The principal inquiry in determining content neutrality, in speech cases generally and in time, place, or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys. The government's purpose is the controlling consideration. A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others.
It is the intent of this ordinance to protect the public health, safety, and welfare of the citizens of Lincoln, Nebraska, and the good order of the community, by preserving the right of privacy and the feeling of well-being and tranquility which the members of the community should enjoy in their dwellings. The practice of focused picketing before or about a dwelling, targeted at the occupant or occupants of such dwelling, causes emotional disturbance and distress to the occupant or occupants, disturbs the sense of peace and tranquility traditionally enjoyed by individuals in their dwellings, and obstructs and interferes with the free use of public sidewalks and public streets. Focused picketing before or about residences or dwellings has, as its object, the harassment of the occupants of the targeted dwelling or residence. Without resort to this practice, full opportunity exists and will continue to exist, in other appropriate locations, for the free flow of ideas, and the exercise of freedom of speech or expression and other constitutional rights.
The only protected activity the ordinance prohibits is picketing directly in front of the targeted resident's home and directly in front of the house on each side of the targeted residence. “Picketing” does not require that the protesters carry a sign, Frisby, 487 U.S. at 483, 108 S.Ct. at 2501–02, and “picketing” can include a wide variety of activities, including prayer, see id. at 486, 108 S.Ct. at 2503 (defining the conduct falling within the picketing ordinance as conduct not for the purpose of disseminating a message to the general public, but for the purpose of intruding on the targeted resident). The protesters can picket, march, preach, or pray anywhere in the residential area except in the three-structure zone. Indeed, the protesters can picket, march, preach, or pray directly across the street from the targeted house and the house on each side of the targeted house. The ordinance preserves ample alternative channels of communication.
A Menlo Park police officer attempting to enforce this ban must evaluate a myriad of factors: the driver's choice of a prominent or obscure parking space; the amount of vehicular and pedestrian traffic around the chosen parking space; the presence of any other vehicles, trees, shrubs, or buildings that block the views of passersby; the size, color, design, and shape of the signs; and the placement of the signs on the car. With this range of factors to consider, there is the danger that a police officer might resort to enforcing the ordinance only against cars with signs whose messages the officer or the public dislikes.
The concept of “substantial overbreadth” is not readily reduced to an exact definition. It is clear, however, that the mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an overbreadth challenge. [footnote omitted] On the contrary, the requirement of substantial overbreadth stems from the underlying justification for the overbreadth exception itself—the interest in preventing an invalid statute from inhibiting the speech of third parties who are not before the Court.
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