Kathleen Kirkeby v. Bruce Furness

No. 95-3098

Kathleen Kirkeby, David Habiger, *
Ronald Shaw, Martin Wishnatsky, *
Timothy Lindgren, and *
Darold Larson, *
*
Appellees, *
* Appeal from the United States
v. * District Court for the
* District of North Dakota.
Bruce Furness, in His *
Official Capacity as Mayor *
of the City of Fargo; *
Garylle B. Stewart, in His *
Official Capacity as City *
Attorney of the City of Fargo; *
Fargo City Commission; and *
City of Fargo, *
*
Appellants. *

Submitted: June 10, 1996

Filed: August 8, 1996

Before MAGILL, JOHN R. GIBSON, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

This case is before us for a second time. The plaintiffs are
pro-life activists who sometimes express their objection to abortion by
picketing near the residences of individuals who provide abortion services.
In 1994, they challenged the constitutionality of a residential picketing
ordinance passed by the city of Fargo, North Dakota. After the district
court refused to issue a preliminary injunction enjoining enforcement of
the
ordinance, we took up the case on appeal and reversed, holding that a
preliminary injunction was in order because the ordinance was probably
unconstitutional. Kirkeby v. Furness, 52 F.3d 772, 774-76 (8th Cir. 1995)
("Kirkeby I").

On remand, the district court held that the ordinance was
unconstitutional because it violated the plaintiffs' First Amendment right
of free expression. The court also held that two "Restricted Picketing
Zones" established pursuant to the ordinance were unconstitutional. The
court therefore granted summary judgment for the plaintiffs and enjoined
enforcement of the ordinance.

This case presents two distinct issues. The first is whether the
ordinance violates the First Amendment on its face. The second is whether
the "Restricted Picketing Zone" that the city adopted after amending the
ordinance violates the plaintiffs' First Amendment rights. We answer both
questions in the affirmative and affirm the judgment of the district
court.1

I.
As a preliminary matter, we note that the ordinance at issue here
differs slightly from the one that we considered in Kirkeby I. (Fargo
amended its ordinance before our decision in that case.) Because the
plaintiffs amended their complaint below to include allegations against the
amendments, however, the new ordinance is properly before us on this
appeal.

The ordinance, as amended, prohibits "targeted residential
picketing." Fargo Municipal Code, art. 10-0802. Targeted residential
picketing is defined as picketing that identifies an

1
The Honorable Rodney S. Webb, Chief United States District
Judge for the District of North Dakota.

-2-
2
occupant (either orally or in writing) within two hundred feet of a
dwelling, blocking access to a dwelling, or maintaining a presence within
seventy-five feet of a dwelling for longer than five minutes at a time.
Fargo Municipal Code, art. 10-0801(4). The ordinance also gives the Board
of City Commissioners the authority to declare, at the request of a
complaining resident, the resident's block a "Restricted Picketing Zone"
in which picketing may be limited or prohibited outright. Fargo Municipal
Code, art. 10-0804.

A.
Plaintiffs first object to the definition of picketing in the
ordinance. In evaluating this claim, we must determine whether the
definition is content-based or content-neutral, because "the appropriate
level of scrutiny is initially tied to whether the statute distinguishes
between prohibited and permitted speech on the basis of content." Frisby
v. Schultz, 487 U.S. 474, 481 (1988). Content-based restrictions are
unconstitutional unless they are narrowly tailored to serve a compelling
government interest. Perry Education Ass'n v. Perry Local Educators'
Ass'n, 460 U.S. 37, 45 (1983). Content-neutral regulations, on the other
hand, withstand scrutiny if they are "'narrowly tailored to serve a
significant governmental interest'" and if they "'leave open ample
alternative channels for communication.'" Ward v. Rock Against Racism, 491
U.S. 781, 791 (1989), quoting Clark v. Community for Creative Non-Violence,
468 U.S. 288, 293 (1984).

The ordinance defines picketing as "standing, marching, sitting,
lying, patrolling or otherwise maintaining a physical presence inside of,
in front, or about any premises for the purpose of persuading the public
or an occupant of such premises or to protest some action, attitude or
belief." Fargo Municipal Code, art. 10-0801(2). We agree with the
plaintiffs that this definition is content-based. The picketing
limitations that incorporate this

-3-
3
limitation are not "justified without reference to the content of the
regulated speech." Clark, 468 U.S. at 293. It is impossible to tell
whether a stander, marcher, patroller, etc., is "picketing" without
analyzing whether he or she intends to convey a "persuasive" message or to
"protest some action, attitude or belief." (We note that Fargo itself has
conceded as much: when asked in plaintiffs' request for admissions whether
distributing literature, soliciting donations, or otherwise disseminating
information would be considered picketing, Fargo replied that it might be,
"depending on the content of the communication.")
As we have already noted, because the definition of picketing is
content-based, any restriction on expression that incorporates it must be
justified by a compelling government interest. Perry, 460 U.S. at 45.
Although the interest asserted by Fargo (protecting residential privacy and
tranquility) is a "substantial" one, Frisby, 487 U.S. at 488, the Supreme
Court has never held that it is a compelling interest, see Carey v. Brown,
447 U.S. 455, 465 (1980), and we do not think that it is. Because the
entire ordinance is bottomed on this definition, it is unconstitutional.

We hold, moreover, that even if the definition of picketing were not
content-based, the restrictions incorporating it would be unconstitutional.
First, as we mentioned above, content-neutral restrictions must be narrowly
tailored. Frisby, 487 U.S. at 482. A regulation is narrowly tailored if
it "targets and eliminates no more than the exact source of the 'evil' it
seeks to remedy." Id. at 485. In this case, by defining picketing as
persuasive or protest activity "inside of, in front, or about any
premises," the ordinance arguably reaches a teenager pleading with her
father to extend her curfew, a child protesting when ordered to eat all of
his vegetables, or a husband trying to convince his wife that he really
needs a new set of golf clubs. While limiting such

-4-
4
activities might well improve domestic tranquility, Fargo is certainly
without power to do so.

The definition of picketing is also unconstitutionally vague. "To
survive a vagueness challenge, a statute must 'give the person of ordinary
intelligence a reasonable opportunity to know what is prohibited' and
'provide explicit standards for those who apply [the statute].'" Video
Software Dealers Ass'n v. Webster, 968 F.2d 684, 689 (8th Cir. 1992),
quoting Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). In this
case, it is unclear to us, and we think to the ordinary person, precisely
what activities are considered picketing. Fargo itself apparently shares
our puzzlement. For example, Fargo claimed in response to requests of
admissions that door-to-door religious proselytizing and commercial sales
are not covered by the ordinance, but we think that these are activities
that are clearly "persuasive" as the word is generally understood.

Finally, the ordinance fails to "'establish minimal guidelines to
govern law enforcement.'" Kolender v. Lawson, 461 U.S. 352, 358 (1983),
quoting Smith v. Goguen, 415 U.S. 566, 574 (1974). When asked in a request
for admission how the police would determine whether individuals were
picketing within the meaning of the ordinance, Fargo responded, "it
obviously involves some judgment on the part of the law enforcement officer
who is charged with the duty of enforcing the ordinance." Although we must
necessarily give law enforcement officials some discretion to make
judgments about whether someone is violating the law, they must be guided
by a reasonably discernible sense of what activities are prohibited. Here,
Fargo was unable to articulate standards to guide law enforcement officers,
stating instead, in response to a request for admission, that "whether a
particular activity constitutes picketing must be determined in the context
of all the activities of the person doing the activity." This response
illustrates that,

-5-
5
rather than providing a guide for law enforcement, the ordinance "permit[s]
'a standardless sweep [that] allows policemen, prosecutors, and juries to
pursue their personal predilections.'" Kolender, 461 U.S. at 358, quoting
Smith, 415 U.S. at 575.

B.
The plaintiffs also contend that the total ban on "targeted
residential picketing" is unconstitutional. We agree. This prohibition
imposes a content-based restriction on expression by prohibiting
"[c]arrying written material" or "[s]houting or otherwise verbalizing
protests within 200 feet of a dwelling which identifies the occupant."
Fargo Municipal Code, art. 10-0801(4)(A), art. 10-0801(4)(B). These
restrictions regulate speech or conduct "based on hostility -- or
favoritism -- towards the underlying message expressed," R.A.V. v. City of
St. Paul, 505 U.S. 377, 386 (1992). Whether an individual's expressive
activity is regulated depends entirely on whether the content of his or her
expression identifies a resident. See Boos v. Barry, 485 U.S. 312, 318-19
(1988) (opinion of O'Connor, J.). Our conclusion is highlighted by the
fact that the plaintiffs would be unable to convey their intended message
without identifying the targeted resident. The statements "abortion is
immoral" and "the woman who lives in this house is immoral because she
performs abortions" are qualitatively distinct. Perhaps Fargo believes
that the latter message, because of its content, is more discomforting,
insulting, or embarrassing. But there is no constitutional right to be
free from insult, and shielding residents from it is not a compelling
governmental interest. See, e.g., Texas v. Johnson, 491 U.S. 397, 408-09,
414 (1989), and Cohen v. California, 403 U.S. 15, 21 (1971).

The residential picketing restrictions would be invalid even if they
were not content-based, because they are not narrowly tailored. They
restrict far more speech than necessary to

-6-
6
"eliminate[] ... the 'evil' [Fargo] seeks to remedy." Frisby, 487 U.S.
at 485. For one thing, the ordinance restricts speech that is completely
unrelated to that interest. Justice Stevens's observation in Frisby
applies with even greater force here: In Fargo, it is apparently illegal
for a fifth-grader to carry a sign in front of a residence that states "GET
WELL CHARLIE -- OUR TEAM NEEDS YOU." Id. at 496 (Stevens, J., dissenting).
The ordinance also prohibits standing on the sidewalk while holding a sign
that states "Vote for Joe" or "Come wish Susan a happy birthday."

Additionally, although the Supreme Court has held that it is
permissible to prohibit "focused picketing taking place solely in front of
a particular residence," Frisby, 487 U.S. at 483, it has also held that a
three-hundred-foot buffer zone is unconstitutional. Madsen v. Women's
Health Center, 114 S. Ct. 2516, 2529-30 (1994). In this case, the
ordinance prohibits picketers from identifying an occupant within two
hundred feet of a dwelling. Fargo Municipal Code, art. 10-0801(4)(D), art.
10-0801(4)(B). We believe that the size of the area within which speech
is curtailed is too large. We recently held that a city could restrict
residential picketing within a three-house zone, Douglas v. Brownell, No.
95-2234, slip op. at 17-19 (8th Cir. 1996), but we are quite certain that
any extension beyond that zone would be unconstitutional.

C.
The plaintiffs also object to the section of the ordinance that
empowers the Board of City Commissioners to establish a "Restricted
Picketing Zone" at the behest of a complaining resident. Fargo Municipal
Code, art. 10-0804. The ordinance prohibits picketing in restricted
picketing zones "except as permitted in the resolution establishing the
zone." Id. The Board may ban picketing altogether for two hundred feet
on either side of

-7-
7
the complaining resident's lot and may impose additional restrictions on
picketing for the resident's entire block. Fargo Municipal Code,
art. 10-0804(B).

We agree with the plaintiffs that this section of the ordinance is
invalid. The "200-foot zone is almost certainly too restrictive of the
right to speak freely in public." Kirkeby I, 52 F.3d at 774. (In fact,
the 200-foot area might, depending on the size of the lot, cover an area
larger than the one struck down in Madsen, 114 S. Ct. at 2530.) Madsen and
Frisby make it clear that an ordinance (like the one before us) that allows
Fargo to prohibit "[g]eneral marching through residential neighborhoods,
or even walking a route in front of an entire block of houses," is
unconstitutional. Madsen, 114 S. Ct. at 2530; Frisby, 487 U.S. at 483.
Although Fargo may pass an ordinance prohibiting protesters from
maintaining a constant presence outside of three residences, Douglas,
supra, we think it manifest that it cannot give the Board the authority to
create a "First-Amendment-free zone" that is larger than two football
fields.

The fact that the Board must make legislative "findings," Fargo
Municipal Code, art. 10-0804(A), about the nature and extent of previous
picketing before establishing a zone does not change our analysis. Fargo's
protestations to the contrary, the government may not legislate away the
First Amendment. Furthermore, although Fargo assures us that the Board
will establish a zone only if picketing interferes with residential privacy
and tranquility, the statute includes no such requirement. The ordinance
directs the Board to "investigate any request from a resident of [Fargo]
that intrusive or repeated picketing is occurring," and states that "[u]pon
review, the Board ... may adopt a resolution establishing a Restricted
Picketing Zone." Id. The ordinance does not require the Board to base its
decision about whether to establish a zone upon any particular findings,
nor does

-8-
8
it require that the zone be narrowly tailored to address specifically
identified difficulties.

Finally, the ordinance gives the Board the power to impose additional
picketing restrictions on an entire residential block. Fargo Municipal
Code, art. 10-0804(B). The ordinance does not specify what other
restrictions are permissible, and we are concerned that permitting the
Board to restrict speech on a block-wide basis will lead to many
unconstitutional restrictions on free expression. (Indeed, as our
discussion of the remaining restricted picketing zone, below, demonstrates,
it already has.)

II.
We turn now to whether the restricted picketing zone, adopted by the
city following amendment of the ordinance, is itself unconstitutional.
(The Board had established two other restricted picketing zones under the
old version of the ordinance, but it admits that they do not comport with
the amended version. Although the zone we now consider expired in early
July 1996, we believe that the dispute about its constitutionality is not
moot. The restrictions imposed by the Board are "capable of repetition,
yet evading review" because there is "a reasonable expectation that the
[plaintiffs] will be subjected to the same action again." Murphy v. Hunt,
455 US 473, 482 (1982) (citations and quotation marks omitted). The
resolution establishing the zone restricts picketing in several ways.
First, it bans picketing altogether, on the resident's side of the street,
in front of and for one hundred fifty feet on either side of her lot. For
reasons that we have already made amply clear, this part of the resolution
is unconstitutional. The "speech-free" zone is simply too large. Madsen,
114 S. Ct. at 2530.

The resolution also imposes several block-wide picketing limitations.
It limits the duration of picketing to one hour per

-9-
9
day and restricts the hours within which picketing may occur. (Picketing
is permitted Monday through Friday, between the hours of 9 a.m. and noon,
1 p.m. to 4 p.m., and 7 p.m. to 8 p.m.; it is prohibited all weekend.) The
resolution also provides that no more than five individuals may picket at
any one time. In evaluating the constitutionality of these restrictions,
we turn again to the standard articulated in Ward, 491 U.S. at 791:
Content-neutral time, place, and manner restrictions are valid if "they are
narrowly tailored" and "leave open ample alternative channels for
communication of the information." Although the Supreme Court has
indicated that residential picketing difficulties are often best addressed
by "a limitation on the time, duration of picketing, and number of
pickets," Madsen, 114 S. Ct. at 2530, we believe that, with the exception
of the weekday time-of-day limitations, all of the limitations in the
resolution are too restrictive of the plaintiffs' right to speak.

We turn first to the hour-per-day picketing limitation and the total
ban on weekend picketing. Although Fargo may set some time limits on
picketing (for example, the weekday hour restrictions imposed here seem
reasonable), we cannot accept Fargo's argument that imposing such extreme
restrictions upon the right to speak is the most narrowly tailored way to
protect residential privacy and tranquility. We seriously doubt that
residential privacy will be dramatically undermined by permitting picketing
on the public streets for more than five hours per week.

Furthermore, the regulations do not leave open "ample alternative
channels for communication of the information" that the plaintiffs wish to
convey. Ward, 491 U.S. 791 (emphasis supplied). As we emphasized in our
discussion of the portion of the ordinance that prohibits identifying the
target of the picketer, plaintiffs wish to express an opinion about an
individual to that individual and others, and they wish to direct their
message at that

-10-
10
individual. That is precisely why they picket around the individual's
home: they wish to speak to her and they wish to identify her to others.
Therefore, allowing them to picket in the town square or even on the next
block does not satisfy the second Ward requirement. These time limits do
not give the plaintiffs enough opportunity to direct their intended message
at their intended recipients.

Finally, we believe that it is also unconstitutional to limit the
total number of pickets per residential block to five. This restriction
is similar to one that we invalidated in United Food & Commercial Workers
Int'l Union v. IBP, Inc., 857 F.2d 422, 432 (8th Cir. 1988), that
prohibited "more than two pickets at any one time within ... fifty feet of
any entrance to the premises being picketed," id. In this case, because
they apply to an entire block, the restrictions impose even broader
restrictions on free expression, and, as in United Food, we cannot say that
these restrictions represent the most narrowly tailored way to protect
Fargo's stated interest. In fact, taken together, the duration and number
restrictions may well lead to a situation where most residents are unaware
that anyone is picketing at all.

III.
In closing, we emphasize that "[t]he antipicketing ordinance operates
at the core of the First Amendment," Frisby, 487 U.S. at 479, because it
restricts free expression on the public streets, "the archetype of a
traditional public forum," id. at 480. "Because of the importance of
'uninhibited, robust, and wide-open' debate on public issues," id. at 479,
quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964), the
government must be extremely solicitous of the plaintiffs' desire to
express themselves and must carefully, narrowly, and meticulously craft any
restriction on that desire. In this case, the city of Fargo has been
neither solicitous nor careful.

-11-
11
 For the foregoing reasons, we affirm the judgment of the district
court.

JOHN R. GIBSON, Circuit Judge, dissenting.

I respectfully dissent.

The court today holds that the ordinance is content-based, and that
the restriction is not justified by a compelling state interest. I believe
the court should simply hold as much, and go no further. The court,
however, decides that it must continue to analyze the remainder of the
ordinance, concluding that even if the definition of picketing is content-
neutral, the ordinance is unconstitutional. This reduces the remainder of
the court's opinion to dictum, with no binding force. I will comment
briefly on these issues.

This case has taken an extremely curious path. In denying the
preliminary injunction, the district court made specific findings of fact
concerning the targeted residential picketing provisions of the ordinance
and expressly reserved ruling pending further exploration on the
residential picketing zones. When the court heard the appeal on the
preliminary injunction, it stated that "we entertain grave doubts" as to
whether the ordinance "can pass constitutional muster." Kirkeby v.
Furness, 52 F.3d 772, 774 (8th Cir. 1995). We concluded that the "200-foot
zone is almost certainly too restrictive of the right to speak freely in
public." Id. We thought that the "200-foot area may well be an
impermissibly restrictive regulation of picketing . . . ." Id. at 775.
Applying the considerations set forth in Dataphase Systems, Inc. v. CL
Systems, Inc., 640 F.2d 109, 113 (8th Cir. 1981) (en banc), we concluded
that "the protesters' right to speak has probably been violated, [and] they
will likely suffer an irreparable injury," without the issuance of a
preliminary

-12-
12
injunction. 52 F.3d at 775. We emphasized that we had not made a final
decision on the merits, but "have considered the merits only to the extent
that the Dataphase considerations have compelled us to do so." Id. I
dissented from the court's opinion in Kirkeby I.
The district court accepted the signals taken from our tentative
conclusions, and granted a permanent injunction. The district court did
so without making specific findings of fact or conclusions of law. Thus,
we are faced with the entry of a permanent injunction running contrary to
the district court's original findings and based on this court's most
tentative and general comments. The district court's original findings
with respect to the picketing provisions have not been set aside or
reversed. In light of this court's discussion in Kirkeby I, the district
court simply abandoned its further exploration of the residential picketing
zones provisions. Thus, a permanent injunction has simply been floated in
the air, without a tether of supporting factual findings.

I entertain some question as to whether under the analysis in Carey
v. Brown, 447 U.S. 455 (1980), and R.A.V. v. City of St. Paul, 505 U.S. 377
(1992), the ordinance is content-based. Although the ordinance defines
picketing to include conduct for the purpose of persuading the public or
protesting some action, the definition is a generic one and does not
concern specific subjects or issues. Cf. Carey, 447 U.S. at 460 (statute
distinguished labor picketing from other picketing); R.A.V., 505 U.S. at
391 (ordinance distinguished certain conduct directed at race, color,
creed, religion or gender.)

Furthermore, I believe that the court's holding that the residential
privacy interest at issue here is not compelling may be premature. The
court cites Carey v. Brown, 447 U.S. 455, 465 (1980), for its position that
residential privacy does not

-13-
13
constitute a compelling state interest. The appellant in Carey argued that
the Court should uphold a content-based residential picketing statute
because the statute furthered the State's compelling interest of ensuring
privacy in the home. Id. at 465. The statute barred picketing of
residences, but exempted "the peaceful picketing of a place of employment
involved in a labor dispute." Id. at 457. The Court declined to decide
whether the State's interest in residential privacy constituted a
compelling interest because it concluded that the State's asserted interest
of protecting residential privacy was not served by the statute. Id. at
464-65. The ordinance neither distinguished among various sorts of
nonlabor picketing on the basis of the harms inflicted on residential
privacy nor explained how peaceful labor picketing is less disruptive of
residential privacy than peaceful picketing on issues of broader social
concern. Id. at 465.

The Court has never stated that residential privacy does not
constitute a compelling interest. Carey did not decide the question, and
the Court has, many times, emphasized "the unique nature of the home, `the
last citadel of the tired, the weary, and the sick.'" Frisby v. Schultz,
487 U.S. 474, 484 (1988) (quoting Gregory v. City of Chicago, 394 U.S. 111,
125 (1969) (Black, J., concurring)). "`The 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.'" Id. (quoting Carey, 447
U.S. at 471).

As the Supreme Court recognized in Frisby, there is a special part
of the residential privacy interest accorded to "unwilling listeners . . .
within their own homes." 487 U.S. at 485. After discussing the
consequences of targeted residential picketing in Frisby, the Court stated:
"[W]e have repeatedly held that individuals are not required to welcome
unwanted speech into their own homes and that the government may protect
this freedom." Id.

-14-
14
On several occasions, the Court has held that the government may protect
the freedom of individuals to avoid unwanted speech in their own homes,
upholding the rights of the "unwilling listener" over the First Amendment
rights of others. See, e.g., FCC v. Pacifica Found., 438 U.S. 726, 748-49
(1978) (offensive radio broadcasts); id. at 759-60 (Powell J., concurring
in part and concurring in the judgment) (same); Rowan v. United States Post
Office Dep't., 397 U.S. 728, 737 (1970) (offensive mailings); Kovacs v.
Cooper, 336 U.S. 77, 86-87 (1949) (plurality opinion) (sound trucks).

In the privacy of the home, "[an] individual's right to be left alone
plainly outweighs the First Amendment rights of an intruder." Pacifica
Found., 438 U.S. at 748 (citing Rowan, 397 U.S. at 737). The Court further
explained this interest in Kovacs:

The preferred position of freedom of speech in a society that
cherishes liberty for all does not require legislators to be
insensible to claims by citizens to comfort and convenience.
To enforce freedom of speech in disregard of the rights of
others would be harsh and arbitrary in itself.

336 U.S. at 88. Cf. Martin v. City of Struthers, 319 U.S. 141 (1943)
(invalidating ban on door-to-door solicitation when the homeowner can
protect himself from the intrusion by an appropriate sign that he does not
want to be disturbed.)

In essence, the court today holds that the protesters' First
Amendment rights trump the rights of individuals to avoid unwanted speech
in their homes. This directly conflicts with the teaching, particularly
of Frisby, concerning the State's interest in protecting the well-being,
tranquility, and privacy of the home. In its analysis, the court today
simply gives little or no weight to the privacy interests of the besieged
homeowners, and allows them to be trampled by the speech of the protesters
despite the

-15-
15
Supreme Court's instruction that targeted residential picketing is not
accorded as much First Amendment protection as other forms of
communication. The Court reached this conclusion because residential
picketers "do not seek to disseminate a message to the general public, but
to intrude upon the targeted resident . . . in an especially offensive
way." Frisby, 487 U. S. at 486.

I also disagree with the court's unduly restrictive reading of Frisby
and Madsen v. Women's Health Center, Inc., 114 S. Ct. 2516 (1994). Madsen
struck down a portion of an injunction prohibiting picketing,
demonstrating, or using sound amplification equipment within 300 feet of
the residences of clinic staff. 114 S. Ct. at 2529-30. Madsen, however,
also held constitutional a thirty-six foot buffer zone around the clinic's
entrances and exits. Id. at 2527. Madsen thus recognizes that the
protected zone may extend beyond the property lines of the building in
question. Indeed, in striking down the 300-foot zone, the court foresaw
that "a limitation on the time, duration of picketing, and number of
pickets outside a smaller zone could have accomplished the desired result."
Id. at 2530. Although Madsen concluded that the 300-foot zone was too
large, it certainly did not define the boundaries of the restricted area.
Madsen also differs from this case in three other important ways. First,
Madsen involved an injunction, which is subject to a more rigorous degree
of scrutiny. 114 S. Ct. at 2524-25. Second, Madsen involved different
interests: ensuring access to a clinic and ensuring the health and well-
being of patients at a clinic. Id. at 2527-28. This case involves the
substantial interest of protecting the peace and tranquility of the home
and the protection of the unwilling listener in his own home. See Frisby,
487 U.S. at 484-85. Third, the "zone" here is not nearly as large as that
in Madsen, nor does it curtail as much speech. Madsen prohibited all
picketing or demonstrating within 300 feet of the residences of clinic
staff. 114 S. Ct. at 2529. The zone at issue here only prohibits the
identification of an

-16-
16
occupant within 200 feet of a residence. The 200 foot zone is smaller and
does not prohibit all picketing or demonstrating--only picketing which
identifies an occupant within two hundred feet of the occupant's home.2

I also disagree with the court's conclusion that the two-hundred foot
area within which speech is curtailed is too large.3 Although the Court
in Frisby construed the ordinance to prohibit only "focused picketing
taking place solely in front of a particular residence," 487 U.S. at 483,
I do not believe this language defined the parameters of targeted
picketing. I disagree with the court today that we may only restrict
residential picketing within a three-house zone. In recent days, this
court approved an ordinance that restricts picketing in front of a targeted
residence, as well as the residences immediately adjacent thereto. Douglas
v. Brownell, No. 95-2234, 1996 WL 379953 (8th Cir. July 9, 1996). We
concluded that the Court in Frisby focused on the impact the ban had on
protected activity, not on the size of the prohibited zone. Id. at *8.
We acknowledged the direct relationship between the size of the zone and
the impact on speech, but concluded we were not required to strike down an
ordinance simply because the zone extends beyond the area solely in front
of

2
Although the court today does not cite Vittitow v. City of
Upper Arlington, 43 F.3d 1100 (6th Cir.), cert. denied, 115 S. Ct.
2276 (1995), it relied on Vittitow in denying the preliminary
injunction, and much of the court's reasoning today appears to
follow Vittitow. I am more persuaded, however, by Judge Martin's
dissent in that case. After analyzing Frisby and Madsen, Judge
Martin concluded that a three-house zone was "no larger than
necessary to prevent the targeted homeowner and his family from
being captives and to protect their other residential privacy
interests." Id. at 1111.
3
The court does not discuss the provision of the ordinance
prohibiting picketers from remaining within seventy-five feet of a
dwelling for longer than five minutes. I believe this provision is
easily sustainable under the combined authorities of Frisby,
Madsen, and Douglas.

-17-
17
the targeted residence. Id. at *9. We did not define the outer limits of
a restricted picketing zone, but we reiterated that Frisby requires us to
ensure that the ordinance impacts protected speech no more than necessary
to eliminate the evil it seeks to remedy. Id. (citing Frisby, 487 U.S. at
483-88). Such an inquiry requires a close examination of the record.

The record in Douglas, like the record in this case, shows the
numerous complaints made by neighbors of the targeted resident. See id.
These records are different from that in Frisby in which the picketers
congregated only in front of the targeted physician's home. 487 U.S. at
476. There is no question that the significant residential privacy
interests described in Frisby carry over to the nearby neighbors. The
neighbors have, at least, an interest in privacy equal to the targeted
resident. The neighbors are entirely innocent bystanders, and are subject
to the proximal fallout from the picketing directed at the true target of
the picketing. It is entirely fortuitous that the neighbors are subject
to the picketing. The picketers, of course, seek to directly influence the
targeted resident. The picketers subject the neighbors to picketing in an
effort to have the neighbors' voice their displeasure and also indirectly
influence the targeted resident. As the findings from the preliminary
injunction hearing demonstrate, neighbors of the targeted residents made
numerous complaints about the picketing.

The district court made findings about the impact the picketing had
on residents of the neighborhood who were not the targets of the picketing.
Many of the residents would not allow children to play outside when the
picketers were present, in part, because they found the graphic signs
offensive and felt children should not be exposed to such materials.
Results of neighborhood surveys conducted by the Fargo Police Department
showed that an overwhelming majority of residents felt the picketing was
annoying

-18-
18
and harassing, and negatively impacted their sense of neighborhood well-
being, tranquility, privacy, and the enjoyment of their homes. The 200-
foot zone takes into consideration the substantial interests of these
neighbors and does so in an area less than that forbidden by Madsen. 114
S. Ct. at 2529-30. As a practical matter, the 200-foot zone covers the
neighboring house, and possibly the house beyond that. The ordinance does
not prohibit general marching through the neighborhood, it only prohibits
the targeted picketing of an individual within 200 feet of that person's
home. Considering the specific and careful findings made by the council
before adopting the ordinance, as well as the findings of the district
court, I believe that the city adopted a reasonable balance between the
privacy interests of the neighborhood residents and the First Amendment
interests of the picketers.

With respect to the restricted picketing zone, I believe that the
zone which bans picketing in front of the targeted residence and for 150
feet on either side of the targeted resident's lot, is sustainable under
the authority of Frisby, Madsen, and Douglas.4 Considering the particular
lots in question, the zone covers, at most, two houses on each side of the
targeted residence. The zone is, in reality, much smaller than that in
Madsen because the zone here covers only the targeted residence plus an
adjacent 150 feet. The zone in Madsen covered an area 300 feet in any
direction. 114 S. Ct. at 2522. The findings surrounding the entry of the
preliminary injunction specify the impact the picketing had on these nearby
residences. The court today does no more than say that the speech free
zone "is simply too large," totally ignoring the facts in the record. I
think this conclusionary approach to a significant constitutional issue is
too broad and too vague in

4
I have no quarrel with the court's conclusion that the
dispute about the restricted picketing zone is not moot.

-19-
19
treating a serious and substantial concern to the residents of that area.

Finally, I see no constitutional infirmity with allowing the Board
of City Commissioners to establish a Restricted Picketing Zone upon an
application of a resident. I simply point out that before the
Commissioners may authorize a restricted picketing zone, an applicant must
satisfy significant procedural requirements. I think we must accept
counsel for Fargo's assurances that the Board will establish such a zone
only if the picketing interferes with residential privacy and tranquility.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.

-20-
20