People v. Doorley

• Decision Date: 10 February 1972
• Docket Number: Civ. A. No. 4779.
• Citation: 338 F. Supp. 574
• Parties: PEOPLE Acting Through Community Effort by James FORD et al. v. Joseph A. DOORLEY, Jr., Mayor, City of Providence, et al.
• Court: U.S. District Court — District of Rhode Island

338 F. Supp. 574

PEOPLE Acting Through Community Effort by James FORD et al. v. Joseph A. DOORLEY, Jr., Mayor, City of Providence, et al.

Civ. A. No. 4779.

United States District Court, D. Rhode Island.

February 10, 1972.

Stephen J. Fortunato, Jr., of Breslin, Sweeney, Reilly & McDonald, R. I. Affiliate-American Civil Liberties Union, Warwick, R. I., David M. Levy, R. I. Legal Services, Inc., Providence, R. I., for plaintiffs.

Robert J. McOsker, City Sol. for Providence and Ronald H. Glantz, Deputy City Sol. for Providence, Providence, R. I., for defendants.

OPINION

PETTINE, Chief Judge.

This is an action for a declaratory judgment pursuant to 28 U.S.C. §§ 2201, 2202 and Fed.R.Civ.P. 57 seeking a declaration of invalidity of an Ordinance of the City of Providence, Section 2 of the Ordinance No. 461, Chapter 1971-55 as amended by Ordinance No. 462, Chapter 1971-56 (Oct. 21, 1971), as violative of the First and Fourteenth Amendments of the United States Constitution.¹ Jurisdiction is founded on 28 U.S.C. § 1343(3) (4). The challenged ordinance proscribes, with certain exceptions, picketing of residences.

FINDINGS OF FACTS

On or about November 16, 1971 in Providence, the plaintiff, Reverend James Ford, together with the seven other named plaintiffs went to the residence of one Abraham Konoff. They picketed in front of this home by walking in single file about 6-8 feet apart carrying signs reading, "Mr. Konoff fix your property on Dudley Street," with others having pictures of the Dudley Street property showing what they termed violations of the housing code.

The defendant, Sergeant Inglesby, of the Providence Police Department approached the demonstrators and informed them that they were in violation of the anti-residential picketing ordinance and ordered they disperse. For fear of being arrested and prosecuted, the plaintiffs left the scene and now seek vindication in this Court.

This Court finds, and all parties agree, the demonstration was peaceful and orderly. It is also beyond dispute, and all parties agree, that during said demonstration some of the plaintiffs were distributing leaflets and other material within or around the residence owned by Mr. Konoff and this particular activity was not interferred with or infringed upon by the officer.

People Acting Through Community Effort (PACE) was described as "... an organization designed to help neighborhood groups of people within the City of Providence to organize and to devise solutions to community problems. One of their primary goals has been to remedy the problem of housing violations existing throughout the City by meeting with the landlords responsible for the violations." (Affidavit of James F. Ford)

Prior to the picketing, plaintiff, Reverend Ford, President of and spokesman for PACE, informed the press it was going to take place. He also testified that when picketing, he has in mind a general audience of city officials and the general public.

CONCLUSIONS OF LAW

At the outset the Court recognizes the settled precedent placing a heavy burden on the plaintiffs in their attack on the ordinance in question. The presumption of constitutionality attached to Acts of Congress is axiomatic and needs little discussion. It is logical to extend such principle and find that this law, though not of Congressional dignity, is nevertheless within the penumbra of constitutional presumption.

Any doubts about the standing of these plaintiffs raised by Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) and its companion case Boyle v. Landry, 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696 (1971) have been resolved by the opinion of Judge Coffin for the First Circuit Court of Appeals in Wulp v. Corcoran, 454 F.2d 826 (Jan. 11, 1972).

Like plaintiffs in Wulp, and unlike plaintiffs in Younger and Boyle, plaintiffs here have actually been prevented by defendants or their agents from residential picketing and have been threatened with arrest if they continue to picket. None of these plaintiffs have been arrested for violation of the ordinance, nor are there any pending prosecutions against them. They allege facial unconstitutionality through overbreadth, and, under Wulp, have standing to pursue this action. There is, subsequently, no occasion to decide when irreparable injury must be alleged or to discuss the current vitality of the "chilling effect" doctrine, see The Supreme Court, 1970 Term, 85 Harv.L.Rev. 301 et seq. (1970).

The plaintiffs argue that the central question is whether the ordinance is so substantially overbroad as to be susceptible of impermissible application thus prohibiting constitutionally protected freedom of speech. The overbreadth doctrine they espouse argues invalidity for lack of legislative articulation of accommodation of interests of free expression and privacy. However, they fail to recognize the validity of the argument that residential picketing should not be allowed at all.²

The question presented is one of the accommodation of the interests of free expression and of privacy. Plaintiffs assert they engaged in a classic form of expression under the First Amendment — peaceful picketing on a public sidewalk. The ordinance at issue prohibits such picketing and reflects the legislative judgment that residential picketing is meant to harass and cause emotional distress, thus destroying the tranquility and privacy of the home.³ The dimensions of this conflict were seen by one commentator as follows:

"It may be historically true, as Justice Roberts suggested in Hague v. CIO, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 that time out of mind streets and public places have been used for purposes of assembly and exchange of thought and opinion. But it is also true that time out of mind the home has been man's sanctuary, the shelter of his family, the repository of his memories, and the center of his hopes ..."

Kamin, Residential Picketing and the First Amendment, 61 Nw. U.L.Rev. 177, 226 (1966)

I hold that the challenged ordinance, as drawn, is justified by the interest in protection of privacy and is not invalid under the First Amendment.

The precise Constitutional origins of the right of privacy, like those of the "fundamental right of travel," Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600, are difficult to locate. The "right of privacy" describes a variety of interests⁴ and is a complex conceptualization whose facets reflect the First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments. Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). The Third Amendment prohibits the quartering of soldiers in any house in time of peace without the owner's consent. The Fourth Amendment protects "the right to privacy, no less important than any other right carefully and particularly reserved to the people ..." a right "basic to a free society." Mapp v. Ohio, 367 U.S. 643, 656, 81 S.Ct. 1684, 1692, 6 L.Ed.2d 1081 (1961). The Fourth and Fifth Amendments protect against "invasions ... of the sanctity of a man's home and the privacies of life." Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29 L.Ed. 746 (1886).

As Mr. Justice Goldberg noted, the Due Process Clause of the Fourteenth Amendment "protects those liberties that are `so rooted in the traditions and conscience of our people as to be ranked as fundamental.'" Griswold, supra, 381 U.S. at 487, 85 S.Ct. at 1683 (J. Goldberg, concurring). And I agree with him that "the right of privacy is a fundamental personal right, emanating `from the totality of the constitutional scheme under which we live.'" Id. at 494, 85 S.Ct. at 1687.

In attempting to preserve the right of privacy in the home, the challenged ordinance seeks to protect a fundamental and highly fungible right. The power of the State and its municipalities to protect its citizenry against invasions of privacy is indisputable. See, e. g. Dietemann v. Time, Inc., 449 F.2d 245 (9th Cir. Aug. 23, 1971). The power of the state to protect the right of privacy against a First Amendment claim does not, I feel, demand that the right of privacy be located in a particular Constitutional provision. It is sufficient that the ordinance expresses the state's strong and well defined interest in protecting so important a right. As Griswold said, in finding a constitutional right to marital privacy:

"We deal with a right of privacy older than the Bill of Rights — older than our political parties, older than our school system."

381 U.S. at 486, 85 S.Ct. at 1682.

The United States Supreme Court has repeatedly accepted privacy as a significant or determinative factor, as an interest to be balanced, in the fashioning of decisions about regulation of free speech. See, e. g., Gregory v. Chicago, 394 U.S. 111, 118-120, 89 S.Ct. 946, 22 L.Ed.2d 134 (1969) (J. Black, concurring.)

Just as First Amendment interests may be protected as well as threatened by governmental power, see Comment, 85 Harv.L.Rev. 689, 692 at n. 15 (1972), the right of privacy of the individual may find its protection in the exercise of governmental power.

In Martin v. City of Struthers, 319 U. S. 141, 63 S.Ct. 862, 87 L.Ed. 1313 (1943) the Supreme Court struck down an ordinance, not directed solely at commercial advertising, which prohibited ringing door bells or otherwise summoning residents to the door for the purpose of receiving handbills, circulars or other advertising matter. In doing so it said:

"In considering legislation which thus limits the dissemination of knowledge, we must `be astute to examine the effect of the challenged legislation' and must `weigh the circumstances and ... appraise the substantiality of the reasons advanced in support of the regulations.'"

319 U.S. at 144, 63 S.Ct. at 863.

It then reasoned:

"The dangers of distribution can so easily be controlled by traditional legal methods, leaving to each householder the full right to decide whether he will receive strangers as visitors ..."

Id.

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