TO:
Honorable Mayor and Members of the City Council
THROUGH:
Mark Danaj, City Manager
FROM:
Quinn M. Barrow, City Attorney
SUBJECT:Title
Consider Ordinance No. 16-0010 Prohibiting Targeted Residential Picketing (City Attorney Barrow).
CONSIDER ORDINANCE NO. 16-0010
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Recommended Action
RECOMMENDATION:
Staff recommends that the City Council consider Ordinance No. 16-0010 prohibiting targeted residential picketing.
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FISCAL IMPLICATIONS:
There are no fiscal implications associated with the recommended action.
EXECUTIVE SUMMARY:
Pursuant to City Council direction, staff drafted an ordinance prohibiting targeted residential picketing for Council consideration at its July 5, 2016 Council Meeting. At that meeting, the Council heard testimony from a resident who has experienced picketing in front of his residence. He stated that he and his neighbors felt threatened and harassed by the picketing. After public testimony was received, the City Council introduced the ordinance by a 4-0-1 vote, with Councilmember Burton abstaining.
On July 19, 2016, the Council considered second reading of the ordinance. After considerable discussion, the Council directed the City Attorney to draft, for Council consideration, an alternate version of the ordinance that is more narrowly tailored to address the concerns of the federal Ninth Circuit expressed in the case of Klein v. County of San Diego. The Klein case, as well as the seminal United States Supreme Court case and a California state appellate decision, are attached and discussed below.
As previously stated in the prior staff reports on this subject, the United States Supreme Court, Ninth Circuit and a California court of appeal have held that narrowly drawn targeted residential picketing prohibitions are constitutional, and a number of California cities and counties have adopted such ordinances. That said, the threshold policy issue for the City Council is whether the Council wants such an ordinance for Manhattan Beach. If the Council makes that determination, it must then consider the scope of the ordinance.
The Council has three options to consider:
1. Decline to adopt any targeted residential picketing prohibition.
2. Adopt Ordinance No. 16-0010 as initially drafted.
3. Introduce a revised Ordinance No. 16-0010, with additional time, manner and place limitations on the prohibition (for example, the Council could consider a reduced buffer zone, reduced effective period for the prohibition, a limit on the duration and a threshold number of picketers.)
Thus, the Council must first decide whether to have a targeted residential picketing prohibition. If the Council makes that determination, it must then decide whether to opt for option 2 or 3. As explained below, if the Council were to select option 3, we recommend that the buffer be reduced, and that the council consider a limitation prohibiting targeted picketing in the evening and nighttime. An alternative ordinance has been drafted with those features.
DISCUSSION:
The act of picketing, as a means of expressing thoughts or ideas, is a form of speech that is protected under the First Amendment. When speech occurs in a traditional public forum such as the sidewalk or street, the government may impose time, place, and manner restrictions so long as those restrictions are (1) content-neutral; (2) narrowly tailored to serve a significant government interest; and (3) leave open ample alternative channels of communication. Courts have upheld ordinances that prohibit “targeted residential picketing” provided the restrictions are (1) content-neutral; (2) narrowly tailored to serve a significant government interest; and (3) leave open ample alternative channels of communication.
Targeted picketing at particular homes has become a problem in many communities. A number of cities have adopted ordinances prohibiting targeted residential picketing, based upon the following findings: (1) protecting the well-being, tranquility, and privacy of the home is a significant government interest; (2) one benefit of the privacy enjoyed by citizens within their residences is the ability to avoid unwanted speech; (3) picketers who target a particular residence generally do not seek to disseminate a message to the general public, but seek to harass the targeted resident, intruding upon residential privacy; (4) a “buffer zone” creates a minimum zone of protection for residents from unwanted harassment and intimidation, but does not prevent picketers from disseminating their message to the general public or to local residents; (5) it is the intent of the City Council to protect what the courts have called the “captive audience” inside the targeted homes without stifling speech that is protected by the First Amendment; and (6) the prohibitions and buffer zones proposed by the ordinance leave open ample alternative avenues for communicating messages and ideas by those who wish to picket or protest in the City.
Such ordinances have been upheld by the courts, provided they are narrowly drawn. In 1988, the United States Supreme Court, held that: (1) municipal ordinance prohibiting picketing before or about residence or dwelling of any individual does not ban all picketing in residential areas, but, rather, prohibits only focused picketing taking place solely in front of particular residence, and (2) ordinance serves significant government interest of protecting residential privacy, and is narrowly tailored, and thus does not violate First Amendment. In two other cases involving San Diego and San Jose, the courts upheld a 300 foot buffer. The initial draft ordinance prohibits targeted residential picketing “within 150 feet of a particular residential dwelling or within 75 feet of the lot on which the targeted residential dwelling is located, whichever is greater.” The ordinance defines “targeted residential picketing” as “Picketing activity that is targeted at a particular residential dwelling and proceeds on a course or route in front of or around that particular residential dwelling.”
Public streets are the “archetype of a traditional public forum.” Frisby v. Schultz, 487 U.S. at 480. Further, a street does not lose its status as a public forum simply because it runs through a residential neighborhood. Id. So, while a blanket prohibition on picketing on residential streets is extremely unlikely to be upheld, the City may take a more narrow approach to address the issue. To that end, the Supreme Court, the Court of Appeals for the Ninth Circuit, and California appellate courts have upheld ordinances that regulate targeted picketing based on a governmental interest in residential tranquility and privacy. See Frisby v. Schultz, 487 U.S. 474 (1988); Klein v. San Diego County, 463 F.3d 1029 (9th Cir. 2006); City of San Jose v. Superior Court, 32 Cal. App. 4th 330 (Ct. App. 1995).
Frisby dealt with an ordinance enacted after the City of Brookfield, Wisconsin received complaints regarding the picketing of the home of a doctor who performed abortions. In that case, the city declared it “unlawful for any person to engage in picketing before or about the residence dwelling of any individual in the town of Brookfield.” Frisby, supra 487 U.S. at 476 7. In rejecting the subsequent challenge by an anti-abortion activist, the Supreme Court interpreted the ordinance as “limited to activity focused on a single residence.” Id. at 482. The Court held that the ordinance was narrowly directed at the household, not the public, and targeted only those who “generally do not seek to disseminate a message to the general public, but to intrude upon the targeted resident, and to do so in an especially offensive way.” Id. at 486. This narrow reading of the statute also meant that there were ample alternative channels of communication available, such as general marching through the neighborhood. Id. at 483.
The City’s laws regarding nuisances and prohibiting obstructions are not designed to protect residents from targeted picketing. Such laws are designed to prohibit crimes, offensive conduct or the free passage on sidewalks. However, prohibitions against targeted residential picketing are designed to prevent residents from feeling captive in their own homes, regardless of how peaceful the picketers are or whether the picketers do not impair free passage on sidewalks. As stated by the US Supreme Court, “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.” Frisby, at 484.
In San Jose, a California Court of Appeal upheld an ordinance banning picketing within 300 feet of a targeted residence. City of San Jose v. Superior Court, supra, 32 Cal App. 4th 330. Citing Frisby, the Court described targeted picketing as highly offensive conduct not entitled to the same level of First Amendment protection as more general expressions of political or social views. The Court then held that the ordinance’s definition of “picketing” as activity focused on the home and which proceeded on a definite course or route in front of or around that particular residential dwelling was narrowly defined. In doing so, the Court expressed its preference for the defined ban of 300 feet over the Frisby prohibition of activity “before or about” a residence or dwelling because the bright light standard protected picketers who respected the statutory boundary and because of the lower chance of discriminatory or uneven enforcement by police. Id. at 337.
In Klein, the federal Ninth Circuit Court of Appeal considered a facial challenge to a San Diego County ordinance that provided: “No person shall engage in picketing activity that is targeted at and is within three hundred (300) feet of a residential dwelling in the unincorporated areas of the County of San Diego.” Klein v. San Diego Cty., supra, 463 F.3d at 1031. The court held that the ordinance was facially constitutional. Nevertheless, in dicta, the court suggested that, as applied, the ordinance may not withstand an "as applied" challenge.
While the Court similarly found that the government has an interest in protecting residential tranquility, it criticized the San Jose Court’s reading of residential picketing as “highly offensive conduct” and as a “disfavored activity not entitled to a high level of First Amendment protection.” Rather, it reiterated that the right to residential privacy does not necessarily trump the right of picketers, stating that “residential picketing is not the black sheep of the First Amendment Family.” Id. at 1036 (fn 5). Ultimately, despite its more “nuanced approach” to the balance between picketing activity and residential tranquility, the Court upheld the ordinance because it did not find it to be unconstitutional in every aspect. Yet, it hinted that a 300-foot buffer zone might not withstand an as-applied challenge and expressed concern that the ordinance imposed a one-size-fits-all approach to residential picketing. Id. at 1036-7. Finally, the Court suggested that a 300-foot buffer zone may not be the least restrictive limitation, noting cases in other states that struck down similar ordinances. Id. at 1036, citing Kirkeby v. Furness, 92 F.3d 655, 660 (8th Cir.1996) (striking down an ordinance that banned picketing within 200 feet of a targeted residence); Murray v. Lawson, 138 N.J. 206, 649 A.2d 1253, 1267 (1994) (striking down an injunction that banned picketing within 300 feet of the targeted residence).
In light of the Klein dicta, the initial draft ordinance cut the buffer zone in half, from 300 feet to 150 feet to provide ample channels or avenues for communication, including to picket or protest. At least one other California residential community has had a 150 feet buffer for a decade, and its ordinance has not been challenged in court. After Klein, San Diego County amended its ordinance in 2009 to add that there was no intent to bar picketing in residential zones other than picketing targeted at a particular residence, but retained the 300 foot buffer. The alternate ordinance further reduces the buffer to 55 feet for residential properties east of Sepulveda and 41 feet for residential properties west of Sepulveda, which provides even more alternative channels for picketing and protest, and addresses the Ninth Circuit's criticism of the "one size fits all" approach. Using GIS, staff determined that west of Sepulveda, the average lot width is 40.34 feet; east of Sepulveda, the average lot width is 53.31 feet.
The Ninth Circuit in Klein did not directly opine on what time, manner, and place restrictions would be more acceptable than a 300-foot buffer zone. However, it mentioned some alternative restrictions that might balance the right to not be held captive in your house with freedom of speech. Limitations on the time, duration of picketing, and number of picketers outside a smaller buffer zone were offered as alternatives. Nevertheless, as noted above, in the years since the Klein decision (2006), San Diego County did not materially change its ordinance, other than to add a provision clarifying that there is no intent to restrict picketing in all residential areas. San Diego kept the 300-foot buffer, and added no other limitations on the targeted picketing prohibitions.
In sum, given the lack of caselaw scrutinizing alternate restrictions on picketing, it appears that implementing a relatively small buffer zone, tailored to Manhattan Beach, remains the most defensible restriction. However, the Council may want to consider restricting targeted picketing to the daytime hours, or other time and manner restrictions.
LEGAL REVIEW:
The City Attorney has prepared this report and approved the draft ordinances as to form.
Attachments:
1. Public Comment - James Essman
2. Draft Ordinance No. 16-0010
3. Alternate Draft Ordinance No. 16-0010
4. Targeted residential picketing cases - Frisby v. Schultz; Klein v. County of San Diego; and City of San Jose v. Superior Court