Frisby v. Schultz
Encyclopedia
Frisby v. Schultz, 487 U.S. 474, was a 1988 United States Supreme Court case that upheld the ordinance by the town of Brookfield, Wisconsin
Wisconsin
Wisconsin is a U.S. state located in the north-central United States and is part of the Midwest. It is bordered by Minnesota to the west, Iowa to the southwest, Illinois to the south, Lake Michigan to the east, Michigan to the northeast, and Lake Superior to the north. Wisconsin's capital is...

, preventing protest outside of a residential home. In a 6-3 decision, the Court ruled that the First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...

 right to freedom of assembly and protest was not violated, stating that the government had "[legitimate reason to protect] the homes of its residents[.]"

Overview

In the Milwaukee suburb of Brookfield, Wisconsin, Sandra C. Schultz and Robert C. Braun protested abortion
Abortion
Abortion is defined as the termination of pregnancy by the removal or expulsion from the uterus of a fetus or embryo prior to viability. An abortion can occur spontaneously, in which case it is usually called a miscarriage, or it can be purposely induced...

 by picketing outside the residential home of Dr. Victoria, a doctor who performed abortions. The pair garnered support in time and amassed larger protests in groups ranging from 11 to more than 40, on at least 6 occasions between April 20, 1985, and May 20, 1985. The picketing was "generally orderly and peaceful," but controversy and complaints followed the demonstrations. In response the Brookfield Town Board took action, enacting an ordinance that restricted the picketing. Unable to legally protest in the neighborhood, Schultz and Braun filed a lawsuit claiming that the town ordinance infringed on their First Amendment liberties.

Background

On May 7, 1985, after numerous anti-abortion protests outside the home of Dr. Victoria, the Town Board enacted an ordinance restricting picketing in residential neighborhoods, except for labor picketing. In accordance with the principle of "the protection and preservation of the home[,]" as well as the notion that "[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[,]" the Town Board justified the necessity for the law, but determined that the law was too similar to a previously invalidated ordinance in Illinois
Illinois
Illinois is the fifth-most populous state of the United States of America, and is often noted for being a microcosm of the entire country. With Chicago in the northeast, small industrial cities and great agricultural productivity in central and northern Illinois, and natural resources like coal,...

 voided during the decision in Carey v. Brown. Instead, the rule was modified and replaced with a ban on all picketing entirely in residential neighborhoods.

In 1980 in Carey v. Brown, an Illinois statute, similar to the one issued in Frisby v. Schultz, was deemed unconstitutional under the Equal Protection Clause
Equal Protection Clause
The Equal Protection Clause, part of the Fourteenth Amendment to the United States Constitution, provides that "no state shall ... deny to any person within its jurisdiction the equal protection of the laws"...

 of the Fourteenth Amendment
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...

 since it "makes an impermissible distinction between peaceful labor picketing and other peaceful picketing." Discrimination in legality of conduct based upon the content of the demonstrator's communication clearly violates the rights granted in the First Amendment. Prohibition of picketing that would violate residential privacy, while permitting picketing that would not, does not protect the dignity, "tranquility and privacy of the home[.]" Deciding which issues are worth debating is not in the jurisdiction of the government and does not remain consistent with the standard set by the Equal Protection Clause.

Historical Context

The issue of abortion was as controversial in the 1980s in the United States as it is today. Since the precedent established in the decision Roe v. Wade
Roe v. Wade
Roe v. Wade, , was a controversial landmark decision by the United States Supreme Court on the issue of abortion. The Court decided that a right to privacy under the due process clause in the Fourteenth Amendment to the United States Constitution extends to a woman's decision to have an abortion,...

, guaranteeing a woman's right to privacy under the due process
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...

 clause, protected by the Fourteenth Amendment
Fourteenth Amendment
The Fourteenth Amendment may refer to:* the Fourteenth Amendment to the United States Constitution, which grants citizenship to everyone born in the US and subject to its jurisdiction and protects civil and political rights...

, a woman's decision to have an abortion is protected by the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...

. Despite the Court's jurisprudence
Jurisprudence
Jurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal theorists , hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions...

, a political and moral firestorm, rooted in personal values, continues to rage in the abortion debate
Abortion debate
The abortion debate refers to discussion and controversy surrounding the moral and legal status of abortion. The two main groups involved in the abortion debate are the self-described "pro-choice" movement and the "pro-life" movement...

. People are divided over a woman's right to choose and the right to life.

In 1974, the International Planned Parenthood Federation
International Planned Parenthood Federation
The International Planned Parenthood Federation is a global non-governmental organization with the broad aims of promoting sexual and reproductive health, and advocating the right of individuals to make their own choices in family planning. It was first formed in 1952 in Bombay, India, and now...

 estimated 30-55 million abortions occurred annually worldwide. These numbers don't include illegal abortions, which are performed by poorly trained individuals with sub-par equipment. Despite increased controversy, the general trend in acceptance of abortion from the 1980s to the present day has increased.

Opposition to abortion has been made clear by attempts to force personhood amendments into action that would "declare a fertilized human egg to be a legal person, effectively branding abortion and some forms of birth control
Birth control
Birth control is an umbrella term for several techniques and methods used to prevent fertilization or to interrupt pregnancy at various stages. Birth control techniques and methods include contraception , contragestion and abortion...

 as murder."A proposed amendment in Mississippi
Mississippi
Mississippi is a U.S. state located in the Southern United States. Jackson is the state capital and largest city. The name of the state derives from the Mississippi River, which flows along its western boundary, whose name comes from the Ojibwe word misi-ziibi...

 would ban a majority or abortions as well as contraceptives and "morning-after pills." The struggle over the issue of abortion has proponents and detractors on both sides of the argument.

Conflict

With the threat of arrest and prosecution if Schultz and Braun continued to picket, the pair filed a lawsuit in federal district court, claiming that the ordinance the Town Board enacted had violated the First Amendment. The law in question was designed to “[protect] and [preserve the] home [by eliminating emotional disturbance and distress to the occupants,]” caused by harassment from picketing.

The protests took place on the street, which was deemed to be a public forum. "The devastating effect of targeted picketing on the quiet enjoyment of the home [was a reason the government took interest in Shultz and Braun's actions.]" Based on the venue of the picketing, the ordinance had to be judged against existing standards and precedents the Supreme Court set for restrictions on freedom of speech
Freedom of speech
Freedom of speech is the freedom to speak freely without censorship. The term freedom of expression is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used...

 in a public forum. The principle of residential privacy was threatened by the demonstrations.

Summary of Majority Opinion

Sandra Day O'Connor
Sandra Day O'Connor
Sandra Day O'Connor is an American jurist who was the first female member of the Supreme Court of the United States. She served as an Associate Justice from 1981 until her retirement from the Court in 2006. O'Connor was appointed by President Ronald Reagan in 1981...

 captained the 6-3 decision by the Supreme Court that determined the ordinance prohibiting the protest of residential houses did not violate the First Amendment because it is "content neutral," "leaves open ample alternative channels of communication," and serves a "significant government interest." William Rehnquist
William Rehnquist
William Hubbs Rehnquist was an American lawyer, jurist, and political figure who served as an Associate Justice on the Supreme Court of the United States and later as the 16th Chief Justice of the United States...

, Harry Blackmun
Harry Blackmun
Harold Andrew Blackmun was an Associate Justice of the Supreme Court of the United States from 1970 until 1994. He is best known as the author of Roe v. Wade.- Early years and professional career :...

, Antonin Scalia
Antonin Scalia
Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...

 and Anthony Kennedy
Anthony Kennedy
Anthony McLeod Kennedy is an Associate Justice of the United States Supreme Court, having been appointed by President Ronald Reagan in 1988. Since the retirement of Sandra Day O'Connor, Kennedy has often been the swing vote on many of the Court's politically charged 5–4 decisions...

 joined in the majority opinion. Although the streets are "narrow and of a residential character," they are public and need to be treated accordingly regarding protests. "The traditional public forum, the public forum created by government designation, and the nonpublic forum [are the classification of venues]" and the Court maintain's that a street, which has been used for public assembly and debate, is fundamentally a traditional public forum.

Justice O'Connor and the Court ruled that the ordinance "operates at the core of the First Amendment" and has provisions within it to prevent intrusive action, similar to the reasons that there are limits on free speech. The scope of the reach of the ordinance was determined to mean a single residence, as hinted at through words like "residence" and "dwelling[,]" implying one house, but a larger scale would be unconstitutional and prove to interfere with specified rights of the people. The narrow and specific ordinance, as it was interpreted by the Supreme Court, is self-evident because of its limited nature. Alternate channels of communication remain open. The State's interest is protected by providing relief from invasion of residential privacy and the ordinance was deemed to be "narrowly tailored" enough to pass the regulations of the Supreme Court and the US Constitution.

Concurrance

Justice Byron R. White maintained the opinion of the Court, saying an ordinance banning picketing of a single residence "would not be unconstitutional on its face [and therefore, free of conflict with the First Amendment.]" Acknowledging the loosely worded ordinance, White opposed the potential condition of the legislation, which, if interpreted as such, would place a limitation on picketing in front of any residence where passer-bys or anyone else would receive a message from a protest. He agreed with the notion that the law should be interpreted to ban single-residence picketing, to maintain Constitutionality
Constitutionality
Constitutionality is the condition of acting in accordance with an applicable constitution. Acts that are not in accordance with the rules laid down in the constitution are deemed to be ultra vires.-See also:*ultra vires*Company law*Constitutional law...

 and conform with the standards set in the right of assembly and the right to protest
Right to protest
The right to protest is a perceived human right arising out of a number of recognized human rights. While no human rights instrument or national constitution grants the absolute right to protest, such a right to protest may be a manifestation of the right to freedom of assembly, the right to...

, outlined in the First Amendment.

Dissenting Opinion

Justice William J. Brennan, Jr.
William J. Brennan, Jr.
William Joseph Brennan, Jr. was an American jurist who served as an Associate Justice of the United States Supreme Court from 1956 to 1990...

 agreed that prohibition of a certain kind of speech would be "narrowly tailored" and require tests to fit stringent criteria set by the Court in determining appropriate protest. Brennan was joined by Justice Thurgood Marshall in his dissent. He acknowledged a present need for regulation to ensure demonstrations didn't become "intrusive [and destructive.]" With crowds of up to 40 people, Justice Brennan could not see the narrowly tailored option he suggested be in use.

In his dissent, Justice John Stevens famously said "GET WELL CHARLIE — OUR TEAM NEEDS YOU." Stevens thought the outlaw of protest would stunt personal freedoms so much to the point that the right of a fifth grader to carry a sign encouraging his sick friend to get well would be stripped. The artful mix of "conduct and communication" called picketing is a concept heavily supported by Stevens, who champions the right of people to not have their demonstrations be discriminated against through classifications based on behavior. While Justice Stevens did not condone protest, borderline harassment of a residential home with the sole purpose of inflicting psychological damage, he did preach of the right to communicate strong feelings about abortion, whether they be positive or negative. The broadness and scope of the ordinance enacted by the Town Board gives officials too much discretion in determining what type of protest is allowed and forces a transgression of jurisdiction.

Historical Significance

The decision gave rise to a throng of precedents, by the Supreme Court, for where protest is proper and acceptable within the boundaries of the First Amendment. The precedents became a part of Stare decisis
Stare decisis
Stare decisis is a legal principle by which judges are obliged to respect the precedents established by prior decisions...

. The Court also established that "residential streets are as much public fora as much as any other street," and if a law restricts no more than the conduct it is targeting, the Supreme Court will uphold it. Similarly, a loosely written law that has the potential to violate Amendment rights will be declared unconstitutional if it restricts more than is necessary.
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