Tuesday, September 19, 2006
Ninth Circuit Upholds Restrictions on Residential Picketing
By KENNETH OFGANG, Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday upheld a San Diego County ordinance barring picketing within 300 feet of a residence in the county’s unincorporated areas.
“[W]e conclude that the ordinance is not unconstitutional in every conceivable application and is not unconstitutionally vague,” Judge Harry Pregerson wrote for the court.
The panel upheld a ruling by U.S. District Judge Rudi Brewster of the Southern District of California, who dismissed a suit by several disability rights advocates who sued the county after being threatened with arrest while marching around the block where August Caires lives.
Impact Of Ordinance
The protesters said Caires, general manager of the Padre Dam Municipal Water District, showed insensitivity by failing to discipline a district employee who, at a water board meeting, ridiculed a board member who suffers from Bells-Palsy by making a facial gesture and mimicking him.
The county later acknowledged that its officers were in error when they told the plaintiffs they could not demonstrate within 300 feet of Caires’ property line; the ordinance bars picketing within 300 feet of a dwelling, and Caires’ dwelling was set back more than 300 feet from the property line.
Before ruling on the constitutional challenges to the ordinance, Brewster visited four residence and a football field and had court personnel stand 300 feet away and make noise in order to determine the impact of the ordinance.
Brewster concluded that the plaintiffs lacked standing to challenge the ordinance as applied, and that the enactment was not unconstitutionally vague, because persons of ordinary intelligence could understood how the 300-foot limit was measured and could, if necessary, actually measure the distance using a rangefinder, map, or public record, or could make a legitimate estimate.
The judge also concluded that the ordinance was narrowly tailored to serve the public interest in residential privacy.
Pregerson, writing for the Ninth Circuit, agreed, although he acknowledged problems with the ordinance, including the fact that the 300-foot buffer is greater than those upheld in a number of other circuits. But the court could not, the judge explained, say that such a buffer would unduly restrict picketers’ ability to have their message heard in every instance, as would be required to hold the legislation unconstitutional on its face.
Nor, he wrote, does the ordinance prevent all would-be residential picketers from communicating their message, since they can demonstrate just outside the buffer zone or elsewhere in the neighborhood.
The case is Klein v. San Diego County, 04-55819.
Copyright 2006, Metropolitan News Company