Valenzuela v. Aquino

• Decision Date: 15 November 1990
• Docket Number: No. 13-89-494-CV,13-89-494-CV
• Citation: 800 S.W.2d 301
• Parties: Eliseo R. VALENZUELA, et al., Appellants, v. Eduardo AQUINO, et al., Appellees.
• Court: Texas Court of Appeals

Page 301

800 S.W.2d 301

Eliseo R. VALENZUELA, et al., Appellants, v.Eduardo AQUINO, et al., Appellees.

No. 13-89-494-CV.

Court of Appeals of Texas Corpus Christi.

Nov. 15, 1990.

Rehearings Overruled Dec. 13, 1990.

Clifford L. Zarsky, Corpus Christi, Wm. Charles Bundren, Dallas, for appellants.

Peter G. Merkl, Tony Bonilla, Sr., Frank E. Weathered, Corpus Christi, for appellees.

Before DORSEY, KENNEDY and BENAVIDES, JJ.

OPINION

DORSEY, Justice.

This is a Freedom of Speech case.Appellees, Dr. and Mrs. Eduardo Aquino, individually and on behalf of their minor children, brought suit seeking injunctive relief and damages for negligent infliction of emotional distress arising from appellants' picketing of the Aquinos' residence.The jury found in favor of appellees and awarded $810,000.00 in actual and punitive damages.The trial court issued a permanent injunction prohibiting appellants from the further picketing of appellees' residence.Appellants raise six points of error challenging the constitutionality of the injunction, the constitutionality of the jury's damage award and the trial court's award of attorney's fees.Appellees raise one cross-point contesting the trial court's award of attorney's fees.We affirm in part and reverse and render in part.

Appellants are individuals who zealously oppose abortion and voiced their views by picketing in a public area in front of the Corpus Christi residence of Dr. Eduardo Aquino and his family.Dr. Aquino specializes in gynecology and obstetrics and, as part of his medical practice, performs abortions.On several occasions in March, 1988, appellants picketed the Aquino residence for periods ranging between one and two hours.It is undisputed that appellants' conduct was limited to the peaceful and orderly picketing of the Aquino residence.Appellants' protest was limited to the street and sidewalk in front of the Aquino home.The picketers carried signs expressing various "pro-life" sentiments, often referring to Dr. Aquino by name.

Initially, we emphasize that appellants do not challenge the legal or factual sufficiency of the evidence supporting the jury's findings.They expressly limit their appeal to the issue of whether the United States and Texas Constitutions "protect the speech of appellants in this instance from injunctive relief and monetary damages."

I. Injunctive Relief

By point of error one, appellants argue that the trial court's injunction violates the United States and Texas Constitutions.U.S. CONST. amend. I;TEX.CONST. art. I § 8.Picketing as expressive conduct is a form of speech or expression entitled to the protection of the First Amendment of the United States Constitution.Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093(1940).The extent to which limitations may be imposed upon expressive conduct depends upon where the picketing occurs, namely, the forum for the expressive conduct.Perry Education Ass'n v. Perry Local Educators' Ass'n., 460 U.S. 37, 103 S.Ct. 948, 955, 74 L.Ed.2d 794(1983).A traditional public forum includes places that, over time, have been devoted to assembly and debate.Id. at 954.Public streets and sidewalks are traditional public forums, and the Supreme Court has consistently upheld a demonstrator's right to use them.SeeFrisby v. Schultz, 487 U.S. 474, 108 S.Ct. 2495, 2500, 101 L.Ed.2d 420(1988);Perry, 103 S.Ct. at 974.A picketer's freedom of expression, however, must be balanced against an individual's right of privacy.Individual privacy rights may be protected by reasonable time, place, and manner regulations on speech or expressive activity.Carey v. Brown, 447 U.S. 455, 100 S.Ct. 2286, 2295, 65 L.Ed.2d 263(1980).

As applied to residential picketing, the Supreme Court has recognized that "a public street does not lose its status as a traditional public forum simply because it runs through a residential neighborhood."Frisby, 108 S.Ct. at 2500.Hence, any regulation directed at residential picketing must be weighed against the rigorous standards established for restrictions on speech in traditional public forums.Id.Under this standard, restrictions regarding when, where, and how picketing may take place must be (1) content-neutral, (2) narrowly tailored to serve a significant governmental interest, and (3) open to ample alternative avenues of communication.Id.;Perry, 103 S.Ct. at 955.

In Frisby, the Supreme Court addressed the constitutionality of a city ordinance banning picketing aimed at a private residence.The ordinance was adopted following picketing in front of a doctor's residence by anti-abortion protesters.Frisby, 108 S.Ct. at 2497-98.The ordinance provided: "It is unlawful for any person to engage in picketing before or about the residence or dwelling of any individual in the Town of Brookfield."Id. at 2496.The Court construed the ordinance language "about the residence or dwelling of any individual" not to prohibit picketing in residential neighborhoods generally; rather, the ordinance only prohibits picketing directed or focused toward a particular residence.Id. at 2501.As such, the Court upheld the ordinance finding that it complied with reasonable time, place, and manner requirements.Id. at 2504.

While in Frisby the validity of an ordinance restricting picketing was in issue, we are here concerned with the propriety of an injunction prohibiting picketing within a certain distance of the residence of appellees.Although the constitutionality of an ordinance prohibiting expressive activity could be considered more questionable than an injunction directed at specific persons and places after a hearing, we find the Frisby analysis appropriate in our scrutiny of the constitutionality of the permanent injunction.SeeUnited States v. Gedraitis, 690 F.2d 351, 356(3d Cir.1982), cert. denied, 460 U.S. 1071, 103 S.Ct. 1527, 75 L.Ed.2d 949(1983)(injunction restricting picketing is permissible when narrowly tailored to serve important governmental interest);Valenzuela v. Aquino, 763 S.W.2d 43, 44-45(Tex.App.--Corpus Christi 1988, no writ)(this Court recognizes that a narrowly tailored injunction may be proper to restrict residential picketing);Klebanoff v. McMonagle, 380 Pa.Super. 545, 552 A.2d 677, 678(1988)(applying Frisby in a case involving permanent injunction of residential picketing).Similarly, in Pickens v. Okolona Mun. Separate School Dist., 594 F.2d 433, 437(5th Cir.1979), the court held that a trial court may enjoin, by way of regulation, constitutionally protected speech, when necessary to further a significant governmental interest.Pickens, 594 F.2d at 437.Thus, we will apply the analysis of Frisby to the facts of this case.

The first criterion delineated in Frisby is whether the injunction is "content-neutral."Here, the trial court's injunction mandates appellants to "[D]esist and refrain from engaging in any type of picketing within 400 feet of the center of the lot upon which [Dr. Aquino's] home is located...."A regulation may not be directed toward or proscribe the subject matter of protected speech; however, regulations restricting speech are neutral regarding content when they are directed to the secondary effects of a speaker's conduct, as opposed to the content of the speech itself.City of Renton v. Playtime Theatres, 475 U.S. 41, 106 S.Ct. 925, 929, 89 L.Ed.2d 29(1986).For example, an ordinance prohibiting the use of a loud-speaker within 150 feet of an abortion clinic was found to be content-neutral regardless of the practical effect of limiting anti-abortion activists' speech.SeeMedlin v. Palmer, 874 F.2d 1085, 1090(5th Cir.1989).Similarly, here the trial court's injunction prohibits picketing in front of Dr. Aquino's residence without referring to the subject matter of the picketing.The injunction is therefore not discriminatory in its focus and does not attempt to restrict any particular area of speech.The injunction is content-neutral.

The next issue is whether the injunction is narrowly tailored to serve an important governmental interest.The Supreme Court has often acknowledged the importance of preserving the sanctity of the home.Carey, 100 S.Ct. at 2295.In Frisby, the Court again stressed that "[t]he State's interest in protecting the well-being, tranquility, and privacy of the home is certainly of the highest order in a free and civilized society."Frisby, 108 S.Ct. at 2502;Carey, 100 S.Ct. at 2295.

Appellants argue that there is no state interest in enjoining their expressive activity because silent picketing does not "actually intrude" upon appellees' residential privacy.We disagree.It is not necessary for there to be a trespass or disturbance in order to intrude upon one's domestic privacy and tranquility.In Frisby, the Court stated in clear and unrestrained language that targeted residential picketing "inherently and offensively intrudes upon residential privacy."Frisby, 108 S.Ct. at 2503.The home should be a sanctuary insulated from as many external pressures as possible.Strangers parading outside, even in furtherance of protected rights about matters of public concern, tend to destroy any tranquility associated with home life."[T]he home becomes something less of a home while picketing ... continue[s]....The tensions and pressures may be psychological ... but they are not, for that reason, less inimical to family privacy and truly domestic tranquility."Id.The Court finds that a resident is "figuratively and perhaps literally trapped within the home" and that "few of us would feel comfortable knowing that a stranger lurks outside our home."Id.We strongly agree with these sentiments and find a significant governmental interest in protecting the privacy and domestic tranquility of the home.The injunction in the instant case is narrowly tailored to serve such an interest.

The next question is whether the injunction provides alternative avenues of communication; because, although...