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
JUSTICE O'CONNOR delivered the opinion of the Court, except as
to Part II-A.
The question presented in this case is whether a provision of
the District of Columbia Code, § 22-1115, violates the First
Amendment. This section 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." It
also prohibits any congregation of three or more persons within 500
feet of a foreign embassy.
I
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 in Washington, D.C. Petitioners Bridget M. Brooker and
Michael Boos, for example, wish to display signs stating "RELEASE
SAKHAROV" and "SOLIDARITY" in front of the Soviet Embassy.
Petitioner J. Michael Waller wishes to display a sign reading "STOP
THE KILLING" within 500 feet of the Nicaraguan Embassy. All of the
petitioners also wish to congregate with two or more other persons
within 500 feet of official foreign buildings.
Asserting that D.C. Code § 22-1115 (1981) prohibited them from
engaging in these expressive activities, petitioners,
Page 485 U. S. 316
together with respondent Father R. David Finzer, brought a
facial First Amendment challenge to that provision in the District
Court for the District of Columbia. They named respondents, the
Mayor and certain other law enforcement officials of the District
of Columbia, as defendants. The United States intervened as
amicus curiae supporting the constitutionality of the
statute.
Congress enacted § 22-1115 in 1938, S.J.Res.191, ch. 29, § 1, 52
Stat. 30 (1938), pursuant to its authority under Article I, § 8,
cl. 10, of the Constitution to "define and punish . . . Offenses
against the Law of Nations." Section 22-1115 reads in pertinent
part as follows:
"It shall be unlawful to display any flag, banner, placard, or
device designed or adapted to intimidate, coerce, or bring into
public odium any foreign government, party, or organization, or any
officer or officers thereof, or to bring into public disrepute
political, social, or economic acts, views, or purposes of any
foreign government, party or organization . . . within 500 feet of
any building or premises within the District of Columbia used or
occupied by any foreign government or its representative or
representatives as an embassy, legation, consulate, or for other
official purposes . . . or to congregate within 500 feet of any
such building or premises, and refuse to disperse after having been
ordered so to do by the police authorities of said District."
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.
See Zaimi v. United States,
155 U.S.App.D.C. 66, 82, 476 F.2d 511, 527 (1973). The second
portion of the statute, the "congregation" clause, addresses a
different concern. It prohibits congregation, which District of
Columbia common
Page 485 U. S. 317
law defines as an assemblage of three or more people.
District of Columbia v. Reed, Cr. No. 2021-67
(D.C.Ct.Gen.Sess., May 11, 1967) (reprinted in App. in
Kinoy v.
District of Columbia, 130 U.S.App.D.C. 290, 298, 400 F.2d 761,
769 (1968));
Hunter v. District of Columbia, 47App.D.C.
406, 409 (1918). 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.
The District Court granted respondents' motion for summary
judgment, relying upon an earlier Court of Appeals decision,
Frend v. United States, 69 App.D.C. 281, 100 F.2d 691
(1938),
cert. denied, 306 U.S. 640 (1939), that had
sustained the statute against a similar First Amendment challenge.
A divided panel of the Court of Appeals for the District of
Columbia affirmed.
Finzer v. Barry, 255 U.S.App.D.C.19,
798 F.2d 1450 (1986). Although it found
Frend "persuasive
precedent," the Court of Appeals thought
Frend was not
binding because it "was decided almost a half century ago and in
the interval the Supreme Court has developed constitutional law in
ways that must be taken into account." 255 U.S.App.D.C. at 23, 798
F.2d at 1454.
The Court of Appeals considered the two aspects of § 22-1115
separately. First, the court concluded that the display clause was
a content-based restriction on speech. Relying, however, upon our
decisions in
Perry Education Assn. v. Perry Local Educators'
Assn., 460 U. S. 37,
460 U. S. 45
(1983), and
Carey v. Brown, 447 U.
S. 455,
447 U. S.
461-462 (1980), 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
Page 485 U. S. 318
congregation clause survived First Amendment scrutiny. 256
U.S.App.D.C. at 40, 798 F.2d at 1471.
We granted certiorari, 479 U.S. 1083 (1987). We now reverse the
Court of Appeals' conclusion as to the display clause, but affirm
as to the congregation clause.
II
A
Analysis of the display clause must begin with several important
features of that provision. First, the display clause operates at
the core of the First Amendment by prohibiting petitioners from
engaging in classically political speech. We have recognized that
the First Amendment reflects a "profound national commitment" to
the principle that "debate on public issues should be uninhibited,
robust, and wide-open,"
New York Times Co. v. Sullivan,
376 U. S. 254,
376 U. S. 270
(1964), and have consistently commented on the central importance
of protecting speech on public issues.
See, e.g., Connick v.
Myers, 461 U. S. 138,
461 U. S. 145
(1983);
NAACP v. Claiborne Hardware Co., 458 U.
S. 886, 913 (1982);
Carey v. Brown, supra, at
447 U. S. 467.
This has led us to scrutinize carefully any restrictions on public
issue picketing.
See, e.g., United States v. Grace,
461 U. S. 171
(1983);
Carey v. Brown, supra; Police Department of Chicago v.
Mosley, 408 U. S. 92
(1972).
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."
Hague v. CIO, 307 U. S. 496,
307 U. S. 515
(1939) (Roberts, J.). In such places, which occupy a "special
position in terms of First Amendment protection,"
United States
v. Grace, 461 U.S. at
461 U. S. 180, the government's ability to restrict
expressive activity "is very limited."
Id. at
461 U. S.
177.
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
Page 485 U. S. 319
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.
See D.C. Code § 22-1116
(1981).
Both the majority and dissent in the Court of Appeals accepted
this common sense reading of the statute and concluded that the
display clause was content-based. The majority indicated, however,
that it could be argued that the regulation was not content-based.
255 U.S.App.D.C. at 38, n. 15, 798 F.2d at 1469, n. 15. Both
respondents and the United States have now made such an argument in
this Court. They contend that the statute is not content-based
because the government is not itself selecting between viewpoints;
the permissible message on a picket sign is determined solely by
the policies of a foreign government.
We reject this contention, although we agree the provision is
not viewpoint-based. The display clause determines which viewpoint
is acceptable in a neutral fashion by looking to the policies of
foreign governments. While this prevents the display clause from
being directly viewpoint-based, a label with potential First
Amendment ramifications of its own,
see, e.g., City Council of
Los Angeles v. Taxpayers for Vincent, 466 U.
S. 789,
466 U. S. 804
(1984);
Schacht v. United States, 398 U. S.
58,
398 U. S. 63
(1970), it does not render the statute content-neutral. 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.
Page 485 U. S. 320
We most recently considered the definition of a content-neutral
statute in
Renton v. Playtime Theatres, Inc., 475 U. S.
41 (1986). Drawing on prior decisions, we described
"'content-neutral' speech restrictions as those that 'are
justified without reference to the content of the
regulated speech.'
Virginia Pharmacy Board v. Virginia Citizens
Consumer Council, Inc., 425 U. S. 748,
425 U. S.
771 (1976) (emphasis added)."
Id. at
475 U. S. 48.
The regulation at issue in
Renton described prohibited
speech by reference to the type of movie theater involved, treating
"theaters that specialize in adult films differently from other
kinds of theaters."
Id. at
475 U. S. 47.
But while the regulation in
Renton applied only to a
particular category of speech, its justification had nothing to do
with that speech. The content of the films being shown inside the
theaters was irrelevant, and was not the target of the regulation.
Instead, the ordinance was aimed at the "
secondary effects
of such theaters in the surrounding community,"
ibid.
(emphasis in original), effects that are almost unique to theaters
featuring sexually explicit films,
i.e., prevention of
crime, maintenance of property values, and protection of
residential neighborhoods. In short, the ordinance in
Renton did not aim at the suppression of free
expression.
Respondents attempt to bring the display clause within
Renton 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. We think
this misreads
Renton. We spoke in that decision only of
secondary effects of speech, referring to regulations that
apply to a particular category of speech because the regulatory
targets happen to be associated with that type of speech. So long
as the justifications for regulation have nothing to do with
content,
i.e., the desire to suppress crime has nothing to
do with the actual films being shown inside adult movie theaters,
we concluded that the regulation was properly analyzed as
content-neutral.
Page 485 U. S. 321
Regulations that focus on the direct impact of speech on its
audience present a different situation. Listeners' reactions to
speech are not the type of "secondary effects" we referred to in
Renton. To take an example factually close to
Renton, if the ordinance there was justified by the city's
desire to prevent the psychological damage it felt was associated
with viewing adult movies, then analysis of the measure as a
content-based statute would have been appropriate. The hypothetical
regulation targets the direct impact of a particular category of
speech, not a secondary feature that happens to be associated with
that type of speech.
Applying these principles to the case at hand leads readily to
the conclusion that the display clause is content-based. The clause
is justified
only by reference to the content of speech.
Respondents and the United States do not point to the "secondary
effects" of picket signs in front of embassies. They do not point
to congestion, to interference with ingress or egress, to visual
clutter, or to the need to protect the security of embassies.
Rather, they rely on the need to protect the dignity of foreign
diplomatic personnel by shielding them from speech that is critical
of their governments. 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.
B
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. Thus, we have required the State to
show that the "regulation is necessary to serve a compelling state
interest and that it is narrowly drawn to achieve that end."
Perry Education Assn. v. Perry Local Educators' Assn., 460
U.S. at
460 U. S. 45.
Accord, 482 U. S. Jews for
Jesus, 482 U.S.
Page 485 U. S. 322
569,
482 U. S.
572-573 (1987);
Cornelius v. NAACP Legal Defense
& Educational Fund, Inc., 473 U.
S. 788,
473 U. S. 800
(1985);
United States v. Grace, 461 U.S. at
461 U. S.
177.
We first consider whether the display clause serves a compelling
governmental interest in protecting the dignity of foreign
diplomatic personnel. Since the dignity of foreign officials will
be affronted by signs critical of their governments or governmental
policies, we are told, these foreign diplomats must be shielded
from such insults in order to fulfill our country's obligations
under international law.
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.
We are not persuaded that the differences between foreign
officials and American citizens require us to deviate from these
principles here. 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. The
Vienna Convention on Diplomatic Relations, April 18, 1961, [1972]
23 U.S.T. 3227, T.I.A.S. No. 7502, which all parties agree
represents the current state of international law, imposes on host
states
"[the] special duty to take all appropriate steps to protect the
premises of the mission against any intrusion or damage and to
prevent any disturbance of the peace of the mission or impairment
of its dignity."
Id. at 3237-3238, Art. 22.
Page 485 U. S. 323
As a general proposition, it is of course correct that the
United States has a vital national interest in complying with
international law. The Constitution itself attempts to further this
interest by expressly authorizing Congress "[t]o define and punish
Piracies and Felonies committed on the high Seas, and Offenses
against the Law of Nations." U.S.Const., Art. I, § 8, cl. 10.
Cf. The Federalist No. 3, p. 43 (C. Rossiter ed.1961) (J.
Jay). Moreover, protecting foreign emissaries has a long history
and noble purpose. In this country, national concern for the
protection of ambassadors and foreign ministers even predates the
Constitution. In 1781, the Continental Congress adopted a
resolution calling on the States to enact laws punishing
"infractions of the immunities of ambassadors and other public
ministers, authorised and received as such by the United States in
Congress assembled,"
targeting in particular "violence offered to their persons,
houses, carriages and property." 21 J.Continental Cong. 1136-1137
(G. Hunt ed.1912).
The need to protect diplomats is grounded in our Nation's
important interest in international relations. As a leading
commentator observed in 1758,
"[i]t is necessary that nations should treat and hold
intercourse together, in order to promote their interests, -- to
avoid injuring each other, -- and to adjust and terminate their
disputes."
E. Vattel, The Law of Nations 452 (J. Chitty ed. 1844)
(translation). This observation is even more true today, given the
global nature of the economy and the extent to which actions in
other parts of the world affect our own national security.
Diplomatic personnel are essential to conduct the international
affairs so crucial to the wellbeing of this Nation. In addition, in
light of the concept of reciprocity that governs much of
international law in this area,
see C. Wilson, Diplomatic
Privileges and Immunities 32 (1967), we have a more parochial
reason to protect foreign diplomats in this country. Doing so
ensures that similar protections will be accorded those that we
send abroad to represent the United States, and thus serves our
Page 485 U. S. 324
national interest in protecting our own citizens. Recent history
is replete with attempts, some unfortunately successful, to harass
and harm our ambassadors and other diplomatic officials. These
underlying purposes combine to make our national interest in
protecting diplomatic personnel powerful indeed.
At the same time, it is well established that
"no agreement with a foreign nation can confer power on the
Congress, or on any other branch of Government, which is free from
the restraints of the Constitution."
Reid v. Covert, 354 U. S. 1,
354 U. S. 16
(1957).
See 1 Restatement of Foreign Relations Law of the
United States § 131, Comment a, p. 53 (Tent. Draft No. 6, Apr. 12,
1985) ("[R]ules of international law and provisions of
international agreements of the United States are subject to the
Bill of Rights and other prohibitions, restrictions or requirements
of the Constitution, and cannot be given effect in violation of
them").
Thus, the fact that an interest is recognized in international
law does not automatically render that interest "compelling" for
purposes of First Amendment analysis. We need not decide today
whether, or to what extent, the dictates of international law could
ever require that First Amendment analysis be adjusted to
accommodate the interests of foreign officials. 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., 460 U.S. at
460 U. S. 45;
Board of Airport Comm'rs of Los Angeles, 482 U.S. at
482 U. S.
573.
The most useful starting point for assessing § 22-1115 is to
compare it with an analogous statute adopted by Congress, which is
the body primarily responsible for implementing our obligations
under the Vienna Convention. Title 18 U.S.C. § 112(b)(2) subjects
to criminal punishment willful acts or attempts to
"intimidate, coerce, threaten, or harass a foreign
Page 485 U. S. 325
official or an official guest or obstruct a foreign official in
the performance of his duties."
Its legislative history reveals that § 112 was developed as a
deliberate effort to implement our international obligations.
See, e.g., 118 Cong.Rec. 27112-27113 (1972). At the same
time, the history reflects a substantial concern with the effect of
any such legislation on First Amendment freedoms. For example, the
original provision contained a prohibition on willful acts or
attempts to "intimidate, coerce, threaten, or harass . . . or
obstruct a foreign official," as does the current version of § 112.
In a portion with similarities to the display clause, however, it
also punished anyone who
"parades, pickets, displays any flag, banner, sign, placard, or
device, or utters any word, phrase, sound, or noise, for the
purpose of intimidating, coercing, threatening, or harassing any
foreign official or obstructing him in the performance of his
duties."
Act for Protection of Foreign Official Guests of the United
States, Pub.L. 92-539, Title III, § 301(c)(1), 86 Stat. 1070, 1073
(1972).
Concerned with the effects that such a provision might have on
First Amendment freedoms, the Senate added a new subsection, which
directed:
"[N]othing contained in this section shall be construed or
applied so as to abridge the exercise of rights guaranteed under
the first amendment to the Constitution of the United States."
§ 301(e), 86 Stat. 1073.
See S.Rep. No. 92-1105, p.19
(1972).
After the 1972 passage of § 112 in this form, congressional
concerns about its impact on First Amendment freedoms apparently
escalated, rather than abated. In 1976, Congress revisited the area
and repealed the antipicketing provision, leaving in place only the
current prohibition on willful acts or attempts to "intimidate,
coerce, threaten, or harass a foreign
Page 485 U. S. 326
official." § 112(b)(2). In modifying § 112, Congress was
motivated by First Amendment concerns:
"This language [of the original anti-picketing provision] raises
serious Constitutional questions because it appears to include
within its purview conduct and speech protected by the First
Amendment."
S.Rep. No. 94-1273, p. 8, n. 9 (1976); H.R.Rep. No. 94-1614, p.
6, n. 9 (1976).
Thus, after a careful balancing of our country's international
obligations with our Constitution's protection of free expression,
Congress has determined that § 112 adequately satisfies the
Government's interest in protecting diplomatic personnel outside
the District of Columbia. It is the necessary, "appropriate" step
that Congress has enacted to fulfill our international obligations.
Cf. Vienna Convention on Diplomatic Relations, Art. 22, §
2, 23 U.S.T. at 3237 ("special duty to take all appropriate
steps").
Section 112 applies to all conduct "within the United States but
outside the District of Columbia." § 112(b)(3). In the legislative
history, the exclusion of the District from the statute's reach is
explained with reference to § 22-1115; Congress was informed that a
"similar" statute already applied inside the District. S.Rep. No.
92-1105,
supra at 19; H.R.Rep. No. 92-1268, p. 5 (1972).
The two statutes, however, are not identical, and the differences
between them are constitutionally significant. In two obvious ways,
§ 112 is considerably less restrictive than the display clause of §
22-1115. First and foremost, § 112 is not narrowly directed at the
content of speech, but at any activity, including speech, that has
the prohibited effects. Moreover, § 112, unlike § 22-1115, does not
prohibit picketing; it only prohibits activity undertaken to
"intimidate, coerce, threaten, or harass." Indeed, unlike the
display clause, even the repealed antipicketing portion of § 112
permitted peaceful picketing.
Given this congressional development of a significantly less
restrictive statute to implement the Vienna Convention,
Page 485 U. S. 327
there is little force to the argument that we should give
deference to a supposed congressional judgment that the Convention
demands the more problematic approach reflected in the display
clause. If § 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. The only counterargument offered by
respondents is that the District has a higher concentration of
foreign embassies than other locales, and that a more restrictive
statute is therefore necessary. But this is arguably factually
incorrect (New York City is reported to have a greater number of
foreign embassies, missions, or consulates than does the District
of Columbia,
see Note, Regulating Embassy Picketing in the
Public Forum, 55 Geo.Wash.L.Rev. 908, 928, n. 140 (1987)), and
logically beside the point, since the need to protect "dignity" is
equally present whether there is one embassy or mission or one
hundred. The United States points to Congress' exclusive
legislative authority over the District of Columbia, U.S.Const.,
Art. I, § 8, cl. 17, and argues that this justifies more extensive
measures. We fail to see, however, why the potential legislative
power to enact more extensive measures makes such measures
necessary.
Congressional action since the Court of Appeals' ruling in this
case casts even further doubt on the validity of the display
clause, and causes one to doubt whether that court would have
reached the same result under the law as it now stands. In § 1302
of the Onmibus Diplomatic Security and Antiterrorism Act of 1986,
Congress said:
"(1) [T]he District of Columbia law concerning demonstrations
near foreign missions in the District of Columbia (D.C. Code, sec.
22-1115) may be inconsistent with the reasonable exercise of the
rights of free speech and assembly, that law may have been
selectively enforced, and peaceful demonstrators may have been
unfairly arrested under the law; "
Page 485 U. S. 328
"(2) the obligation of the United States to provide adequate
security for the missions and personnel of foreign governments must
be balanced with the reasonable exercise of the rights of free
speech and assembly; and"
"(3) therefore, the Council of the District of Columbia should
review and, if appropriate, make revisions in the laws of the
District of Columbia concerning demonstrations near foreign
missions, in consultation with the Secretary of State and the
Secretary of the Treasury."
Pub.L. 99-399, § 1302, 100 Stat. 853, 897.
This sense-of-the-Congress resolution originated as a proposal
to repeal § 22-1115 directly and to amend § 112 to include the
District. The sponsor of this proposal noted that, in excluding the
District from the reach of § 112, Congress had apparently assumed
that § 22-1115 and § 112 were similar, when in fact the two laws
are "in no way similar." 132 Cong.Rec. 15329 (1986) (Sen.
Grassley). The Senate passed the bill repealing § 22-1115,
see
ibid., but the Conference Committee was concerned with
objections to congressional repeal arising from the tenets of "home
rule" for the District of Columbia.
See id. at 20913.
Cf. District of Columbia Self-Government and Governmental
Reorganization Act, Pub L. 93-198, 87 Stat. 774 (establishing home
rule). These objections led Congress to replace a repeal of §
22-1115 with the sense-of-the-Congress language quoted above.
The District of Columbia government has responded to the
congressional request embodied in the Onmibus Act by repealing §
22-1115. The repeal is contingent, however, on Congress' first
acting to extend § 112 to the District.
See Protection for
Foreign Officials, Official Guests, and Internationally Protected
Persons Amendment Act of 1987, § 3, D.C. Act 7-138, 35 D.C. Reg.
728-729 (Feb. 5, 1988).
Cf. § 112(b)(3) (Section applies
"within the United States, but outside the District of
Columbia").
Page 485 U. S. 329
While this most recent round of legislative action concerning §
22-1115 has not yet led to making the repeal of that provision
effective, it has undercut significantly respondents' defense of
the display clause. When considered together with earlier
congressional action implementing the Vienna Convention, the claim
that the display clause is sufficiently narrowly tailored is
gravely weakened: if ever it did so, Congress no longer considers
this statute necessary to comply with our international
obligations. 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.
Cf. Wygant v. Jackson Bd. of Ed.,
476 U. S. 267,
476 U. S. 280,
n. 6 (1986) (plurality opinion). 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.
III
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.
Houston v. Hill,
482 U. S. 451,
482 U. S.
458-459 (1987);
Hoffman Estates v. Flipside, Hoffman
Estates, Inc., 455 U. S. 489,
455 U. S. 494
(1982). In making this assessment, we consider the actual text of
the statute as well as any limiting constructions that have been
developed.
Kolender v. Lawson, 461 U.
S. 352,
461 U. S. 355
(1983);
Hoffman Estates, supra, at
455 U. S. 494,
n. 5.
The congregation clause makes it unlawful
"to congregate within 500 feet of any [embassy, legation, or
consulate] and refuse to disperse after having been ordered so to
do by the police."
§ 22-1115.
Page 485 U. S. 330
Standing alone, this text 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. The Court of Appeals,
however, has provided a narrowing construction that alleviates both
of these difficulties.
The Court of Appeals, we must first observe, read the
congregation clause as distinct from the display clause, so the
constitutional infirmity of the latter need not affect the former.
See 255 U.S.App.D.C. at 41, n. 17, 798 F.2d at 1472, n.
17. Second, the Court of Appeals followed the lead of several
earlier decisions,
see, e.g., United States v. Travers, 98
Daily Wash.L.Rptr. 1505 (D.C.Ct.Gen.Sess. April 2, 1970), and
concluded that the statute permits the dispersal only of
congregations that are directed at an embassy; it does not grant
"police the power to disperse for reasons having nothing to do with
the nearby embassy." 255 U.S.App.D.C. at 41, 798 F.2d at 1472.
Finally, the Court of Appeals further circumscribed police
discretion by holding that the statute permits dispersal "only when
the police reasonably believe that a threat to the security or
peace of the embassy is present."
Id. at 40, 798 F.2d at
1471.
Petitioners protest that the Court of Appeals was without
authority to narrow the statute. According to petitioners, §
22-1115 must be considered to be state legislation, which brings it
within the sweep of prior decisions indicating that federal courts
are without power to adopt a narrowing construction of a state
statute unless such a construction is reasonable and readily
apparent.
See, e.g., Grayned v. Rockford, 408 U.
S. 104,
408 U. S. 110
(1972);
Gooding v. Wilson, 405 U.
S. 518,
405 U. S.
520-521 (1972). Even assuming that the District of
Columbia could be considered a State for this purpose, the argument
overlooks the fact that § 22-1115 was enacted by Congress, not by
the District of Columbia Council.
Cf. Whalen v. United
States, 445 U. S. 684,
445 U. S.
687-688 (1980). It is well settled that federal courts
have the power to adopt
Page 485 U. S. 331
narrowing constructions of federal legislation.
See, e.g.,
New York v. Ferber, 458 U. S. 747,
458 U. S. 769,
n. 24 (1982);
United States v. Thirty-seven Photographs,
402 U. S. 363,
402 U. S.
368-370 (1971). Indeed, the federal courts have the duty
to avoid constitutional difficulties by doing so if such a
construction is fairly possible.
See, e.g., Ferber, supra,
at
458 U. S. 769,
n. 24;
Thirty-seven Photographs, supra, at
402 U. S. 369;
Schneider v. Smith, 390 U. S. 17,
390 U. S. 26-27
(1968). While the original congressional resolution is now part of
the District of Columbia Code, this administrative transfer did not
diminish the national interest in the congregation clause. As
counsel for respondents indicated at oral argument, there "is no
independent District of Columbia interest here." Tr. of Oral Arg.
28. Accordingly, we see no barrier to the Court of Appeals'
adoption of a narrowing construction.
So narrowed, the congregation clause withstands First Amendment
overbreadth scrutiny. It does not reach a substantial amount of
constitutionally protected conduct; it merely regulates the place
and manner of certain demonstrations. Unlike a general breach of
the peace statute,
see, e.g., Cox v. Louisiana,
379 U. S. 536
(1965), the congregation clause is site-specific; it applies only
within 500 feet of foreign embassies.
Cf. Cox v.
Louisiana, 379 U. S. 559,
379 U. S. 568,
n. 1 (1965) (ordinance prohibiting certain picketing "near" a
courthouse upheld; § 22-1115 cited with approval as being less
vague due to specification of 500 feet);
Grayned, supra,
at
408 U. S. 112,
408 U. S.
120-121 (upholding ban on picketing near a school;
special nature of place relevant in judging reasonableness of
restraint). Moreover, the congregation clause does not prohibit
peaceful congregations; its reach is limited to groups posing a
security threat. As we have noted, "where demonstrations turn
violent, they lose their protected quality as expression under the
First Amendment."
Grayned, supra, at
408 U. S. 116.
These two limitations prevent the congregation clause from reaching
a substantial amount of constitutionally
Page 485 U. S. 332
protected conduct and make the clause consistent with the First
Amendment.
Petitioners argue that, even as narrowed by the Court of
Appeals, the congregation clause is invalid because it is
impermissibly vague. In particular, petitioners focus on the word
"peace," which is not further defined or limited. We rejected an
identical argument in
Grayned, supra. That case concerned
an ordinance that prohibited persons near schools from
"disturb[ing] the peace" of the schools. 408 U.S. at
408 U. S.
107-108. We held that, given the "particular context" of
the ordinance, it gave fair notice of its scope:
"Although the prohibited quantum of disturbance is not specified
in the ordinance, it is apparent from the statute's announced
purpose that the measure is whether normal school activity has been
or is about to be disrupted."
Id. at
408 U. S. 112.
Section 22-1115 presents the same situation. It is crafted for a
particular context, and, given that context, it is apparent that
the "prohibited quantum of disturbance" is whether normal embassy
activities have been or are about to be disrupted. The statute
communicates its reach in words of common understanding,
ibid.;
Cameron v. Johnson, 390 U. S. 611,
390 U. S. 616
(1968), and it accordingly withstands petitioners' vagueness
challenge.
IV
In addition to their First Amendment challenges to the display
clause and the congregation clause, petitioners raise an equal
protection argument. Relying on
Police Department of Chicago v.
Mosley, 408 U. S. 92
(1972), and
Carey v. Brown, 447 U.
S. 455 (1980), 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:
"[N]othing contained in [§ 22-1115] shall be construed to
prohibit picketing, as a result of bona fide labor disputes
regarding the alteration, repair, or construction of either
buildings or premises occupied, for business purposes,
Page 485 U. S. 333
wholly or in part, by representatives of foreign
governments."
No doubt the primary intent of § 22-1116 was to ensure that the
display clause did not prohibit labor picketing, since "picketing"
is most directly implicated in the display clause. Even if §
22-1116 were to exempt the display of labor signs that offended the
dignity of foreign officials from the display clause's general ban
on such signs, and thereby raise equal protection concerns, we have
already concluded that the display clause is contrary to the First
Amendment. Accordingly, the only provision to which § 22-1116
conceivably could apply is the congregation clause. And the Court
of Appeals has already construed that provision to apply only to
congregations that threaten the security or peace of an embassy.
Therefore, peaceful congregations, including peaceful labor
congregations, are not prohibited.
Accordingly, only if § 22-1116 is construed to protect
violent labor congregations, will there be any unequal
treatment of nonlabor and labor picketing which could run afoul of
the Equal Protection Clause. In our view, § 22-1116 should not be
interpreted in this manner. First, it is well established that
statutes should be construed to avoid constitutional questions if
such a construction is fairly possible.
See, e.g., New York v.
Ferber, supra, at
458 U. S. 769,
n. 24;
United States v. Thirty-seven Photographs, supra.
Second, the face of the statute admonishes only that nothing shall
"prohibit picketing." 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. We think it safe to conclude that an intent to
protect such "good faith" disagreements falls short of an intent to
insulate violent conduct. Indeed, it would be unreasonable to
construe this statute in such a way
Page 485 U. S. 334
that the sole purpose of § 22-1116 would be to protect violent
labor congregations.
The intended function of § 22-1116 is largely preempted by our
conclusion that the display clause is invalid. Viewing the section
in this way eliminates any potential unequal treatment of nonlabor
and labor congregations. Accordingly, in our view, § 22-1116 does
not violate the Equal Protection Clause.
V
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.
It is so ordered.
JUSTICE KENNEDY took no part in the consideration or decision of
this case.
JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, concurring in
part and concurring in the judgment.
I join all but Part II-A of JUSTICE O'CONNOR's opinion. I also
join Part II-A to the extent it concludes that, even under the
analysis set forth in
Renton v. Playtime Theatres, Inc.,
475 U. S. 41
(1986), the display clause constitutes a content-based restriction
on speech that merits strict scrutiny. Whatever "secondary effects"
means, I agree that it cannot include listeners' reactions to
speech.
Cf. Hustler Magazine, Inc. v. Falwell, ante p.
485 U. S. 46. 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, J., joined by MARSHALL, J., dissenting),
Page 485 U. S. 335
and to object to JUSTICE 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.
The dangers and difficulties posed by the
Renton
analysis are extensive. Although in this case it is easy enough to
determine that the display clause does not aim at a "secondary
effect" of speech, future litigants are unlikely to be so bold or
so forthright as to defend a restriction on speech with the
argument that the restriction aims to protect listeners from the
indignity of hearing speech that criticizes them. Rather, they are
likely to defend content-based restrictions by pointing, as JUSTICE
O'CONNOR suggests, to secondary effects like "congestion, . . .
visual clutter, or . . . security. . . ."
Ante at
485 U. S. 321.
But such secondary effects offer countless excuses for
content-based suppression of political speech. 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. Our traditional analysis rejects such
a priori categorical judgments based on the content of
speech,
Police Department of Chicago v. Mosley,
408 U. S. 92,
408 U. S.
100-101 (1972), requiring governments to regulate based
on actual congestion, visual clutter, or violence rather than based
on predictions that speech with a certain content will induce those
effects. The
Renton analysis, however, creates a possible
avenue for governmental censorship whenever censors can concoct
"secondary" rationalizations for regulating the content of
political speech.
Moreover, the
Renton analysis provides none of the
clear lines or sanctuaries the First Amendment demands. The
traditional approach sets forth a bright-line rule: any restriction
on speech, the application of which turns on the content
Page 485 U. S. 336
of the speech, is a content-based restriction regardless of the
motivation that lies behind it. That, to my mind, has always been
implicit in the fact that we term the test a "content-based" test
rather than a "motivation-based" test. The traditional rule thus
provides clear guidance. Governments can ascertain the scope of
impermissible regulation. Individuals can ascertain the scope of
their constitutional protection. The
Renton analysis, in
contrast, plunges courts into the morass of legislative motive, a
notoriously hazardous and indeterminate inquiry, particularly
where, as under the
Renton approach, the posited purpose
flies in the face of plain statutory language.
See, e.g.,
United States v. O'Brien, 391 U. S. 367,
391 U. S.
383-384 (1968). 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); L. Tribe,
American Constitutional Law § 6-4, p. 408 (2d ed.1988) (noting that
the Court abandoned a similar distinction between direct and
indirect regulation of interstate commerce).
This indeterminacy is hardly
Renton's worst flaw, for
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. But the inherently ill-defined nature of
the
Renton analysis certainly exacerbates the risk that
many laws designed to suppress disfavored speech will go
undetected. Although an inquiry into motive is sometimes a useful
supplement, the best protection against governmental attempts to
squelch opposition has never lain in our ability to assess the
purity of legislative motive, but rather in the requirement
Page 485 U. S. 337
that the government act through content-neutral means that
restrict expression the government favors as well as expression it
disfavors. In Justice Jackson's felicitous words of nearly 40 years
ago: "Courts can take no better measure to assure that laws will be
just than to require that laws be equal in operation."
Railway
Express Agency, Inc. v. New York, 336 U.
S. 106,
336 U. S. 113
(1949) (concurring opinion). 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. These
rights are all the more precious when the speech subject to unequal
treatment is political speech and the debate being distorted is a
political debate. And the dangers, the uncertainties, and the
damage to free and equal debate caused by the
Renton
analysis are all the more regrettable given the unlikelihood of any
legitimate governmental interest in a content-based restriction on
speech (especially political speech) and the ample alternatives
governments have for advancing content-neutral goals through
content-neutral regulation. At least, in
Renton, there was
a plausible argument that the secondary effect sought to be
regulated -- the social decay of neighborhoods -- could not be
directly regulated in the way that congestion, visual clutter, or
violence can be. But absent a demonstrable showing of that type of
necessity, it is hard to see how a convincing argument could ever
be made that a content-based regulation does not aim at content.
Nor can I conceive of any situation where a plausible argument
could be made that regulating the content of political speech is
necessary to regulate content-neutral secondary effects.
Until today, the
Renton analysis, however unwise, had
at least never been applied to political speech.
Renton
itself seemed to confine its application to "businesses that
purvey
Page 485 U. S. 338
sexually explicit materials." 475 U.S. at
475 U. S. 49,
and n. 2. Indeed, the same day that we decided
Renton,
three of the Justices who joined it reiterated the traditional test
in
Pacific Electric Co. v. Public Utilities Comm'n,
475 U. S. 1,
475 U. S. 20
(1986) (plurality opinion of Powell, J.) ("For a time, place, or
manner regulation to be valid, it must be neutral as to the content
of the speech to be regulated").
See also Widmar v.
Vincent, 454 U. S. 263
(1981) (evaluating a prohibition on the religious use of university
buildings under the strict scrutiny applicable to content-based
regulations even though the prohibition was aimed at avoiding
perceived Establishment Clause problems, a secondary effect of the
speech).
* True, today's
application of the
Renton analysis to political speech is
dictum: the challenged statute would be treated as content-based
under either
Renton or the traditional approach, and the
opinion could easily have stated simply that we need not reach the
issue whether
Renton applies to political speech because,
even under
Renton, the law constitutes a content-based
restriction. It is nonetheless ominous dictum, for it could set the
Court on a road that will lead to the evisceration of First
Amendment freedoms. 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.
* And, as suggested above, strong arguments exist for, at a
minimum, confining the
Renton analysis to situations where
the secondary effects sought to be regulated are not amenable to
direct regulation.
CHIEF JUSTICE REHNQUIST, with whom JUSTICES WHITE and BLACKMUN
join, concurring in part and dissenting in part.
For the reasons stated by Judge 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
Page 485 U. S. 339
bring that foreign government into "public odium" or "public
disrepute." However, I agree with JUSTICE O'CONNOR that § 22-1115's
congregation clause is not unconstitutional, and that the exemption
for labor picketing does not violate the Equal Protection Clause,
so I join in Parts III and IV of the majority opinion.