Kirkeby v. Furness

Decision Date20 September 1996
Docket NumberNo. 95-3098,95-3098
Citation92 F.3d 655
PartiesKathleen KIRKEBY, David Habiger, Ronald Shaw, Martin Wishnatsky, Timothy Lindgren, and Darold Larson, Appellees, v. Bruce FURNESS, in His Official Capacity as Mayor of the City of Fargo; Garylle B. Stewart, in His Official Capacity as City Attorney of the City of Fargo; Fargo City Commission; and City of Fargo, Appellants.
CourtU.S. Court of Appeals — Eighth Circuit

Waune O. Solberg, argued, Fargo, ND, for appellants.

Walter M. Weber, argued, Washington, D.C., for appellees.

Before MAGILL, JOHN R. GIBSON, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

This case is before us for a second time. The plaintiffs are pro-life activists who sometimes express their objection to abortion by picketing near the residences of individuals who provide abortion services. In 1994, they challenged the constitutionality of a residential picketing ordinance passed by the city of Fargo, North Dakota. After the district court refused to issue a preliminary injunction enjoining enforcement of the ordinance, we took up the case on appeal and reversed, holding that a preliminary injunction was in order because the ordinance was probably unconstitutional. Kirkeby v. Furness, 52 F.3d 772, 774-76 (8th Cir.1995) ("Kirkeby I ").

On remand, the district court held that the ordinance was unconstitutional because it violated the plaintiffs' First Amendment right of free expression. The court also held that two "Restricted Picketing Zones" established pursuant to the ordinance were unconstitutional. The court therefore granted summary judgment for the plaintiffs and enjoined enforcement of the ordinance.

This case presents two distinct issues. The first is whether the ordinance violates the First Amendment on its face. The second is whether the "Restricted Picketing Zone" that the city adopted after amending the ordinance violates the plaintiffs' First Amendment rights. We answer both questions in the affirmative and affirm the judgment of the district court. 1

I.

As a preliminary matter, we note that the ordinance at issue here differs slightly from the one that we considered in Kirkeby I. (Fargo amended its ordinance before our decision in that case.) Because the plaintiffs amended their complaint below to include allegations against the amendments, however, the new ordinance is properly before us on this appeal.

The ordinance, as amended, prohibits "targeted residential picketing." Fargo Municipal Code, art. 10-0802. Targeted residential picketing is defined as picketing that identifies an occupant (either orally or in writing) within two hundred feet of a dwelling, blocking access to a dwelling, or maintaining a presence within seventy-five feet of a dwelling for longer than five minutes at a time. Fargo Municipal Code, art. 10-0801(4). The ordinance also gives the Board of City Commissioners the authority to declare, at the request of a complaining resident, the resident's block a "Restricted Picketing Zone" in which picketing may be limited or prohibited outright. Fargo Municipal Code, art. 10-0804.

A.

Plaintiffs first object to the definition of picketing in the ordinance. In evaluating this claim, we must determine whether the definition is content-based or content-neutral, because "the appropriate level of scrutiny is initially tied to whether the statute distinguishes between prohibited and permitted speech on the basis of content." Frisby v. Schultz, 487 U.S. 474, 481, 108 S.Ct. 2495, 2501, 101 L.Ed.2d 420 (1988). Content-based restrictions are unconstitutional unless they are narrowly tailored to serve a compelling government interest. Perry Education Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45, 103 S.Ct. 948, 954-55, 74 L.Ed.2d 794 (1983). Content-neutral regulations, on the other hand, withstand scrutiny if they are " 'narrowly tailored to serve a significant governmental interest' " and if they " 'leave open ample alternative channels for communication.' " Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 2753, 105 L.Ed.2d 661 (1989), quoting Clark v. Community for Creative Non-Violence, 468 U.S 288, 293, 104 S.Ct. 3065, 3069, 82 L.Ed.2d 221 (1984).

The ordinance defines picketing as "standing, marching, sitting, lying, patrolling or otherwise maintaining a physical presence inside of, in front, or about any premises for the purpose of persuading the public or an occupant of such premises or to protest some action, attitude or belief." Fargo Municipal Code, art. 10-0801(2). We agree with the plaintiffs that this definition is content-based. The picketing limitations that incorporate this limitation are not "justified without reference to the content of the regulated speech." Clark, 468 U.S. at 293, 104 S.Ct. at 3069. It is impossible to tell whether a stander, marcher, patroller, etc., is "picketing" without analyzing whether he or she intends to convey a "persuasive" message or to "protest some action, attitude or belief." (We note that Fargo itself has conceded as much: when asked in plaintiffs' request for admissions whether distributing literature, soliciting donations, or otherwise disseminating information would be considered picketing, Fargo replied that it might be, "depending on the content of the communication.")

As we have already noted, because the definition of picketing is content-based, any restriction on expression that incorporates it must be justified by a compelling government interest. Perry, 460 U.S. at 45, 103 S.Ct. at 954-55. Although the interest asserted by Fargo (protecting residential privacy and tranquility) is a "substantial" one, Frisby, 487 U.S. at 488, 108 S.Ct. at 2504, the Supreme Court has never held that it is a compelling interest, see Carey v. Brown, 447 U.S. 455, 465, 100 S.Ct. 2286, 2292-93, 65 L.Ed.2d 263 (1980), and we do not think that it is. Because the entire ordinance is bottomed on this definition, it is unconstitutional.

We hold, moreover, that even if the definition of picketing were not content-based, the restrictions incorporating it would be unconstitutional. First, as we mentioned above, content-neutral restrictions must be narrowly tailored. Frisby, 487 U.S. at 482, 108 S.Ct. at 2501. A regulation is narrowly tailored if it "targets and eliminates no more than the exact source of the 'evil' it seeks to remedy." Id. at 485, 108 S.Ct. at 2503. In this case, by defining picketing as persuasive or protest activity "inside of, in front, or about any premises," the ordinance arguably reaches a teenager pleading with her father to extend her curfew, a child protesting when ordered to eat all of his vegetables, or a husband trying to convince his wife that he really needs a new set of golf clubs. While limiting such activities might well improve domestic tranquility, Fargo is certainly without power to do so.

The definition of picketing is also unconstitutionally vague. "To survive a vagueness challenge, a statute must 'give the person of ordinary intelligence a reasonable opportunity to know what is prohibited' and 'provide explicit standards for those who apply [the statute].' " Video Software Dealers Ass'n v. Webster, 968 F.2d 684, 689 (8th Cir.1992), quoting Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2299, 33 L.Ed.2d 222 (1972). In this case, it is unclear to us, and we think to the ordinary person, precisely what activities are considered picketing. Fargo itself apparently shares our puzzlement. For example, Fargo claimed in response to requests of admissions that door-to-door religious proselytizing and commercial sales are not covered by the ordinance, but we think that these are activities that are clearly "persuasive" as the word is generally understood.

Finally, the ordinance fails to " 'establish minimal guidelines to govern law enforcement.' " Kolender v. Lawson, 461 U.S. 352, 358, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983), quoting Smith v. Goguen, 415 U.S. 566, 574, 94 S.Ct. 1242, 1248, 39 L.Ed.2d 605 (1974). When asked in a request for admission how the police would determine whether individuals were picketing within the meaning of the ordinance, Fargo responded, "it obviously involves some judgment on the part of the law enforcement officer who is charged with the duty of enforcing the ordinance." Although we must necessarily give law enforcement officials some discretion to make judgments about whether someone is violating the law, they must be guided by a reasonably discernible sense of what activities are prohibited. Here, Fargo was unable to articulate standards to guide law enforcement officers, stating instead, in response to a request for admission, that "whether a particular activity constitutes picketing must be determined in the context of all the activities of the person doing the activity." This response illustrates that, rather than providing a guide for law enforcement, the ordinance "permit[s] 'a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections.' " Kolender, 461 U.S. at 358, 103 S.Ct. at 1858, quoting Smith, 415 U.S. at 575, 94 S.Ct. at 1248.

B.

The plaintiffs also contend that the total ban on "targeted residential picketing" is unconstitutional. We agree. This prohibition imposes a content-based restriction on expression by prohibiting "[c]arrying written material" or "[s]houting or otherwise verbalizing protests within 200 feet of a dwelling which identifies the occupant." Fargo Municipal Code, art. 10-0801(4)(A), art. 10-0801(4)(B). These restrictions regulate speech or conduct "based on hostility--or favoritism--towards the underlying message expressed," R.A.V. v. City of St. Paul, 505 U.S. 377, 386, 112 S.Ct. 2538, 2545, 120 L.Ed.2d 305 (1992). Whether an individual's expressive activity is regulated depends entirely on whether...

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