487 U.S. 474 (1988)
Brookfield, Wisconsin, is a residential suburb of Milwaukee with a population of approximately 4,300.1 Appellees Sandra C. Schultz and Robert C. Braun, who opposed abortion, picketed on a public street outside the residence of a doctor who performed abortions at clinics in neighboring towns.2 Between April 20, 1985, and May 20, 1985, they and others assembled outside the doctor's home on at least six occasions for periods ranging from one to one and a half hours, with groups varying in size from 11 to more than 40 people, and the picketing remained generally orderly and peaceful.3
The picketing generated substantial controversy and numerous complaints, prompting the Town Board to enact an ordinance on May 7, 1985, that prohibited all picketing in residential neighborhoods except for labor picketing.4 After the town attorney advised that the labor exception likely rendered the ordinance unconstitutional under Carey v. Brown, the town repealed it on May 15, 1985, and replaced it with a flat ban stating that it is unlawful for any person to engage in picketing before or about the residence or dwelling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.5 The new ordinance recited its purpose as 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, and noted concerns about emotional disturbance, distress, harassment, and obstruction of public sidewalks.6
On May 18, 1985, appellees were informed that enforcement would begin on May 21, leading them to cease picketing and file suit in the United States District Court for the Eastern District of Wisconsin under 42 U.S.C. § 1983 seeking declaratory and injunctive relief against the town and its officials.7 The District Court granted a preliminary injunction, which the Seventh Circuit affirmed by an equally divided en banc vote after initial panel proceedings.8 The Supreme Court granted certiorari to review the case after postponing consideration of its appellate jurisdiction.9
Whether the Brookfield ordinance prohibiting picketing before or about any residence is content neutral?10
A regulation of speech in a traditional public forum is content neutral if it does not distinguish between prohibited and permitted speech on the basis of the ideas or messages expressed.11 This principle follows from the rule that content-based exclusions require a compelling interest while content-neutral time, place, and manner restrictions need only serve a significant interest.12
Yes. The Brookfield ordinance enacts a flat ban on all residential picketing after repealing an earlier version that contained a labor picketing exception.13 The lower courts construed the revised ordinance as lacking any implied exception drawn from state labor law.14 This construction confirms that the ordinance applies evenly without regard to the subject matter of the picket. It satisfies the content-neutrality requirement under the standards applicable to traditional public forums such as the streets of Brookfield.
The ordinance qualifies as content neutral because its text and history demonstrate a uniform prohibition that does not favor or disfavor any particular viewpoint or topic.15
Whether the ordinance is narrowly tailored to serve a significant government interest in residential privacy?16
A content-neutral restriction on speech in a traditional public forum must be narrowly tailored to serve a significant government interest.17 This means it targets and eliminates no more than the exact source of the evil it seeks to remedy.18 A complete ban satisfies this standard only when every activity within its scope inherently produces the harm the government seeks to prevent.19
Yes. The Brookfield ordinance serves the significant interest in protecting residential privacy and tranquility by banning focused picketing that intrudes upon the home as a captive audience.20 This is demonstrated by the appellees' repeated assemblies of large groups outside the doctor's home that generated substantial controversy and complaints.21 The prohibition is narrowly tailored because the targeted picketing itself creates the psychological distress and harassment that the town identified as the precise evil in its ordinance recitals.22
A complete ban is necessary to eliminate that specific form of intrusion.23
The ordinance is narrowly tailored because it directly addresses the intrusive medium of focused residential picketing without prohibiting more speech than necessary to safeguard the home.24
Related opinions on this issue
Justice White concurred in the judgment upholding the ordinance as applied to the facts of this case.25 He agreed that an ordinance limited to single-residence picketing would not be unconstitutional on its face and that the large-group picketing here would clearly be valid under the First Amendment.26 However, he expressed reservations about the Court's adoption of a narrowing construction without an authoritative state-court interpretation, noting that the ordinance language could easily reach picketing before or about entire blocks or residential areas.27
The lower federal courts had understood the ordinance as banning all picketing in residential neighborhoods, and the town's counsel had not pressed the narrow construction below.28 While the oral argument representations created sufficient doubt to avoid overbreadth invalidation, he preferred to sustain the ordinance as applied to the appellees' large-group activities rather than endorse the single-residence limitation at this stage.29
Justice Brennan dissented, concluding that the ordinance bans significantly more speech than necessary to achieve the town's substantial interest in residential privacy.30 He argued that the heightened privacy interest is implicated only by actual intrusions into the home or unduly coercive conduct around it, not by picketing that remains outside and communicates to both the resident and the public.31 The Court erred by assuming the intrusive elements are inherent in all residential picketing; instead, regulations of size, time, volume, and noise could eliminate coercive aspects while allowing solitary, silent picketing to continue.32
Because the ordinance prohibits even non-intrusive picketing after such controls, it fails the narrow-tailoring requirement under the time, place, and manner test.33
Justice Stevens dissented in part from the facial upholding of the ordinance.34 He acknowledged that the ordinance could constitutionally be applied to the harassing, siege-like picketing that prompted its enactment, which involved repeated messages intended to impose psychological harm on the doctor's family.35 Nevertheless, he concluded that the total ban is overbroad because it prohibits protected communications to willing or indifferent recipients as well as the unwilling.36
The ordinance grants town officials excessive enforcement discretion, forcing potential picketers to act at their peril while awaiting further developments.37 He would have required the town to amend the ordinance to limit the prohibition to conduct that unreasonably interferes with home privacy and serves no reasonable communicative purpose.38
Whether the ordinance leaves open ample alternative channels of communication?39
A content-neutral time, place, and manner restriction must leave open ample alternative channels of communication.40 Speakers may reach their intended audiences through other means that do not undermine the government's interest.
Yes. The ordinance, construed to prohibit only focused picketing directly in front of a single residence, permits protesters to march through neighborhoods, engage in door-to-door proselytizing, distribute literature, use the mails, and contact residents by telephone, thereby preserving multiple avenues for conveying the same message without the targeted intrusion on the home that the ordinance seeks to prevent.41
The ordinance satisfies the ample-alternatives requirement because it restricts only the most intrusive form of residential picketing while allowing general dissemination of the message throughout the community.42
Whether the ordinance should be construed to prohibit only picketing focused on a single residence?43
When interpreting a local ordinance that implicates First Amendment rights, courts adopt a narrowing construction that avoids constitutional difficulties whenever the text permits.44 This is particularly true where the ordinance uses singular terms such as residence or dwelling.45 Counsel representations that enforcement will be limited accordingly also support the construction.46
Yes. The ordinance's use of the singular forms residence and dwelling supports a narrow reading.47 The town's representations at oral argument confirm that picketing must be directed at a single home rather than an entire block or neighborhood.48 This construction limits the ban to focused activity in front of one residence.49 It avoids overbreadth concerns that would arise from a broader prohibition on all residential-area picketing.50
The ordinance is properly construed as reaching only picketing focused on a particular residence.51
Related opinions on this issue
Justice White questioned the Court's reliance on the narrowing construction of the ordinance to single-residence picketing.52 The ordinance text could naturally be read to prohibit picketing before or about any residence in the town, potentially reaching picketing that delivers a message to neighbors and passersby or even entire blocks.53 Both the District Court and the Court of Appeals panel had understood it as banning all picketing in residential neighborhoods, and appellants' briefs referred to it in those terms.54
He preferred to sustain the ordinance as applied to the facts of this case rather than endorse the single-residence limitation without an authoritative state-court construction, although the counsel's representations created enough doubt to avoid overbreadth analysis.55
Whether the facial First Amendment challenge to the ordinance fails?56
A facial challenge to a content-neutral restriction on speech in a traditional public forum fails when the ordinance is narrowly tailored to serve a significant government interest and leaves open ample alternative channels of communication.57 Particular hypothetical applications might raise distinct constitutional questions that are not resolved by the facial analysis.58
Yes. Because the Brookfield ordinance is content neutral, it is narrowly tailored to protect residential privacy from the unique intrusion of focused picketing.59 It preserves ample alternative channels.60 The facial challenge cannot succeed.61 The Court left open the constitutionality of applying the ordinance to a home used as a place of business or to invited picketers.62
The facial First Amendment challenge fails, and the judgment of the Court of Appeals is reversed.63