807 F.2d 1339 (7th Cir. 1986), 85-2950, Schultz v. Frisby

Docket Nº:85-2950.
Citation:807 F.2d 1339
Party Name:Sandra C. SCHULTZ and Robert C. Braun, Plaintiffs-Appellees, v. Russell FRISBY, George R. Hunt, Robert Wargowski, Harlan Ross, Clayton A. Cramer, and the Town of Brookfield, Defendants-Appellants.
Case Date:December 08, 1986
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 1339

807 F.2d 1339 (7th Cir. 1986)

Sandra C. SCHULTZ and Robert C. Braun, Plaintiffs-Appellees,

v.

Russell FRISBY, George R. Hunt, Robert Wargowski, Harlan

Ross, Clayton A. Cramer, and the Town of

Brookfield, Defendants-Appellants.

No. 85-2950.

United States Court of Appeals, Seventh Circuit

December 8, 1986

Harold H. Fuhrman, Schetter, Keck & Fuhrman, Milwaukee, Wis., for defendants-appellants.

Walter M. Weber, Catholic League for Religious & Civil Rights, Milwaukee, Wis., for plaintiffs-appellees.

Before WOOD and COFFEY, Circuit Judges, and SWYGERT, Senior Circuit Judge.

SWYGERT, Senior Circuit Judge.

In this case we consider whether an organized group of anti-abortion activists may be prevented from picketing in front of the private residence of a physician who performs abortions as part of his medical practice. These picketers challenge, on constitutional grounds, a municipal ordinance

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prohibiting all picketing in residential areas. The suit was filed by two members of the group against the municipality and its officers. After a hearing the district court enjoined the enforcement of the ordinance, ruling that it probably offended the first amendment. Schultz v. Frisby, 619 F.Supp. 792 (E.D.Wis.1985). On appeal the decision of the district court is affirmed.

I

The Town of Brookfield, the situs of the controversy, is located in Waukesha County, Wisconsin, not far from Milwaukee. The Town covers an area of about five and one-half square miles and has a population of approximately 4300. State Highway 18, also known as the West Bluemound Road, is the Town's sole commercial thoroughfare. The remainder of the Town is residential. Brookfield's homes are grouped into subdivisions graced by their developers with imaginative names. One of those subdivisions is called the "Black Forest." It consists of fourteen homes and is zoned exclusively for single-family residences. The streets are thirty feet wide; there are no sidewalks, curbs, gutters, or streetlights.

One of the private residences in Black Forest is owned by Benjamin Victoria, M.D. Dr. Victoria performs abortions at clinics in Appleton, Wisconsin and Milwaukee. Dr. Victoria does not practice medicine in Brookfield. The house in Brookfield is the Victoria family's principal residence. 1

Plaintiff-appellee Sandra Schultz is a former elementary schoolteacher who describes herself as a full-time housewife and mother. She believes that abortion is a "tragic and immoral injustice." In January of 1984 she helped found the Milwaukee Coalition for Life, a group dedicated to stopping abortion through sidewalk counseling, picketing, and leafleting. Schultz is currently president of the Coalition. 2

Plaintiff-appellee Robert Braun is a self-described "community activist" and "advocate on behalf of the poor and unemployed and other needy people." Braun strongly opposes abortion and believes in "caring and supportive alternatives" to the problems posed by an unwanted pregnancy. 3

On April 20, 1985 the Milwaukee Coalition for Life sponsored the first of several picket lines in front of the Victoria residence to protest Dr. Victoria's performance of abortions. Between April 20 and May 20 the Victoria residence was picketed on at least six separate occasions. Schultz was present at picketing occurring on April 20, May 9, and May 20. Braun was present on May 16 and May 20. Estimates of the number of picketers on each occasion varied, but the number was never less than ten nor more than fifty. The picketing received extensive press coverage. 4

The parties disagree as to the conduct of the picketers. The Town submitted sworn affidavits indicating that the picketing was not always calm and orderly. One of the Town's police officers stated that on April 27, 1985 he was called to the Victoria residence by Mrs. Victoria and observed that red ribbons had been tied onto the bushes and door of the house. Red ribbons are a symbol of the pro-life movement in Wisconsin. The ribbon-tying incident took place only minutes after a crowd of picketers had left the Victoria home. 5

Another Town police officer stated that on April 20 he observed picketers singing "God Bless America" and carrying signs that said "baby killer." At the conclusion of the song the picketers shouted at the

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house, "Baby killer, Dr. Victoria, you're a killer, save our children," or words to that effect. 6 At other times the picketers carried signs inscribed with various anti-abortion themes such as "Stop Abortion Now," "Aborted Babies Sold for Cosmetics," "Abortion is Legal Murder," and "Forgiveness is Yours for the Asking." 7

The family of a five-year-old boy, residing down the street from the Victorias, stated that on April 20 they saw a group of people marching on the street carrying signs about abortion and that one member of the group, "a lady with a cross," told the little boy that there was a man who lived up the road who killed babies and that the boy should not go there. The child became frightened and asked if the man would kill him too. 8

A family living one block from the Victorias stated that their six-year-old daughter was told by picketers that Dr. Victoria was killing babies, that she had become frightened, and that they had been forced to explain abortion to her. 9

The Victorias' son, age sixteen, stated that the picketers took his picture, shouted at him, and temporarily blocked his exit from his home. 10 Mrs. Victoria stated that she was blocked from entering her home and that the picketers placed a sign stating, "You are a shame to the United States," on her front door. She further stated that the picketers took photographs of her home and backyard pool and published them in their organization's newsletter. 11

Schultz and Braun have sworn that the picketing was entirely peaceful. They claim that the picketers confined themselves to the street, did not block traffic, and did not generate excessive noise. The plaintiffs submitted affidavits which supported their contention that the picketing was polite and restrained. 12 No arrests were made. Indeed, the defendants' own proposed statement of uncontested facts cited an article published in the Milwaukee Sentinel of May 21, 1985 that quoted a "neighbor of Victoria" as objecting more to Dr. Victoria's abortion activities than to the picketing. 13 The district court found that the picketing had been conducted, "for the most part," in a peaceable and orderly fashion. 14

Schultz has stated that picketing of the Victoria residence is necessary because:

Picketing at locations at which Victoria performs abortions would not accomplish what picketing on the public street by his house can accomplish. Such picketing would not serve to inform those dwelling in Victoria's neighborhood. Moreover, the greater media coverage of residential picketing allows us to reach audiences who might not otherwise receive our messages. As an additional concern, we do not wish to interfere with efforts of sidewalk counselors to contact prospective abortion clients; picketing near the Victorias' residence (away from the site

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of the abortions) removes the possibility of such problems, while more effectively conveying our messages to the abortionist and those in his community. 15

On May 7, 1985, after the picketing had started, the Town of Brookfield enacted an ordinance that prohibited picketing before or about the residence or dwelling of any individual, except for picketing during a labor dispute of the place of employment involved in the labor dispute. The Town Attorney became convinced that the new ordinance conflicted with the Supreme Court's decision in Carey v. Brown, 447 U.S. 455, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980), and instructed the Town Chief of Police to withhold enforcement. Picketing continued and the ordinance was repealed. On May 15, 1985 the Town passed a new ordinance, section 9.17 of the General Code. The key provision of the new ordinance reads: "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 also set forth its rationale for the ordinance:

It is declared that the protection and preservation of the home is the keystone of democratic government; that the public health and welfare and the good order of the community require that members of the community enjoy in their homes and dwellings a feeling of well-being, tranquility, and privacy, and when absent from their homes and dwellings, carry with them the sense of security inherent in the assurance that they may return to the enjoyment of their homes and dwellings; that the practice of picketing before or about residences and dwellings causes emotional disturbance and distress to the occupants; obstructs and interferes with the free use of public sidewalks and public ways of travel; that such practice has as its object the harassing of such occupants; and without resort to such practice full opportunity exists, and under the terms and provisions of this chapter will continue to exist for the exercise of freedom of speech and other constitutional rights; and that the provisions hereinafter enacted are necessary for the public interest to avoid the detrimental results herein set forth.

There has been no picketing of the Victoria residence since May 21, 1985, the effective date of the picketing ordinance.

On July 2, 1985 Schultz and Braun brought suit under 42 U.S.C. Sec. 1983 seeking declaratory and injunctive relief from an alleged deprivation of their rights under the first and fourteenth amendments of the United States Constitution. The defendants are Russell Frisby and George Hunt, Supervisors of the Town Board; Robert Wargowski, Chairman of the Town...

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