People Acting Through Community Effort v. Doorley

• Decision Date: 15 November 1972
• Docket Number: No. 72-1159.,72-1159.
• Citation: 468 F.2d 1143
• Parties: PEOPLE ACTING THROUGH COMMUNITY EFFORT et al., Plaintiffs, Appellants, v. Joseph A. DOORLEY, Jr., et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

468 F.2d 1143 (1972)

PEOPLE ACTING THROUGH COMMUNITY EFFORT et al., Plaintiffs, Appellants, v. Joseph A. DOORLEY, Jr., et al., Defendants, Appellees.

No. 72-1159.

United States Court of Appeals, First Circuit.

Argued September 7, 1972.

Decided November 15, 1972.

Stephen J. Fortunato, Jr., Warwick, R. I., with whom Breslin, Sweeney, Reilly & McDonald, Warwick, R. I., Kenneth F. MacIver, Jr., and David M. Levy, Providence, R. I., were on brief, for appellants.

Ronald H. Glantz, Deputy City Sol., with whom Robert J. McOsker, City Sol., was on brief, for appellees.

Before COFFIN, Chief Judge, Mc-ENTEE, Circuit Judge, and HAMLEY,^* Senior Circuit Judge.

McENTEE, Circuit Judge.

People Acting Through Community Effort¹ (hereinafter PACE) initiated this action against certain officials² of the City of Providence seeking declaratory and injunctive relief, pursuant to 28 U.S.C. §§ 2201 and 2202 (1970), from the enforcement of Section 2 of Providence Ordinance No. 461, chapter 1971-55, as amended. This ordinance, with certain exceptions, prohibits residential picketing.³ After issuing a preliminary order curtailing the enforcement of the ordinance, the trial court, 338 F.Supp. 574, upheld the constitutionality of the ordinance and denied the requested relief. PACE appeals. For the reasons set forth below, we reverse.

The underlying facts are not in dispute. The challenged ordinance was adopted by the City on October 21, 1971, and became effective immediately. It prohibited all residential picketing with the exception of labor picketing where a residence is the site of, or is in the same building as the site of, a labor dispute. On November 16, 1971, nine PACE members (eight demonstrators and one photographer) engaged in a peaceful demonstration at the residence of one Abraham Konoff, a Providence landlord. The pickets marched in single file, six to eight feet apart, on the public sidewalk in front of his home. Some PACE members carried signs reading, "Mr. Konoff, fix your property on Dudley Street." Others distributed leaflets to neighboring houses. Approximately forty-five minutes after the demonstration began, Providence Police Sergeant Inglesby arrived on the scene. He informed the group that their conduct violated the anti-residential picketing ordinance and ordered them to disperse. He did not interfere with the leaflet distribution. Fearing arrest and prosecution, the PACE members abandoned the demonstration.

On these facts PACE alleged that the ordinance unconstitutionally abridged the rights of freedom of speech, freedom of assembly, equal protection, and due process guaranteed to its members by the first and fourteenth amendments. Specifically, PACE argued that the ordinance was impermissibly overbroad, unconstitutionally vague, and, in light of the exception for labor picketing, violative of equal protection.

The trial court held that the challenged ordinance was a reasonable regulation justified by the City's interest in protecting the privacy of its citizens. It thus found no violation of the first amendment. The court also held that the ordinance was not unconstitutionally vague since it employed words of common understanding. Further, it found no equal protection violation because it found the exception for labor picketing essential to insure to employees the right to picket at the situs of a labor dispute.

On appeal PACE asserts the arguments raised below. Since we find that this ordinance draws an impermissible distinction between labor picketing and other peaceful picketing, we reverse on equal protection grounds, and do not reach appellants' other contentions.

Ordinance No. 461 regulates expressive conduct which falls within the ambit of protected first amendment activity.⁴ See, e. g., Gregory v. Chicago, 394 U.S. 111, 113, 89 S.Ct. 946, 22 L.Ed. 2d 134 (1969); Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308, 313-315, 88 S.Ct. 1601, 20 L.Ed.2d 603 (1968); Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940). We thus employ an active standard of review in scrutinizing the classifications which this statute creates. Police Department of Chicago v. Mosley, 408 U.S. 92, 101, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972); Williams v. Rhodes, 393 U.S. 23, 30-31, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968). The crucial question is whether the classification is "necessary to promote a compelling state interest." Dunn v. Blumstein, 405 U.S. 330, 337, 92 S.Ct. 995, 1003 (1972).

We note initially that the ordinance in question distinguishes between permissible and impermissible conduct on the basis of the content of the demonstrator's message.⁵ Information about labor disputes may be disseminated, but other information may not. In Police Department of Chicago v. Mosley, supra, and Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972), the Supreme Court considered two municipal ordinances which prohibited picketing within 150 feet of any school building during specified periods. Both ordinances excepted peaceful labor picketing when the school was the site of a labor dispute. In striking down these provisions on equal protection grounds, Mr. Justice Marshall analyzed the Chicago ordinance in the following terms:

"The central problem with Chicago\'s ordinance is that it describes permissible picketing in terms of its subject matter. Peaceful picketing on the subject of a school\'s labor-management dispute is permitted but all other peaceful picketing is prohibited. The operative distinction is the message on a picket sign. But, above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. (Citations omitted.) . . . .

". . . Selective exclusions from a public forum may not be based on content alone, and may not be justified by reference to content alone." Mosley, supra, at 95-96, 92 S.Ct. at 2290.⁶

We find this reasoning to be fully applicable to the provision in question in the instant case.

We also find that the ordinance in question draws an unwarranted distinction between labor picketing and other residential demonstrations. While we recognize the interest of the City of Providence in both promoting the privacy of its citizens and permitting laborers to demonstrate at the site of labor disputes, this interest cannot justify the City's preferred treatment of labor picketing. We again find the reasoning of Mosley to be persuasive.

"Chicago itself has determined that peaceful labor picketing during school hours is not an undue interference with school. Therefore, under the Equal Protection Clause, Chicago may not maintain that other picketing disrupts the school unless that picketing is clearly more disruptive than the picketing Chicago already permits. (Citations omitted.) If peaceful labor picketing is permitted, there is no justification for prohibiting all nonlabor picketing, both peaceful and nonpeaceful. `Peaceful\' nonlabor picketing, however the term `peaceful\' is defined, is obviously no more disruptive than `peaceful\' labor picketing. But Chicago\'s ordinance permits the latter and prohibits the former. Such unequal treatment is exactly what was

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