Boos v. Barry

Notable Items:

Issue(s) Before the Court:

Plaintiff / Appellant / Petitioner's Claim(s):

• If [Title 18 U.S.C.] § 112 is all that is necessary in the rest of the country, petitioners contend it should be all that is necessary in the District of Columbia. [Narrow tailoring]
• Petitioners initially attack the congregation clause by arguing that it confers unbridled discretion upon the police. In addressing such a facial overbreadth challenge, a court's first task is to ascertain whether the enactment reaches a substantial amount of constitutionally protected conduct. [emphasis added]
• ... petitioners contend that both the display clause and the congregation clause violate equal protection by virtue of § 22-1116, which excludes labor picketing from the general prohibitions of § 22-1115. [emphasis added]

Defendant / Appellee / Respondent's Claim(s):

Holding(s) and Disposition:

Material Facts:

• Petitioners are three individuals who wish to carry signs critical of the Governments of the Soviet Union and Nicaragua on the public sidewalks within 500 feet of the embassies of those Governments ... also wish to congregate with two or more other persons within 500 feet of official foreign buildings.
• Congress enacted § 22-1115 ... 1938 ....
• The first portion of this statute, the "display" clause, applies to signs tending to bring a foreign government into public odium or public disrepute, such as signs critical of a foreign government or its policies. The display clause applies only to the display of signs, not to the spoken word.
• The second portion of the statute, the "congregation" clause, addresses a different concern. It prohibits congregation, which District of Columbia common law defines as an assemblage of three or more people.
• Both of these prohibitions generally operate within a 500-foot zone surrounding embassies or consulates owned by foreign governments, but the statute also can extend to other buildings if foreign officials are inside for some official purpose.
• A full recounting of the facts is available below

Procedural History:

• [Petitioners] brought a facial First Amendment challenge to that provision in the District Court for the District of Columbia.
• The District Court granted respondents' motion for summary judgment, ....
• A divided panel of the Court of Appeals for the District of Columbia affirmed.
• The Court of Appeals considered the two aspects [display clause and congregation clauseof § 22-1115 separately.
• First, the court concluded that the display clause was a content-based restriction on speech. ... the court nonetheless found it constitutional because it was justified by a compelling governmental interest and was narrowly drawn to serve that interest.
• Second, the Court of Appeals concluded that the congregation clause should be construed to authorize an order to disperse "only when the police reasonably believe that a threat to the security or peace of the embassy is present," and that as construed, the congregation clause survived First Amendment scrutiny.
• We granted certiorari, 479 U.S. 1083 (1987).
• We now reverse the Court of Appeals' conclusion as to the display clause, .... [emphasis added]
• but affirm as to the congregation clause. [emphasis added]

Rationale

O'Connor Majority (but for Part II-A) Opinion (Brennan, Marshall, Stevens, Scalia)

• Relying on congressional judgment in this delicate area, we conclude that the availability of alternatives such as § 112 amply demonstrates that the display clause is not crafted with sufficient precision to withstand First Amendment scrutiny. It may serve an interest in protecting the dignity of foreign missions, but it is not narrowly tailored; a less restrictive alternative is readily available.
• Thus, even assuming for present purposes that the dignity interest is "compelling," we hold that the display clause of § 22-1115 is inconsistent with the First Amendment.
• It is well settled that federal courts have the power to adopt narrowing constructions of federal legislation.
• So narrowed [by the Appeals Court], the congregation clause withstands First Amendment overbreadth scrutiny.
• ... the congregation clause does not prohibit peaceful congregations; its reach is limited to groups posing a security threat.
• As narrowed by the Court of Appeals, the congregation clause does not "prohibit picketing" at all, it merely regulates the place and manner of certain demonstrations.
• The labor proviso is thus completely consistent with the congregation clause.
• Third, § 22-1116 evinces an intent to protect only "bona fide" labor disputes.
• Accordingly, in our view, § 22-1116 does not violate the Equal Protection Clause.
• A full description of the rationale is available below

Brennan Concurrance (Marshall)

• I write separately, however, to register my continued disagreement with the proposition that an otherwise content-based restriction on speech can be recast as "content-neutral" if the restriction "aims" at "secondary effects" of the speech, see Renton, supra, at 475 U. S. 56 (Brennan, joined by Marshall, dissenting), and to object to O'Connor's assumption that the Renton analysis applies not only outside the context of businesses purveying sexually explicit materials, but even to political speech.
• ... likely to defend content-based restrictions by pointing, as JUSTICE O'CONNOR suggests, to secondary effects like "congestion, ... visual clutter, or ... security...."
• No doubt a plausible argument could be made that the political gatherings of some parties are more likely than others to attract large crowds causing congestion, that picketing for certain causes is more likely than other picketing to cause visual clutter, or that speakers delivering a particular message are more likely than others to attract an unruly audience.
• The Renton analysis, however, creates a possible avenue for governmental censorship whenever censors can concoct "secondary" rationalizations for regulating the content of political speech.
• The traditional approach sets forth a bright-line rule: any restriction on speech, the application of which turns on the content of the speech, is a content-based restriction regardless of the motivation that lies behind it.
• The Renton analysis, in contrast, plunges courts into the morass of legislative motive, a notoriously hazardous and indeterminate inquiry, ....
• And even where the motivational inquiry can be resolved, the Renton approach saddles courts with a fuzzy distinction between the secondary and direct effects of speech, a distinction that is likely to prove just as unworkable as other direct/indirect distinctions in constitutional jurisprudence have proved. Compare, e.g., Complete Auto Transit, Inc. v. Brady, 430 U. S. 274 (1977) (criticizing and wisely rejecting the distinction between direct and indirect taxation of interstate commerce)
• ... the root problem with the Renton analysis is that it relies on the dubious proposition that a statute which on its face discriminates based on the content of speech aims not at content but at some secondary effect that does not itself affect the operation of the statute. [emphasis added]
• Moreover, even if we could be confident about our ability to determine that a content-based law was intended to aim at the "secondary effects" of certain types of speech, such a law would still offend fundamental free speech interests by denying speakers the equal right to engage in speech and by denying listeners the right to an undistorted debate.
• For a time, place, or manner regulation to be valid, it must be neutral as to the content of the speech to be regulated. Pacific Electric Co. v. Public Utilities Comm'n, 475 U. S. 1, 475 U. S. 20 (1986)
• I can only hope that, when the Court is actually presented with a case involving a content-based regulation of political speech that allegedly aims at so-called secondary effects of that speech, the Court will recognize and avoid the pitfalls of the Renton approach.

Rehnquist Concurrance in part (Parts III and IV), Dissent in part (White, Blackmun)

• For the reasons stated by [Robert] Bork in his majority opinion below, I would uphold that portion of § 22-1115 of the District of Columbia Code that prohibits the display of any sign within 500 feet of a foreign embassy if that sign tends to bring that foreign government into "public odium" or "public disrepute."

Full Recounting of Facts

• Petitioners are three individuals who wish to carry signs critical of the Governments of the Soviet Union and Nicaragua on the public sidewalks within 500 feet of the embassies of those Governments ... also wish to congregate with two or more other persons within 500 feet of official foreign buildings.
• [Petitioners] brought a facial First Amendment challenge to that provision in the District Court for the District of Columbia.
• Congress enacted § 22-1115 ... 1938 ....
• The first portion of this statute, the "display" clause, applies to signs tending to bring a foreign government into public odium or public disrepute, such as signs critical of a foreign government or its policies. The display clause applies only to the display of signs, not to the spoken word.
• The second portion of the statute, the "congregation" clause, addresses a different concern. It prohibits congregation, which District of Columbia common law defines as an assemblage of three or more people.
• Both of these prohibitions generally operate within a 500-foot zone surrounding embassies or consulates owned by foreign governments, but the statute also can extend to other buildings if foreign officials are inside for some official purpose.
• A list of the material facts is available above

O'Connor Majority (but for Part II-A) Full Argument (Brennan, Marshall, Stevens, Scalia)

• Part I See Material Facts
• Part I See Procedural History
• Part II A -- Analysis of Display Clause [NOT opinion of the Court]
• First, the display clause operates at the core of the First Amendment by prohibiting petitioners from engaging in classically political speech.
• Second, the display clause bars such speech on public streets and sidewalks, traditional public fora that "time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions."
• Third, § 22-1115 is content-based. Whether individuals may picket in front of a foreign embassy depends entirely upon whether their picket signs are critical of the foreign government or not.
• One category of speech has been completely prohibited within 500 feet of embassies. Other categories of speech, however, such as favorable speech about a foreign government or speech concerning a labor dispute with a foreign government, are permitted.
• We reject this contention, although we agree the provision is not viewpoint-based.
• Rather, we have held that a regulation that "does not favor either side of a political controversy" is nonetheless impermissible because the "First Amendment's hostility to content-based regulation extends ... to prohibition of public discussion of an entire topic." Consolidated Edison Co. v. Public Service Comm'n, 447 U. S. 530, 447 U. S. 537 (1980).
• Here the government has determined that an entire category of speech -- signs or displays critical of foreign governments -- is not to be permitted.
• Respondents attempt to bring the display clause within Renton [v. Playtime Theatres, Inc.] by arguing that here, too, the real concern is a secondary effect, namely, our international law obligation to shield diplomats from speech that offends their dignity.
• So long as the justifications for regulation have nothing to do with content, ... we concluded that the regulation was properly analyzed as content-neutral.
• The clause is justified only by reference to the content of speech.
• This justification focuses only on the content of the speech and the direct impact that speech has on its listeners.
• The emotive impact of speech on its audience is not a "secondary effect."
• Because the display clause regulates speech due to its potential primary impact, we conclude it must be considered content-based.
• Part II B -- Display Clause Not Narrowly Tailored
• Our cases indicate that as a content-based restriction on political speech in a public forum, § 22-1115 must be subjected to the most exacting scrutiny.
• As a general matter, we have indicated that, in public debate, our own citizens must tolerate insulting, and even outrageous, speech in order to provide "adequate breathing space' to the freedoms protected by the First Amendment." Hustler Magazine, Inc. v. Falwell, ante at 485 U. S. 56. See also e.g., New York Times Co. v. Sullivan, 376 U.S. at 376 U. S. 270.
• A "dignity" standard, like the "outrageousness" standard that we rejected in Hustler, is so inherently subjective that it would be inconsistent with "our longstanding refusal to [punish speech] because the speech in question may have an adverse emotional impact on the audience." Hustler Magazine, supra, at 485 U. S. 55.
• The dignity interest is said to be compelling in this context primarily because its recognition and protection is part of the United States' obligations under international law.
• Even if we assume that international law recognizes a dignity interest and that it should be considered sufficiently "compelling" to support a content-based restriction on speech, we conclude that § 22-1115 is not narrowly tailored to serve that interest. See, e.g., Perry Education Assn. [v. Perry Local Educators' Assn.], 460 U.S. at 460 U. S. 45; Board of Airport Comm'rs of Los Angeles, 482 U.S. at 482 U. S. 573.
• If [Title 18 U.S.C.] § 112 is all that is necessary in the rest of the country, petitioners contend it should be all that is necessary in the District of Columbia.
• Relying on congressional judgment in this delicate area, we conclude that the availability of alternatives such as § 112 amply demonstrates that the display clause is not crafted with sufficient precision to withstand First Amendment scrutiny. It may serve an interest in protecting the dignity of foreign missions, but it is not narrowly tailored; a less restrictive alternative is readily available.
• Thus, even assuming for present purposes that the dignity interest is "compelling," we hold that the display clause of § 22-1115 is inconsistent with the First Amendment.
• Part III -- Congregation Clause Constitutional
• Petitioners initially attack the congregation clause by arguing that it confers unbridled discretion upon the police. In addressing such a facial overbreadth challenge, a court's first task is to ascertain whether the enactment reaches a substantial amount of constitutionally protected conduct.
• ... text [of the statute] is problematic both because it applies to any congregation within 500 feet of an embassy for any reason and because it appears to place no limits at all on the dispersal authority of the police.
• Petitioners protest that the Court of Appeals was without authority to narrow the statute.
• It is well settled that federal courts have the power to adopt narrowing constructions of federal legislation.
• So narrowed, the congregation clause withstands First Amendment overbreadth scrutiny.
• ... the congregation clause does not prohibit peaceful congregations; its reach is limited to groups posing a security threat.
• ... prevent the congregation clause from reaching a substantial amount of constitutionally protected conduct and make the clause consistent with the First Amendment.
• Part IV -- Equal Protection Considerations
• As narrowed by the Court of Appeals, the congregation clause does not "prohibit picketing" at all, it merely regulates the place and manner of certain demonstrations.
• The labor proviso is thus completely consistent with the congregation clause.
• Third, § 22-1116 evinces an intent to protect only "bona fide" labor disputes.
• Accordingly, in our view, § 22-1116 does not violate the Equal Protection Clause.
• Part V -- Conclusion
• We conclude that the display clause of § 22-1115 is unconstitutional on its face.
• It is a content-based restriction on political speech in a public forum, and it is not narrowly tailored to serve a compelling state interest.
• We also conclude that the congregation clause, as narrowed by the Court of Appeals, is not facially unconstitutional.
• Accordingly, the judgment of the Court of Appeals is reversed in part and affirmed in part.
• The core of the rationale is available above