construction of the ordinance by relying on the town counsеl’s representations, made at oral argument, that the ordinance forbids only single-residence picketing. In light of the view taken by the lower federal courts and the apparent failure of counsel below to press on those courts the narrowing construction that has been suggested here, I have reservations about relying on counsel’s statements as an authoritative statement of the law. It is true that several times in the past the Court, in reaching its decision on the validity of a statute, has relied on what it considered to be reliable and perhaps binding representations made by state and federal officials as to how a particular statute will be enforced. DeFunis v. Odegaard,
There is nevertheless sufficient force in the town counsel’s representations about the reach of the ordinance to avoid application of the overbreadth doctrine in this case, which as we have frequently emphasized is such “strong medicine” that it “has been employed by the Court sparingly and only as a last resort.” Broadrick v. Oklahoma,
Dissenting Opinion
with whom Justice Marshall joins, dissenting.
The Court today sets out the appropriate legal tests and standards governing the question presented, and proceeds to apply most of them correctly. Kegrettably, though, the Court errs in the final step of its analysis, and approves an ordinance banning significantly more speech than is necessary to achieve the government’s substantial and legitimate goal. Accordingly, I must dissent.
The ordinance before us absolutely prohibits picketing “before or about” any residence in the town of Brookfield,
Assuming one construes the ordinance as the Court does,
The foregoing distinction is crucial here because it directly affects the last prong of the time, place, and manner test: whether the ordinance is narrowly tailored to achieve the governmental interest. I do not quarrel with the Court’s reliance on City Council of Los Angeles v. Taxpayers for Vincent,
Without question there are many aspects of residential picketing that, if unregulated, might easily become intrusive or unduly coercive. Indeed, some of these aspects are illustrated by this very case. As the District Court found, before the ordinance took effect up to 40 sign-сarrying, slogan-shouting protesters regularly converged on Dr. Victoria’s home and, in addition to protesting, warned young children not to go near the house because Dr. Victoria was a “baby killer.” Further, the throng repeatedly trespassed onto the Victorias’ property and at least once blocked the exits to their home.
The Court nonetheless attempts to justify the town’s sweeping prohibition. Central to the Court’s analysis is the determination that:
*495 “[I]n contrast [to other forms of communication], the picketing [here] is narrowly directed at the household, not the public. The type of picketers banned by the Brookfield ordinance generally do not seek to disseminate a message to the general public, but to intrude upon the targeted resident, and to do so in an еspecially offensive way. Moreover, even if some such picketers have a broader communicative purpose, their activity nonetheless inherently and offensively intrudes on residential privacy.” Ante, at 486.
That reasoning is flawed. First, the ordinance applies to all picketers, not just those engaged in the protest giving rise to this challenge. Yet the Court cites no evidence to support its assertion that picketers generally, or even appel-lees specifically, desire to communicate only with the “targeted resident.” (In fact, the District Court, on the basis of an uncontradicted affidavit, found that appellees sought to communicate with both Dr. Victoria and with the public.
A second flaw in the Court’s reasoning is that it assumes that the intrusive elements of a residential picket are “inherent.” However, in support of this crucial conclusion the Court only briefly examines the effect of a narrowly tailored ordinance: “[E]ven a solitary picket can invade residential privacy. See Carey, supra, at 478-479 (Rehnquist, J., dissenting) (‘Whether . . . alone or accompanied by others . . . there are few of us that would feel comfortable knowing that
A valid time, place, or manner law neutrally regulates speech only to the extent necessary to achieve a substantial governmental interest, and no further. Because the Court is unwilling to examine the Brookfield ordinance in light of the precise governmental interest at issue, it condones a law that suppresses substantially more speech than is necessary. I dissent.
Notes
The Court today soundly rejects the town’s rogue argument that residential streets are something less than public fora. Ante, at 479-481. I wholeheartedly agree with this portion of the Court’s opinion.
The Court relies on our “two-court rule” to avoid appellees’ argument that state law creates a labor picketing exception to the Brookfield ordinance, and thus that the law is not content neutral. Ante, at 481-482. Howevеr, I would not be as quick to apply the rule here. The District Court’s opinion focuses solely on the language and history of the town ordinance and does not refer to state law,
Like Justice White, I am wary of the Court’s rather strained “single-residence” construction of the ordinance. Moreover, I give little weight to the town attorney’s interpretation of the law; his legal interpretations do not bind the state courts, and therefore they cannot bind us. American Booksellers, supra, at 395. However, for purposes of this dissent, I will accept the Court’s reading.
Dissenting Opinion
dissenting.
“GET WELL CHARLIE-OUR TEAM NEEDS YOU.”
In Brookfield, Wisconsin, it is unlawful for a fifth grader to carry such a sign in front of a residence for the pеriod of time necessary to convey its friendly message to its intended audience.
I do not believe we advance the inquiry by rejecting what Justice Brennan calls the “rogue argument that residential streets are something less than public fora,” ante, at 492, n. 1. See Cornelius v. NAACP Legal Defense & Educational Fund, Inc.,
Two characteristics of picketing — and of speech more generally — make this a difficult case. : First, it is important to recognize that, “[l]ike so many other kinds of expression, picketing is a mixture of conduct and communication.” NLRB v. Retail Store Employees,
“[A] communication may be offensive in two different ways. Independently of the message the speaker intends to convey, the form of his communication may be offensive — perhaps because it is too loud or too ugly in a particular setting. Other speeches, even though elegantly phrased in dulcet tones, are offensive simply because the listener disagrees with the speaker’s message.” Consolidated Edison Co. v. Public Service Comm’n of New York,447 U. S. 530 , 546-547 (Stevens, J., concurring in judgment) (footnotes omitted).
Picketing is a form of speech that, by virtue of its repetition of message and often hostile presentation, may be disruptive of an environment irrespective of the substantive message conveyed.
The picketing that gave rise to the ordinance enacted in this ease was obviously intended to do more than convey a message of opposition to the character of the doctor’s practice; it was intended to cause him and his family substantial psychological distress. As the record reveals, the picketers’ message was repeatedly redelivered by a relatively large group — in essence, increasing the volume and intrusiveness of the same message with each repeated assertion, cf. Kovacs v. Cooper,
On the other hand, the ordinance is unquestionably “over-broad” in that it prohibits some communication that is protected by the First Amendment. The question, then, is whether to apply the overbreadth doctrine’s “strong medicine,” see Broadrick v. Oklahoma,
“To put the matter another way, particularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate swеep.”413 U. S., at 615 .
. In this case the overbreadth is unquestionably “real.” Whether or not it is “substantial” in relation to the “plainly legitimate sweep” of the ordinance is a more difficult question. My hunch is that the town will probably not enforce its ban against friendly, innocuous, or even brief unfriendly picketing, and that the Court may be right in concluding that its legitimate sweep makes its overbreadth insubstantial. But there are two countervailing, considerations that are persuasive to me. The scope of the ordinance gives the town officials far too much discretion In making enforcement decisions; while we sit by and await further developments, potential picketers must act at their peril. Second, it is a simple matter for the town to amend its ordinance and to limit the ban to conduct that unreasonably interferes with the privacy of the home and does not serve a reasonable communicative purpose. Accordingly, I respectfully dissent.