City of Wauwatosa v. King
| Decision Date | 08 January 1971 |
| Docket Number | No. 218,218 |
| Citation | 49 Wis.2d 398,182 N.W.2d 530 |
| Parties | , 76 L.R.R.M. (BNA) 2403, 42 A.L.R.3d 1341, 64 Lab.Cas. P 52,474 CITY OF WAUWATOSA, Respondent, v. Thomas J. KING, Appellant. |
| Court | Wisconsin Supreme Court |
This appeal is from a judgment of conviction on charges of violating ordinance 9.19 of the city of Wauwatosa, making it unlawful, except in certain situations, to '* * * engage in picketing before or about the residence or dwelling of any individual. * * *'
The defendant, Thomas J. King, is one of five individuals charged and convicted of violating said ordinance. He is a staff representative of District Council 48, servicing members of Local 1561, an affiliate local representing custodial, maintenance and cafeteria workers of the Wauwatosa school board.
On April 17, 1968, members of Local 1561 began picketing at various public schools in the city of Wauwatosa in connection with a labor dispute involving school board employees and the school board.
On June 12, 1968, the defendant and 25 to 35 other persons picketed the home of school board president, Armand Mueller, marching back and forth on the sidewalk in front of the Mueller residence. The police arrived on the scene. They notified the picketers that they were violating the city ordinance. After allowing a reasonable period of time for dispersing, the police arrested five persons who had continued picketing, including the defendant.
On June 13, 1968, the defendant and others picketed at the home of school board member Charles Arps. There being no sidewalk at the Arps residence, the picketing was on the property of the homeowner. The police arrived and placed the defendant and others under arrest for violating the anti-home picketing ordinance.
Section 9.19 of the ordinance of the city of Wauwatosa provides:
'(1) Declaration. It is hereby 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 interfers 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 ordinance, 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 and are enacted by the Common Council of the City of Wauwatosa pursuant to the provisions of Section 62.11(5) of the Wisconsin Statutes.
The defendant was initially charged in the municipal court of the city of Wauwatosa. On December 2, 1968, the defendant was found guilty as charged of violating ordinance 9.19. An appeal was taken to the circuit court.
On September 5, 1969, the defendant was found guilty as charged in the circuit court for Milwaukee county and fined $25.00 plus costs. On September 30, 1969, judgment was entered. From that judgment defendant appeals.
Goldberg, Previant & Uelmen, Milwaukee, for appellant.
George R. Schimmel, Sp. Asst. City Atty. for City of Wauwatosa, Milwaukee, for respondent.
Can a city by ordinance or a state by statute prohibit picketing before or about the home or dwelling of any individual in the community?
Answering that question raises several additional questions that must be asked and answered in turn.
Here we have 25 to 35 persons marching up and down, in one case on the sidewalk, in the other on the lawn, in front of homes of members of the local school board. This is not the traditional trade union picketing of a place of employment during a labor dispute to discourage other workers and patrons from crossing a picket line. Initially, the picketers had done their marching in front of school buildings at which they were employed. However, when local press, radio and TV outlets paid no attention to their efforts, it was decided to picket the homes of school board members to secure news media attention, which was thus secured. Why the media found greater new or shock value in the shift of locale is left unexplained. The homes here picketed were selected as targets as a device or tactic to secure mass media attention. Such use of picketing, demonstrating and parading to secure publicity is by now a familiar phenomenon. 1 It is clearly related to the communication of ideas and constitutional guarantees of free speech, press, assembly and petition. Is it thereby insulated against any public control or regulation in any degree of for any purpose?
The massing and marching of 25 to 35 picketers on the lawn or sidewalk of a man's home involves more than the conveying of information to him or his neighbors. Even as to media coverage, it would be naive to believe that reporters and TV cameramen assembled to record and report what was lettered on the placards the marchers carried. That opportunity they had passed up when the placards were earlier carried in front of school buildings. What is involved is a process more complex than conveying information. 2 What is involved is conduct, as well as words or ideas.
Examination of United States Supreme Court decisions on this point reveals that earlier intimations that picketing might be no more than a communication of ideas, 3 have had to yield "to the impact of facts unforeseen,' or at least not sufficiently anticipated.' 4 One such fact clearly is that the element of physical patrolling in picketing itself can induce action very different from the point of view being communicated. 5 In a number of cases the United States Supreme Court has made clear the fact that picketing involves more than an exercise of free speech, and that the conduct involved is subject to public regulation. 6 Freedom of speech is to be jealously guarded, but, when intertwined with conduct, total freedom stops and the right to regulate begins. 7 Picketing, demonstrating and parading involve conduct that can be regulated. 8 Liberty, constitutionally guaranteed, demands a society capable of maintaining public order, a public order that necessarily regulates conduct. 9
While there is a right to regulate picketing, demonstrating and parading, any such public control or limitation must be based upon the furtherance of a state interest. 10 Is it such proper interest of the state to insure, in the words of the Wauwatosa ordinance, 'that members of the community enjoy in their homes and dwellings a feeling of well-being, tranquility, and privacy' ? The premise of the ordinance is that 'the public health and welfare and the good order of the community' require such protection of homes and residences in the city. The 'well-being and tranquility of a community' are also set forth as purposes to be served. They are legitimate objects of state or city legislative enactments beyond the fact of their relatedness to health, morals or safety. 11
The right to protect the tranquility of the community certainly includes the right to protect tranquility of individual homes. If tranquility is not protected at the level of the home, it can hardly be preserved at the level of the community. The safeguarding of the home is a vital public interest. 12 That references to the right to be undisturbed in one's own home are brief, almost casual, in United States Supreme Court decisions must be taken to mean that this fundamental right is considered beyond challenge, not needing frequent defense. For example, the Court speaks of the '* * * unanimity that opportunists * * * cannot be permitted to arm themselves with an acceptable principle, such as * * * a free press, and proceed to use it as an iron standard to smooth their path by crushing the living rights of others to privacy and repose.' 12a Passengers on public transit vehicles, objecting to piped-in radio music, were told by the Court that they wrongly assumed that they had '* * * a right of privacy substantially equal to the privacy to which he is entitled in his own home. * * *' 13 In a recent case dealing with the picketing of a privately owned shopping center, the Court stated, '* * * However, unlike a situation involving a person's home, no meaningful claim to protection of a right of privacy can be advanced by respondents here. * * *' 14 In a very recent case, upholding a statute that provided that a householder who receives pandering-type advertisements may require that the mailer remove his name from its mailing list and stop all future mailings, the Court stated that, '* * * Nothing in the Constitution compels us to listen to or view any unwanted communication, whatever its merit; * * *' 15 A man is not to be made a captive in his own home. Neither is he required to defend it, as some new Alamo, against unwelcome intruders or disturbers. It is a proper serving of a proper state interest for a...
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