State v. Schuller

• Decision Date: 06 May 1977
• Docket Number: No. 89,89
• Citation: 280 Md. 305,372 A.2d 1076
• Parties: STATE of Maryland v. Phillip SCHULLER and Sean Ozzie Simpkins.
• Court: Maryland Court of Appeals

Page 305

280 Md. 305

372 A.2d 1076

STATE of Maryland v. Phillip SCHULLER and Sean Ozzie Simpkins.

No. 89.

Court of Appeals of Maryland.

May 6, 1977.

Alexander L. Cummings, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen. and Clarence W. Sharp. Asst. Atty. Gen., Baltimore, on the brief), for appellant.

Gary Howard Simpson, Bethesda, for appellees.

Argued before SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and ORTH, JJ., and ROBERT F. SWEENEY, Special Judge.

ELDRIDGE, Judge.

The question presented by this case is whether certain provisions of Chapter 773 of the Acts of 1971, codified in Maryland Code (1957, 1976 Repl. Vol.), Art. 27, § 580A, violate the First and Fourteenth Amendments to the Constitution of the United States. That statute prohibits, inter alia, all residential picketing except for picketing in connection with a labor dispute.

The defendants, Phillip Schuller and Sean Simpkins, were arrested and charged with 'picketing before and about . . . (a) residence or dwelling place' in violation of Code (1957, 1976 Repl. Vol.), Art. 27, § 580A. According to an agreed statement of facts submitted by the parties, on April 14, 1976, the defendants, with six other individuals, picketed the home of Donald H. Rumsfeld. At the time, Mr. Rumsfeld was Secretary of Defense and resided in Montgomery County, Maryland. In response to a complaint made by one of Mr. Rumsfeld's neighbors, a Montgomery County police officer arrived and informed the picketers that their actions were unlawful. The officer was told that the group, known as 'The Community Action for Non-Violence,' was picketing for the purpose of protesting 'the proliferation of nuclear armaments of the United States Government.' The officer observed two individuals carrying picket signs and others, at various times, either walking in front of Mr. Rumsfeld's residence or sitting on the curb in front of his home.

Shortly thereafter, three more police officers arrived, and the group of picketers was warned by each of these officers that their behavior was in violation of the law. At this time, the officers told them to 'cease and desist' from their activities, and four members of the group immediately left the area. The other four individuals, including the defendants, who refused to leave were placed under arrest.

The parties stipulated further in the agreed statement of facts that the individuals who were arrested were peaceful and at all times cooperative with the police. Moreover, 'at no time during the picketing activity did any of the picketers obstruct traffic, become disorderly or otherwise disturb the neighbors other than through their picketing activity.' Also, the picketing took place on public property, and there was no allegation that the picketers trespassed on private property.

On June 14, 1976, in the District Court of Maryland, sitting in Montgomery County, the defendants, Schuller and Simpkins, were tried and found guilty of unlawful picketing. Each of the defendants received a five-day suspended sentence and was placed on unsupervised probation for ten days. Upon appeal to the Circuit Court for Montgomery County (Miller, J.), the charges against the defendants were dismissed. The court held that subsection 2 of Art. 27, § 580A, which prohibits all residential picketing, was 'unconstitutional on its face because it unreasonably and improperly impinges upon the defendants' rights of Freedom of Speech and Assembly protected by the First Amendment.' Furthermore, the court held that subsection 4(1) of Art. 27, § 580A, which exempts certain labor related picketing from the general prohibition against residential picketing, violated 'the Defendants' rights of Equal Protection of the Laws guaranteed by the Fourteenth Amendment.'

Pursuant to Code (1974, 1976 Cum.Supp.), § 12-305 of the Courts and Judicial Proceedings Article, the State petitioned for a writ of certiorari which we granted in order to consider the constitutional questions involved.

Chapter 773 of the Acts of 1971, Art. 27, § 580A, provides in pertinent part:

'* * *

'2. It shall be unlawful for any person to engage in picketing before or about the residence or dwelling place of any individual.

'4. Nothing herein shall be deemed to prohibit (1) any picketing or assembly in connection with a labor dispute as that term is defined in Article 100, § 74 of the Annotated Code of Maryland (1964 Replacement Volume), title 'Work, Labor and Employment,' subtitle 'Injunctions,' as heretofore and hereafter amended; (2) the picketing in any lawful manner a person's home when it is also his sole place of business '5. Any person found guilty of violating this section shall be punished by a fine of not more than one hundred dollars or by imprisonment for not more than 90 days, or by both. Each day on which a violation of this section occurs shall constitute a separate offense.

'6. Notwithstanding the penalties herein provided, any court of general equity jurisdiction may enjoin conduct proscribed by this article, and may in any such proceeding award damages, including punitive damages, against the persons found guilty of actions made unlawful by this section.' ¹

The State argues that a prohibition against all residential picketing is not violative of the First and Fourteenth Amendments to the United States Constitution. The State contends that statutes prohibiting picketing of residential dwellings are a constitutionally valid exercise of the state's police power to 'protect individual privacy by enacting reasonable time, place and manner regulations applicable to all speech irrespective of content.' The State argues further that the exemption of labor related picketing does not create a classification which violates the Equal Protection Clause, as the classification serves a compelling state interest. The defendants, on the other hand, reiterate their argument that the statute violates their right to freedom of speech and assembly and their right to equal protection of the laws.

(1)

The constitutionality under the First Amendment of prohibitions against residential picketing, whether arising under an anti-picketing statute similar to Maryland's or arising under general statutes prohibiting breach of the peace or disorderly conduct, has been considered by lower federal courts and state courts, with a resultant diversity of decisions. Compare, e. g., Davis v. Francois, 395 F.2d 730 (5th Cir. 1968); United Electrical, R. & M. Workers v. Baldwin, 67 F.Supp. 235 (D.Conn.1946); Annenberg v. Southern California District Coun. of Lab., 38 Cal.App.3d 637, 113 Cal.Rptr. 519 (1974); Flores v. City and County of Denver, 122 Colo. 71, 220 P.2d 373 (1950); State v. Anonymous, 6 Conn.Cir. 372, 274 A.2d 897 (1971-2); Hibbs v. Neighborhood Organ. to Rejuv. Tenant Hous., 433 Pa. 578, 252 A.2d 622 (1969); with Garcia v. Gray, 507 F.2d 539 (10th Cir. 1974), cert. denied, 421 U.S. 971, 95 S.Ct. 1967, 44 L.Ed.2d 462 (1975); Fawick Airflex Co. v. United Electrical, R. & M. Wkrs., 87 Ohio App. 371, 92 N.E.2d 446 (1950); Pipe Machinery Co. v. DeMore, 36 O.O. 342, 76 N.E.2d 725 (Ohio App.1947); State v. Perry, 196 Minn. 481, 265 N.W. 302 (1936); City of Brookfield v. Groppi, 50 Wis.2d 166, 184 N.W.2d 96 (1971); City of Wauwatosa v. King, 49 Wis.2d 398, 182 N.W.2d 530, 42 A.L.R.3d 1341 (1971). See also Comment, Picketers At The Doorstep, 9 Harv.Civ.Rts.-Civ.Libs.L.Rev. 95 (1974); Note, Picketing the Homes of Public Officials, 34 Chic.L.Rev. 106 (1966); Kamin, Residential Picketing And the First Amendment, 61 N.W.L.Rev. 177 (1966); Annot., Peaceful Picketing of Private Residence, 42 A.L.R.3d 1353 (1972). While the United States Supreme Court has not specifically dealt with a state statute that prohibits all picketing in residential areas, the Court has dealt extensively with picketing in relation to the right of freedom of speech guaranteed by the First and Fourteenth Amendments. In our view, the principles set forth in these Supreme Court decisions are determinative of the free speech issue raised in the case at hand.

In the seminal case of Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940), the Court held that picketing was a mode of expression and a means of disseminating information that was protected by the freedom of speech guarantee in the First Amendment. The Court acknowledged, however, the presence of a valid state interest and the permissibility of narrowly drawn statutes to guard against specific dangers. Nevertheless, the Court invalidated the statute which banned all picketing of businesses for the purpose of interfering with business, stating (310 U.S. at 105, 60 S.Ct. at 745):

'The power and the duty of the State to take adequate steps to preserve the peace and to protect the privacy, the lives, and the property of its residents cannot be doubted. But no clear and present danger of destruction of life or property, or invasion of the right of privacy, or breach of the peace can be thought to be inherent in the activities of every person who approaches the premises of an employer and publicizes the facts of a labor dispute involving the latter. We are not now concerned with picketing en masse or otherwise conducted which might occasion such imminent and aggravated danger to these interests as to justify a statute narrowly drawn to cover the precise situation giving rise to the danger. . . . Section 3448 in question here does not aim specifically at serious encroachments on these interests and does not evidence any such care in balancing these interests against the interest of the community and that of the individual in freedom of discussion on matters of public concern.' (Emphasis supplied.)

With respect to the argument that, in applying the statute, the geographical area where the picketing was prohibited would be limited, the Supreme Court said (id. at 105-106, 60 S.Ct. at 746):

'It is not enough to say that Section 3448 is limited or restricted in its application to...