Title 40 U.S.C. § 13k prohibits the "display [of] any flag,
banner, or device designed or adapted to bring into public notice
any party, organization, or movement" in the United States Supreme
Court building or on its grounds, which are defined to include the
public sidewalks constituting the outer boundaries of the grounds.
One appellee was threatened with arrest by Court police officers
for violation of the statute when he distributed leaflets
concerning various causes on the sidewalk in front of the Court.
The other appellee was similarly threatened with arrest for
displaying on the sidewalk a picket sign containing the text of the
First Amendment. Appellees then filed suit in Federal District
Court, seeking an injunction against enforcement of § 13k and a
declaratory judgment that it was unconstitutional on its face. The
District Court dismissed the complaint for failure to exhaust
administrative remedies. The Court of Appeals, after determining
that such dismissal was erroneous, struck down § 13k on its face as
an unconstitutional restriction on First Amendment rights in a
public place.
Held: Section 13k, as applied to the public sidewalks
surrounding the Court building, is unconstitutional under the First
Amendment. Pp.
461 U. S.
175-184.
(a) The conduct of each appellee falls into the statutory ban,
and hence it is proper to reach the constitutional question
involved. Pp.
461 U. S.
175-176.
(b) As a general matter, peaceful picketing and leafletting are
expressive activities involving "speech" protected by the First
Amendment. "Public places," such as streets, sidewalks, and parks,
historically associated with the free exercise of expressive
activities, are considered, without more, to be "public forums." In
such places, the Government may enforce reasonable time, place, and
manner regulations, but additional restrictions, such as an
absolute prohibition of a particular type of expression, will be
upheld only if narrowly drawn to accomplish a compelling
governmental interest. Pp.
461 U. S. 176-178.
(c) The Court grounds are not transformed into "public forum"
property merely because the public is permitted to freely enter and
leave the grounds at practically all times and is admitted to the
building during specified hours. But where the sidewalks forming
the perimeter of the grounds are indistinguishable from any other
sidewalks in Washington,
Page 461 U. S. 172
D.C., they should not be treated any differently, and thus are
public forums for First Amendment purposes. Pp.
461 U. S.
178-180.
(d) Insofar as it totally bans specified communicative activity
on the public sidewalks around the Court grounds, § 13k cannot be
justified as a reasonable place restriction. A total ban on
carrying a flag, banner, or device on the public sidewalks does not
substantially serve the purposes of the statute of which § 13k is a
part -- to provide for the maintenance of law and order on the
Court grounds. Nor do § 13k's prohibitions here at issue
sufficiently serve the averred purpose of protecting the Court from
outside influence or preventing it from appearing to the public
that the Court is subject to such influence or that picketing or
marching is an acceptable way of influencing the Court, where, as
noted, the public sidewalks surrounding the Court grounds are no
different than other public sidewalks in the city. Pp.
461 U. S.
180-183.
214 U.S.App.D.C. 375, 665 F.2d 1193, affirmed in part and
vacated in part.
WHITE, J., delivered the opinion of the Court, in which BURGER,
C.J., and BRENNAN, BLACKMUN, POWELL, REHNQUIST, and O'CONNOR, JJ.,
joined. MARSHALL, J.,
post, p.
461 U. S. 184,
and STEVENS, J.,
post, p.
461 U. S. 188,
filed opinions concurring in part and dissenting in part.
JUSTICE WHITE delivered the opinion of the Court.
In this case, we must determine whether 40 U.S.C. § 13k, which
prohibits, among other things, the "display [of] any flag, banner,
or device designed or adapted to bring into public
Page 461 U. S. 173
notice any party, organization, or movement" [
Footnote 1] in the United States Supreme
Court building and on its grounds, violates the First
Amendment.
I
In May, 1978, appellee Thaddeus Zywicki, standing on the
sidewalk in front of the Supreme Court building, distributed
leaflets to passersby. The leaflets were reprints of a letter to
the editor of the Washington Post from a United States Senator
concerning the removal of unfit judges from the bench. A Supreme
Court police officer approached Zywicki and told him, accurately,
that Title 40 of the United States Code prohibited the distribution
of leaflets on the Supreme Court grounds, which includes the
sidewalk. Zywicki left.
In January, 1980, Zywicki again visited the sidewalk in front of
the Court to distribute pamphlets containing information about
forthcoming meetings and events concerning "the oppressed peoples
of Central America." Zywicki again was approached by a Court police
officer and was informed that the distribution of leaflets on the
Court grounds was prohibited by law. The officer indicated that
Zywicki would be arrested if the leafletting continued. Zywicki
left.
Zywicki reappeared in February, 1980, on the sidewalk in front
of the Court and distributed handbills concerning oppression in
Guatemala. Zywicki had consulted with an attorney concerning the
legality of his activities, and had been informed that the Superior
Court for the District of Columbia had construed the statute that
prohibited leafletting, 40 U.S.C. § 13k, to prohibit only conduct
done with the specific intent to influence, impede, or obstruct the
administration of
Page 461 U. S. 174
justice. [
Footnote 2]
Zywicki again was told by a Court police officer that he would be
subject to arrest if he persisted in his leafletting. Zywicki
complained that he was being denied a right that others were
granted, referring to the newspaper vending machines located on the
sidewalk. Nonetheless, Zywicki left the grounds.
Around noon on March 17, 1980, appellee Mary Grace entered upon
the sidewalk in front of the Court and began to display a four foot
by two-and-a half-foot sign on which was inscribed the verbatim
text of the First Amendment. A Court police officer approached
Grace and informed her that she would have to go across the street
if she wished to display the sign. Grace was informed that Title 40
of the United States Code prohibited her conduct and that, if she
did not cease, she would be arrested. Grace left the grounds.
On May 13, 1980, Zywicki and Grace filed the present suit in the
United States District Court for the District of Columbia. They
sought an injunction against continued enforcement of 40 U.S.C. §
13k and a declaratory judgment that the statute was
unconstitutional on its face. On August 7, 1980, the District Court
dismissed the complaint for failure to exhaust administrative
remedies. [
Footnote 3]
Appellees took an appeal, arguing that the District Court's action
was improper and that the Court of Appeals should grant the relief
requested in the complaint.
The Court of Appeals determined that the District Court's
dismissal for failure to exhaust administrative remedies was
erroneous, and went on to strike down § 13k on its face as an
unconstitutional restriction on First Amendment rights in a
Page 461 U. S. 175
public place. [
Footnote 4]
Grace v. Burger, 214 U.S.App.D.C. 375, 665 F.2d 1193
(1981).
The Government appealed from the Court of Appeals' judgment. We
noted probable jurisdiction, 457 U.S. 1131 (1982).
II
Section 13k prohibits two distinct activities: it is unlawful
either "to parade, stand, or move in processions or assemblages in
the Supreme Court Building or grounds," or "to display therein any
flag, banner, or device designed or adapted to bring into public
notice any party, organization, or movement." Each appellee
appeared individually on the public sidewalks to engage in
expressive activity, and it goes without saying that the threat of
arrest to which each appellee was subjected was for violating the
prohibition against the display of a "banner or device."
Accordingly, our review is limited to the latter portion of the
statute. [
Footnote 5] Likewise,
the controversy presented by appellees concerned their right to use
the public sidewalks surrounding the Court building for the
communicative activities they sought to carry out, and we shall
address only whether the proscriptions of § 13k are constitutional
as applied to the public sidewalks.
Our normal course is first to "ascertain whether a construction
of the statute is fairly possible by which the [constitutional]
Page 461 U. S. 176
question may be avoided."
Crowell v. Benson,
285 U. S. 22,
285 U. S. 62
(1932).
See New York v. Ferber, 458 U.
S. 747,
458 U. S. 769,
n. 24 (1982). Appellees did not make a statutory construction
argument before the lower courts, but at oral argument, the
question was raised whether § 13k reached the types of conduct in
which appellees engaged, and we should answer it. We agree with the
United States that the statute covers the particular conduct of
Zywicki or Grace, and that it is therefore proper to reach the
constitutional question involved in this case.
The statutory ban is on the display of a "flag, banner, or
device designed or adapted to bring into public notice any party,
organization, or movement." 40 U.S.C. § 13k. It is undisputed that
Grace's picket sign containing the text of the First Amendment
falls within the description of a "flag, banner, or device."
Although it is less obvious, it is equally uncontested that
Zywicki's leaflets fall within the proscription as well.
We also accept the Government's contention, not contested by
appellees, that almost any sign or leaflet carrying a
communication, including Grace's picket sign and Zywicki's
leaflets, would be "designed or adapted to bring into public notice
[a] party, organization or movement." Such a construction brings
some certainty to the reach of the statute, and hence avoids what
might be other challenges to its validity.
III
The First Amendment provides that "Congress shall make no law .
. . abridging the freedom of speech. . . ." [
Footnote 6] There is no doubt that, as a general
matter, peaceful picketing and leafletting are expressive
activities involving "speech" protected by the First Amendment.
E.g., 447 U. S.
Brown, 447
Page 461 U. S. 177
U.S. 455,
447 U. S. 460
(1980);
Gregory v. Chicago, 394 U.
S. 111,
394 U. S. 112
(1969);
Jamison v. Texas, 318 U.
S. 413 (1943);
Thornhill v. Alabama,
310 U. S. 88
(1940);
Lovell v. Griffin, 303 U.
S. 444 (1938);
Schneider v. State, 308 U.
S. 147 (1939).
It is also true that "public places" historically associated
with the free exercise of expressive activities, such as streets,
sidewalks, and parks, are considered, without more, to be "public
forums."
See Perry Education Assn. v. Perry Local Educators'
Assn., 460 U. S. 37,
460 U. S. 45
(1983);
Carey v. Brown, supra, at
447 U. S. 460;
Hudgens v. NLRB, 424 U. S. 507,
424 U. S. 515
(1976);
Cox v. New Hampshire, 312 U.
S. 569,
312 U. S. 574
(1941);
Hague v. CIO, 307 U. S. 496,
307 U. S. 515
(1939). In such places, the government's ability to permissibly
restrict expressive conduct is very limited: the government may
enforce reasonable time, place, and manner regulations as long as
the restrictions
"are content-neutral, are narrowly tailored to serve a
significant government interest, and leave open ample alternative
channels of communication."
Perry Education Assn., supra, at
460 U. S. 45.
See, e.g., Heffron v. International Society for Krishna
Consciousness, Inc., 452 U. S. 640,
452 U. S. 647,
452 U. S. 654
(1981);
Grayned v. City of Rockford, 408 U.
S. 104,
408 U. S. 115
(1972);
Cox v. Louisiana, 379 U.
S. 559 (1965) (
Cox II). Additional restrictions
such as an absolute prohibition on a particular type of expression
will be upheld only if narrowly drawn to accomplish a compelling
governmental interest.
See, e.g., Perry Education Assn.,
supra, at
460 U. S. 46;
Widmar v. Vincent, 454 U. S. 263
(1981).
Publicly owned or operated property does not become a "public
forum" simply because members of the public are permitted to come
and go at will.
See Greer v. Spock, 424 U.
S. 828,
424 U. S. 836
(1976). Although whether the property has been "generally opened to
the public" is a factor to consider in determining whether the
government has opened its property to the use of the people for
communicative purposes, it is not determinative of the question. We
have regularly rejected the assertion that people who wish "to
propagandize protests or views have a constitutional right to do so
when
Page 461 U. S. 178
ever and however and wherever they please."
Adderley v.
Florida, 385 U. S. 39,
385 U. S. 47-48
(1966).
See, e.g., Cox v. Louisiana, 379 U.
S. 536,
379 U. S.
554-555 (1965) (
Cox I);
Cox II, supra,
at
379 U. S.
563-564. There is little doubt that, in some
circumstances, the government may ban the entry on to public
property that is not a "public forum" of all persons except those
who have legitimate business on the premises. The government, "no
less than a private owner of property, has the power to preserve
the property under its control for the use to which it is lawfully
dedicated."
Adderley v. Florida, supra, at
385 U. S. 47.
See Cox II, supra, at
379 U. S.
563-564.
IV
It is argued that the Supreme Court building and grounds fit
neatly within the description of nonpublic forum property. Although
the property is publicly owned, it has not been traditionally held
open for the use of the public for expressive activities. As
Greer v. Spock, supra, teaches, the property is not
transformed into "public forum" property merely because the public
is permitted to freely enter and leave the grounds at practically
all times and the public is admitted to the building during
specified hours. [
Footnote 7]
Under this view, it would be necessary only to determine that the
restrictions imposed by § 13k are reasonable in light of the use to
which the building and grounds are dedicated, and that there is no
discrimination on the basis of content. We need not make that
judgment at this time, however, because § 13k covers the public
sidewalks as well as the building and grounds inside
Page 461 U. S. 179
the sidewalks. As will become evident, we hold that § 13k may
not be applied to the public sidewalks.
The prohibitions imposed by § 13k technically cover the entire
grounds of the Supreme Court as defined in 40 U.S.C. § 13p.
[
Footnote 8] That section
describes the Court grounds as extending to the curb of each of the
four streets enclosing the block on which the building is located.
Included within this small geographical area, therefore, are not
only the building, the plaza and surrounding promenade, lawn area,
and steps, but also the sidewalks. The sidewalks comprising the
outer boundaries of the Court grounds are indistinguishable from
any other sidewalks in Washington, D.C., and we can discern no
reason why they should be treated any differently. [
Footnote 9] Sidewalks, of course, are among
those areas of public property that traditionally have been held
open to the public for expressive activities, and are clearly
within those areas of public property that may be considered,
generally without further inquiry, to be public forum property. In
this respect, the present case differs from
Greer v. Spock,
supra. In
Greer, the streets and sidewalks at issue
were located within an enclosed military reservation, Fort Dix,
N.J., and were thus separated from the streets and sidewalks of any
municipality. That is not true of the sidewalks surrounding
Page 461 U. S. 180
the Court. There is no separation, no fence, and no indication
whatever to persons stepping from the street to the curb and
sidewalks that serve as the perimeter of the Court grounds that
they have entered some special type of enclave. In
United
States Postal Service v. Greenburgh Civic Assns., 453 U.
S. 114,
453 U. S. 133
(1981), we stated that "Congress . . . may not, by its own
ipse
dixit, destroy the
public forum' status of streets and
parks which have historically been public forums. . . ." The
inclusion of the public sidewalks within the scope of § 13k's
prohibition, however, results in the destruction of public forum
status that is at least presumptively impermissible. Traditional
public forum property occupies a special position in terms of First
Amendment protection, and will not lose its historically recognized
character for the reason that it abuts government property that has
been dedicated to a use other than as a forum for public
expression. Nor may the government transform the character of the
property by the expedient of including it within the statutory
definition of what might be considered a nonpublic forum parcel of
property. The public sidewalks forming the perimeter of the Supreme
Court grounds, in our view, are public forums, and should be
treated as such for First Amendment purposes.
V
The Government submits that § 13k qualifies as a reasonable
time, place, and manner restriction which may be imposed to
restrict communicative activities on public forum property such as
sidewalks. The argument is that the inquiry should not be confined
to the Supreme Court grounds, but should focus on "the vicinity of
the Supreme Court" or "the public places of Washington, D.C." Brief
for Appellants 16, n. 5. Viewed in this light, the Government
contends that there are sufficient alternative areas within the
relevant forum, such as the streets around the Court or the
sidewalks across those streets to permit § 13k to be considered a
reasonable "place" restriction having only a minimal
Page 461 U. S. 181
impact on expressive activity. We are convinced, however, that
the section, which totally bans the specified communicative
activity on the public sidewalks around the Court grounds,
[
Footnote 10] cannot be
justified as a reasonable place restriction, primarily because it
has an insufficient nexus with any of the public interests that may
be thought to undergird § 13k. Our reasons for this conclusion will
become apparent below, where we decide that § 13k, insofar as its
prohibitions reach to the public sidewalks, is unconstitutional
because it does not sufficiently serve those public interests that
are urged as its justification.
Section 13k was part of an 11-section statute, enacted in 1949,
"[r]elating to the policing of the building and grounds of the
Supreme Court of the United States." 63 Stat. 616, 40 U.S.C. §§
13f-13p. The occasion for its passage was the termination of the
practice by District of Columbia authorities of appointing Supreme
Court guards as special policemen for the District. This action
left the Supreme Court police force without authority to make
arrests and enforce the law in the building and on the grounds of
the Court. The Act, which was soon forthcoming, was modeled on the
legislation relating to the Capitol grounds, 60 Stat. 718, 40
U.S.C. §§ 193a-193m. It authorizes the appointment by the Marshal
of special officers "for duty in connection with the policing of
the Supreme Court Building and grounds and adjacent streets."
Sections 2-6 of the Act prohibit certain kinds of
Page 461 U. S. 182
conduct in the building or grounds. Section 6, codified as 40
U.S.C. § 13k, is at issue here. Other sections authorize the
Marshal to issue regulations, provide penalties for violations of
the Act or regulations, and authorize the Court's special police to
make arrests for violation of the Act's prohibitions or of any law
of the United States occurring within the building and grounds and
on the adjacent streets. Section 11 of the Act, 13 U.S.C. § 13p,
defines the limits of the Court's grounds as including the
sidewalks surrounding the building.
Based on its provisions and legislative history, it is fair to
say that the purpose of the Act was to provide for the protection
of the building and grounds and of the persons and property
therein, as well as the maintenance of proper order and decorum.
Section 6, 40 U.S.C. § 13k, was one of the provisions apparently
designed for these purposes. At least, no special reason was stated
for its enactment.
We do not denigrate the necessity to protect persons and
property or to maintain proper order and decorum within the Supreme
Court grounds, but we do question whether a total ban on carrying a
flag, banner, or device on the public sidewalks substantially
serves these purposes. There is no suggestion, for example, that
appellees' activities in any way obstructed the sidewalks or access
to the building, threatened injury to any person or property, or in
any way interfered with the orderly administration of the building
or other parts of the grounds. As we have said, the building's
perimeter sidewalks are indistinguishable from other public
sidewalks in the city that are normally open to the conduct that is
at issue here and that § 13k forbids. A total ban on that conduct
is no more necessary for the maintenance of peace and tranquility
on the public sidewalks surrounding the building than on any other
sidewalks in the city. Accordingly, § 13k cannot be justified on
this basis.
The United States offers another justification for § 13k that
deserves our attention. It is said that the federal courts
represent an independent branch of the Government, and that
Page 461 U. S. 183
their decisionmaking processes are different from those of the
other branches. Court decisions are made on the record before them,
and in accordance with the applicable law. The views of the parties
and of others are to be presented by briefs and oral argument.
Courts are not subject to lobbying, judges do not entertain
visitors in their chambers for the purpose of urging that cases be
resolved one way or another, and they do not and should not respond
to parades, picketing, or pressure groups. Neither, the Government
urges, should it appear to the public that the Supreme Court is
subject to outside influence or that picketing or marching, singly
or in groups, is an acceptable or proper way of appealing to or
influencing the Supreme Court. Hence, we are asked to hold that
Congress was quite justified in preventing the conduct in dispute
here from occurring on the sidewalks at the edge of the Court
grounds.
As was the case with the maintenance of law and order on the
Court grounds, we do not discount the importance of this proffered
purpose for § 13k. But, again, we are unconvinced that the
prohibitions of § 13k that are at issue here sufficiently serve
that purpose to sustain its validity insofar as the public
sidewalks on the perimeter of the grounds are concerned. Those
sidewalks are used by the public like other public sidewalks. There
is nothing to indicate to the public that these sidewalks are part
of the Supreme Court grounds, or are in any way different from
other public sidewalks in the city. We seriously doubt that the
public would draw a different inference from a lone picketer
carrying a sign on the sidewalks around the building than it would
from a similar picket on the sidewalks across the street.
We thus perceive insufficient justification for § 13k's
prohibition of carrying signs, banners, or devices on the public
sidewalks surrounding the building. We hold that, under the First
Amendment, the section is unconstitutional as applied to those
sidewalks. Of course, this is not to say that those sidewalks, like
other sidewalks, are not subject to reasonable
Page 461 U. S. 184
time, place, and manner restrictions, either by statute or by
regulations issued pursuant to 40 U.S.C. § 131.
The judgment below is accordingly affirmed to the extent
indicated by this opinion, and is otherwise vacated.
So ordered.
[
Footnote 1]
The provision at issue in this case is part of a statutory
scheme enacted in 1949 to govern the protection, care, and policing
of the Supreme Court grounds. In its entirety § 13k provides:
"It shall be unlawful to parade, stand, or move in processions
or assemblages in the Supreme Court Building or grounds, or to
display therein any flag, banner, or device designed or adapted to
bring into public notice any party, organization, or movement."
63 Stat. 617.
[
Footnote 2]
The case Zywicki's counsel referred to is
United States v.
Ebner, No. M-12487-79 (D.C.Super.Ct., Jan. 22, 1980). The case
is currently on appeal to the District of Columbia Court of
Appeals; that court has postponed decision pending the outcome of
the present appeal.
[
Footnote 3]
Grace v. Burger, 524 F.
Supp. 815 (1980).
[
Footnote 4]
The court justified its action in this regard by relying
primarily on the fact that the case presented a pure question of
law that had been fully briefed and argued by the parties both in
the District Court and in the Court of Appeals. Because the
appellants do not take issue with the propriety of the Court of
Appeals' action in addressing the merits, rather than remanding to
the District Court, we will assume that such action was proper
without deciding that question.
Cf. Singleton v. Wulff,
428 U. S. 106
(1976).
[
Footnote 5]
Although the Court of Appeals opinion purports to hold § 13k
unconstitutional on its face without any indication that the
holding is limited to that portion of the statute that deals with
the display of a "flag, banner, or device," the decision must be
read as limited to that prohibition.
[
Footnote 6]
The First Amendment provides in full:
"Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging
the freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a redress
of grievances."
[
Footnote 7]
The limitation on the hours during which the public is permitted
in the Supreme Court building is the only regulation promulgated
under 40 U.S.C. § 131. The regulation provides:
"The Supreme Court Building at 1 First Street, N.E. Washington,
D.C. 20543, is open to the public Monday through Friday, from 9
a.m. to 4:30 p.m., except on Federal holidays. The building is
closed at all other times, although persons having legitimate
business may be admitted at other times when so authorized by
responsible officials."
[
Footnote 8]
Section 13p provides:
"For the purposes of sections 13f to 13p of this title the
Supreme Court grounds shall be held to extend to the line of the
face of the east curb of First Street Northeast, between Maryland
Avenue Northeast and East Capitol Street; to the line of the face
of the south curb of Maryland Avenue Northeast, between First
Street Northeast and Second Street Northeast; to the line of the
face of the west curb of Second Street Northeast, between Maryland
Avenue Northeast and East Capitol Street; and to the line of the
face of the north curb of East Capitol Street between First Street
Northeast and Second Street Northeast."
[
Footnote 9]
Because the prohibitions of § 13k are expressly made applicable
to the entire grounds under § 13p, the statute cannot be construed
to exclude the sidewalks. Thus, we must consider Congress'
extension of § 13k's prohibitions to the sidewalks to be a reasoned
choice.
[
Footnote 10]
Section 13k does not prohibit all expressive conduct: it does
not, for example, purport to prohibit any oral expression, on any
subject. It is unnecessary, however, to determine what conduct
other than the picketing and leafletting at issue here may be
fairly within the terms of the statute, because the statute at
least prohibits the conduct at issue here. We do note that the
current Marshal of the Court has interpreted and applied the
statute to prohibit picketing and leafletting, but not other
expressive conduct.
See Grace v. Burger, 214 U.S.App.D.C.
375, 378, n. 7, 665 F.2d 1193, 1196, n. 7 (1981). Interpreted and
applied as an absolute ban on these two types of expressive
conduct, it is clear that the prohibition is facially
content-neutral.
JUSTICE MARSHALL, concurring in part and dissenting in part.
I would hold 40 U.S.C. § 13k unconstitutional on its face. The
statute in no way distinguishes the sidewalks from the rest of the
premises, and excising the sidewalks from its purview does not
bring it into conformity with the First Amendment. Visitors to this
Court do not lose their First Amendment rights at the edge of the
sidewalks any more than "students or teachers shed their
constitutional rights to freedom of speech or expression at the
schoolhouse gate."
Tinker v. Des Moines Independent Community
School District, 393 U. S. 503,
393 U. S. 506
(1969). Since the continuing existence of the statute will
inevitably have a chilling effect on freedom of expression, there
is no virtue in deciding its constitutionality on a piecemeal
basis.
When a citizen is "in a place where [he] has every right to be,"
Brown v. Louisiana, 383 U. S. 131,
383 U. S. 142
(1966) (opinion of Fortas, J., joined by Warren, C.J., and Douglas,
J.), he cannot be denied the opportunity to express his views
simply because the Government has not chosen to designate the area
as a forum for public discussion. While the right to conduct
expressive activities in such areas as streets, parks, and
sidewalks is reinforced by their traditional use for purposes of
assembly,
Hague v. CIO, 307 U. S. 496,
307 U. S. 515
(1939) (opinion of Roberts, J., joined by Black, J.), that right
ultimately rests on the principle that
"one who is rightfully on a street which the state has left open
to the public carries with him there
as elsewhere the
constitutional right to express his views in an orderly
fashion."
Jamison v. Texas, 318 U. S. 413,
318 U. S. 416
(1943) (emphasis added). Every citizen lawfully present in a
Page 461 U. S. 185
public place has a right to engage in peaceable and orderly
expression that is not incompatible with the primary activity of
the place in question, whether that place is a school, [
Footnote 2/1] a library, [
Footnote 2/2] a private lunch counter, [
Footnote 2/3] the grounds of a statehouse,
[
Footnote 2/4] the grounds of the
United States Capitol, [
Footnote
2/5] a bus terminal, [
Footnote
2/6] a airport, [
Footnote 2/7]
or a welfare center. [
Footnote 2/8]
As we stated in
Grayned v. City of Rockford, 408 U.
S. 104,
408 U. S. 116
(1972),
"[t]he crucial question is whether the manner of expression is
basically incompatible with the normal activity of a particular
place at a particular time."
"[O]ne is not to have the exercise of his liberty of expression
in appropriate places abridged on the plea that it may be exercised
in some other place."
Schneider v. State, 308 U. S. 147,
308 U. S. 163
(1939).
I see no reason why the premises of this Court should be exempt
from this basic principle. It would be ironic indeed if an
exception to the Constitution were to be recognized for the very
institution that has the chief responsibility for protecting
constitutional rights. I would apply to the premises of this Court
the same principle that this Court has applied to other public
places.
Viewed in this light, 40 U.S.C. § 13k is plainly
unconstitutional on its face. The statute is not a reasonable
regulation
Page 461 U. S. 186
of time, place, and manner,
cf., e.g., Kovacs v.
Cooper, 336 U. S. 77,
336 U. S. 87-89
(1949);
Cox v. New Hampshire, 312 U.
S. 569,
312 U. S.
575-576 (1941), for it applies at all times, covers the
entire premises, and, as interpreted by the Court, proscribes even
the handing out of a leaflet and, presumably, the wearing of a
campaign button as well. [
Footnote
2/9]
Nor does the statute merely forbid conduct that is incompatible
with the primary activity being carried out in this Court.
Cf.
Grayned v. City of Rockford, supra, at
408 U. S. 116;
Greer v. Spock, 424 U. S. 828,
424 U. S. 843
(1976) (POWELL, J., concurring). In contrast to 18 U.S.C. § 1507
(1976 ed., Supp. V) and the statute upheld in
Cox v.
Louisiana, 379 U. S. 559
(1965), [
Footnote 2/10] 40 U.S.C.
§ 13k is not limited to expressive activities that are intended to
interfere with, obstruct, or impede the administration of justice.
In
Cox, the Court stressed that a prohibition of
expression "unrelated to any judicial proceedings" would raise
"entirely different considerations." 379 U.S. at
379 U. S. 567.
The statute at issue here is a far cry from
Page 461 U. S. 187
both 18 U.S.C. § 1507 (1976 ed., Supp. V) and the statute upheld
in
Cox, for it imposes a blanket prohibition on the
"display" of "
any flag, banner, or device designed or
adapted to bring into public notice any party, organization, or
movement." (Emphasis added.) The application of the statute does
not depend upon whether the flag, banner, or device in any way
concerns a case before this Court. So sweeping a prohibition is
scarcely necessary to protect the operations of this Court, and in
my view cannot constitutionally be applied either to the Court
grounds or to the areas inside the Court building that are open to
the public.
I would therefore hold the prohibition unconstitutional on its
face. [
Footnote 2/11] We have
repeatedly recognized that a statute which sweeps within its ambit
a broad range of expression protected by the First Amendment should
be struck down on its face. [
Footnote
2/12]
"The existence of such a statute . . . results in a continuous
and pervasive restraint on all freedom of discussion
Page 461 U. S. 188
that might reasonably be regarded as within its purview."
Thornhill v. Alabama, 310 U. S. 88,
310 U. S. 97-98
(1940) (footnote omitted). As JUSTICE BRENNAN stated in his opinion
for the Court in
NAACP v. Button, 371 U.
S. 415,
371 U. S. 433
(1963), First Amendment freedoms "are delicate and vulnerable," and
"[t]he threat of sanctions may deter their exercise almost as
potently as the actual application of sanctions." I would not leave
visitors to this Court subject to the continuing threat of
imprisonment [
Footnote 2/13] if
they dare to exercise their First Amendment rights once inside the
sidewalks.
[
Footnote 2/1]
Tinker v. De Moines Independent Community School
District, 393 U. S. 503,
393 U. S.
512-513 (1969).
[
Footnote 2/2]
Brown v. Louisiana, 383 U. S. 131,
383 U. S. 142
(1966);
id. at
383 U. S. 146,
and n. 5 (BRENNAN, J., concurring in judgment).
[
Footnote 2/3]
Garner v. Louisiana, 368 U. S. 157,
368 U. S.
201-202 (1961) (Harlan, J., concurring in judgment).
[
Footnote 2/4]
Edwards v. South Carolina, 372 U.
S. 229 (1963).
[
Footnote 2/5]
Jeannette Rankin Brigade v. Chief of Capitol
Police, 342 F.
Supp. 575 (DC),
summarily aff'd, 409 U.S. 972
(1972).
[
Footnote 2/6]
Wolin v. Port of New York Authority, 392 F.2d 83 (CA2),
cert. denied, 393 U.S. 940 (1968).
[
Footnote 2/7]
Chicago Area Military Project v. City of Chicago, 508
F.2d 921 (CA7),
cert. denied, 421 U.S. 992 (1975);
Kuszynski v. City of Oakland, 479 F.2d 1130 (CA9
1973).
[
Footnote 2/8]
Albany Welfare Rights Organization v. Wyman, 493 F.2d
1319 (CA2),
cert. denied, 419 U.S. 838 (1974).
[
Footnote 2/9]
Separate provisions of the United States Code also make it a
crime to solicit contributions or give a speech on the premises. 40
U.S.C. §§ 13h and 13j.
[
Footnote 2/10]
Title 18 U.S.C. § 1507 (1976 ed., Supp. V) provides in pertinent
part:
"Whoever, with the intent of interfering with, obstructing, or
impeding the administration of justice, or with the intent of
influencing any judge, juror, witness, or court officer, in the
discharge of his duty, pickets or parades in or near a building
housing a court of the United States, . . . or with such intent
uses any sound-truck or similar device or resorts to any other
demonstration in or near any such building . . . shall be fined not
more than $5,000 or imprisoned for not more than one year, or
both."
The Louisiana statute upheld on its face in
Cox
provided in pertinent part:
"Whoever, with the intent of interfering with, obstructing, or
impeding the administration of justice, or with the intent of
influencing any judge, juror, witness, or court officer, in the
discharge of his duty pickets or parades in or near a building
housing a court of the State of Louisiana . . . shall be fined not
more than five thousand dollars or imprisoned not more than one
year, or both."
La.Rev.Stat. § 14:401 (Supp.1962).
[
Footnote 2/11]
I agree with the Court that the clause of 40 U.S.C. § 13k
prohibiting processions or assemblages is not before us, since
neither of the appellees engaged in a procession or assemblage.
[
Footnote 2/12]
E.g., United States v. Robel, 389 U.
S. 258 (1967);
Keyishian v. Board of Regents,
385 U. S. 589,
385 U. S. 604,
609-610 (1967);
Elfbrandt v. Russell, 384 U. S.
11,
384 U. S. 19
(1966);
Dombrowski v. Pfister, 380 U.
S. 479,
380 U. S. 486
(1965);
Thornhill v. Alabama, 310 U. S.
88,
310 U. S. 97-98
(1940);
Lovell v. Griffin, 303 U.
S. 444,
303 U. S. 451
(1938).
Indeed, to protect third parties not before the Court, we have
held that even
"a litigant whose own activities are
unprotected may
nevertheless challenge a statute by showing that it substantially
abridges the First Amendment rights of other parties not before the
court."
Schaumburg v. Citizens for a Better Environment,
444 U. S. 620,
444 U. S. 634
(1980) (emphasis added).
E.g., Erznoznik v. City of
Jacksonville, 422 U. S. 205
(1975);
Lewis v. City of New Orleans, 415 U.
S. 130 (1974);
Broadrick v. Oklahoma,
413 U. S. 601
(1973);
Gooding v. Wilson, 405 U.
S. 518 (1972);
Kunz v. New York, 340 U.
S. 290 (1951);
NAACP v. Button, 371 U.
S. 415,
371 U. S. 32-433
(1963). If such a showing is made, the statute will be struck down
on its face.
An overbroad statute should likewise be struck down on its face
where, as here, it is challenged by litigants whose own activities
are constitutionally protected.
[
Footnote 2/13]
A person who violates the statute is subject to imprisonment for
60 days or a $100 fine, or both. 40 U.S.C. § 13m.
JUSTICE STEVENS, concurring in part and dissenting in part.
On three occasions, Zywicki distributed leaflets and handbills.
I would not construe that activity as the "display" of any "flag,
banner, or device." A typical passerby would not have learned
Zywicki's message from the "display" of his literature. Only after
the material left Zywicki's possession would his message have
become intelligible.
On one occasion, Grace carried a sign on which the text of the
First Amendment was written. I agree that this was the "display" of
a "device," but I do not agree that her device was "designed or
adapted to bring into public notice any party, organization, or
movement." A typical passerby could not, merely by observing her
sign, confidently link her with any specific party, organization,
or "movement" as that term was understood when this statute was
drafted.
*
I see no reason to stretch the language of the statute to
encompass the activities of either Zywicki or Grace. As a matter of
statutory interpretation, we should not infer that
Page 461 U. S. 189
Congress intended to abridge free expression in circumstances
not plainly covered by the language of the statute. As a matter of
judicial restraint, we should avoid the unnecessary adjudication of
constitutional questions.
Because neither of the appellees has violated the statute, I
would affirm the judgment of the Court of Appeals to the extent
that it requires that appellants be restrained from causing
appellees' arrest for engaging in the activities disclosed by this
record.
*
"A course or series of actions and endeavours on the part of a
body of persons, moving or tending more or less continuously
towards some special end."
6 Oxford English Dictionary 729 (1933) ("movement," definition
6).
See also Webster's International Dictionary 1604 (2d
ed.1934) ("movement," definition 4).