Abortion foes lose appeal over anti-picketing ordinance

Thursday, September 2, 1999

Editor’s note: On Oct. 1, 2001, the U.S. Supreme Court refused to hear the case.

An anti-picketing ordinance in Fargo, N.D., does not violate the First
Amendment, a federal appeals court has ruled.

Several anti-abortion activists challenged the city's anti-picketing law,
adopted in 1985, after they were arrested by police in 1991 for demonstrating
outside the home of an abortion clinic administrator.

After a state court judge dismissed the criminal charges, the picketers filed
a federal lawsuit. They contended that their civil rights had been violated by
the arrest for their expressive actions.

In 1997, a federal judge found the ordinance unconstitutional and awarded the
plaintiffs damages in the amount of $2,431. In 1998, the judge awarded attorneys
fees and court costs against the city in excess of $52,000.

On appeal, the 8th U.S. Circuit Court of Appeals reversed on Aug. 30 in
Veneklase v. City of Fargo, finding that the residential picketing
ordinance was constitutional.

The 1985 ordinance provided that “no person shall engage in picketing the
dwelling of any individual in the City of Fargo.” The ordinance was amended by
the Fargo City Council in 1993.

The federal judge had determined that the residential picketing law was a
content-based restriction on speech. In First Amendment law, laws that regulate
speech based on content are subject to a higher degree of constitutional
scrutiny than laws that do not regulate speech based on content — so-called
content-neutral laws.

However, the 8th Circuit determined that the picketing ordinance “constitutes
a valid content-neutral regulation of speech under the First Amendment.”

The ordinance was constitutional, according to the appeals court, because it
prohibited “all picketing directed at a particular occupant in order to protect
the tranquility and privacy of the home.”

“Fargo's purposes for enactment of the ordinance do not in any way relate to
the content of the expression,” the court wrote. “Any message of any kind can
communicate picketing when directed at a particular occupant of a home.”

The anti-abortion activists argued that the ordinance should be declared
content-based. In support of their argument, they cited an earlier, separate 8th
Circuit case, which determined that Fargo's 1993 anti-picketing ordinance was

However, in its ruling last week, the 8th Circuit distinguished its earlier
opinion based on the differences between the 1985 and 1993 ordinances. The 1993
law defined “picketing” differently than the 1985 law. The 1993 law defined
picketing as “standing, marching, sitting, lying, patrolling or otherwise
maintaining a physical presence inside of, in front of, 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.”

By contrast, the 1985 law did not contain the phrase “persuading the public”
and therefore survived the appeals court's scrutiny. “The inclusion of 'the
public' in the 1993 ordinance strikes at the heart of First Amendment
protections,” the 8th Circuit wrote.

Having determined the 1985 law was content-neutral, the court then asked
whether the ordinance was narrowly tailored to serve a significant government
interest while leaving open other methods of communication.

The 8th Circuit relied heavily on the U.S. Supreme Court's 1988 decision in
Frisby v. Schultz, which upheld a similar anti-picketing ordinance in
Brookfield, Wis. In Frisby, the high court wrote “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.”

The 8th Circuit also noted that the 1985 law was narrowly tailored to address
targeted picketing of a particular resident.

The appeals court also determined that the Fargo ordinance allowed would-be
demonstrators sufficient means to communicate their views, just as the
Brookfield ordinance in the Frisby case did. “As did the Brookfield
ordinance, the Fargo ordinance allows picketers to protest through
neighborhoods, walk a route in front of a group of homes, and contact residents
by telephone or in person with literature.”

The appeals court concluded that “under Frisby, Fargo's 1985 picketing
ordinance constitutes a valid, content-neutral regulation of speech to preserve
home tranquility and privacy by regulating focused picketing.”

Tags: , ,