Boos v. Barry
485 U.S. 312 (1988)

Annotate this Case

U.S. Supreme Court

Boos v. Barry, 485 U.S. 312 (1988)

Boos v. Barry

No. 86-803

Argued November 9, 1987

Decided March 22, 1988

485 U.S. 1988

Syllabus

District of Columbia Code § 22-1115 makes it unlawful, within 500 feet of a foreign embassy, either to display any sign that tends to bring the foreign government into "public odium" or "public disrepute" (display clause), or to congregate and refuse to obey a police dispersal order (congregation clause). Petitioners, who wish to engage in conduct that would violate both clauses, filed suit in Federal District Court against respondent city officials, asserting a facial First Amendment challenge to § 22-1115. The court granted respondents' motion for summary judgment, and the Court of Appeals affirmed, concluding that both clauses were constitutional.

Held: The judgment is affirmed in part and reversed in part.

255 U.S.App.D.C.19, 798 F.2d 1450, affirmed in part and reversed in part.

JUSTICE O'CONNOR delivered the opinion of the Court with respect to Parts I, II-B, III, IV, and V, concluding that:

1. Section 22-1115's display clause is facially violative of the First Amendment, since it is a content-based restriction on political speech in a public forum, which is not narrowly tailored to serve a compelling state interest. Assuming, without deciding, that protecting the dignity of foreign diplomats by shielding them from criticism of their governments is a "compelling" interest for First Amendment purposes, the ready availability of a significantly less restrictive alternative -- 18 U.S.C. § 112, which prohibits intimidating, coercing, or harassing foreign officials or obstructing them in the performance of their duties -- amply demonstrates that the display clause is not sufficiently narrowly tailored to withstand exacting scrutiny. Respondents' defense of the clause is further undercut by § 1302 of the Onmibus Diplomatic Security and Antiterrorism Act of 1986, in which Congress requested that the District of Columbia review and revise § 22-1115 in the interest of protecting First Amendment rights, and the District responded by repealing the section, contingent on the prior extension of § 112 to the District. This Court may rely on the judgment of Congress, the body primarily responsible for implementing international law obligations, that § 112 adequately satisfies the Government's interest in protecting diplomatic personnel and

Page 485 U. S. 313

that, accordingly, § 22-1115's display clause is not narrowly tailored. Pp. 485 U. S. 321-329.

2. Section 22-1115's congregation clause, as construed by the Court of Appeals, is not facially violative of the First Amendment. The clause is not overbroad, even though its actual language is problematic both because it applies to any congregation for any reason within 500 feet of an embassy and because it appears to place no limits on police dispersal authority. These difficulties are alleviated by the Court of Appeals' narrowing construction that the clause permits dispersal only of congregations that are directed at an embassy and only when the police reasonably believe that the embassy's "security or peace" is threatened. Thus, the clause does not reach a substantial amount of constitutionally protected conduct, since it merely regulates the place and manner of certain demonstrations, is site-specific to areas within 500 feet of embassies, and does not prohibit peaceful congregations. Nor is the clause, as narrowed, impermissibly vague simply because the Court of Appeals has not defined or limited the word "peace." Given the particular context for which the clause is crafted, it is apparent that the prohibited quantum of disturbance is determined by whether normal embassy activities have been or are about to be disrupted. Pp. 485 U. S. 329-332.

3. The contention that, since § 22-1116 excludes labor picketing from § 22-1115's general prohibitions, both of § 22-1115's clauses require unequal treatment of nonlabor and labor activities in violation of the Equal Protection Clause is without merit. Section 22-1116's primary function of ensuring that the display clause did not prohibit labor picketing is largely preempted by this Court's conclusion that that clause violates the First Amendment. Moreover, under the Court of Appeals' construction of the congregation clause as applying only to congregations that threaten an embassy's security or peace, any peaceful congregation, including a peaceful labor congregation, is permitted. This Court will not adopt the unreasonable interpretation that § 22-1116's sole purpose is to protect violent labor congregations. Thus, § 22-1116 does not violate equal protection. Pp. 485 U. S. 332-334.

JUSTICE O'CONNOR, joined by JUSTICE STEVENS and JUSTICE SCALIA, concluded in Part II-A that § 22-1115's display clause is content-based, since whether it prohibits picketing in front of a particular embassy depends entirely upon whether the picket signs are critical of the foreign government. The argument that the clause is content-neutral because it does not select between particular viewpoints, but determines a sign's permissible message solely on the basis of the foreign government's policies, is without merit, since even a viewpoint-neutral regulation violates the First Amendment when it prohibits an entire category of speech -- here, signs critical of foreign governments. Also rejected is the contention

Page 485 U. S. 314

that, since the clause's real concern is not the suppression of speech, but is rather the "secondary effect" of implementing the international law obligation to shield diplomats from speech that offends their dignity, the clause is content-neutral under Renton v. Playtime Theatres, Inc.,475 U. S. 41. As used in Renton, the phrase "secondary effects" refers to secondary features that happen to be associated with the particular type of speech but have nothing to do with its content, whereas, here, the asserted justification for the display clause focuses only on the content of picket signs and their primary and direct emotive impact on their audience. Pp. 485 U. S. 318-321.

JUSTICE BRENNAN, joined by JUSTICE MARSHALL, agreeing that, even under the Renton analysis, § 22-1115's display clause constitutes a content-based restriction, and that "secondary effects" cannot include listeners' reactions to speech, concluded that the content-based nature of a restriction on speech cannot turn on whether the restriction "aims" at "secondary effects," and that, at any rate, the Renton analysis should be limited to the context of businesses purveying sexually explicit materials and not applied to political speech. The Renton analysis creates extensive dangers and uncertainty, and denies speakers the equal right to speak and listeners the right to an undistorted debate. The traditional bright-line rule should continue to apply, whereby any restriction on speech, the application of which turns on the speech's content, is content-based regardless of its underlying motivation. Pp. 485 U. S. 334-338.

O'CONNOR, J., delivered the opinion of the Court with respect to Parts I, II-B, and V, in which BRENNAN, MARSHALL, STEVENS, and SCALIA, JJ., joined, and with respect to Parts III and IV, in which all participating Members joined, and an opinion with respect to Part II-A, in which STEVENS and SCALIA, JJ., joined. BRENNAN, J., filed an opinion concurring in part and concurring in the judgment, in which MARSHALL, J., joined, post, p. 485 U. S. 334. REHNQUIST, C.J., filed an opinion concurring in part and dissenting in part, in which WHITE and BLACKMUN, JJ., joined. KENNEDY, J., took no part in the consideration or decision of the case.

Page 485 U. S. 315

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