At issue in this case is the constitutionality under the First and Fourteenth Amendments of a state statute that generally bars picketing of residences or dwellings, but exempts from its prohibition "the peaceful picketing of a place of employment involved in a labor dispute."
On September 6, 1977, several of the appellees, all of whom are members of a civil rights organization entitled the Committee Against Racism, participated in a peaceful demonstration on the public sidewalk in front of the home of Michael Bilandic, then Mayor of Chicago, protesting his alleged failure to support the busing of schoolchildren to achieve racial integration. They were arrested and charged with unlawful residential picketing in violation of Ill. Rev. Stat., ch. 38, § 21.1-2 (1977), which provides:
In April 1978, appellees commenced this lawsuit in the United States District Court for the Northern District of Illinois, seeking a declaratory judgment that the Illinois residential picketing statute is unconstitutional on its face and as applied, and an injunction prohibiting defendants—various state, county, and city officials—from enforcing the statute. Appellees did not attempt to attack collaterally their earlier state-court convictions, but requested only prospective relief. Alleging that they wished to renew their picketing in residential neighborhoods but were inhibited from doing so by the threat of criminal prosecution under the residential picketing statute, appellees challenged the Act under the First and Fourteenth Amendments as an overbroad, vague, and, in light of the exception for labor picketing, impermissible content-based restriction on protected expression. The District Court, ruling on cross-motions for summary judgment, denied all relief. Brown v. Scott, 462 F.Supp. 518 (1978).
The Court of Appeals for the Seventh Circuit reversed. Brown v. Scott, 602 F.2d 791 (1979). Discerning "no principled basis" for distinguishing the Illinois statute from a similar picketing prohibition invalidated in Police Department of Chicago v. Mosley, 408 U.S. 92 (1972), the court concluded that the Act's differential treatment of labor and nonlabor picketing could not be justified either by the important state
As the Court of Appeals observed, this is not the first instance in which this Court has had occasion to consider the constitutionality of an enactment selectively proscribing peaceful picketing on the basis of the placard's message. Police Department of Chicago v. Mosley, supra, arose out of a challenge to a Chicago ordinance that prohibited picketing in front of any school other than one "involved in a labor dispute."
There can be no doubt that in prohibiting peaceful picketing on the public streets and sidewalks in residential neighborhoods, the Illinois statute regulates expressive conduct that falls within the First Amendment's preserve. See, e. g., Thornhill v. Alabama, 310 U.S. 88 (1940); Gregory v. Chicago, 394 U.S. 111, 112 (1969); Shuttlesworth v. Birmingham, 394 U.S. 147, 152 (1969). "Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions." Hague v. CIO, 307 U.S. 496, 515 (1939) (opinion of Roberts, J.). "`[S]treets, sidewalks, parks, and other similar public places are so historically associated with the exercise of First Amendment rights that access to them for the purpose of exercising such rights cannot constitutionally be denied broadly and absolutely.'" Hudgens v. NLRB, 424 U.S. 507, 515 (1976) (quoting Food Employees v. Logan Valley Plaza, 391 U.S. 308, 315 (1968)).
Nor can it be seriously disputed that in exempting from its general prohibition only the "peaceful picketing of a place of employment involved in a labor dispute," the Illinois statute discriminates between lawful and unlawful conduct based upon the content of the demonstrator's communication.
In these critical respects, then, the Illinois statute is identical to the ordinance in Mosley, and it suffers from the same constitutional infirmities. When government regulation discriminates among speech-related activities in a public forum, the Equal Protection Clause mandates that the legislation be finely tailored to serve substantial state interests, and the justifications
Moreover, it is the content of the speech that determines whether it is within or without the statute's blunt prohibition.
Appellant nonetheless contends that this case is distinguishable from Mosley. He argues that the state interests here are especially compelling and particularly well served by a statute that accords differential treatment to labor and nonlabor picketing. We explore in turn each of these interests, and the manner in which they are said to be furthered by this statute.
Appellant explains that whereas the Chicago ordinance sought to prevent disruption of the schools, concededly a "substantial" and "legitimate" governmental concern, see id., at 99, 100, the Illinois statute was enacted to ensure privacy in the home, a right which appellant views as paramount in our constitutional scheme.
We find it unnecessary, however, to consider whether the State's interest in residential privacy outranks its interest in quiet schools in the hierarchy of societal values. For even
First, the generalized classification which the statute draws suggests that Illinois itself has determined that residential privacy is not a transcendent objective: While broadly permitting all peaceful labor picketing notwithstanding the disturbances it would undoubtedly engender, the statute makes no attempt to distinguish among various sorts of nonlabor picketing on the basis of the harms they would inflict on the privacy interest. The apparent overinclusiveness and underinclusiveness of the statute's restriction would seem largely to undermine appellant's claim that the prohibition of all nonlabor picketing can be justified by reference to the State's interest in maintaining domestic tranquility.
More fundamentally, the exclusion for labor picketing cannot be upheld as a means of protecting residential privacy for the simple reason that nothing in the content-based labor-nonlabor distinction has any bearing whatsoever on privacy. Appellant can point to nothing inherent in the nature of peaceful labor picketing that would make it any less disruptive of residential privacy than peaceful picketing on issues of broader social concern. Standing alone, then, the State's asserted interest in promoting the privacy of the home is not sufficient to save the statute.
The second important objective advanced by appellant in support of the statute is the State's interest in providing special protection for labor protests. He maintains that federal
The central difficulty with this argument is that it forth-rightly presupposes that labor picketing is more deserving of First Amendment protection than are public protests over other issues, particularly the important economic, social, and political subjects about which these appellees wish to demonstrate. We reject that proposition. Cf. T. Emerson, The System of Freedom of Expression 444-449 (1970) (suggesting that nonlabor picketing is more akin to pure expression than labor picketing and thus should be subject to fewer restrictions). Public-issue picketing, "an exercise of . . . basic constitutional rights in their most pristine and classic form,"
Appellant's final contention is that the statute can be justified by some combination of the preceding objectives. This argument is fashioned on two different levels. In its elemental formulation, it posits simply that a distinction between labor and nonlabor picketing is uniquely suited to furthering the legislative judgment that residential privacy should be preserved to the greatest extent possible without also compromising the special protection owing to labor picketing. In short, the statute is viewed as a reasonable attempt to accommodate the competing rights of the homeowner to enjoy his privacy and the employee to demonstrate over labor disputes.
The second and more complex formulation of appellant's position characterizes the statute as a carefully drafted attempt to prohibit that picketing which would impinge on residential privacy while permitting that picketing which would not. In essence, appellant asserts that the exception for labor picketing does not contravene the State's interest in preserving residential tranquility because of the unique character of a residence that is a "place of employment." By "inviting" a worker into his home and converting that dwelling into a place of employment, the argument goes, the resident has diluted his entitlement to total privacy. In other words, he has "waived" his right to be free from picketing with respect to disputes arising out of the employment relationship, thereby justifying the statute's narrow labor exception at those locations.
We therefore conclude that appellant has not successfully distinguished Mosley. We are not to be understood to imply, however, that residential picketing is beyond the reach of uniform and nondiscriminatory regulation. For the right to communicate is not limitless. E. g., Cox v. Louisiana, 379 U.S. 536, 554-555 (1965); Cox v. Louisiana, 379 U.S. 559, 563-564 (1965).
Moreover, we have often declared that "[a] state or municipality may protect individual privacy by enacting reasonable time, place, and manner regulations applicable to all speech irrespective of content." Erznoznik v. City of Jacksonville, 422 U.S. 205, 209 (1975) (emphasis supplied). See, e. g., Cox v. New Hampshire, 312 U.S. 569 (1941); Kovacs v. Cooper, 336 U.S. 77 (1949); Poulos v. New Hampshire, 345 U.S. 395 (1953); Cox v. Louisiana, 379 U. S., at 554; Grayned v. City of Rockford, 408 U.S. 104 (1972). In sum, "no 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,
Preserving the sanctity of the home, the one retreat to which men and women can repair to escape from the tribulations of their daily pursuits, is surely an important value. Our decisions reflect no lack of solicitude for the right of an individual "to be let alone" in the privacy of the home, "sometimes the last citadel of the tired, the weary, and the sick." Id., at 125 (Black, J., concurring). See generally Stanley v. Georgia, 394 U.S. 557 (1969); Rowan v. United States Post Office Dept., 397 U.S. 728 (1970); FCC v. Pacifica Foundation, 438 U.S. 726 (1978); Payton v. New York, 445 U.S. 573 (1980). 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 crucial question, however, is whether [the Illinois' statute] advances that objective in a manner consistent with the command of the Equal Protection Clause.' Reed v. Reed, 404 U. S. , 76 [(1971)]." Police Department of Chicago v. Mosley, 408 U. S., at 99. And because the statute discriminates among pickets based on the subject matter of their expression, the answer must be "No."
The judgment of the Court of Appeals is
MR. JUSTICE STEWART, concurring.
The opinion of the Court in this case, as did the Court's opinion in Police Department of Chicago v. Mosley, 408 U.S. 92, invokes the Equal Protection Clause of the Fourteenth Amendment as the basis of decision. But what was actually at stake in Mosley, and is at stake here, is the basic meaning of the constitutional protection of free speech:
It is upon this understanding that I join the opinion and judgment of the Court.
MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN join, dissenting.
I address the merits of the Court's constitutional decision first, although I also seriously question the appellees' standing to assert the grounds for invalidity on which the Court apparently relies.
Dissenting opinions are more likely than not to quarrel with the Court's exposition of the law, but my initial quarrel is with the accuracy of the Court's paraphrasing and selective quotation from the Illinois statute. The complete language of the statute, set out accurately in the text of the Court's opinion, reveals a legislative scheme quite different from that described by the Court in its narrative paraphrasing of the enactment.
The statute provides that residential picketing is prohibited, but goes on to exempt four categories of residences from this general ban. First, if the residence is used as a "place
Only through this mischaracterization of the Illinois statute may the Court attempt to fit this case into the Mosley rule prohibiting regulation on the basis of "content alone." (Emphasis added.) Police Department of Chicago v. Mosley, 408 U.S. 92, 96 (1972). For in Mosley, the sole determinant of an individual's right to picket near a school was the content of the speech. As the Court today aptly observes, such a regulation warrants exacting scrutiny. In contrast, the principal determinant of a person's right to picket a residence in Illinois is not content, as the Court suggests, but rather the character of the residence sought to be picketed. Content is relevant only in one of the categories established by the legislature.
The cases appropriate to the analysis therefore are those establishing the limits on a State's authority to impose time, place, and manner restrictions on speech activities. Under this rubric, even taking into account the limited content distinction made by the statute, Illinois has readily satisfied its constitutional obligation to draft statutes in conformity with First Amendment and equal protection principles. In fact, the very statute which the Court today cavalierly invalidates has been hailed by commentators as "an excellent model" of
Here, where Illinois has drafted such a statute, avoiding an outright ban on all residential picketing, avoiding reliance on any vague or discretionary standards, and permitting categories of permissible picketing activity at residences where the State has determined the resident's own actions have substantially reduced his interest in privacy, the Court in response confronts the State with the "Catch-22" that the less restrictive categories are constitutionally infirm under principles of equal protection. Under the Court's approach today, the State would fare better by adopting more restrictive means, a judicial incentive I had thought this Court would hesitate to afford. Either that, or uniform restrictions will be found invalid under the First Amendment and categorical exceptions found invalid under the Equal Protection Clause, with the result that speech and only speech will be entitled to protection. This can only mean that the hymns of praise in prior opinions celebrating carefully drawn statutes are no
Equally troublesome is the methodology by which these difficult questions of constitutional law have been reached. The Court today figuratively walked a country mile to find a potential unconstitutional application of this statute, and it is primarily on that potential which the total nullification of this statute rests. Just because it is a statute which is in issue does not relieve this Court of its duty to decide only the concrete controversy presented by the case. As discussed below, I think it quite clear that the statute does not prohibit the appellees in this action from engaging in conduct which must be protected under the First Amendment, the state interests would not be satisfied by a statute employing less restrictive means, the statute is not facially overbroad by prohibiting conduct which clearly must be permitted under the First Amendment, and the appellees have not themselves been denied equal protection because they do not seek to picket under circumstances which are indistinguishable from the circumstances where picketing is allowed. Only by speculating that there might be an individual or group that will be denied equal protection by the statute can the Court invalidate it. This is speculation this Court is not permitted to indulge in when nullifying the acts of a legislative branch.
The Illinois statute in issue simply does not contravene the First Amendment.
Repeatedly, this Court has upheld state authority to restrict the time, place, and manner of speech, if those regulations "protect a substantial governmental interest unrelated to the suppression of free expression" and are narrowly tailored, limiting the restrictions to those reasonably necessary to protect the substantial government interest. Brown v. Glines,
The interest which the State here seeks to protect is residential privacy, as clearly demonstrated by the legislature's statement of purpose. Ante, at 464, n. 8. When a residence is used for exclusively residential purposes, the State recognizes no exception to the ban on picketing. As in this case, it has not been asserted that Mayor Bilandic's home fell into any category other than a residence used solely for residential purposes. The appellees nevertheless assert that their interest in publicizing their opinions on the issue of school integration outweigh the State's asserted interest in protecting residential privacy.
Our cases simply do not support such a construction of the First Amendment. In Kovacs v. Cooper, 336 U.S. 77, 81 (1949), the state interest in preventing interference with the "social activities in which [city residents] are engaged or the quiet that they would like to enjoy" warranted the prohibition of sound trucks on residential streets. In Rowan v. United States Post Office Dept., 397 U.S. 728, 736 (1970), this Court held that "[t]he right of every person 'to be let alone' must be placed in the scales with the right of others to communicate." The Court recognized a "very basic right to be free from sights, sounds, and tangible matter we do not want" in the home. Ibid. These interests were sufficient to justify a resident's ability to absolutely preclude delivery of unwanted mail to his address. Similarly, in FCC v. Pacifica Foundation, 438 U.S. 726, 748 (1978), the Court found that an offensive broadcast could be absolutely banned from the airwaves because it "confronts the citizen, not only in public, but also in the privacy of the home, where the individual's right to be left alone plainly outweighs the First Amendment rights of an intruder." Under these authorities, the appellees
Nor can it be said that the state interest could be fully protected by a less restrictive statute. An absolute ban on picketing at residences used solely for residential purposes permissibly furthers the state interest in protecting residential privacy. The State could certainly conclude that the presence of even a solitary picket in front of a residence is an intolerable intrusion on residential privacy. The Court today suggests that some picketing activities would have but a "negligible impact on privacy interests," intimating that Illinois could satisfy its interests through more limited restrictions on picketing, such as regulating the hours and numbers of pickets. Ante, at 469. But I find nothing in the cases of this Court to suggest that a State may not permissibly conclude that even one individual camped in front of the home is unacceptable. It is the State, and not this Court, which legislates to prohibit evils which its citizens find unescapable, subject only to the limitations of the United States Constitution. Unlike sound trucks, it is not just the distraction of the noise which is in issue—it is the very presence of an unwelcome visitor at the home. As a Wisconsin court described in Wauwatosa v. King, 49 Wis.2d 398, 411-412, 182 N.W.2d 530, 537 (1971):
Whether noisy or silent, alone or accompanied by others, whether on the streets or on the sidewalk, I think that there are few of us that would feel comfortable knowing that a
Thus the appellees cannot secure the invalidation of this statute by urging that they seek to engage in expression which must be protected by the First Amendment or by demonstrating that a statute less restrictive of picketing would satisfy the state interest. On occasion this Court has, of course, permitted invalidation of a statute even though the plaintiff's conduct was not protected if the statute clearly "sweeps within its prohibitions what may not be punished under the First . . . Amendmen[t]." Grayned v. City of Rockford, 408 U.S. 104, 114-115 (1972).
But this statute satisfies even the overbreadth challenge. It is arguable that when a resident has voluntarily used his home for nonresidential uses in a way which reduces the resident's privacy interest, and the person seeking to picket the home has no alternative forum for effectively airing the grievance because it relates to this nonresidential use of the home, some form of residential picketing might be protected under the First Amendment. The courts which have found general prohibitions on residential picketing to be permissible under the First Amendment have considered the question more difficult under such circumstances. For example, in Walinsky v. Kennedy, 94 Misc.2d 121, 404 N.Y.S.2d 491 (1977), the
Similarly, in Hibbs v. Neighborhood Organization to Rejuvenate Tenant Housing, 433 Pa. 578, 580, 252 A.2d 622, 623-624 (1969), the court found that a slumlord could be picketed at his home, but only because he effectively operated his business out of his residence and no other alternative situs was available to air the dispute. This Court has intimated a similar concern in dicta in Senn v. Tile Layers, 301 U.S. 468 (1937). There the right of laborers under a state statute to picket the residence of an employer who operated his business in his home was upheld, and the Court went on to say that "[m]embers of a union might, without special statutory authorization by a state, make known the facts of a labor dispute, for freedom of speech is guaranteed by the Federal Constitution." Id., at 478.
I would by no means say without more that the State would have to permit such residential picketing, but such circumstances would, as the courts have found, present the greatest potential for a complaint of overbreadth. The State in the present case has forestalled any such challenge, however, by exempting such groups from the ban on residential picketing. Whether required by the Constitution or not, such exemptions are the concern of this Court only if they violate the Constitution. This Court in fact upheld enforcement of a statute permitting similar residential picketing in Senn v. Tile Layers, supra. Since the State has a legitimate interest in protecting speech activity and in particular, providing a forum where no other is reasonably available, excluding residences used for nonresidential purposes from the general
Even though the statute does not prohibit conduct which is protected, the statute must also survive the hurdle of the Equal Protection Clause of the Fourteenth Amendment. By choosing a less-restrictive-means approach and excluding pickets at residences used for nonresidential purposes from the general prohibition, the Court concludes the State has violated equal protection. I do not think this result can be sustained because the appellees have not been denied equal protection and that is the only question this Court may properly review.
Police Department of Chicago v. Mosley, 408 U.S. 92 (1972), states a standard by which equal protection requirements in the First Amendment context must be measured. The Court in that case identified the "crucial question" as "whether there is an appropriate governmental interest suitably furthered by the differential treatment" of the appellees' picketing. Id., at 95. The interest asserted by the city was the prevention of disruption in the schools. Thus the statute, to satisfy Mosley, should have prohibited all picketing which could reasonably be categorized as disruptive. Yet the ordinance permitted labor picketing while prohibiting picketing relating to race discrimination (and all other nonlabor topics), even though both forms of picketing were equally disruptive.
Thus the question is whether the State has a substantial interest in differentiating between the picketing which appellees seek to conduct and the picketing which is permitted under the statute. For equal protection does not require that "things which are different in fact . . . be treated in law
Our cases clearly support a State's authority to design the permissibility of picketing in relation to the use to which a particular building is put. As stated in Grayned v. City of Rockford, 408 U. S., at 116: "The nature of a place, `the pattern of its normal activities, dictate the kinds of regulations of time, place, and manner that are reasonable.' . . . The crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time." The fact that all areas could be classified as school grounds, however, would not mean that all school grounds had to be subject to the same restrictions. As the Court in Grayned noted: "Different considerations, of course, apply in different circumstances. For example, restrictions
Despite the state interest in treating residences which are used for nonresidential purposes differently from residences which are not, the Court finds that the categories are improper because there is an element of content regulation in the statutory scheme. While content is clearly not the principal focus of the statutory categories, since content is only relevant in the one subcategory of "places of employment," the content restriction is quite clearly related to a legitimate state purpose. When an individual hires an employee to perform services in his home, it would not seem reasonable to conclude that the resident had so greatly compromised his residential status so as to permit picketing on any subject. The State may quite properly decide that the balance is better struck by the rule embodied in this statute which recognizes a more limited waiver of privacy interests by allowing only picketing relating to any labor dispute involving the resident as employer which has arisen out of the resident's choice of using his residence as a place of employment.
Content regulation, when closely related to a permissible state purpose, is clearly permitted. Surely the Court would not prohibit a city from preventing an individual from interrupting an orderly city council discussion of public housing to orate on the vices or virtues of nuclear power. Yet this is
This differentiation is supported by Cox v. Louisiana, 379 U.S. 559 (1965). There the Court upheld a state prohibition on picketing in front of a government building which was used as a courthouse if the content of the picketing could be presumed to demonstrate an intent to influence the judiciary. In Cox then, because of the nature of the state interest invoked, both the content of the picketing as well as the use of the building were considered determinative. The Court noted that if a mayor had an office in the courthouse and individuals were picketing on a topic relevant to the mayor, rather than the judiciary, then the speech would be permissible. Thus use and content, or as MR. JUSTICE STEVENS stated for the plurality in Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976), "content and context" are important determinants. As in Cox, a State need not treat residences which are used for different purposes in the same fashion, and when reasonably related to the state purpose, distinctions in content are permissible. See also FCC v. Pacifica Foundation, 438 U.S. 726 (1978); Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975); Young v. American Mini Theatres, supra.
The question, therefore, is not whether there is some differentiation on the basis of content, but whether the appellees' prohibited conduct can be said to share the same characteristics of the conduct which is permitted. The Court devotes less than one page to what purports to be an equal protection analysis of this determinative question. In fact, only one sentence relates to the differences between the litigants in this case and the permitted picketing:
First, it is unclear whether the Illinois statute would be construed to permit the type of labor picketing described in the Court's example where the dispute is not between the employer and the employee.
The Court makes little effort to establish that the appellees seek to picket under circumstances which are indistinguishable from the picketing permitted under the statute. Instead, it places the fulcrum of its equal protection argument on the fact that there might well be other actions of homeowner which would constitute a "nonresidential" use of his property, warranting additional statutory exceptions. While I am not persuaded that the Court has identified an example of another picket who should likewise be permitted to picket under the justification forwarded by the State,
As we stated in Grayned, standing to challenge an ordinance which has been constitutionally applied to the plaintiff is permitted because otherwise the statute, if allowed to stand until a later challenge, will "deter privileged activity." 408 U. S., at 114. In the equal protection context, however, we are not concerned that conduct which must be permitted under the First Amendment will be prohibited, but only that conduct which could be and is properly prohibited be permitted if indistinguishable from other permitted conduct. The impact on speech is therefore a minimal one, while the jurisprudential considerations for declining to consider alternative applications loom large.
In Barrows v. Jackson, 346 U.S. 249, 256 (1953), an equal protection case, the Court identified the ordinary rule that, "even though a party will suffer a direct substantial injury
More recently in Craig v. Boren, 429 U.S. 190, 193 (1976), we emphasized that standing is "designed to minimize unwarranted intervention into controversies where the applicable constitutional questions are ill-defined and speculative." Sound principles of standing simply do not permit this Court to entertain any claim by the appellees in this action that someone other than themselves might be denied equal protection by the operation of the statute. See also Young v. American Mini Theatres, Inc., 427 U. S., at 58-59, 60; Broadrick v. Oklahoma, 413 U.S. 601 (1973). This consideration is particularly compelling in this case since the appellees had an opportunity to seek a limiting construction of the statute by the Illinois courts when originally prosecuted for their picketing, but chose to plead guilty instead, thereby denying the one court system that could authoritatively limit the statute the opportunity to do so.
Even if this Court could properly take cognizance of the fact that some identifiable person not clearly encompassed in the statutory categories permitting picketing should also be
I can conclude this dissent with no more apt words than those of Mr. Justice Frankfurter in his concurring opinion in Kovacs v. Cooper, 336 U. S., at 97: "[I]t is not for us to supervise the limits the legislature may impose in safeguarding the steadily narrowing opportunities for serenity and reflection."
At least four other States have enacted antiresidential picketing laws similar in form to this statute. See Ark. Stat. Ann. §§ 41-2966 to 41-2968 (1977); Conn. Gen. Stat. § 31-120 (1979); Haw. Rev. Stat. § 379A-1 (1976); Md. Ann. Code, Art. 27, § 580A (1976). Connecticut's law has been construed to permit all picketing in a residential area except for labor picketing that is not conducted at the situs of a labor dispute. State v. Anonymous, 6 Conn. Cir. 372, 274 A.2d 897 (App. Div. 1970); DeGregory v. Giesing, 427 F.Supp. 910 (Conn. 1977) (three-judge court). The Maryland statute was declared unconstitutional by the Maryland Court of Appeals in State v. Schuller, 280 Md. 305, 372 A.2d 1076 (1977). See also People Acting Through Community Effort v. Doorley, 468 F.2d 1143 (CA1 1972) (invalidating municipal ordinance virtually identical to the Illinois residential picketing statute); but see Wauwatosa v. King, 49 Wis.2d 398, 182 N.W.2d 530 (1971) (upholding validity of similar ordinance).
"A person commits disorderly conduct when he knowingly:
"(i) Pickets or demonstrates on a public way within 150 feet of any primary or secondary school building while the school is in session and one-half hour before the school is in session and one-half hour after the school session has been concluded, provided that this subsection does not prohibit the peaceful picketing of any school involved in a labor dispute. . . ." (Emphasis supplied.)
The Court of Appeals, in reversing the District Court, refused to adopt the lower court's interpretation of the statute. Rather, it read the "place of employment" exception to divide "residences and dwellings" into but two categories—those at which picketing is lawful (i. e., all places of employment involved in labor disputes) and those at which it is unlawful (i. e., all other residences and dwellings). Brown v. Scott, 602 F. 2d, at 793-794. We accept the construction of the Court of Appeals. Appellees sought to picket at a residence and were denied permission to do so. They clearly have standing to attack the statutory classification on which that denial was premised. Indeed, appellant does not challenge the Court of Appeals' interpretation of the statute. Tr. of Oral Arg. 13, and he concedes that this restriction is content-based, id., at 21.
"Standing, patrolling, or marching back and forth on streets is conduct, not speech, and as conduct can be regulated or prohibited. But by specifically permitting picketing for the publication of labor union views, Louisiana is attempting to pick and choose among the views it is willing to have discussed on its streets. It thus is trying to prescribe by law what matters of public interest people whom it allows to assemble on its streets may and may not discuss. This seems to me to be censorship in a most odious form, unconstitutional under the First and Fourteenth Amendments. And to deny this appellant and his group use of the streets because of their views against racial discrimination, while allowing other groups to use the streets to voice opinions on other subjects, also amounts, I think, to an invidious discrimination forbidden by the Equal Protection Clause of the Fourteenth Amendment."
See also Erznoznik v. City of Jacksonville, 422 U.S. 205, 209, 215 (1975); Hudgens v. NLRB, 424 U.S. 507, 520 (1976); Madison Joint School District No. 8 v. Wisconsin Employment Relations Comm'n, 429 U.S. 167, 175-176 (1976); First National Bank of Boston v. Bellotti, 435 U.S. 765, 784-785 (1978); Consolidated Edison Co. v. Public Service Comm'n, post, at 536-538.
"The Legislature finds and declares that men in a free society have the right to quiet enjoyment of their homes; that the stability of community and family life cannot be maintained unless the right to privacy and a sense of security and peace in the home are respected and encouraged; that residential picketing, however just the cause inspiring it, disrupts home, family and communal life; that residential picketing is inappropriate in our society, where the jealously guarded rights of free speech and assembly have always been associated with respect for the rights of others. For these reasons the Legislature finds and declares this Article to be necessary." Ill. Rev. Stat., ch. 38, § 21.1-1 (1977).
"No restraining order or injunction shall be granted by any court of this State . . . in any case involving or growing out of a dispute concerning terms or conditions of employment, enjoining or restraining any person or persons, either singly or in concert, . . . from peaceably and without threats or intimidation being upon any public street, or thoroughfare or highway for the purpose of obtaining or communicating information, or to peaceably and without threats or intimidation persuade any person or persons to work or to abstain from working, or to employ or to peaceably and without threats or intimidation cease to employ any party to a labor dispute, or to recommend, advise, or persuade others so to do."
Even assuming that a content-based distinction might in some cases be permissible on these grounds, but see Schneider v. State, 308 U.S. 147, 163 (1939) ("one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place"), this is not such a case because the Illinois statute is seriously underinclusive in this respect. It singles out for special protection only one of the many sorts of picketing which must be carried out in residential neighborhoods or not at all. Protests arising out of landlord-tenant relationships, zoning disputes, and historic preservation issues are just some of the many demonstrations that bear a direct relation to residential neighborhoods. See generally Comment, Picketers at the Doorstep, 9 Harv. Civ. Rights—Civ. Lib. L. Rev. 95, 101-102, 106 (1974). Indeed, appellees themselves assert that they want to engage in residential picketing because it is the only effective means they have of communicating their concern about the issue of busing to the desired neighborhood audience. Yet the Illinois statute bars all of these groups from picketing in residential areas while those wishing to picket at the site of a labor dispute are permitted to do so.
The Court's citation of lawn decorations as a waiver of residential privacy seems odd since that act does not involve the voluntary admission of strangers into the home for some nonresidential purposes—a characteristic shared by each of the other exceptions. Ante, at 469. The Court's citation of a political party meeting is also distinguishable since this example does not share the commercial attributes of the other exemptions— where "nonresidential use" seems most readily found. An alternative forum would also not seem difficult to obtain in those circumstances.