Eleventh Circuit Upholds Constitutionality of City Ordinance Prohibiting Picketing, Denies Constitutionality of Loitering Provision in Ordinance

In Winnifred Bell v. City of Winter Park, Florida, No. 13-11499 (Mar. 20, 2014), the Eleventh Circuit decided whether the City of Winter Park’s Ordinance No. 2886-12, which generally prohibits targeted picketing within fifty feet of a residential dwelling, is an unconstitutional infringement on First Amendment freedom of speech.

Comparing § 62-79 of the ordinance to a municipal ordinance that was upheld by the Supreme Court in Frisby v. Schultz, 478 U.S. 474 (1988), the Eleventh Circuit found § 62-79 to be “nearly on all fours with Frisby,” and thus held it facially constitutional. The Eleventh Circuit found § 62-70 to be content-neutral as it regulated the time, place, and manner of the speech, not the content or viewpoint of the speech, and was adopted for the purpose of safeguarding the peace and tranquility of persons residing in residential units, rather than because the city disagreed with any speech’s message. The Eleventh Circuit then found  § 62-79 to withstand intermediate scrutiny because § 62-79 serves the same governmental interest the Supreme Court approved of in Frisby, which is protecting the well being, tranquility, and privacy of the home. The Eleventh Circuit found  § 62-79 narrowly tailored to those ends because, like the ordinance in Frisby, “[t]he type of picketers banned by the [Winter Park] ordinance 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.” See Frisby, 487 U.S. at 486, 108 S. Ct. at 2503. Additionally, the Eleventh Circuit found that the protestors remain “free to march, to proselytize, and to distribute literature within 50 feet of the dwelling unit,” and even picket.

While the Eleventh Circuit found § 62-79 to be facially constitutional, it was not convinced of the constitutionality of the loitering provision of the Ordinance, § 62-77. The Eleventh Circuit found § 62-77 to go beyond “simply allowing a private citizen to control the speech he allows on his property,” because § 62-77 permits private residents to control the speech of others within a 50-foot buffer area of the citizens property, including any park, public street, public right-of-way, or sidewalk located in that 50-foot buffer. The Eleventh Circuit took issue with the amount of discretion this allowed. § 62-77 expressly permits police officers to enforce the loitering provision against any person remaining in a public area. Therefore, “private citizens can decide that they dislike the content or viewpoint of a speaker’s message and then contact the Winter Park police to enforce § 62-77.” The Court also noted that because § 62-77 provides no standards of enforcement, City officers are free to enforce the ordinance on the basis of the content or viewpoint of one’s speech. The Court found § 62-77 facially unconstitutional and invalid due to § 62-77 granting “private citizens unbridled discretion to invoke the City’s power to regulate speech in public fora abutting private residences.”

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