Frisby v. Schultz 1988
Frisby v. Schultz 1988
Appellants: Russell Frisby, Supervisor of the Town of Brookfield, Wisconsin, et al.
Appellees: Sandra C. Schultz and Robert C. Braun
Appellants' Claim: That a law banning picketing in front of residential homes did not violate the freedom of speech.
Chief Lawyer for Appellants: Harold H. Furhman
Chief Lawyer for Appellees: Steven Frederick McDowell
Justices for the Court: Harry A. Blackmun, Anthony M. Kennedy, Sandra Day O'Connor, William H. Rehnquist, Antonin Scalia, Byron R. White
Date of Decision: June 27, 1988
Decision: The law banning picketing was constitutional under the First Amendment.
Significance: Freedom of speech does not give picketers the right to harass people in their homes.
Abortion is ending a woman's pregnancy before the fetus or child is born. (Abortion supporters call the unborn a fetus. Abortion protestors call the unborn a child.) In the landmark decision of Roe v. Wade (1973), the U.S. Supreme Court decided that women have a constitutional right to have abortions. Since then, abortion supporters have fought hard to protect this right. Abortion protestors, who believe abortion is murder, have fought equally hard for the rights of the unborn.
Brookfield, Wisconsin, is a residential suburb of Milwaukee and was home to an abortion doctor. Abortion protestors, including Sandra C. Schultz and Robert C. Braun, decided to picket on a public street outside the doctor's home to protest against abortion. Schultz and Brown picketed with many other protestors six times during April and May 1985. The groups ranged from eleven to over forty people who picketed for between one and two hours.
WHEN IS PICKETING CONSTITUTIONALLY PROTECTED?
P icketing is normally a peaceful carrying of signs and banners clearly advertising a grievance or the purpose of a demonstration. It is a recognized means of communication.
Beginning in the 1930s, some states sought to hinder the development of labor unions by passing laws prohibiting picketing. The states argued picketing is conduct, not speech, and therefore not protected by the First Amendment. In 1941 the Supreme Court concluded that peaceful picketing is a constitutionally protected means of transmitting ideas.
The guarantee of free expression has often been weighed against a state's desire to preserve public peace through picketing restrictions. Normally, picketing that becomes an instrument of force, vandalism, intimidation, or coercion is not protected by the First Amendment. Similarly, First Amendment protection does not apply to picketing that is part of other conduct that violates state law.
The picketing was orderly and peaceful. No one violated any laws against blocking the streets, making loud noises, or disorderly conduct. The Town Board, however, believed the picketers were harassing the doctor. To stop the picketers, the Town Board enacted a new law on May 15, 1985. The law made it illegal "for any person to engage in picketing before or about the residence or dwelling of any individual in the Town of Brookfield." The law said its goal was to protect privacy in residential homes.
After the board enacted the new law, Schultz and Braun stopped picketing and filed a lawsuit in federal district court. They said the law violated the freedom of speech. The First Amendment protects free speech by saying "Congress shall make no law . . . abridging [limiting] the freedom of speech." State and local governments, including the Town Board of Brookfield, must obey the freedom of speech under the Due Process Clause of the Fourteenth Amendment. Schultz and Braun asked the trial court to prevent Brookfield from enforcing the anti-picketing law. The trial court ruled in favor of Schultz and Braun, so Brookfield appealed all the way to the U.S. Supreme Court.
With a 6–3 decision, the Supreme Court reversed and ruled in favor of Brookfield. Writing for the Court, Justice Sandra Day O'Connor analyzed the freedom of speech and its limitations. Justice O'Connor said picketing is protected by the freedom of speech because it helps Americans consider and discuss important public issues.
The nature of the freedom depends on whether the speaker is in a public or non-public place. Justice O'Connor said picketers on public streets in a residential neighborhood deserve the greatest amount of protection under the First Amendment. Public streets have become a traditional place for the exercise of free speech in America.
By banning picketing "before or about" residential homes, Brookfield was trying to regulate the place where people could exercise free speech. Justice O'Connor said the government can restrict speech like this only if it satisfies a three part test. First, the law must give speakers other ways to express their ideas. Brookfield's anti-picketing law satisfied this test. It only prevented the picketers from gathering in front of a single home to harass the people inside. It did not prevent them from spreading their message by marching through neighborhoods, going door-to-door with anti-abortion literature, or calling people on the telephone.
The second part of the test was that the law must be designed to serve an important government interest. Brookfield's anti-picketing law did that because it was designed to protect privacy in people's homes. Quoting from a prior case, Justice O'Connor said the American home is "the last citadel of the tired, the weary, and the sick." She said the First Amendment does not require Americans to welcome unwanted speech into their homes.
AMERICA'S MOST WANTED
The battle between abortion doctors and protestors reached the internet in 1999. Two groups, the American Coalition of Life Activists and Advocates for Life Ministries, sponsored a website to protest against abortion. The website featured Old West style "Wanted" posters for abortion doctors. After three of the doctors were killed by abortion protestors, their names were crossed out on the website. When protestors injured a doctor, the doctor's name on the website turned gray.
Planned Parenthood and a group of doctors filed a lawsuit in federal court against the anti-abortion groups and twelve individuals. They said the website contained death threats that violated federal laws. On February 3, 1999, a federal jury in Portland, Oregon, agreed and awarded the plaintiffs $107 million in damages.
Abortion protestors said the verdict trampled on the freedom of speech. A lawyer for the plaintiffs, however, said the verdict protected freedom for abortion doctors. "They want the freedom to hug their child in front of a window." The verdict likely will be in appeals for many years.
The third part of the test was that the law must be written narrowly so that it does not prevent more speech than necessary to protect privacy. Justice O'Connor said Brookfield's anti-picketing law satisfied this part of the test as well. Again, the law only prevented people from gathering in front of a single home to harass the people inside. Because Brookfield's law satisfied each of the three conditions, Brookfield could stop the protestors from picketing in front of the abortion doctor's home.
Three justices dissented, meaning they disagreed with the Court's decision. Justice John Paul Stevens wrote a dissenting opinion. Justice Stevens thought the law banned all picketing, whether hostile or friendly. In fact, he said the law would prevent fifth graders from carrying a sign saying "GET WELL CHARLIE — OUR TEAM NEEDS YOU" in front of their sick teammate's home. Stevens said that violated the freedom of speech. Without a doubt, the case showed the difficulty of balancing the privacy rights of abortion doctors and the free speech rights of abortion protestors.
Suggestions for further reading
Evans, J. Edward. Freedom of Speech. Minneapolis: Lerner Publications, Inc., 1990.
Farish, Leah. The First Amendment: Freedom of Speech, Religion, and the Press. Hillside, NJ: Enslow Publishers, Inc., 1998.
King, David C. The Right to Speak Out. Brookfield, CT: Millbrook Press, 1997.
Klinker, Philip A. The First Amendment. Englewood Cliffs, NJ: Silver Burdett Press, 1991.
Pascoe, Elaine. Freedom of Expression: The Right to Speak Out in America. Brookfield, CT: Millbrook Press, 1992.
Steele, Philip, Philip Skele, and Penny Clarke. Freedom of Speech? New York: Franklin Watts, 1997.
Verhovek, Sam Howe. "Creators of Anti-Abortion Web Site Told to Pay Millions." New York Times, February 3, 1999.
Zeinert, Karen. Free Speech: From Newspapers to Music Lyrics. Hillside, NJ: Enslow Publishers, Inc., 1995.
"Frisby v. Schultz 1988." Supreme Court Drama: Cases That Changed America. . Encyclopedia.com. (January 16, 2019). https://www.encyclopedia.com/law/legal-and-political-magazines/frisby-v-schultz-1988
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