author:
Justice O’Connor
      Justice Marshall,
      Justice Stevens,

text:
    KADRMAS et al. v. DICKINSON PUBLIC SCHOOLS et al.
    No. 86-7113.
    Argued March 30, 1988
    Decided June 24, 1988

      O’Connor, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Scalia, and Kennedy, JJ., joined. Marshall, J., filed a dissenting opinion, in which Brennan, J., joined, post, p. 466. Stevens, J., filed a dissenting opinion, in which Blackmun, J., joined, post, p. 472.

      Duane Houdek argued the cause for appellants. With him on the briefs was Edward B. Reinhardt, Jr.

      George T. Dynes argued the cause and filed a brief for appellees.

      Nicholas J. Spaeth, Attorney General, argued the cause for the State of North Dakota as amicus ■ curiae urging af-firmance. With him on the brief was Laurie J. Loveland, Assistant Attorney General.

      Briefs of amici curiae urging reversal were filed for the American Civil Liberties Union Foundation et al. by C. Edwin Baker, John A. Powell, Helen Hershkoff, Steven R. Shapiro, and Robert Vogel; and for the Children’s Defense Fund et al. by Julius L. Chambers and John Charles Boger.

        Solicitor General Fried, Assistant Attorney General Reynolds, Deputy Solicitor General Ayer, Deputy Assistant Attorney General Clegg, Paul J. Larkin, Jr., and David K. Flynn filed a brief for the United States as amicus curiae urging affirmance. .

   Justice O’Connor

delivered the opinion of the Court.

Appellants urge us to hold that the Equal Protection Clause forbids a State to allow some local school boards, but not others, to assess a fee for transporting pupils between their homes and the public schools. Applying well-established equal protection principles, we reject this claim and affirm the constitutionality of the challenged statute.

HH

North Dakota is a sparsely populated State, with many people living on isolated farms and ranches. One result has been that some children, as late as the mid-20th century, were educated in “the one-room school where, in many cases, there [we]re twenty or more pupils with one teacher attempting in crowded conditions and under other disadvantages to give instructions in all primary grades.” Herman v. Medicine Lodge School Dist. No. 8, 71 N. W. 2d 323, 328 (N.D. 1955). The State has experimented with various ameliorative devices at different times in its history. Beginning in 1907, for example, it has adopted a series of policies that “in certain circumstances required and in other circumstances merely authorized [local public] school districts to participate in transporting or providing compensation for transporting students to school.” 402 N. W. 2d 897, 900 (N.D. 1987) (opinion below).

Since 1947, the legislature has authorized and encouraged thinly populated school districts to consolidate or “reorganize” themselves into larger districts so that education can be provided more efficiently. See Herman, supra, at 328; N.D. Cent. Code, ch. 15-27.3 (Supp. 1987). Reorganization proposals, which obviously must contemplate an increase in the distance that some children travel to school, are required by law to include provisions for transporting students back and forth from their homes. ■ See § 15-27.3-10. The details of tírese provisions may vary from, district to district, but once a reorganization plan is adopted the transportation provisions can be changed only with the approval of the voters. See §§15-27.3-10 and 15-27.3-19.

Appellee Dickinson Public Schools, which serves a relatively populous area, has chosen not to participate in such a reorganization. Until 1973, this school system provided free bus service to students in outlying areas, but the “pickup points” for this service were often at considerable distances from the students’ homes. After a plebiscite of the bus users, Dickinson’s School Board instituted door-to-door bus service and began charging a fee. During the period relevant to this case, about 13% of. the students rode the bus; their parents were charged $97 per year for one child or $150 per year for two children. 402 N. W. 2d, at 898. Such fees covered approximately 11% of the cost of providing the bus service, and the remainder was provided from state and local tax revenues. Ibid.

In 1979, the State enacted the legislation at issue in this case. This statute expressly indicates that nonreorganized school districts, like Dickinson, may charge a fee for transporting students to school; such fees, however, may not exceed the estimated cost to the school district of providing the service. See N. D. Cent. Code §15-34.2-06.1 (1981 and Supp. 1987). The current version of this provision, which for convenience will be referred to as the “1979 statute,” states in full:

“Charge for bus transportation optional. ..The school board of any school district which has not been reorganized may charge a fee for schoolbus service provided to anyone riding on buses provided by the school district. For schoolbus service which was started prior to July 1, 1981, the total fees collected may not exceed an amount equal to the difference between the state transportation payment and the state average cost for transportation or the local school district’s cost, whichever is the lesser amount. For schoolbus service started on or after July 1, 1981, the total fees collected may not exceed an amount equal to the difference between the state transportation payment and the local school district’s cost for transportation during the preceding school year. Any districts that have not previously provided transportation for pupils may establish charges based on costs estimated by the school board during the first year that transportation is provided.”

Appellants are a Dickinson schoolchild, Sarita Kadrmas, and her mother, Paula. The Kadrmas family, which also includes Mrs. Kadrmas’ husband and two preschool children, lives about 16 miles from Sarita’s school. Mr. Kadrmas works sporadically in the North Dakota oil fields, and the family’s annual income at the time of trial was at or near the officially defined poverty level. Until 1985, the Kadrmas family had agreed each year to pay the fee for busing Sarita to school. Having fallen behind on these and other bills, however, the family refused to sign a contract obligating them to pay $97 for the 1985 school year. Accordingly, the school bus no longer stopped for Sarita, and the family arranged to transport her to school privately. The costs they incurred that year for Sarita’s transportation exceeded $1,Q00, or about'10 times the fee charged by the school district for bus service. This arrangement continued until the spring of 1987, when Paula Kadrmas signed a bus service contract for the remainder of the 1986 school year and paid part of the fee. Mrs. Kadrmas later signed another contract for the 1987 school year, and paid about half of the fee for that period.

In September 1985, appellants, along with others who have since withdrawn from the case, filed an action in state court seeking to enjoin appellees — the Dickinson Public Schools and various school district officials — from collecting any fee for the bus service. The action was dismissed on the merits, and an appeal was takén to the Supreme Court of North Dakota. After rejecting a state-law challenge, which is not at issue here., the court considered appellants’ claim that, the busing fee violates the Equal Protection Clause of the Fourteenth Amendment. The court characterized the 1979 statute as “purely economic legislation,” which “must be upheld unless it is patently arbitrary and fails to bear a rational relationship to any legitimate government purpose.” 402 N.'W. 2d, at 902. The court then concluded “that the charges authorized [by the statute] are rationally related to the legitimate governmental objective of allocating limited resources and that the statute does not discriminate on the basis of wealth so as to violate federal or state equal protection, rights.” Id., at 903. The court also rejected the contention that the distinction drawn by the statute between reorganized and nonreorganized school districts violates the Equal Protection Clause. The distinction, the court found, serves the legitimate objective of promoting reorganization “by alleviating parental concerns regarding the cost of student transportation in the reorganized district.” Ibid. Three justices dissented on state-law grounds. We noted probable jurisdiction, 484 U. S. 813 (1987), and now affirm.

J — I HH

A

Before addressing the merits, we must consider appellees’ suggestion that this appeal should be dismissed on procedural grounds. After the decision of the Supreme Court of North Dakota in this case, Mrs. Kadrmas signed two bus service contracts and made partial payment on each. Since the execution of the first contract on April 6, 1987, Sarita has been riding the bus to school, or as appellees put it, “has been continuously enjoying the benefits of such bus service.” Motion to Dismiss 1. Relying on Fahey v. Mallonee, 332 U. S. 245 (1947), appellees contend that appellants are “estopped” from pursuing their constitutional claims, because “£i]t is well established that one may not retain benefits of an act while attacking the constitutionality of the same act.” Motion to Dismiss 1-8.

Fahey was a shareholders’ derivative suit in which a savings and loan association created under an Act of Congress sought to challenge the constitutionality of that same Act. This Court refused to consider the challenge, saying: “It would be difficult to imagine a more appropriate situation in which to apply the doctrine that one who utilizes an Act to gain advantages of corporate existence is estopped from questioning the validity of its vital conditions. ” 332 U. S., at 256 (emphasis added). The case before us today is not analogous. Appellants obviously are not creatures of any statute, and we doubt that plaintiffs are generally forbidden to challenge a statute simply because they are deriving some benefit from it. Cf. United States v. San Francisco, 310 U. S. 16, 28-30 (1940); Arnett v. Kennedy, 416 U. S. 134, 152-163 (1974) (plurality opinion). The “benefit” derived by appellants from the challenged statute, moreover, is inapparent. The Dickinson School Board’s authority to provide bus transportation is not given by the challenged statute, but by a different provision of state law. See N. D. Cent. Code § 15-34.2-01 (1981). Nor does the 1979 statute itself authorize the tax-supported subsidies that make the Dickinson school bus particularly attractive to parents in outlying areas. The fee that Dickinson is permitted to charge under the 1979 statute is itself a burden rather than a benefit to appellants, and they are not estopped from raising an equal protection challenge to the statute that imposes that burden on them.

Appellees also assert that execution of the bus service contracts rendered this case “moot.” Brief for Appellees 32. Although appellees do not elaborate this contention or distinguish it from the estoppel argument just considered, they may be suggesting the absence of an Article III “case or controversy.” If so, they are mistaken. Appellants claim that the 1979 statute is unconstitutional to the extent that it authorizes Dickinson to charge a fee for bus service, and they seek to prevent such fees from being collected. A decision in their favor might relieve them from paying the balance still owing under the two contracts that were executed in 1987, and would certainly relieve them from future assessments for bus service under the authority of the challenged statute. Because Sarita was only nine years old at the time of trial, and because there are two younger children in the family, the ongoing and concrete nature of the controversy between appellants and the Dickinson Public Schools is readily apparent.

B

• Unless a statute provokes “strict judicial scrutiny” because it interferes with a “fundamental right” or discriminates against a “suspect class,” it will ordinarily survive an equal protection attack so long as the challenged classification is rationally related to a legitimate governmental purpose. See, e. g., San Antonio Independent School Dist. v. Rodriguez, 411 U. S. 1, 16-17 (1973); Plyler v. Doe, 457 U. S. 202, 216-217 (1982); Lyng v. Automobile Workers, 485 U. S. 360, 370 (1988). Appellants contend that Dickinson’s user fee for bus service unconstitutionally deprives those who cannot afford to pay it of “minimum access to education.” See Brief for Appellants i. Sarita Kadrmas, however, continued to attend school during the time that she was denied access to the school bus. Appellants must therefore mean to argue that the busing fee unconstitutionally places a greater obstacle to education in the path of the poor than it does in the path of wealthier families. Alternatively, appellants may mean to suggest that the Equal Protection Clause affirmatively requires government to provide free transportation to school, at least for some class of students that would include 'Sarita Kadrmas.' Under either interpretation of appellants’ position, we are evidently being urged to apply a form of strict or “heightened” scrutiny to the North Dakota statute. • Doing so would require us to extend the requirements of the Equal Protection Clause beyond the limits recognized in our cases, a step we decline to take.

We have previously rejected the suggestion that statutes having different effects on the wealthy and the poor should on that account alone be subjected to strict equal protection scrutiny. See, e. g., Harris v. McRae, 448 U. S. 297, 322-323 (1980); Ortwein v. Schwab, 410 U. S. 656, 660 (1973). Nor have we accepted the proposition that education is a “fundamental right,” like equality of the franchise, which should trigger strict scrutiny when government interferes with an individual’s access to it. See Papasan v. Allain, 478 U. S. 265, 284 (1986); Plyler v. Doe, supra, at 223; San Antonio Independent School Dist. v. Rodriguez, supra, at 16, 33-36.

Relying primarily on Plyler v. Doe, supra, however, appellants suggest that North Dakota’s 1979 statute should be subjected to “heightened” scrutiny. This standard of review, which is less demanding than “strict scrutiny” but more demanding than the standard rational, relation test, has generally been applied only in . cases that involved discriminatory classifications based on sex or illegitimacy. See, e. g., Clark v. Jeter, 486 U. S. 456, 461 (1988); Mississippi University for Women v. Hogan, 458 U. S. 718, 723-724, and n. 9 (1982); Mills v. Habluetzel, 456 U. S. 91, 101, and n. 8 (1982); Craig v. Boren, 429 U. S. 190, 197 (1976). In Plyler, which did not fit this pattern, the State of Texas had denied to the children of illegal aliéns the free public education that it made available to other residents. Applying a heightened level of equal protection scrutiny, the Court concluded that the State h'ad failed to show that its classification advanced a substantial state interest. 457 U. S., at 217-218, ánd n. 16, 224, 230. We have not extended this holding beyond the “unique circumstances,” id., at 239 (Powell, J., concurring), that provoked its “unique confluence .of theories and rationales,” id., at 243 (Burger, C. J., dissenting). Nor do we think that the case before us today is governed by the holding in Plyler. Unlike the children in that case, Sarita Kadrmas has not been penalized by the government for illegal conduct by her parents. See id, at 220; id., at 238 (Powell, J., concurring). On the. contrary, Sarita was denied access to the school bus only because her parents would, not agree to pay the same user fee charged to all other families that took advantage of the service. Nor'do we see any reason to suppose that this user fee will “promot[e] the creation and perpetuation of a subclass of illiterates within our boundaries, surely adding to the problems and costs' of unemployment,' welfare, and crime’:” Id'., at 239; see also id, at 239 (Powell, J., concurring). Cf. N. D. Cent. Code § 15-43-Í1.2 (1981) (“A [school] board may waive any fee if any pupil or his parent or guardian shall be unable to pay such fees. No pupil’s rights or privileges, including the receipt of grades or diplomas, may be denied or abridged for nonpayment of fees”). The case before us does not resemble Plyler, and we decline to extend the rationale of that decision to cover this case.

Appellants contend, finally, that whatever label is placed on the standard of review, this case is analogous to decisions in which we have held that government may not withhold certain especially important services from those who are unable to pay for them. Appellants cite Griffin v. Illinois, 351 U. S. 12 (1956) (right to appellate review of a criminal conviction conditioned on the purchase of a trial transcript); Smith v. Bennett, 365 U. S. 708 (1961) (application for writ of ha-beas corpus accepted only when accompanied by a filing fee); Boddie v. Connecticut, 401 U. S. 371 (1971) (action for dissolution of marriage could be pursued only upon payment of court fees and costs for service of process); Lindsey v. Normet, 405 U. S. 56 (1972) (appeal from civil judgments in certain landlord-tenant disputes conditioned on the posting of a bond for twice the amount of rent expected to accrue during the appellate process); and Little v. Streater, 452 U. S. 1 (1981) (fee for blood test in quasi-criminal paternity action brought against the putative father of a child receiving public assistance). See Brief for Appellants 22-23.

Leaving aside other distinctions that might be found between these cases and the one before us today, each involved a rule that barred indigent litigants from using the judicial process in circumstances where they had no alternative, to that process. Decisions invalidating such rules are inappo-site here. In contrast to the “utter exclusiveness of court access and court remedy,” United States v. Kras, 409 U. S. 434, 445 (1973), North Dakota does not maintain a legal or a practical monopoly on the means of transporting children to school. Thus, unlike the complaining parties in all the cases cited by appellants,, the Kadrmas family could and did find a private alternative to the public school bus service for which Dickinson charged a fee. That alternative was more expensive, to be sure, and we have no reason to doubt that genuine hardships were endured by the Kadrmas family when Sarita was denied access to the bus. Such facts, however, do not imply that the Equal Protection Clause has been violated. In upholding a filing fee for voluntary bankruptcy actions, for example, we observed: “[Bankruptcy is not the only method available to a debtor for the adjustment of his legal relationship with his creditors. . . . However unrealistic the remedy may be in a particular situation, a debtor, in theory, and often in actuality, may adjust his debts by negotiated agreement with his creditors.” Ibid. Similarly, we upheld a statute that required indigents to pay a filing fee for appellate review of adverse welfare benefits decisions. Ortwein v. Schwab, 410 U. S. 656 (1973). Noting that the case did not involve a “suspect classification,” we held that the “applicable standard is that of rational justification.” Id., at 660. It is plain that the busing fee in this case more closely resembles the fees that were upheld in Kras and Ortwein than it resembles the fees that were invalidated in the cases on which appellants rely. Those cases therefore do not support the suggestion that North Dakota’s 1979 statute violates the Equal Protection Clause.

Applying the appropriate test — under which a statute is upheld if it bears a rational relation to a legitimate government objective — we think it is quite clear that a State’s decision to allow local school boards the option of charging patrons a user fee for bus service is constitutionally permissible. The Constitution does not require that such service be provided at all, and it is difficult to imagine why choosing to offer the service should entail a constitutional obligation to offer it for free. No one denies that encouraging local school districts to provide school bus service is a legitimate state purpose or that such encouragement would be undermined by a rule requiring that general revenues be used to subsidize an optional service that will benefit a minority of the district’s families. It is manifestly rational for the State to refrain from undermining its legitimate objective with such a rule.

C

Appellants contend that, even without the application of strict or heightened scrutiny, the 1979 statute violates equal protection because it permits user fees for bus service only in nonreorganized school districts. This distinction, they say, can be given no rational justification whatsoever. Brief for Appellants 19-22. The principles governing our review of this claim are well established. “‘The Fourteenth Amendment does not prohibit legislation merely because it is special, or limited in its application to a particular geographical or political subdivision of the state.’ Fort Smith Light Co. v. Paving Dist., 274 U. S. 387, 391 (1927). Rather, the Equal Protection Clause is offended only if the statute’s classification ‘rests on grounds wholly irrelevant to thé achievement of the State’s objective.’ McGowan v. Maryland, 366 U. S. 420, 425 (1961); Kotch v. Board of River Port Pilot Comm'rs, 330 U. S. 552, 556 (1947).” Holt Civic Club v. Tuscaloosa, 439 U. S. 60, 71 (1978). Social and economic legislation like the statute at issue in this case, moreover, “carries with it a presumption of rationality that can only be overcome by a clear showing of arbitrariness and irrationality.” Hodel v. Indiana, 452 U. S. 314, 331-332 (1981). “[W]e will not overturn such a statute unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the legislature’s actions were irrational.” Vance v. Bradley, 440 U. S. 93, 97 (1979). In performing this analysis, we are not bound by explanations of the statute’s rationality that may be offered by litigants or other courts. Rather, those challenging the legislative judgment must convince us “that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker.” Id., at 111.

Applying these principles to the present case, we conclude that appellants have failed to carry the “heavy burden” of demonstrating that the challenged statute is both arbitrary and irrational. Hodel v. Indiana, supra, at 332. The court below offered the following justification for the distinction drawn between reorganized and nonreorganized districts:

“The obvious purpose of [statutes treating reorganized and nonreorganized schools differently] is to encourage school district reorganization with a concomitant tax base expansion and an enhanced and more effective school system. The legislation provides incentive for the people to approve school district reorganization by alleviating parental concerns regarding the cost of student transportation in the reorganized district.” 402 N. W. 2d, at 903.

Appellees offer a more elaborate, but not incompatible, explanation:

“[TJhe authorization of the bus fee to be charged by districts such as Dickinson has nothing to do with the reorganization, of school districts. The reasoning for it is to simply have the few. that use the service pay a small • portion of that cost in exchange for the substantial benefits received.
“The only reason that the fee authorization was not extended to reorganized districts is that those districts, prior to the passage of the statute permitting fees, were already committed on an individual district basis to some type of transportation system which had been submitted to and approved by the voters in each separate district. To permit the 1979 statute authorizing fees to be retroactively effective in reorganized districts would have been an obvious impairment of existing legal relationships since the already established transportation sys-tertis in the various reorganized districts did not include any authority to charge a fee.” Brief for Appellees 16.

The State of North Dakota informs us that the 1979 legislation was proposed to the legislature by the Dickinson School District itself, which had for several years been charging transportation fees and which “became concerned when it appeared that the 1979 Legislature would enact a statute prohibiting charging the fee.” Brief for State of North Dakota as Amicus Curiae 6-7 (citations to legislative history omitted). The State’s account of the reason for confining the express authorization of fees to nonreorganized schools districts is the same as the account offered by appel-lees. Id., at 9.

The explanation offered by appellees and the State is adequate to rebut appellants’ contention that the distinction drawn between reorganized and nonreorganized districts is arbitrary and irrational. The Supreme Court of North Dakota has said, and the State agrees, that all reorganized school districts are presently required to furnish or pay for transportation for students living as far away from school as Sarita Kadrmas does. See 402 N. W. 2d, at 903 (citing N. D. Cent. Code § 15-27.3-10 (Supp. 1987)); Tr. of Oral Arg. 32. This requirement, however, is not imposed directly by statute, but rather by the reorganization plans that are statutorily required in the reorganization process. With certain specified exceptions (not including the transportation provisions), those reorganization plans may be changed by the voters in the affected districts. ■ N. D. Cent. Code §15-27.3-19 (Supp. 1987). Although it appears that no reorganized district has ever used this mechanism to adopt a user fee like Dickinson’s, we have not been informed that such a step could not legally be taken. Thus, the one definitely established difference between reorganized and non-reorganized districts is this: in the latter, local school boards may impose a bus service user fee on their own authority, while the direct approval of the voters would be required in reorganized districts. That difference, however, simply reflects voluntary agreements made during the history of North Dakota’s reorganization process, and it could scarcely be thought to make the State’s laws arbitrary or irrational.

Even if we assume, as appellants apparently do, that the State has forbidden reorganized school districts to charge user fees for bus service under any circumstances, it is evident that the legislature could conceivably have believed that such a policy would serve the legitimate purpose of fulfilling the reasonable expectations of those residing in districts with free busing arrangements imposed by reorganization plans. Because this purpose could have no application to nonreorga-nized districts, the legislature could just as rationally conclude that those districts should have the option of imposing user fees on those who take advantage of the service they are offered.

In sum, the statute challenged in this case discriminates against no suspect class and interferes with no fundamental' right. Appellants have failed to carry the heavy burden of demonstrating that the statute is arbitrary and irrational. The Supreme Court of North Dakota correctly concluded that the statute does not violate the Equal Protection Clause of the Fourteenth Amendment, and its judgment is

Affirmed.

Justice Marshall,

with whom Justice Brennan joins, dissenting.

In San Antonio Independent School Dist. v. Rodriguez, 411 U. S. 1 (1973), I wrote that the Court’s holding was a “retreat from our historic commitment to equality of educational opportunity and [an] unsupportable acquiescence in a system which deprives children in their earliest years of the chance to reach their full potential.” Id., at 71 (dissenting). Today, the Court continues the retreat from the promise of equal educational opportunity by holding that a school district’s refusal to allow an indigent child who lives 16 miles from the nearest school to use a school-bus service without paying a fee does not violate the Fourteenth Amendment’s Equal Protection Clause. Because I do not believe that this Court should sanction discrimination against the poor with respect to “perhaps the most important function of state and local governments,” Brown v. Board of Education, 347 U. S. 483, 493 (1954), I dissent.

The Court’s opinion suggests that this case does not concern state action that discriminates against the poor with regard to the provision of a basic education. The Court notes that the particular governmental action challenged in this case involves the provision of transportation, rather than the provision of educational services. See ante, at 459-460, 460-461. Moreover, the Court stresses that the denial of transportation to Sarita Kadrmas did not in fact prevent her from receiving an education; notwithstanding the denial of bus service, Sarita’s family ensured that she attended school each day. See ante, at 458, 460-461. To the Court, then, this case presents no troublesome questions; indeed, the Court’s facile analysis suggests some perplexity as to why this case ever reached this Court.

I believe the Court’s approach forgets that the Constitution is concerned with “sophisticated as well as simpleminded modes of discrimination.” Lane v. Wilson, 307 U. S. 268, 275 (1939). This case involves state action that places a special burden on poor families in their pursuit of education. Children living far from school can receive a public education only if they have access to transportation; as the state court noted in this case, “a child must reach the schoolhouse door as a prerequisite to receiving the educational opportunity offered therein.” 402 N. W. 2d 897, 901 (N.D. 1987). Indeed, for children in Sarita’s position, imposing a fee for transportation is no different in practical effect from imposing a fee directly for education. Moreover, the fee involved in this case discriminated against Sarita’s family because it necessarily fell more heavily upon the poor than upon wealthier members of the community. Cf. Bullock v. Carter, 405 U. S. 134, 144 (1972) (voting system based on flat fees “falls with unequal weight on voters, as well as candidates, according to their economic status”); Griffin v. Illinois, 351 U. S. 12, 17, n. 11 (1956) (opinion of Black, J.) (state law imposing flat fee for trial transcript is “nondiscriminatory on its face,” but “grossly discriminatory in its operation”). This case therefore presents the question whether a State may discriminate against the poor in providing access to education. I regard this question as one of great urgency.

As I have stated on prior occasions, proper analysis of equal protection claims depends less on choosing the “formal label” under which the claim should be reviewed than upon identifying and carefully analyzing the real interests at stake. Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432, 478 (1985) (Marshall, J., dissenting); see Selective Service System v. Minnesota Public Interest Research Group, 468 U. S. 841, 876 (1984) (Marshall, J., dissenting). In particular, the Court should focus on “the character of the classification in question, the relative importance to individuals in the class discriminated against of the governmental benefits that they do not receive, and the asserted state interests in support of the classification.” Dandridge v. Williams, 397 U. S. 471, 521 (1970) (Marshall, J., dissenting); see San Antonio Independent School Dist. v. Rodriguez, supra, at 98-99 (Marshall, J., dissenting). Viewed from this perspective, the discrimination inherent in the North Dakota statute fails to satisfy the dictates of the Equal Protection Clause.

The North Dakota statute discriminates on the basis of economic status. This Court has determined that classifications based on wealth are not automatically suspect. See, e. g., Maher v. Roe, 432 U. S. 464, 470-471 (1977). Such classifications, however, have a measure of special constitutional significance. See, e. g., McDonald v. Board of Election Comm’rs of Chicago, 394 U. S. 802, 807 (1969) (“[A] careful examination on our part is especially warranted where lines are drawn on the basis of wealth . . .”); Harper v. Virginia Bd. of Elections, 383 U. S. 663, 668 (1966) (“Lines drawn on the basis of wealth or property . . . are traditionally disfavored”). This Court repeatedly has invalidated statutes, on their face or as applied, that discriminated against the poor. See, e. g., Little v. Streater, 452 U. S. 1 (1981); Bullock v. Carter, supra; Harper v. Virginia Bd. of Elections, supra; Griffin v. Illinois, supra. The Court has proved most likely to take such action when the laws in question interfered with the access of the poor to the political and judicial processes. One source of these decisions, in my view, is a deep distrust of policies that specially burden the access of disadvantaged persons to the governmental institutions and processes that offer members of our society an opportunity to improve their status and better their lives. The intent of the Fourteenth Amendment was to abolish caste legislation. See Plyler v. Doe, 457 U. S. 202, 213 (1982). When state action has the predictable tendency to entrap, the poor and create a permanent underclass, that intent is frustrated. See id., at 234 (Blackmun, J., concurring). Thus, to the extent that a law places discriminatory barriers between indigents and the basic tools and opportunities that might enable them to rise, exacting scrutiny should be applied.

The statute at issue here burdens a poor person’s interest in an education. The extraordinary nature of this interest cannot be denied. This Court’s most famous statement on the subject is contained in Brown v. Board of Education, 347 U. S., at 493:

“[Ejducation is perhaps the most important function of state and local governments. Compulsory school attendance láws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education.”

Since Brown, we frequently have called attention to the vital role of education in our society. We have noted that “education is necessary to prepare citizens to participate effectively and intelligently in our open political system . . . .” Wisconsin v. Yoder, 406 U. S. 205, 221 (1972); see San Antonio Independent School Dist. v. Rodriguez, 411 U. S., at 112-115 (Marshall, J., dissenting). We also have recognized that education prepares individuals to become self-reliant participants in our economy. See Plyler v. Doe, supra, at 221-222; Wisconsin v. Yoder, supra, at 221. A statute that erects special obstacles to education in the path of the poor naturally tends to consign such persons to their current disadvantaged status. By denying equal opportunity to exactly those who need it most, the law not only militates against the ability of each poor child to advance herself or himself, but also increases the likelihood of the creation of a discrete and permanent underclass. Such a statute is difficult to reconcile with the framework of equality embodied in the Equal Protection Clause.

This Court’s decision in Plyler v. Doe, supra, supports these propositions. The Court in Plyler upheld the right of the children of illegal aliens to receive the free public education that the State of Texas made available to other residents. The Court in that case engaged in some discussion of alienage, a classification not relevant here. The decision, however, did not rest upon this basis. Rather, the Court made clear that the infirmity of the Texas law stemmed from its differential treatment of a discrete and disadvantaged group of children with respect to the provision of education. The Court stated that education is not “merely some governmental ‘benefit’ indistinguishable from other forms of social welfare legislation.” Id., at 221. The Court further commented that the state law “poses an affront to one of the goals of the Equal Protection Clause: the abolition of governmental barriers presenting unreasonable obstacles to advancement on the basis of individual merit. ” Id., at 221-222. Finally, the Court called attention to the tendency of the Texas law to create a distinct underclass of impoverished illiterates who would be unable to participate in and contribute to society. See id., at 222-224. The Plyler Court’s reasoning is fully applicable here. As in Plyler, the State in this case has acted to burden the educational opportunities of a disadvantaged group of children, who need an education to become full participants in society.

The State’s rationale for this policy is based entirely on fiscal considerations. The State has allowed Dickinson and certain other school districts to charge a nonwaivable flat fee for bus service so that these districts may recoup part of the costs of the service. The money that Dickinson collects from applying the busing fee to indigent families, however, represents a minuscule proportion of the costs of the bus service. As the Court notes, ante, at 454, all of the fees collected by Dickinson amount to only 11% of the cost of providing the bus service, and the fees collected from poor families represent a small fraction of the total fees. Exempting indigent families from the busing fee. therefore would not require Dickinson to make any significant adjustments in either the operation or the funding of the bus service. Indeed, as the Court states, most school districts in the State provide full bus service without charging any fees at all. See ante, at 465. The state interest involved in this case is therefore insubstantial; it does not begin to justify the discrimination challenged here.

The Court’s decision to the contrary “demonstrates once again a ‘callous indifference to the realities of life for the poor.’” Selective Service System v. Minnesota Public Interest Research Group, 468 U. S., at 876 (Marshall, J., dissenting), quoting Flagg Bros., Inc. v. Brooks, 436 U. S. 149, 166 (1978) (Marshall, J., dissenting). These realities may not always be obvious from the Court’s vantage point, but the Court fails in its constitutional duties when it refuses, as it does today, to make even the effort to see. For the poor, education is often the only route by which to become full participants in our society. In allowing a State to burden the access of poor persons to an education, the Court denies equal opportunity and discourages hope. I do not believe the Equal Protection Clause countenances such a result. I therefore dissent.

Justice Stevens,

with whom Justice Blackmun joins, dissenting.

When the sovereign applies different rules to different segments of its jurisdiction, it must have a rational basis for doing so. “The term ‘rational,’ of course, includes a requirement that an impartial lawmaker could logically believe that the classification would serve a legitimate public purpose that transcends the harm to the members of the disadvantaged class.” Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432, 452 (1985) (Stevens, J., concurring) (footnote omitted). In this case, Justice Marshall accurately explicates the harm to certain members of the disadvantaged class. And since the Supreme Court of the State of North Dakota has unequivocally identified the actual purpose of the geographic discrimination, I would not second-guess that conclusion and presume that the harm Justice Marshall describes has been imposed for other reasons.

The State Supreme Court explained:

“The obvious purpose of such legislation is to encourage school district reorganization with a concomitant tax base expansion and an enhanced and more effective school system. The legislation provides incentive for the people to approve school district reorganization by alleviating parental concerns regarding the cost of student transportation in the reorganized district.” 402 N. W. 2d 897, 903 (1987).

This explanation of the state legislative purpose makes two propositions perfectly clear. First, free bus transportation is an important component of public education in a sparsely populated State; otherwise the alleviation of parental concerns regarding the cost of student transportation in a reorganized district could not have been expected to motivate a significant number of voters. Second, after the voters in a school district have had a fair opportunity to decide whether or not to reorganize, there is no longer any justification at all for allowing the nonreorganized districts to place an obstacle in the paths of poor children seeking an education in some parts of the State that has been removed in other parts of the State. Cf. G. D. Searle & Co. v. Cohn, 455 U. S. 404, 420 (1982) (Stevens, J., dissenting) (“[T]he Constitution requires a rational basis for the special burden imposed on the disfavored class as well as a reason for treating that class differently”).

Thus, the State Supreme Court’s explanation of the purpose of this discrimination does not include the “elements of legitimacy and neutrality that must always characterize the performance of the sovereign’s duty to govern impartially.” Cleburne, supra, at 452 (footnote omitted). Accordingly, I respectfully dissent.

      Appellants also suggest that their position is supported by Bearden v. Georgia, 461 U. S. 660 (1983). We disagree. In Bearden, we held that a trial court erred “in automatically revoking probation because the [offender] could not pay his fine, without determining that [he] had not made sufficient bona fide efforts to pay or that adequate alternative forms of punishment did not exist.” Id., at 662. Whether this decision is considered under equal protection or due process principles, see id., at 664-667, the criminal-sentencing decision at issue in Bearden is not analogous to the user fee at issue in the case before us.

      The Court therefore does not address the question whether a State constitutionally could deny a child access to a minimally adequate education. In prior cases, this Court explicitly has left open the question whether such a deprivation of access would violate a fundamental constitutional right. See Papasan v. Allain 478 U. S. 265, 284 (1986); San Antonio Independent School Dist. v. Rodriguez. 411 U. S. 1, 25, n. 60, 36-37 (1973). That question remains open today.

      There is no dispute that the Kadrmas family was indigent at the time relevant to this litigation. The family’s annual income at the time of trial was at or near the poverty line. In addition, the family was heavily in debt, owing a total of $13,000.

      As the majority recognizes, the North Dakota Legislature has encouraged reorganization since 1947. See ante, at 453.


source: Caselaw Access Project

author: Justice O’Connor Justice White, Justice Brennan, Justice Stevens,

license: Public Domain

text:
    FRISBY et al. v. SCHULTZ et al.
    No. 87-168.
    Argued April 20, 1988
    Decided June 27, 1988

      O’Connor, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Blackmun, Scalia, and Kennedy, JJ., joined. White, J., filed an opinion concurring in the judgment, post, p. 488. Brennan, J., filed a dissenting opinion, in which Marshall, J., joined, post, p. 491. Stevens, J., filed a dissenting opinion, post, p. 496.

      Harold H. Fahrman argued the cause and filed briefs for appellants.

      Steven Frederick McDowell argued the cause for appellees. With him on the brief was Walter M. Weber.

      Briefs of amici curiae urging reversal were filed for the National Institute of Municipal Law Officers by William I. Thornton, Jr., Roy D. Bates, William H. Tanbe, Roger F. Cutler, Robert J. Alfton, James K. Baker, Joseph N. deRaismes, Frank B. Gummey Til, Robert J. Mangier, Neal E. McNeill, Analeslie Muncy, Dante R. Pellegrini, Clifford D. Pierce, Jr., Charles S. Rhyne, and Benjamin L. Brown; for the National League of Cities et al. by Benna Ruth Solomon and Mark B. Rotenberg; and for the Pacific Legal Foundation by Ronald A. Znmbrun and Robin L. Rivett.

      Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Harrey Grossman, Jane M. Whicher, Jonathan K. Baum, John A. Powell, Steven R. Shapiro, and William Lynch; for the American Federation of Labor and Congress of Industrial Organizations by Marsha S. Berzon and Lawrence Gold; and for the Rutherford Institute et al. by Robert R. Melnick, William Bonner, John F. South-worth, Jr., W. Charles Bundren, Alfred J. Lindh, Ira W. Still III, William B. Hollberg, Randall A. Pentiuk, Thomas W. Strahan, John W. Whitehead, A. Eric Johnston, and David E. Morris.

        Charles E. Rice, Thomas Patrick Monaghan, and James M. Henderson, Sr., filed a brief for the American Life League, Inc., et al. as amici curiae.

   Justice O’Connor

delivered the opinion of the Court.

Brookfield, Wisconsin, has adopted an ordinance that completely bans picketing “before or about” any residence. This case presents a facial First Amendment challenge to that ordinance.

I

Brookfield, Wisconsin, is a residential suburb of Milwaukee with a population of approximately 4,300. The appellees, Sandra C. Schultz and Robert C. Braun, are individuals strongly opposed to abortion and wish to express their views on the subject by picketing on a public street outside the Brookfield residence of a doctor who apparently performs abortions at two clinics in neighboring towns. Appellees and others engaged in precisely that activity, assembling outside the doctor’s home on at least six occasions between April 20, 1985, and May 20, 1985, for periods ranging from one to one and a half hours. The size of the group varied from 11 to more than 40. The picketing was generally orderly and peaceful; the town never had occasion to invoke any of its various ordinances prohibiting obstruction of the streets, loud and unnecessary noises, or disorderly conduct. Nonetheless, the picketing generated substantial controversy and numerous complaints.

The Town Board therefore resolved to enact an ordinance to restrict the picketing. On May 7, 1985, the town passed an ordinance that prohibited all picketing in residential neighborhoods except for labor picketing. But after reviewing this Court’s decision in Carey v. Brown, 447 U. S. 455 (1980), which invalidated a similar ordinance as a violation of the Equal Protection Clause, the town attorney instructed the police not to enforce the new ordinance and advised the Town Board that the ordinance’s labor picketing exception likely rendered it unconstitutional. This ordinance was repealed on May 15, 1985, and replaced with the following flat ban on all residential picketing:

“It is unlawful for any person to engage in picketing before or about the residence or dwelling of any individual in the Town of Brookfield.” App. to Juris. Statement A-28.

The ordinance itself recites the primary purpose of this ban: “the protection and preservation of the home” through assurance “that members of the community enjoy in their homes and dwellings a feeling of well-being, tranquility, and privacy.” Id., at A-26. The Town Board believed that a ban was necessary because it determined that “the practice of picketing before or about residences and dwellings causes emotional disturbance and distress to the occupants . . . [and] has as its object the harassing of such occupants.” Id., at A-26 — A-27. The ordinance also evinces a concern for public safety, noting that picketing obstructs and interferes with “the free use of public sidewalks and public ways of travel.” Id., at A-27.

On May 18, 1985, appellees were informed by the town attorney that enforcement of the new, revised ordinance would begin on May 21, 1985. Faced with this threat of arrest and prosecution, appellees ceased picketing in Brookfield and filed this lawsuit in the United States District Court for the Eastern District of Wisconsin. The complaint was brought under 42 U. S. C. § 1983 and sought declaratory as well as preliminary and permanent injunctive relief on the grounds that the ordinance violated the First Amendment. Ap-pellees named appellants — the three members of the Town Board, the Chief of Police, the town attorney, and the town itself — as defendants.

The District Court granted appellees’ motion for a preliminary injunction. The court concluded that the ordinance was not narrowly tailored enough to restrict protected speech in a public forum. 619 F. Supp. 792, 797 (1985). The District Court’s order specified that unless the appellants requested a trial on the merits within 60 days or appealed, the preliminary injunction would become permanent. Appellants requested a trial and also appealed the District Court’s entry of a preliminary injunction.

A divided panel of the United States Court of Appeals for the Seventh Circuit affirmed. 807 F. 2d 1339 (1986). The Court of Appeals subsequently vacated this decision, however, and ordered a rehearing en banc. 818 F. 2d 1284 (1987). After rehearing, the Court of Appeals affirmed the judgment of the District Court by an equally divided vote. 822 F. 2d 642 (1987). Contending that the Court of Appeals had rendered a final judgment holding the ordinance “to be invalid as repugnant to the Constitution,” 28 U. S. C. § 1254 (2), appellants attempted to invoke our mandatory appellate jurisdiction. App. to Juris. Statement A-25 (citing § 1254 (2)). We postponed further consideration of our appellate jurisdiction until the hearing on the merits. 484 U. S. 1003 (1988).

Appellees argue that there is no jurisdiction under § 1254 (2) due to the lack of finality. They point out that the District Court entered only a preliminary injunction and that appellants requested a trial on the merits, which has yet to be conducted. These considerations certainly suggest a lack of finality. Yet despite the formally tentative nature of its order, the District Court appeared ready to enter a final judgment since it indicated that unless a trial was requested a permanent injunction would issue. In addition, while appellants initially requested a trial, they no longer adhere to this position and now say that they would have no additional arguments to offer at such a trial. Tr. of Oral Arg. 7. In the context of this case, however, there is no need to decide whether jurisdiction is proper under § 1254(2). Because the question presented is of substantial importance, and because further proceedings below would not likely aid our consideration of it, we choose to avoid the finality issue simply by granting certiorari. Accordingly, we dismiss the appeal and, treating the jurisdictional statement as a petition for certiorari, now grant the petition. See 28 U. S. C. § 2103. Cf. Mississippi Power & Light Co. v. Mississippi ex rel. Moore, ante, at 369, n. 10. For convenience, however, we shall continue to refer to the parties as appellants and appel-lees, as we have in previous cases. See ibid.; Peralta v. Heights Medical Center, Inc., 485 U. S. 80, 84, n. 4 (1988).

II

The antipicketing ordinance operates at the core of the First Amendment by prohibiting appellees from engaging in picketing on an issue of public concern. Because of the importance of “uninhibited, robust, and wide-open” debate on public issues, New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964), we have traditionally subjected restrictions on public issue picketing to careful scrutiny. See, e. g., Boos v. Barry, 485 U. S. 312, 318 (1988); United States v. Grace, 461 U. S. 171 (1983); Carey v. Brown, 447 U. S. 455 (1980). Of course, “[e]ven protected speech is not equally permissible in all places and at all times.” Cornelius v. NAACP Legal Defense & Educational Fund, Inc., 473 U. S. 788, 799 (1985).

To ascertain what limits, if any, may be placed on protected speech, we have often focused on the “place” of that speech, considering the nature of the forum the speaker seeks to employ. Our cases have recognized that the standards by which limitations on speech must be evaluated “differ depending on the character of the property at issue.” Perry Education Assn. v. Perry Local Educators’ Assn., 460 U. S. 37, 44 (1983). Specifically, we have identified three types of fora: “the traditional public forum, the public forum created by government designation, and the nonpublic forum.” Cornelius, supra, at 802.

The relevant forum here may be easily identified: appellees wish to picket on the public streets of Brookfield. Ordinarily, a determination of the nature of the forum would follow automatically from this identification; we have repeatedly referred to public streets as the archetype of a traditional public forum. See, e. g., Boos v. Barry, supra, at 318; Cornelius, supra, at 802; Perry, 460 U. S., at 45. “[T]ime out of mind” public streets and sidewalks have been used for public assembly and debate, the hallmarks of a traditional public forum. See ibid.; Hague v. CIO, 307 U. S. 496, 515 (1939) (Roberts, J.). Appellants, however, urge us to disregard these “clichés.” Tr. of Oral Arg. 16. They argue that the streets of Brookfield should be considered a nonpublic forum. Pointing to the physical narrowness of Brookfield’s streets as well as to their residential character, appellants contend that such streets have not by tradition or designation been held open for public communication. See Brief for Appellants 23 (citing Perry, supra, at 46).

We reject this suggestion. Our prior holdings make clear that a public street does not lose its status as a traditional public forum simply because it runs through a residential neighborhood. In Carey v. Brown — which considered a statute similar to the one at issue here, ultimately striking it down as a violation of the Equal Protection Clause because it included an exception for labor picketing — we expressly recognized that “public streets and sidewalks in residential neighborhoods,” were “public for[a].” 447 U. S., at 460-461. This rather ready identification virtually forecloses appellants’ argument. See also Perry, supra, at 54-55 (noting that the “key” to Carey “was the presence of a public forum”).

In short, our decisions identifying public streets and sidewalks as traditional public fora are not accidental invocations of a “cliché,” but recognition that “[w]herever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public.” Hague v. CIO, supra, at 515 (Roberts, J.). No particularized inquiry into the precise nature of a specific street is necessary; all public streets are held in the public trust and are properly considered traditional public fora. Accordingly, the streets of Brookfield are traditional public fora. The residential character of those streets may well inform the application of the relevant test, but it does not lead to á different test; the anti-picketing ordinance must be judged against the stringent standards we have established for restrictions on speech in traditional public fora:

“In these quintessential public for[a], the government may not prohibit all communicative activity. For the State to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. . . . The State may also enforce regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.” Penny, supra, at 45 (citations omitted).

As Perry makes clear, the appropriate level of scrutiny is initially tied to whether the statute distinguishes between prohibited and permitted speech on the basis of content. Appellees argue that despite its facial content-neutrality, the Brookfield ordinance must be read as containing an implied exception for labor picketing. See Brief for Appellees 20-26. The basis for appellees’ argument is their belief that an express protection of peaceful labor picketing in state law, see Wis. Stat. §103.53(1) (1985-1986), must take precedence over Brookfield’s contrary efforts. The District Court, however, rejected this suggested interpretation of state law, 619 F. Supp., at 796, and the Court of Appeals affirmed, albeit ultimately by an equally divided court. 822 F. 2d 642 (1987). See also 807 F. 2d, at 1347 (original panel opinion declining to reconsider District Court’s construction of state law). Following our normal practice, “we defer to the construction of a state statute given it by the lower federal courts . . . to reflect our belief that district courts and courts of appeals are better schooled in and more able to interpret the laws of their respective States.” Brockett v. Spokane Arcades, Inc., 472 U. S. 491, 499-500 (1985). See Virginia v. American Booksellers Assn., 484 U. S. 383, 395 (1988) (“This Court rarely reviews a construction of state law agreed upon by the two lower federal courts”). Thus, we accept the lower courts’ conclusion that the Brookfield ordinance is content neutral. Accordingly, we turn to consider whether the ordinance is “narrowly tailored to serve a significant government interest” and whether it “leave[s] open ample alternative channels of communication.” Perry, 460 U. S., at 45.

Because the last question is so easily answered, we address it first. Of course, before we are able to assess the available alternatives, we must consider more carefully the reach of the ordinance. The precise scope of the ban is not further described within the text of the ordinance, but in our view the ordinance is readily subject to a narrowing construction that avoids constitutional difficulties. Specifically, the use of the singular form of the words “residence!’, and “dwelling” suggests that the ordinance is intended to prohibit only picketing focused on, and taking place in front of, a particular residence. As Justice White’s concurrence recounts, the lower courts described the ordinance as banning “all picketing in residential areas.” Post, at 490. But these general descriptions do not address the exact scope of the ordinance and are in no way inconsistent with our reading of its text. “Picketing,” after all, is defined as posting at a particular place, see Webster’s Third New International Dictionary 1710 (1981), a characterization in line with viewing the ordinance as limited to activity focused on a single residence. Moreover, while we ordinarily defer to lower court constructions of state statutes, see supra, at 482, we do not invariably do so, see Virginia v. American Booksellers Assn., supra, at 395. We are particularly reluctant to defer when the lower courts have fallen into plain error, see Brockett v. Spokane Arcades, Inc., supra, at 500, n. 9, which is precisely the situation presented here. To the extent they endorsed a broad reading of the ordinance, the lower courts ran afoul of the well-established principle that statutes will be interpreted to avoid constitutional difficulties. See, e. g., Erznoznik v. City of Jacksonville, 422 U. S. 205, 216 (1975); Broadrick v. Oklahoma, 413 U. S. 601, 613 (1973). Cf. Edward J. De-Bartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council, 485 U. S. 568, 575 (1988). Thus, unlike the lower courts’ judgment that the ordinance does not contain an implied exception for labor picketing, we are unable to accept their potentially broader view of the ordinance’s scope. We instead construe the ordinance more narrowly. This narrow reading is supported by the representations of counsel for the town at oral argument, which indicate that the town takes, and will enforce, a limited view of the “picketing” proscribed by the ordinance. Thus, generally speaking, “picketing would be having the picket proceed on a definite course or route in front of a home.” Tr. of Oral Arg. 8. The picket need not be carrying a sign, id., at 14, but in order to fall within the scope of the ordinance the picketing must be directed at a single residence, id., at 9. General marching through residential neighborhoods, or even walking a route in front of an entire block of houses, is not prohibited by this ordinance. Id., at 15. Accordingly, we construe the ban to be a limited one; only focused picketing taking place solely in front of a particular residence is prohibited.

So narrowed, the ordinance permits the more general dissemination of a message. As appellants explain, the limited nature of the prohibition makes it virtually self-evident that ample alternatives remain:

“Protestors have not been barred from the residential neighborhoods; They may enter such neighborhoods, alone or in groups, even marching. . . . They may go door-to-door to proselytize their views. They may distribute literature in this manner ... or through the mails. They may contact residents by telephone, short of harassment.” Brief for Appellants 41-42 (citations omitted).

We readily agree that the ordinance preserves ample alternative channels of communication and thus move on to inquire whether the ordinance serves a significant government interest. We find that such an interest is identified within the text of the ordinance itself: the protection of residential privacy. See App. to Juris. Statement A-26.

“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.” Carey v. Brown, 447 U. S., at 471. Our prior decisions have often remarked on the unique nature of the home, “the last citadel of the tired, the weary, and the sick,” Gregory v. Chicago, 394 U. S. 111, 125 (1969) (Black, J., concurring), and have recognized that “[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.” Carey, supra, at 471.

One important aspect of residential privacy is protection of the unwilling listener. Although in many locations, we expect individuals simply to avoid speech they do not want to hear, cf. Erznoznik v. City of Jacksonville, supra, at 210-211; Cohen v. California, 403 U. S. 15, 21-22 (1971), the home is different. “That we are often ‘captives’ outside the sanctuary of the home and subject to objectionable speech ... does not mean we must be captives everywhere.” Rowan v. Post Office Dept., 397 U. S. 728, 738 (1970). Instead, a special benefit of the privacy all citizens enjoy within their own walls, which the State may legislate to protect, is an ability to avoid intrusions. Thus, we have repeatedly held that individuals are not required to welcome unwanted speech into their own homes and that the government may protect this freedom. See, e. g., FCC v. Pacifica Foundation, 438 U. S. 726, 748-749 (1978) (offensive radio broadcasts); id., at 759-760 (Powell, J., concurring in part and concurring in judgment) (same); Rowan, supra (offensive mailings); Kovacs v. Cooper, 336 U. S. 77, 86-87 (1949) (sound trucks).

This principle is reflected even in prior decisions in which we have invalidated complete bans on expressive activity, including bans operating in residential areas. See, e. g., Schneider v. State, 308 U. S. 147, 162-163 (1939) (hand-billing); Martin v. Struthers, 319 U. S. 141 (1943) (door-to-door solicitation). In all such cases, we have been careful to acknowledge that unwilling listeners may be protected when within their own homes. In Schneider, for example, in striking- down a complete ban on handbilling, we spoke of a right to distribute literature only “to one willing to receive it.” Similarly, when we invalidated a ban on door-to-door solicitation in Martin, we did so on the basis that the “home owner could protect himself from such intrusion by an appropriate sign ‘that he is unwilling to be disturbed.’” Kovacs, 336 U. S., at 86. We have “never intimated that the visitor could insert a foot in the door and insist on a hearing.” Ibid. There simply is no right to force speech into the home of an unwilling listener.

It remains to be considered, however, whether the Brook-field ordinance is narrowly tailored to protect only unwilling recipients of the communications. A statute is narrowly tailored if it targets and eliminates no more than the exact source of the “evil” it seeks to remedy. City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789, 808-810 (1984). A complete ban can be narrowly tailored, but only if each activity within the proscription’s scope is an appropriately targeted evil. For example; in Taxpayers for Vincent we upheld an ordinance that banned all signs on public property because the interest supporting the regulation, an esthetic interest in avoiding visual clutter and blight, rendered each sign an evil. Complete prohibition was necessary because “the substantive evil — visual blight — [was] not merely a possible byproduct of the activity, but [was] created by the medium of expression itself.” Id., at 810.

The same is true here. The type of focused picketing prohibited by the Brookfield ordinance is fundamentally different from more generally directed means of communication that may not be completely banned in residential areas. See, e. g., Schneider, supra, at 162-163 (handbilling); Martin, supra (solicitation); Murdock v. Pennsylvania, 319 U. S. 105 (1943) (solicitation). See also Gregory v. Chicago, supra (marching). Cf. Perry, 460 U. S., at 45 (in traditional public forum, “the government may not prohibit all communicative activity”). In such cases “the flow of information [is not] into . . . household[s], but to the public.” Organization for a Better Austin v. Keefe, 402 U. S. 415, 420 (1971). Here, in contrast, the picketing is narrowly directed at the household, not the public. The type of picketers banned by the Brookfield 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. Moreover, even if some such picketers have a broader communicative purpose, their activity nonetheless inherently and offensively intrudes on residential privacy. The devastating effect of targeted picketing on the quiet enjoyment of the home is beyond doubt:

“‘To those inside . . . the home becomes something less than a home when and while the picketing . . . continue^]. . . . [The] tensions and pressures may be psychological, not physical, but they are not, for that reason, less inimical to family privacy and truly domestic tranquility.’” Carey, supra, at 478 (Rehnquist, J., dissenting) (quoting Wauwatosa v. King, 49 Wis. 2d 398, 411-412, 182 N. W. 2d 530, 537 (1971)).

In this case, for example, appellees subjected the doctor and his family to the presence of a relatively large group of protesters on their doorstep in an attempt to force the doctor to cease performing abortions. But the actual size of the group is irrelevant; even a solitary picket can invade residential privacy. See Carey, 447 U. S., at 478-479 (Rehnquist, J., dissenting) (“Whether. . . alone or accompanied by others . . . there are few of us that would feel comfortable knowing that a stranger lurks outside our home”). The offensive and disturbing nature of the form of the communication banned by the Brookfield ordinance thus can scarcely be questioned. Cf. Bolger v. Youngs Drug Products Corp., 463 U. S. 60, 83-84 (1983) (Stevens, J., concurring in judgment) (as opposed to regulation of communications due to the ideas expressed, which “strikes at the core of First Amendment values,” “regulations of form and context may strike a constitutionally appropriate balance between the advocate’s right to convey a message and the recipient’s interest in the quality of his environment”).

The First Amendment permits the government to prohibit offensive speech as intrusive when the “captive” audience cannot avoid the objectionable speech. See Consolidated Edison Co. v. Public Service Comm’n of New York, 447 U. S. 530, 542 (1980). Cf. Bolger v. Youngs Drug Products Corp., supra, at 72. The target of the focused picketing banned by the Brookfield ordinance is just such a “captive.” The resident is figuratively, and perhaps literally, trapped within the home, and because of the unique and subtle impact of such picketing is left with no ready means of avoiding the unwanted speech. Cf. Cohen v. California, 403 U. S., at 21-22 (noting ease of avoiding unwanted speech in other circumstances). Thus, the “evil” of targeted residential picketing, “the very presence of an unwelcome visitor at the home,” Carey, supra, at 478 (Rehnquist, J., dissenting), is “created by the medium of expression itself.” See Taxpayers for Vincent, supra, at 810. Accordingly, the Brookfield ordinance’s complete ban of that particular medium of expression is narrowly tailored.

Of course, this case presents only a facial challenge to the ordinance. Particular hypothetical applications of the ordinance — to, for example, a particular resident’s use of his or her home as a place of business or public meeting, or to picketers present at a particular home by invitation of the resident-may present somewhat different questions. Initially, the ordinance by its own terms may not apply in such circumstances, since the ordinance’s goal is the protection of residential privacy, App. to Juris. Statement A-26, and since it speaks only of a “residence or dwelling,” not a place of business, id., at A-28. Cf. Carey, supra, at 457 (quoting an antipicketing ordinance expressly rendered inapplicable by use of home as a place of business or to hold a public meeting). Moreover, since our First Amendment analysis is grounded in protection of the unwilling residential listener, the constitutionality of applying the ordinance to such hypothetical remains open to question. These are, however, questions we need not address today in order to dispose of appellees’ facial challenge.

Because the picketing prohibited by the Brookfield ordinance is speech directed primarily at those who are presumptively unwilling to receive it, the State has a substantial and justifiable interest in banning it. The nature and scope of this interest make the ban narrowly tailored. The ordinance also leaves open ample alternative channels of communication and is content neutral. Thus, largely because of its narrow scope, the facial challenge to the ordinance must fail. The contrary judgment of the Court of Appeals is

Reversed.

Justice White,

concurring in the judgment.

I agree with the Court that an ordinance which only forbade picketing before a single residence would not be unconstitutional on its face. If such an ordinance were applied to the kind of picketing that appellees carried out here, it clearly would not be invalid under the First Amendment, for the picketing in this case involved large groups of people, ranging at various times from 11 individuals to more than 40. I am convinced, absent more than this record indicates, that if some single-residence picketing by smaller groups could not be forbidden, the range of possibly unconstitutional application of such an ordinance would not render it substantially overbroad and thus unconstitutional on its face.

This leaves the question, however, whether the ordinance at issue in this case forbids only single-residence picketing. The Court says that the language of the ordinance suggests that it is so limited. But the ordinance forbids “any person to engage in picketing before or about the residence or dwelling of any individual in the Town of Brookfield.” Brookfield, Wis., Gen. Code §9.17(2), App. to Juris. Statement A-28. That language could easily be construed to reach not only picketing before a single residence, but also picketing that would deliver the desired message about a particular residence to the neighbors and to other passersby. Arguably, it would also reach picketing that is directed at the residences which are located in entire blocks or in larger residential areas. Indeed, the latter is the more natural reading of the ordinance, which seems to prohibit picketing in any area that is located “before or about” any residence or dwelling in the town, i. e., any picketing that occurs either in front of or anywhere around the residences that are located within the town.

Furthermore, there is ho authoritative construction of this ordinance by the Wisconsin state courts that limits the scope of the proscription. There is, however, the interpretation that has been rendered in this case by both the lower federal courts with jurisdiction over the town whose law is at issue, which we rarely overturn and to which we routinely defer unless there is some fairly compelling argument for not doing so — an established practice that the Court relies on to resolve another aspect of this case. Ante, at 482. As I understand the District Court, it did not accept the construction of the ordinance which is urged here, holding instead that the ordinance was not narrowly tailored to meet the town’s stated objectives, but “completely bans all picketing in residential neighborhoods,” 619 F. Supp. 792, 797 (ED Wis. 1985), and is not “a constitutional time, place, and manner regulation of speech in a public forum,” id., at 798. The panel that heard this case in the Court of Appeals, the opinion of which was of course vacated below, also thought that the question raised by the ordinance concerned the general validity of picketing “in a residential neighborhood,” 807 F. 2d 1339, 1348 (CA7 1986) (emphasis in original), and observed that the ordinance “restricts picketing” in the town “to the commercial strip along West Bluemound Road,” ibid. The dissenting judge also understood the ordinance to have confined the ambit of lawful picketing to “any non-residential area.” Id., at 1356 (Coffey, J., dissenting). Finally, I do not read the briefs filed by appellants in this Court to have argued that the ordinance should be narrowly construed to apply only to single-residence picketing. To the contrary, appellants’ briefs in this Court repeatedly refer to the ordinance as banning all picketing in residential areas. Brief for Appellants 12-13, 13, 41, 42, 43; Reply Brief for Appellants 2, 8.

The Court endorses a narrow construction of the ordinance by relying on the town counsel’s representations, made at oral argument, that the ordinance forbids only single-residence picketing. In light of the view taken by the lower federal courts and the apparent failure of counsel below to press on those courts the narrowing construction that has been suggested here, I have reservations about relying on counsel’s statements as an authoritative statement of the law. It is true that several times in the past the Court, in reaching its decision on the validity of a statute, has relied on what it considered to be reliable and perhaps binding representations made by state and federal officials as to how a particular statute will be enforced. DeFunis v. Odegaard, 416 U. S. 312, 317-318 (1974); Ehiert v. United States, 402 U. S. 99, 107 (1971); Gerende v. Board of Supervisors of Elections of Baltimore, 341 U. S. 56 (1951). But in none of these cases did the Court accept a suggested limiting construction of a state law that appears to be contrary to the views of the lower federal courts.

There is nevertheless sufficient force in the town counsel’s representations about the reach of the ordinance to avoid application of the overbreadth doctrine in this case, which as we have frequently emphasized is such “strong medicine” that it “has been employed by the Court sparingly and only as a last resort.” Broadrick v. Oklahoma, 413 U. S. 601, 613 (1973). In my view, if the ordinance were construed to forbid all picketing in residential neighborhoods, the over-breadth doctrine would render it unconstitutional on its face and hence prohibit its enforcement against those, like appel-lees, who engage in single-residence picketing. At least this would be the case until the ordinance is limited in some authoritative manner. Because the representations made in this Court by the town’s legal officer create sufficient doubts in my mind, however, as to how the ordinance will be enforced by the town or construed by the state courts, I would put aside the overbreadth approach here, sustain the ordinance as applied in this case, which the Court at least does, and await further developments.

Justice Brennan,

with whom Justice Marshall joins, dissenting.

The Court today sets out the appropriate legal tests and standards governing the question presented, and proceeds to apply most of them correctly. Kegrettably, though, the Court errs in the final step of its analysis, and approves an ordinance banning significantly more speech than is necessary to achieve the government’s substantial and legitimate goal. Accordingly, I must dissent.

The ordinance before us absolutely prohibits picketing “before or about” any residence in the town of Brookfield, thereby restricting a manner of speech in a traditional public forum. Consequently, as the Court correctly states, the ordinance is subject to the well-settled time, place, and manner test: the restriction must be content and viewpoint neutral, leave open ample alternative channels of communication, and be narrowly tailored to further a substantial governmental interest. Ante, at 482; Perry Education Assn. v. Perry Local Educators’ Assn., 460 U. S. 37, 45 (1983).

Assuming one construes the ordinance as the Court does, I agree that the regulation reserves ample alternative channels of communication. Ante, at 482-484. I also agree with the Court that the town has a substantial interest in protecting its residents’ right to be left alone in their homes. Ante, at 484-485; Carey v. Brown, 447 U. S. 455, 470-471 (1980). It is, however, critical to specify the precise scope of this interest. The mere fact that speech takes place in a residential neighborhood does not automatically implicate a residential privacy interest. It is the intrusion of speech into the home or the unduly coercive nature of a particular manner of speech around the home that is subject to more exacting regulation. Thus, the intrusion into the home of an unwelcome solicitor, Martin v. Struthers, 319 U. S. 141 (1943), or unwanted mail, Rowan v. Post Office Dept., 397 U. S. 728 (1970), may be forbidden. Similarly, the government may forbid the intrusion of excessive noise into the home, Kovacs v. Cooper, 336 U. S. 77 (1949), or, in appropriate circumstances, perhaps even radio waves, FCC v. Pacifica Foundation, 438 U. S. 726 (1978). Similarly, the government may prohibit unduly coercive conduct around the home, even though it involves expressive elements. A crowd of protesters need not be permitted virtually to imprison a person in his or her own house merely because they shout slogans or carry signs. But so long as the speech remains outside the home and does not unduly coerce the occupant, the government's heightened interest in protecting residential privacy is not implicated. See Organization for a Better Austin v. Keefe, 402 U. S. 415, 420 (1971).

The foregoing distinction is crucial here because it directly affects the last prong of the time, place, and manner test: whether the ordinance is narrowly tailored to achieve the governmental interest. I do not quarrel with the Court’s reliance on City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789 (1984), for the proposition that a blanket prohibition of a manner of speech in particular public fora may nonetheless be “narrowly tailored” if in each case the manner of speech forbidden necessarily produces the very “evil” the government seeks to eradicate. Ante, at 485-486; Vincent, 466 U. S., at 808; id., at 830 (Brennan, J., dissenting). However, the application of this test requires that the government demonstrate that the offending aspects of the prohibited manner of speech cannot be separately, and less intrusively, controlled. Thus here, if the intrusive and unduly coercive elements of residential picketing can be eliminated without simultaneously eliminating residential picketing completely, the Brookfield ordinance fails the Vincent test.

Without question there are many aspects of residential picketing that, if unregulated, might easily become intrusive or unduly coercive. Indeed, some of these aspects are illustrated by this very case. As the District Court found, before the ordinance took effect up to 40 sign-carrying, slogan-shouting protesters regularly converged on Dr. Victoria’s home and, in addition to protesting, warned young children not to go near the house because Dr. Victoria was a “baby killer.” Further, the throng repeatedly trespassed onto the Victorias’ property and at least once blocked the exits to their home. 619 F. Supp. 792, 795 (ED Wis. 1985). Surely it is within the government’s power to enact regulations as necessary to prevent such intrusive and coercive abuses. Thus, for example, the government could constitutionally regulate the number of residential picketers, the hours during which a residential picket may take place, or the noise level of such a picket. In short, substantial regulation is permitted to neutralize the intrusive or unduly coercive aspects of picketing around the home. But to say that picketing may be substantially regulated is not to say that it may be prohibited in its entirety. Once size, time, volume, and the like have been controlled to ensure that the picket is no longer intrusive or coercive, only the speech itself remains, conveyed perhaps by a lone, silent individual, walking back and forth with a sign. Cf. NLRB v. Retail Store Employees, 447 U. S. 607, 618 (1980) (Stevens, J., concurring in part and concurring in result). Such speech, which no longer implicates the heightened governmental interest in residential privacy, is nevertheless banned by the Brookfield law. Therefore, the ordinance is not narrowly tailored.

The Court nonetheless attempts to justify the town’s sweeping prohibition. Central to the Court’s analysis is the determination that:

“[I]n contrast [to other forms of communication], the picketing [here] is narrowly directed at the household, not the public. The type of picketers banned by the Brookfield 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. Moreover, even if some such picketers have a broader communicative purpose, their activity nonetheless inherently and offensively intrudes on residential privacy.” Ante, at 486.

That reasoning is flawed. First, the ordinance applies to all picketers, not just those engaged in the protest giving rise to this challenge. Yet the Court cites no evidence to support its assertion that picketers generally, or even appel-lees specifically, desire to communicate only with the “targeted resident.” (In fact, the District Court, on the basis of an uncontradicted affidavit, found that appellees sought to communicate with both Dr. Victoria and with the public. 619 F. Supp., at 795.) While picketers’ signs might be seen from the resident’s house, they are also visible to passersby. To be sure, the audience is limited to those within sight of the picket, but focusing speech does not strip it of constitutional protection. Even the site-specific aspect of the picket identifies to the public the object of the picketers’ attention. Cf. Boos v. Barry, 485 U. S. 312, 331 (1988). Nor does the picketers’ ultimate goal — to influence the resident’s conduct — change the analysis; as the Court held in Keefe, supra, at 419, such a goal does not defeat First Amendment protection.

A second flaw in the Court’s reasoning is that it assumes that the intrusive elements of a residential picket are “inherent.” However, in support of this crucial conclusion the Court only briefly examines the effect of a narrowly tailored ordinance: “[E]ven a solitary picket can invade residential privacy. See Carey, supra, at 478-479 (Rehnquist, J., dissenting) (‘Whether . . . alone or accompanied by others . . . there are few of us that would feel comfortable knowing that a stranger lurks outside our home’).” Ante, at 487 (ellipses in Court’s opinion). The Court’s reference to the Carey dissent, its sole support for this assertion, conjures up images of a “lurking” stranger, secreting himself or herself outside a residence like a thief in the night, threatening physical harm. This hardly seems an apt depiction of a solitary picket, especially at midafternoon, whose presence is objectionable because it is notorious. Contrary to the Court’s declaration in this regard, it seems far more likely that a picketer who truly desires only to harass those inside a particular residence will find that goal unachievable in the face of a narrowly tailored ordinance substantially limiting, for example, the size, time, and volume of the protest. If, on the other hand, the picketer intends to communicate generally, a carefully crafted ordinance will allow him or her to do so without intruding upon or unduly harassing the resident. Consequently, the discomfort to which the Court must refer is merely that of knowing there is a person outside who disagrees with someone inside. This may indeed be uncomfortable, but it does not implicate the town’s interest in residential privacy and therefore does not warrant silencing speech.

A valid time, place, or manner law neutrally regulates speech only to the extent necessary to achieve a substantial governmental interest, and no further. Because the Court is unwilling to examine the Brookfield ordinance in light of the precise governmental interest at issue, it condones a law that suppresses substantially more speech than is necessary. I dissent.

Justice Stevens,

dissenting.

“GET WELL CHARLIE-OUR TEAM NEEDS YOU.”

In Brookfield, Wisconsin, it is unlawful for a fifth grader to carry such a sign in front of a residence for the period of time necessary to convey its friendly message to its intended audience.

The Court’s analysis of the question whether Brookfield’s ban on picketing is constitutional begins with an acknowledgment that the ordinance “operates at the core of the First Amendment,” ante, at 479, and that the streets of Brookfield are a “traditional public forum,” ante, at 480. It concludes, however, that the total ban on residential picketing is “narrowly tailored” to protect “only unwilling recipients of the communications.” Ante, at 485. The plain language of the ordinance, however, applies to communications to willing and indifferent recipients as well as to the unwilling.

I do not believe we advance the inquiry by rejecting what Justice Brennan calls the “rogue argument that residential streets are something less than public fora,” ante, at 492, n. 1. See Cornelius v. NAACP Legal Defense & Educational Fund, Inc., 473 U. S. 788, 833 (1985) (Stevens, J., dissenting). The streets in a residential neighborhood that has no sidewalks are quite obviously a different type of forum than a stadium or a public park. Attaching the label “public forum” to the area in front of a single family dwelling does not help us decide whether the town’s interest in the safe and efficient flow of traffic or its interest in protecting the privacy of its citizens justifies denying picketers the right to march up and down the streets at will.

Two characteristics of picketing — and of speech more generally — make this a difficult case. : First, it is important to recognize that, “[l]ike so many other kinds of expression, picketing is a mixture of conduct and communication.” NLRB v. Retail Store Employees, 447 U. S. 607, 618-619 (1980) (Stevens, J., concurring in part and concurring in result). If we put the speech element to one side, I should think it perfectly clear that the town could prohibit pedestrians from loitering in front of a residence. On the other hand, it seems equally clear that a sign carrier has a right to march past a residence — and presumably pause long enough to give the occupants an opportunity to read his or her message — regardless of whether the reader agrees, disagrees, or is simply indifferent to the point of view being expressed. Second, it bears emphasis that:

“[A] communication may be offensive in two different ways. Independently of the message the speaker intends to convey, the form of his communication may be offensive — perhaps because it is too loud or too ugly in a particular setting. Other speeches, even though elegantly phrased in dulcet tones, are offensive simply because the listener disagrees with the speaker’s message.” Consolidated Edison Co. v. Public Service Comm’n of New York, 447 U. S. 530, 546-547 (Stevens, J., concurring in judgment) (footnotes omitted).

Picketing is a form of speech that, by virtue of its repetition of message and often hostile presentation, may be disruptive of an environment irrespective of the substantive message conveyed.

The picketing that gave rise to the ordinance enacted in this ease was obviously intended to do more than convey a message of opposition to the character of the doctor’s practice; it was intended to cause him and his family substantial psychological distress. As the record reveals, the picketers’ message was repeatedly redelivered by a relatively large group — in essence, increasing the volume and intrusiveness of the same message with each repeated assertion, cf. Kovacs v. Cooper, 336 U. S. 77 (1949). As is often the function of picketing, during the periods of protest the doctor’s home was held under a virtual siege. I do not believe that picketing for the sole purpose of imposing psychological harm on a family in the shelter of their home is constitutionally protected. I do believe, however, that the picketers have a right to communicate their strong opposition to abortion to the doctor, but after they have had a fair opportunity to communicate that message, I see little justification for allowing them to remain in front of his home and repeat it over and over again simply to harm the doctor and his family. Thus, I agree that the ordinance may be constitutionally applied to the kind of picketing that gave rise to its enactment.

On the other hand, the ordinance is unquestionably “over-broad” in that it prohibits some communication that is protected by the First Amendment. The question, then, is whether to apply the overbreadth doctrine’s “strong medicine,” see Broadrick v. Oklahoma, 413 U. S. 601, 613 (1973), or to put that approach aside “and await further developments,” see ante, at 491 (White, J., concurring in judgment). In Broadrick, the Court framed the inquiry thusly:

“To put the matter another way, particularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” 413 U. S., at 615.

. In this case the overbreadth is unquestionably “real.” Whether or not it is “substantial” in relation to the “plainly legitimate sweep” of the ordinance is a more difficult question. My hunch is that the town will probably not enforce its ban against friendly, innocuous, or even brief unfriendly picketing, and that the Court may be right in concluding that its legitimate sweep makes its overbreadth insubstantial. But there are two countervailing, considerations that are persuasive to me. The scope of the ordinance gives the town officials far too much discretion In making enforcement decisions; while we sit by and await further developments, potential picketers must act at their peril. Second, it is a simple matter for the town to amend its ordinance and to limit the ban to conduct that unreasonably interferes with the privacy of the home and does not serve a reasonable communicative purpose. Accordingly, I respectfully dissent.

      The Court today soundly rejects the town’s rogue argument that residential streets are something less than public fora. Ante, at 479-481. I wholeheartedly agree with this portion of the Court’s opinion.

       The Court relies on our “two-court rule” to avoid appellees’ argument that state law creates a labor picketing exception to the Brookfield ordinance, and thus that the law is not content neutral. Ante, at 481-482. However, I would not be as quick to apply the rule here. The District Court’s opinion focuses solely on the language and history of the town ordinance and does not refer to state law, 619 F. Supp. 792, 796 (ED Wis. 1985); the panel simply deferred to the District Court; and the en banc court issued no opinion. I cannot find even one court, let alone two, that has clearly passed on appellees’ argument. Cf. Virginia v. American Booksellers Assn., 484 U. S. 383, 395 (1988). However, nothing in the Court’s opinion forecloses consideration of this question on remand.

       Like Justice White, I am wary of the Court’s rather strained “single-residence” construction of the ordinance. Moreover, I give little weight to the town attorney’s interpretation of the law; his legal interpretations do not bind the state courts, and therefore they cannot bind us. American Booksellers, supra, at 395. However, for purposes of this dissent, I will accept the Court’s reading.