State v. Schuller

Eldridge, J., delivered the opinion of the Court. The question presented by this case is whether certain provisions of Chapter 773 of the Acts of 1971, codified in Maryland Code (1957, 1976 Repl. Vol.), Art. 27, § 580A, violate the First and Fourteenth Amendments to the ³⁰⁷ Constitution of the United States. That statute prohibits, inter alia, all residential picketing except for picketing in connection with a labor dispute.

The defendants, Phillip Schuller and Sean Simpkins, were arrested and charged with “picketing before and about ... [a] residence or dwelling place” in violation of Code (1957, 1976 Repl. Vol.), Art. 27, § 580A. According to an agreed statement of facts submitted by the parties, on April 14, 1976, the defendants, with six other individuals, picketed the home of Donald II Rumsfeld. At the time, Mr. Rumsfeld was Secretary of Defense and resided ,n Montgomery County, Maryland.

In response to a complaint made by one of Mr. Rumsfeld’s neighbors, a Montgomery County police officer arrived and informed the pieketers that their actions were unlawful. The officer was told that the group, known as “The Community Action for Non-Violence,” was picketing for the purpose of protesting “the proliferation of nuclear armaments of the United States Government.” The officer observed two individuals carrying picket signs and others, at various times, either walking in front of Mr. Rumsfeld’s residence or sitting on the curb in front of his home. Shortly thereafter, three more police officers arrived, and the group of pieketers was warned by each of these officers that their behavior was in violation of the law. At this time, the officers told them to “cease and desist” from their activities, and four members of the group immediately left the area.

The other four individuals, including the defendants, who refused to leave were placed under arrest. The parties stipulated further in the agreed statement of facts that the individuals who were arrested were peaceful and at all times cooperative with the police. Moreover, “at no time during the picketing activity did any of the pieketers obstruct traffic, become disorderly or otherwise disturb the neighbors other than through their picketing activity.” Also, the picketing took place on public property, and there was no allegation that the pieketers trespassed on private property. On June 14, 1976, in the District Court of Maryland, sitting in Montgomery County, the defendants, Schuller and ³⁰⁸ Simpkins, were tried and found guilty of unlawful picketing.

Each of the defendants received a five-day suspended sentence and was placed on unsupervised probation for ten days. Upon appeal to the Circuit Court for Montgomery County (Miller, J.), the charges against the defendants were dismissed. The court held that subsection 2 of Art. 27, § 580A, which prohibits all residential picketing, was “unconstitutional on its face because it unreasonably and improperly impinges upon the defendants’ rights of Freedom of Speech and Assembly protected by the First Amendment.” Furthermore, the court held that subsection 4 (1) of Art. 27, § 580A, which exempts certain labor related picketing from the general prohibition against residential picketing, violated “the Defendants’ rights of Equal Protection of the Laws guaranteed by the Fourteenth Amendment.” Pursuant to Code (1974, 1976 Cum. Supp.), § 12-305 of the Courts and Judicial Proceedings Article, the State petitioned for a writ of certiorari which we granted in order to consider the constitutional questions involved.

Chapter 773 of the Acts of 1971, Art. 27, § 580A, provides in pertinent part: U * * * “2. It shall be unlawful for any person to engage in picketing before or about the residence or dwelling place of any individual. * * * “4, Nothing herein shall be deemed to prohibit (1) any picketing or assembly in connection with a labor dispute as that term is defined in Article 100, § 74 of the Annotated Code of Maryland (1964 Replacement Volume), title “Work, Labor and Employment,” subtitle “Injunctions,” as heretofore and hereafter amended; (2) the picketing in any lawful manner a person’s home when it is also his sole place of business;... ³⁰⁹ “5. Any person found guilty of violating this section shall be punished by a fine of not more than one hundred dollars or by imprisonment for not more than 90 days, or by both. Each day on which a violation of this section occurs shall constitute a separate offense. “6.

Notwithstanding the penalties herein provided, any court of general equity jurisdiction may enjoin conduct proscribed by this article, and may in any such proceeding award damages, including punitive damages, against the persons found guilty of actions made unlawful by this section.” 1 The State argues that a prohibition against all residential picketing is not violative of the First and Fourteenth Amendments to the United States Constitution. The State contends that statutes prohibiting picketing of residential dwellings are a constitutionally valid exercise of the state's police power to “protect individual privacy by enacting reasonable time, place and manner regulations applicable to all speech irrespective of content.” The State argues further that the exemption of labor related picketing does not create a classification which violates the Equal Protection Clause, as the classification serves a compelling state interest. The defendants, on the other hand, reiterate their argument that the statute violates their right to freedom of speech and assembly and their right to equal protection of the laws. (1) The constitutionality under the First Amendment of prohibitions against residential picketing, whether arising ³¹⁰ under an anti-picketing statute similar to Maryland’s or arising under general statutes prohibiting breach of the peace or disorderly conduct, has been considered by lower federal courts and state courts, with a resultant diversity of decisions.

Compare, e.g., Davis v. Francois, 395 F. 2d 730 (5th Cir. 1968); United Electrical, R. & M. Workers v. Baldwin, 67 F. Supp. 235 (D. Conn. 1946); Annenberg v. Southern California District Coun. of Lab., 38 Cal.App.3d 637 , 113 Cal. Rptr. 519 (1974); Flores v. City and County of Denver, 122 Colo. 71 , 220 P. 2d 373 (1950); State v. Anonymous, 6 Conn. Cir. 372, 274 A. 2d 897 (1971-2); Hibbs v. Neighborhood Organ. to Rejuv. Tenant Hous., 433 Pa. 578 , 252 A. 2d 622 (1969); with Garcia v. Gray, 507 F. 2d 539 (10th Cir. 1974), cert. denied, 421 U. S. 971 , 95 S. Ct. 1967 , 44 L.Ed.2d 462 (1975); Fawick Airflex Co. v. United Electrical, R. & M. Wkrs., 87 Ohio App. 371, 92 N.E.2d 446 (1950); Pipe Machinery Co. v. DeMore, 76 N.E.2d 725 (Ohio App. 1947); State v. Perry, 196 Minn. 481 , 265 N. W. 302 (1936); City of Brookfield v. Groppi, 50 Wis. 2d 166 , 184 N.W.2d 96 (1971); City of Wauwatosa v. King, 49 Wis. 2d 398 , 182 N.W.2d 530 , 42 A.L.R.3d 1341 (1971).

See also Comment, Picketers At The Doorstep, 9 Harv. Civ. Rts. — Civ. Libs.

L. Rev. 95 (1974); Note, Picketing the Homes of Public Officials, 34 Chic. L. Rev. 106 (1966); Kamin, Residential Picketing And the First Amendment, 61 N.W. L. Rev. 177 (1966); Annot., Peaceful Picketing of Private Residence, 42 A.L.R.3d 1353 (1972). While the United States Supreme Court has not specifically dealt with a state statute that prohibits all picketing in residential areas, the Court has dealt extensively with picketing in relation to the right of freedom of speech guaranteed by the First and Fourteenth Amendments. In our view, the principles set forth in these Supreme Court decisions are determinative of the free speech issue raised in the case at hand.

In the seminal case of Thornhill v. Alabama, 310 U. S. 88 , 60 S. Ct. 736 , 84 L. Ed. 1093 (1940), the Court held that picketing was a mode of expression and a means of disseminating information that was protected by the .freedom of speech guarantee in the First Amendment. The ³¹¹ Court acknowledged, however, the presence of a valid state interest and the permissibility of narrowly drawn statutes to guard against specific dangers. Nevertheless, the Court invalidated the statute which banned all picketing of businesses for the purpose of interfering with business, stating ( 310 U. S. at 105 ): “The power and the duty of the State to take adequate steps to preserve the peace and to protect the privacy, the lives, and the property of its residents cannot be doubted. But no clear and present danger of destruction of life or property, or invasion of the right of privacy, or breach of the peace can be thought to be inherent in the activities of every person who approaches the premises of an employer and publicizes the facts of a labor dispute involving the latter.

We are not now concerned with picketing en masse or otherwise conducted which might occasion such imminent and aggravated danger to these interests as to justify a statute narrowly drawn to cover the precise situation giving rise to the danger.... Section 3448 in question here does not aim specifically at serious encroachments on these interests and does not evidence any such care in balancing these interests against the interest of the community and that of the individual in freedom of discussion on matters of public concern.” (Emphasis supplied.) With respect to the argument that, in applying the statute, the geographical area where the picketing was prohibited would be limited, the Supreme Court said (id. at 105-106, 60 S. Ct. at 746 ): “It is not enough to say that Section 3448 is limited or restricted in its application to such activity as takes place at the scene of the labor dispute. ‘[The] streets are natural and proper places for the dissemination of information and opinion; and one is not to have the exercise of his liberty of expression in appropriate places abridged on the ³¹² plea that it may be exercised in some other place.’ Schneider v. State, 308 U.S. 147, 161 , 60 S.Ct. 146, 150 , 84 L.Ed. 155 ; Hague v. C.I.O., 307 U.S. 496, 515, 516 , 59 S.Ct. 954, 963, 964 , 83 L.Ed. 1423 .” For other cases invalidating broad restrictions on picketing relating to labor disputes, see Chauffeurs, Teamsters & Helpers Local Union 795 v. Newell, 356 U. S. 341 , 78 S. Ct. 779 , 2 L.Ed.2d 809 (1958); Cafeteria Union v. Angelos, 320 U. S. 293 , 64 S. Ct. 126 , 88 L. Ed. 58 (1943); Bakery Divers Local v. Wohl, 315 U. S. 769 , 62 S. Ct. 816 , 86 L. Ed. 1178 (1942); A.F. of L. v. Swing, 312 U. S. 321 , 61 S. Ct. 568 , 85 L. Ed. 855 (1941); Carlson v. California, 310 U. S. 106 , 60 S. Ct. 746 , 84 L.Ed. 1104 (1940). It is true that picketing is not, in the language of the Supreme Court, “pure speech” but rather an activity which intertwines elements of speech and conduct, and it is therefore subject to some regulation, Shuttlesworth v. Birmingham, 394 U. S. 147, 152-153 , 89 S. Ct. 935 , 22 L.Ed.2d 162 (1969). However, the cases clearly hold that attempts at regulation must be narrowly drawn to reach only certain specified conduct which impinges on valid state interests.

Consequently, when defendants were convicted for violating a statute prohibiting breach of the peace, and the conduct of the defendants consisted solely of picketing in a peaceful, orderly, non-obstructive manner, the convictions were held to violate the First and Fourteenth Amendments, Henry v. City of Rock Hill, 376 U. S. 776 , 84 S. Ct. 1042 , 12 L.Ed.2d 79 (1964); Edwards v. South Carolina, 372 U. S. 229 , 83 S. Ct. 680 , 9 L.Ed.2d 697 (1963). In both Henry and Edwards , however, the Court indicated that the result may have been otherwise if the picketing had violated- a statute that regulated traffic or a law that reasonably limited hours in which an area was open to the public, Edwards v. South Carolina, supra, 372 U. S. at 236 , or if the picketing obstructed traffic, involved violence or caused a threat of violence, Henry v. Rock Hill, supra, 376 U. S. at 777. See also Cox v. Louisiana, 379 U. S. 536, 544-551 , 85 S. Ct. 453 , 13 L.Ed.2d 471 (1965). Similarly, when the petitioner’s members distributed leaflets in a peaceful, orderly manner ³¹³ and did not precipitate fights, obstruct vehicular or pedestrian traffic or breach the peace, an injunction forbidding them from picketing or handing out their leaflets anywhere within the town limits was held to infringe upon rights protected by the First and Fourteenth Amendments, Organization For a Better Austin v. Keefe, 402 U. S. 415 , 91 S. Ct. 1575 , 29 L.Ed.2d 1 (1971).

On the other hand, statutes that are narrowly drawn to regulate specified conduct involved in certain picketing have been held to be constitutionally permissible. In Cameron v. Johnson, 390 U. S. 611, 616 , 88 S. Ct. 1335 , 20 L.Ed.2d 182 (1968), the Court upheld a statute which prohibited picketing that interfered with free ingress and egress with respect to public facilities, pointing out that “the statute clearly and precisely delineates its reach” and “is ‘a precise and narrowly drawn regulatory statute evincing a legislative judgment that certain specific conduct be .. . proscribed.’ ” Furthermore, picketing that involves trespass on private property is not protected under the First and Fourteenth Amendments. See Hudgens v. NLRB, 424 U. S. 507 , 96 S. Ct. 1029 , 47 L.Ed.2d 196 (1976); Lloyd Corp. v. Tanner, 407 U. S. 551 , 92 S. Ct. 2219 , 33 L.Ed.2d 131 (1972); see also Adderley v. Florida, 385 U. S. 39 , 87 S. Ct. 242 , 17 L.Ed.2d 149 (1966). In the second Cox v. Louisiana case, 379 U. S. 559 , 85 S. Ct. 476 , 13 L.Ed.2d 487 (1965), the Court held valid a statute prohibiting picketing near a courthouse for the purpose of influencing a judicial decision, saying (379 U. S. at 562, 85 S. Ct. at 479): “This statute, unlike the two previously considered, is a precise, narrowly drawn regulatory statute which proscribes certain specific behavior.

Cf. Edwards v. South Carolina, 372 U.S. 229, 236 , 83 S.Ct. 680, 683 , 9 L.Ed.2d 697 . It prohibits a particular type of conduct, namely, picketing and parading, in a few specified locations, in or near courthouses. “There can be no question that a State has a legitimate interest in protecting its judicial system ³¹⁴ from the pressures which picketing near a courthouse might create.” In the instant case, the State’s principal reliance is on Mr. Justice Black’s concurring opinion in Gregory v. Chicago, 394 U. S. 111 , 89 S. Ct. 946 , 22 L.Ed.2d 134 (1969), in which the Court reversed a conviction for disorderly conduct based upon conduct consisting solely of a peaceful and orderly march to the mayor’s residence. The State quotes the following passages from Justice Black’s concurring opinion: “[N]o mandate in our Constitution leaves States and governmental units powerless to pass laws to protect the public from the kind of boisterous and threatening conduct that disturbs the tranquility of spots selected by the people either for homes, wherein