Timothy Thorburn v. William Austin

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 99-2146
___________

Timothy Thorburn, Monsignor; Pam *
Tabor; Dominic Pynes; Mary Adam, *
Individuals, *
*
Plaintiffs - Appellants, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
William Austin, in his official capacity *
as Lincoln City Attorney; Thomas *
Casady, in his capacity as Chief of *
Lincoln Police Department, *
*
Defendants - Appellees. *
___________

Submitted: December 13, 1999

Filed: October 19, 2000
___________

Before MURPHY, JOHN R. GIBSON, and FAGG, Circuit Judges.
___________

JOHN R. GIBSON, Circuit Judge.

Monsignor Timothy Thorburn, Pam Tabor, Dominic Pynes, and Mary Adam
appeal the district court's1 summary judgment upholding a Lincoln, Nebraska ordinance

1
The Honorable Warren K. Urbom, United States District Judge for the District
of Nebraska.
that prohibits focused residential picketing in a defined zone. See Thorburn v. Roper,
39 F. Supp. 2d 1199 (D. Neb. 1999). The appellants contend that the ordinance is
unconstitutional, asserting the same broad range of arguments here that they made to
the district court. We affirm.

The ordinance provides:

(a) It shall be unlawful for any person to engage in focused picketing in
that portion of any street which abuts on the property upon which the
targeted dwelling is located, or which abuts on property within fifty feet
(measured from the lot line) of the property upon which the targeted
dwelling is located, except the sidewalk space on the opposite side of the
street from the targeted dwelling.
(b) For the purposes of this section, the following definitions shall apply:
(1) Focused picketing shall mean picketing directed toward a
specific person or persons including, but not limited to, marching,
congregating, standing, parading, demonstrating, parking, or patrolling by
one or more persons, with or without signs.
(2) Sidewalk space shall mean that portion of a street between the
curb line and the adjacent property line.
(3) Street shall mean the entire width between the boundary lines
of every way publicly maintained when any part thereof is open to the use
of the public for purposes of vehicular travel.
(4) Targeted dwelling shall mean any building or dwelling unit
within a building, in which the target or targets of focused picketing
reside.
(c) This section shall not apply to any picketing, focused or otherwise,
which lawfully occurs before or about any commercial or industrial
establishment or business, regardless of where located.
(d) This section shall not be construed to authorize conduct which is
otherwise prohibited by law.

Lincoln, Neb., Mun. Code § 9.40.090 (Supp. 1999). Thus, the ordinance prohibits
focused picketing that is directed toward a particular person in a rectangular zone in
front of that person's dwelling and extending 50 feet on either side of the lot. The zone

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includes the street area within the same range, but does not include the sidewalk space
across the street from the targeted dwelling.

The Lincoln City Council's statement of legislative intent indicates that the main
purpose of the ordinance is to preserve

the right of privacy and the feeling of well-being and tranquility which the
members of the community should enjoy in their dwellings. The practice
of focused picketing before or about a dwelling, targeted at the occupant
or occupants of such dwelling, causes emotional disturbance and distress
to the occupant or occupants, [and] disturbs the sense of peace and
tranquility traditionally enjoyed by individuals in their dwellings.

Lincoln, Neb., Ordinance 17164 §1 (Apr. 7, 1997).

Since the enactment of the ordinance, the city of Lincoln has issued four citations
for its violation. In February 1998, two individuals, neither a party to this action, stood
on the sidewalk at the end of Dr. Winston Crabb's driveway yelling such things as "You
need to stop killing babies" and "You are going to go to hell." Crabb is a Lincoln
physician who performs abortions. The police, after arriving at the scene, issued
citations. Six months later, the same two individuals were issued citations after they
stood on the sidewalk in front of Crabb's house and yelled, "You are going to meet your
maker" and "The killing has got to stop."

The appellants have deeply held religious and moral beliefs that abortion is
wrong. In the past, Tabor, Pynes, and Adam have engaged in protests against abortion
at the Lincoln Planned Parenthood clinic. Adam has also protested near the Crabb
residence. Thorburn has considered standing, kneeling, or walking without a sign on
the sidewalk in front of the Crabb residence to pray for Crabb's soul and to pray that
he stop performing abortions. Since the ordinance was passed, however, he has
refrained from these activities because he fears prosecution. The other three appellants

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have also refrained from a variety of activities because they fear prosecution under the
ordinance. These activities include praying on the sidewalk in front of the Crabb
residence, planning peaceful prayer vigils to be held in front of the Crabb residence,
distributing leaflets and gathering signatures on petitions by going door-to-door,
carrying signs protesting abortion in front of the Crabb residence, and walking on the
sidewalk around the block on which the Crabb residence is located.

The appellants brought this action seeking to have the ordinance declared
unconstitutional, both facially and as applied to the circumstances under which they
propose to act. The district court granted summary judgment denying relief. The court
held that the ordinance does not violate the First Amendment because it is content-
neutral, it leaves open ample alternative channels of communication, and it is narrowly
tailored to serve the significant government interest of protecting residential privacy and
tranquility. See Thorburn, 39 F. Supp. 2d at 1204-10. The court also held that the
ordinance is not unconstitutionally vague because it gives notice of the conduct
prohibited and contains adequate guidelines for law enforcement. See id. at 1210-12.
It further held that the ordinance is not overbroad. See id. at 1215. Finally, the court
rejected the claim that the ordinance violates equal protection. See id.

I.

Picketing, as expressive conduct, is clearly protected under the First
Amendment. See Police Dep't v. Mosley, 408 U.S. 92, 99 (1972). The First
Amendment does not prohibit all governmental regulation of speech; the extent to
which speech may constitutionally be regulated, however, depends on the nature of the
forum in which the regulation operates. See Perry Educ. Ass'n v. Perry Local
Educators' Ass'n, 460 U.S. 37, 45-46 (1983). The Lincoln ordinance affects activity
on public sidewalks and streets: "the archetype of a traditional public forum." Frisby
v. Schultz, 487 U.S. 474, 480 (1988). In a public forum, the government may "enforce
regulations of the time, place, and manner of expression which are content-neutral, are

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narrowly tailored to serve a significant government interest, and leave open ample
alternative channels of communication." Perry, 460 U.S. at 45. A content-based
regulation is presumptively invalid. See R.A.V. v. City of St. Paul, 505 U.S. 377, 382
(1992). For such a regulation to be upheld, it must be necessary to serve a compelling
government interest and narrowly tailored to achieve its end. See Perry, 460 U.S. at
45.

Because the Lincoln ordinance regulates protected speech in a public forum, we
first determine whether the ordinance is content-neutral or content-based in order to
apply the appropriate level of scrutiny. The government cannot regulate speech
because it disagrees with the message conveyed. See Ward v. Rock Against Racism,
491 U.S. 781, 791 (1989). After oral argument in this case, the Supreme Court
reaffirmed that "government regulation of expressive activity is 'content neutral' if it is
justified without reference to the content of regulated speech." Hill v. Colorado, 120
S. Ct. 2480, 2491 (2000); see also Ward, 491 U.S. at 791. Lincoln does not disagree
with a particular message; the ordinance applies equally to anyone engaged in focused
picketing without regard to his message. Because Lincoln's justification for the
ordinance is the protection of residential privacy and tranquility and has nothing to do
with the content of the regulated speech, the ordinance is content-neutral.

The appellants concede that the First Amendment allows content-neutral
ordinances that limit residential picketing, but they argue that the Lincoln ordinance is
a content-based restriction. They base this argument on several things: Lincoln Chief
of Police Thomas Casady's testimony defining picketing, the fact that the ordinance
prohibits picketing that is directed toward a targeted person, the exception for picketing
that occurs across the street from a targeted dwelling, and the city attorney's statement
that the ordinance would not be applied to picketing in front of the governor's mansion
directed toward the governor as an elected official.

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 Although picketing is not explicitly defined in the text of the Lincoln ordinance,
it may include marching, congregating, standing, parading, demonstrating, parking, or
patrolling, with or without signs. Casady testified that it is commonly understood that
picketing means "some form of demonstration, issue-oriented demonstration, on a topic
in controversy aimed at influencing, changing an opinion, or making an opinion
known." Based on this testimony, the appellants argue that the only way for officers
to determine whether a person is picketing is to examine whether he is engaged in an
issue-oriented demonstration, whether the issue is one of controversy, and whether he
is attempting to influence opinions. Therefore, according to the appellants, the
ordinance is content-based.

The Supreme Court rejected a similar argument in Hill. The petitioners argued
that a statute that prohibited knowingly approaching within eight feet of a person near
the entrance of a health care facility “for the purpose of . . . engaging in oral protest,
education, or counseling” was content-based because it was necessary to examine the
content of the approaching speaker’s statements to determine whether he was violating
the statute. See Hill, 120 S. Ct. at 2491. The Court held that the ordinance was
content-neutral, see id. at 2494, stating that it had “never held, or suggested, that it is
improper to look at the content of an oral or written statement in order to determine
whether a rule of law applies to a course of conduct,” id. at 2492.

The appellants rely on Kirkeby v. Furness, 92 F.3d 655 (8th Cir. 1996), where
we held the definition of picketing contained in a residential picketing ordinance to be
content-based. The ordinance defined picketing as activity engaged in “for the purpose
of persuading the public or an occupant of such premises or to protest some action,
attitude or belief.” Id. at 659. Because it was impossible to tell whether a person was
engaged in picketing without analyzing his message, we held that the limitation was not
justified without reference to content. See id. Hill rejected this sort of analysis.

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 According to the Court's opinion in Hill, the necessity of looking at the content
of a speaker’s message to determine whether it was protest, education, or counseling
is no different from determining whether particular conduct constitutes picketing. See
120 S. Ct. at 2492. Picketing, by definition, excludes “social, random, or other
everyday communications,” but the Court has “never suggested that the kind of cursory
examination that might be required to exclude casual conversation from the coverage
of a regulation of picketing would be problematic.” Id. Engaging in demonstrations
and attempting to influence opinions are inherent in picketing. Hill requires that we
reject the appellants’ argument that Casady’s definition of picketing makes the Lincoln
ordinance content-based.

The appellants next argue that because focused picketing must be "directed
toward a specific person or persons" to violate the ordinance, the ordinance is content-
based. They again direct us to Kirkeby, where we held that an ordinance prohibiting
residential picketing that identified an occupant orally or in writing was content-based.
See 92 F.3d at 660 ("Whether an individual's expressive activity is regulated depends
entirely on whether the content of his or her expression identifies a resident."). Kirkeby
is inapposite. Here, there is no requirement that the picketer's message identify the
targeted resident.

We see nothing content-based in the use of the words "directed toward." The
nature of focused picketing is that it is directed at a particular residence and its
occupants. The Lincoln City Council took its cue from the Supreme Court's decision
in Frisby, which upheld a ban on residential picketing by construing it to prohibit only
focused picketing. In its analysis, the Court stated, "[I]n order to fall within the scope
of the ordinance the picketing must be directed at a single residence," Frisby, 487 U.S.
at 483, and "[T]he picketing is narrowly directed at the household, not the public," id.
at 486. We later repeated this language in Douglas v. Brownell, 88 F.3d 1511, 1517,
1519 (8th Cir. 1996), where we upheld an ordinance that prohibited focused residential

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picketing in a three-house zone. Lincoln's attempt to comply with cases that have
upheld residential picketing ordinances does not make the ordinance content-based.

In a related argument, the appellants contend that the ordinance's exception for
picketing that occurs across the street from the targeted dwelling creates a content-
based restriction. The appellants argue that because the ordinance either bans or allows
the same expressive activity depending on whether it is directed at an occupant of the
house on one side of the street or the other, the ordinance is implicitly content-based.
The across-the-street exception regulates location, not content. The very fact that
picketing is occurring solely in front of one house is evidence that the picketing is
directed toward that particular house. Simply because the content of the message may
provide either evidence of targeting or a defense to the allegation of targeting does not
make the ordinance content-based. See Hill, 120 S. Ct. at 2492.

Finally, the appellants argue that the Lincoln City Attorney's response to an
interrogatory regarding picketing in front of the governor's mansion makes the
ordinance content-based. The city attorney stated that because the mansion is a public
building, Lincoln would not apply the ordinance to focused picketing "the purpose of
which is to influence the Governor as an elected official on an issue of public concern."
The city would consider applying the ordinance, however, if the picketing were
directed at another occupant of the mansion or at the governor as an individual. The
only way to distinguish between picketing directed toward the governor as an
individual and picketing directed toward the governor as an elected official would be
to look at the content of the picketer's message. The ordinance appears to apply to
either type of picketing. We are not persuaded that the city attorney's response
demonstrates that the ordinance is content-based. Instead, the response seems to be
an attempt to address the unique nature of the governor's mansion as a public building
and does not indicate that Lincoln is regulating speech because it disagrees with its
content.

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 Having concluded the ordinance is content-neutral, we must determine whether
it is narrowly tailored to serve a significant government interest and whether it
preserves ample alternative channels of communication. We leave the issue of narrow
tailoring to one side for a moment and briefly address the uncontested issues.
Protecting residential privacy and tranquility is a significant government interest, see
Frisby, 487 U.S. at 484-85, and the appellants do not quarrel with that conclusion. Nor
do they dispute that the ordinance allows ample alternative methods of communication.
The ordinance is limited to activity focused on a particular residence and does not
prohibit general dissemination of a message. See id. at 483-84. Those who wish to
engage in protest activity in residential areas are free to march through neighborhoods,
walk a route in front of a block of houses, distribute literature and collect signatures on
petitions by going door-to-door, and even picket across the street from a targeted
dwelling.

One question remains: whether the ordinance is narrowly tailored. A narrowly
tailored statute "targets and eliminates no more than the exact source of the evil it seeks
to remedy." Frisby, 487 U.S. at 485 (internal quotations omitted). The statute need not
be the least restrictive means of regulation, but it must further a significant government
interest that would be achieved less effectively without the regulation. See Ward, 491
U.S. at 798-99. "Government may not regulate expression in such a manner that a
substantial portion of the burden on speech does not serve to advance its goals." Id.
at 799.

The appellants argue that the ordinance targets more than the exact source of the
evil the government seeks to prevent. For example, they contend that a solitary person
who is silently praying for Crabb and who happens to pass by the Crabb residence
would violate the ordinance. No one who simply happens to pass by a house will be
violating the ordinance; passing a house by chance is not focused picketing. A solitary
person who stands in front of the Crabb residence silently praying for Crabb may be
violating the ordinance, however. "[E]ven a solitary picket can invade residential

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privacy," Frisby, 487 U.S. at 487, and this invasion is the sort of harm the ordinance
seeks to prevent.

The appellants also argue that the ordinance is underinclusive, resting this
contention on the across-the-street exception. They claim that the exception
undermines the purpose of the ordinance because it fails to protect the privacy and
tranquility of the residents who live across the street from the target. While it is true
that exceptions from a legitimate regulation of speech may diminish the credibility of
the government's reasons for the regulation, see City of Ladue v. Gilleo, 512 U.S. 43,
52 (1994), we do not perceive that to be the case in this situation. The city of Lincoln
was merely attempting to comply with earlier Eighth Circuit case law that held that an
ordinance was narrowly tailored and provided ample alternative channels of
communication where it implicitly allowed picketing across the street from a targeted
dwelling. See Douglas, 88 F.3d at 1520-21.

"[T]he validity of the regulation depends on the relation it bears to the overall
problem the government seeks to correct, not on the extent to which it furthers the
government's interests in an individual case." Ward, 491 U.S. at 801. Here, the overall
problem is the threat to residential privacy and tranquility caused by focused picketing.
We are confident that the ordinance furthers Lincoln's significant interest in reducing
this threat even though individual situations may arise where picketers who choose to
take advantage of the exception threaten the privacy and tranquility of the residents
who live across the street from the target. Obviously, the exception is an attempt to
preserve free speech rights as much as possible while reducing the threat to residential
privacy. We will not invalidate the ordinance for showing too much solicitude for
speech. Because the ordinance promotes residential privacy and tranquility, a
significant interest that would be achieved less effectively in its absence, we hold that
it is narrowly tailored.

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 II.

The appellants argue that the ordinance is unconstitutionally vague. In order to
survive a vagueness challenge, a law must provide fair warning by "giv[ing] the person
of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he
may act accordingly." Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). It must
also provide "explicit standards" for those who will apply the law in order to prevent
arbitrary or discriminatory enforcement. Id. at 108-09.

The Lincoln ordinance includes specific definitions of focused picketing,
sidewalk space, street, and targeted dwelling. It delineates precisely the zone in which
focused picketing is prohibited. Perhaps the ordinance could have been more exact,
but the fact that questions may arise regarding its applicability to certain conduct does
not automatically lead to the conclusion that it is void for vagueness. On remand in
Frisby, the Seventh Circuit addressed the plaintiffs' concern with the difficulties in
determining whether picketing is directed at a particular residence:

Will it be enough to go 'round and 'round the block? Could the picketers
march in front of the five houses on either side of the [targeted dwelling]?
May they stop for one minute, or two, or five, in front of the [targeted
dwelling] before moving along? . . . How much longer must the route be?
No matter how clear the ordinance seems, a hundred nice questions may
follow in its wake. The Constitution does not require [the city] to answer
each of these before it may enforce the law. Incompleteness is a curse of
language, as of human imagination. To say that precision is a precondition
to enforcement is to say that no ordinance regulating speech may stand--a
proposition the Supreme Court has rejected over and again.

Schultz v. Frisby, 877 F.2d 6, 8 (7th Cir. 1989). The Lincoln ordinance provides fair
warning of the conduct that is prohibited. A person of ordinary intelligence can
conclude that if he marches, congregates, stands, parades, demonstrates, parks, or
patrols in the protected vicinity of the dwelling of the person he intends to target,

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directing his picketing at that person, he is subject to prosecution under the Lincoln
ordinance. The ordinance gives the appellants fair warning that they cannot pray on the
sidewalk in front of the Crabb residence, hold prayer vigils in front of the Crabb
residence, or carry signs in front of the Crabb residence without subjecting themselves
to prosecution.

The ordinance does not leave those who are enforcing it with unfettered
discretion to determine whether a violation has occurred. The deposition testimony of
the Lincoln police officers indicates that they would respond in similar ways to
situations that might fall within the ordinance's scope. This case is distinguishable from
Foti v. City of Menlo Park, where the Ninth Circuit held that a provision of a picketing
ordinance was unconstitutionally vague because "myriad" factors had to be evaluated
when attempting to enforce the provision. 146 F.3d 629, 638-39 (9th Cir. 1998). As
discussed above, the ordinance includes specific definitions and clearly delineates the
zone in which focused picketing is prohibited. Police officers will have to use
discretion to determine whether an activity is picketing and whether it is focused, but
enforcement of all laws involves some discretion. See, e.g., Hill v. Colorado, 120 S.
Ct. 2480, 2498-99 (2000); Ward v. Rock Against Racism, 491 U.S. 781, 794 (1989)
("While these standards are undoubtedly flexible, and the officials implementing them
will exercise considerable discretion, perfect clarity and precise guidance have never
been required even of regulations that restrict expressive activity."); Grayned, 408 U.S.
at 110-14. Because there is no real risk of discriminatory enforcement and because the
ordinance makes clear what conduct it prohibits, we hold that it is not
unconstitutionally vague.

III.

The appellants also contend that the ordinance is overbroad. For us to find a
statute unconstitutionally overbroad, its "overbreadth . . . must not only be real, but
substantial as well, judged in relation to the statute's plainly legitimate sweep."

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Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973). Prohibiting focused residential
picketing is plainly legitimate. The appellants give two examples of protected activity
that may be prohibited by the ordinance: welcomed speech and solitary prayer.
Assuming welcomed focused residential picketers exist, we agree with the district court
that their First Amendment rights will not be significantly compromised. See Thorburn
v. Roper, 39 F. Supp. 2d 1199, 1214 (D. Neb. 1999). It is improbable that those who
welcome the picketing will complain to the police. Even if the police were aware of
the picketing, the target could invite the picketers onto his lawn, where the ordinance
would not apply. See id. As to the appellants' second example, even a solitary picketer
can intrude upon residential privacy. See Frisby v. Schultz, 487 U.S. 474, 487 (1988).
An individual engaged in an activity that is directed at a specific person in the defined
zone falls within the legitimate sweep of the ordinance. We are not convinced that the
overbreadth in this situation is real, much less substantial. There is no realistic danger
that the ordinance will compromise the First Amendment rights of others who are not
before us. See Members of the City Council v. Taxpayers for Vincent, 466 U.S. 789,
801 (1984).

IV.

Finally, the appellants argue that the ordinance violates the Equal Protection
Clause of the Fourteenth Amendment because it discriminates between picketers
depending on the content of their message. See Carey v. Brown, 447 U.S. 455 (1980)
(holding that ordinance violated equal protection where it banned all residential
picketing except picketing of a place of employment involved in a labor dispute); Police
Dep't v. Mosley, 408 U.S. 92 (1972) (exempting labor picketing from ban on picketing
near schools violated equal protection). The appellants' equal protection argument is
premised on their argument that the ordinance is content-based. As we have already
determined that the Lincoln ordinance is content-neutral, this argument necessarily fails.

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

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A true copy.

Attest:

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

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