Annotation 20 - First Amendment
Speech Plus--The Constitutional Law of Leafleting, Picketing, and Demonstrating
Communication of political, economic, social, and other views is not accomplished solely by face-to-face speech, broadcast speech, or writing in newspapers, periodicals, and pamphlets. There is also ''expressive conduct,'' which includes picketing, patrolling, and marching, distribution of leaflets and pamphlets and addresses to publicly assembled audiences, door-to-door solicitation and many forms of ''sit-ins.'' There is also a class of conduct now only vaguely defined which has been denominated ''symbolic conduct,'' which includes such actions as flag desecration and draft-card burnings. Because all these ways of expressing oneself involve conduct--action--rather than mere speech, they are all much more subject to regulation and restriction than is simple speech. Some of them may be forbidden altogether. But to the degree that these actions are intended to communicate a point of view the First Amendment is relevant and protects some of them to a great extent. Sorting out the conflicting lines of principle and doctrine is the point of this section.
The Public Forum .--In 1895 while he was a member of the highest court of Massachusetts, Justice Holmes rejected a contention that public property was by right open to the public as a place where the right of speech could be recognized, 75 a rejection endorsed in its rationale on review by the United States Supreme Court. 76 This point of view was rejected by the Court in Hague v. CIO, 77 where Justice Roberts wrote: ''Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens.'' While this opinion was not itself joined by a majority of the Justices, the view was subsequently endorsed by the Court in several opinions. 78
It was called into question in the 1960's, however, when the Court seemed to leave the issue open 79 and when a majority endorsed an opinion of Justice Black's asserting his own narrower view of speech rights in public places. 80 More recent decisions have restated and quoted the Roberts language from Hague and that is now the position of the Court. 81 Public streets and parks, 82 including those adjacent to courthouses 83 and foreign embassies, 84 as well as public libraries 85 and the grounds of legislative bodies, 86 are open to public demonstrations, although the uses to which public areas are dedicated may shape the range of permissible expression and conduct that may occur there. 87 Moreover, not all public properties are thereby public forums. ''[T]he First Amendment does not guarantee access to property simply because it is owned or controlled by the government.'' 88 ''The crucial question is whether the manner of expression is basically compatible with the normal activity of a particular place at a particular time.'' 89 Thus, by the nature of the use to which the property is put or by tradition, some sites are simply not as open for expression as streets and parks are. 90 But if government does open non-traditional forums for expressive activities, it may not discriminate on the basis of content or viewpoint in according access. 91 The Court in accepting the public forum concept has nevertheless been divided with respect to the reach of the doctrine. 92 The concept is likely, therefore, to continue be a focal point of judicial debate in coming years.
Speech in public forums is subject to time, place, and manner regulations, which take into account such matters as control of traffic in the streets, the scheduling of two meetings or demonstrations at the same time and place, the preventing of blockages of building entrances, and the like. 93 Such regulations are closely scrutinized in order to protect free expression, and, to be valid, must be justified without reference to the content or subject matter of speech, 94 must serve a significant governmental interest, 95 and must leave open ample alternative channels for communication of the information. 96 A recent formulation is that a time, place, or manner regulation ''must be narrowly tailored to serve the government's legitimate content-neutral interests, but . . . need not be the least- restrictive or least-intrusive means of doing so.'' All that is required is that ''the means chosen are not substantially broader than necessary to achieve the government's interest.'' 97 Corollary to the rule forbidding regulation premised on content is the principle, a merging of free expression and equal protection standards, that government may not discriminate between different kinds of messages in affording access. 98 In order to ensure against covert forms of discrimination against expression and between different kinds of content, the Court has insisted that licensing systems be constructed as free as possible of the opportunity for arbitrary administration. 99 The Court has also applied its general strictures against prior restraints in the contexts of permit systems and judicial restraint of expression. 100
It appears that government may not deny access to the public forum for demonstrators on the ground that the past meetings of these demonstrators resulted in violence, 101 and may not vary a demonstration licensing fee based on an estimate of the amount of hostility likely to be engendered, 102 but the Court's position with regard to the ''heckler's veto,'' the governmental termination of a speech or demonstration because of hostile crowd reaction, remains quite unclear. 103
The Court has defined three different categories of public property for public forum analysis. First, there is the public forum, places such as streets and parks which have traditionally been used for public assembly and debate, where the government may not prohibit all communicative activity and must justify content-neutral time, place, and manner restrictions as narrowly tailored to serve some legitimate interest. Government may also open property for communicative activity, and thereby create a public forum. Such a forum may be limited--hence the expression ''limited public forum''--for ''use by certain groups, e.g. Widmar v. Vincent (student groups), or for discussion of certain subjects, e.g. City of Madison Joint School District v. Wisconsin PERC (school board business),'' 104 but within the framework of such legitimate limitations discrimination based on content must be justified by compelling governmental interests. 105 Thirdly, government ''may reserve a forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view.'' 106 The distinction between the second and third categories can therefore determine the outcome of a case, since speakers may be excluded from the second category only for a ''compelling'' governmental interest, while exclusion from the third category need only be ''reasonable.'' Yet, distinguishing between the two categories creates no small difficulty, as evidenced by recent case law.
The Court has held that a school system did not create a limited public forum by opening an interschool mail system to use by selected civic groups ''that engage in activities of interest and educational relevance to students,'' and that, in any event, if a limited public forum had thereby been created a teachers union rivaling the exclusive bargaining representative could still be excluded as not being ''of a similar character'' to the civic groups. 107 Less problematic was the Court's conclusion that utility poles and other mu nicipal property did not constitute a public forum for the posting of signs. 108 More problematic was the Court's conclusion that the Combined Federal Campaign, the Federal Government's forum for coordinated charitable solicitation of federal employees, is not a limited public forum. Exclusion of various advocacy groups from participation in the Campaign was upheld as furthering ''reasonable'' governmental interests in offering a forum to ''traditional health and welfare charities,'' avoiding the appearance of governmental favoritism of particular groups or viewpoints, and avoiding disruption of the federal workplace by controversy. 109 The Court pinpointed the government's intention as the key to whether a public forum has been created: ''[t]he government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a non-traditional forum for public discourse.'' 110 Under this categorical approach, the government has wide discretion in maintaining the nonpublic character of its forums, and may regulate in ways that would be impermissible were it to designate a limited public forum. 111
Application of the doctrine continues to create difficulty. A majority of Justices could not agree on the public forum status of a sidewalk located entirely on Postal Service property. 112 The Court was also divided over whether nonsecured areas of an airport terminal, including shops and restaurants, constituted a public forum. Holding that the terminal was not a public forum, the Court upheld restrictions on the solicitation and receipt of funds. 113 But the Court also invalidated a ban on the sale or distribution of literature to passers-by within the same terminal, four Justices believing that the terminal constituted a public forum, and a fifth contending that the multipurpose nature of the forum (shopping mall as well as airport) made restrictions on expression less ''reasonable.'' 114
Quasi-Public Places .--The First Amendment precludes government restraint of expression and it does not require individuals to turn over their homes, businesses or other property to those wishing to communicate about a particular topic. 115 But it may be that in some instances private property is so functionally akin to public property that private owners may not forbid expression upon it. In Marsh v. Alabama, 116 the Court held that the private owner of a company town could not forbid distribution of religious materials by a Jehovah's Witness on a street in the town's business district. The town, wholly owned by a private corporation, had all the attributes of any American municipality, aside from its ownership, and was functionally like any other town. In those circumstances, the Court reasoned, ''the more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.'' 117 This precedent lay unused for some twenty years until the Court first indicated a substantial expansion of it, and then withdrew to a narrow interpretation.
First, in Food Employees Union v. Logan Valley Plaza, 118 the Court held constitutionally protected the picketing of a store located in a shopping center by a union objecting to the store's employment of nonunion labor. Finding that the shopping center was the functional equivalent of the business district involved in Marsh, the Court announced there was ''no reason why access to a business district in a company town for the purpose of exercising First Amendment rights should be constitutionally required, while access for the same purpose to property functioning as a business district should be limited simply because the property surrounding the 'business district' is not under the same ownership.'' 119 [T]he State,'' said Justice Marshall, ''may not delegate the power, through the use of its trespass laws, wholly to exclude those members of the public wishing to exercise their First Amendment rights on the premises in a manner and for a purpose generally consonant with the use to which the property is actually put.'' 120 The Court observed that it would have been hazardous to attempt to distribute literature at the entrances to the center and it reserved for future decision ''whether respondents' property rights could, consistently with the First Amendment, justify a bar on picketing which was not thus directly related in its purpose to the use to which the shopping center property was being put.'' 121
Four years later, the Court answered the reserved question in the negative. 122 Several members of an antiwar group had attempted to distribute leaflets on the mall of a large shopping center, calling on the public to attend a protest meeting. Center guards invoked a trespass law against them, and the Court held they could rightfully be excluded. The center had not dedicated its property to a public use, the Court said; rather, it invited the public in specifically to carry on business with those stores located in the center. Plaintiffs' leafleting, not directed to any store or to the customers qua customers of any of the stores, was unrelated to any activity in the center. Unlike the situation in Logan Valley Plaza, there were reasonable alternatives by which plaintiffs could reach those who used the center. Thus, in the absence of a relationship between the purpose of the expressive activity and the business of the shopping center, the property rights of the center owner will overbalance the expressive rights to persons who would use their property for communicative purposes.
Then, the Court formally overruled Logan Valley Plaza, holding that shopping centers are not functionally equivalent to the company town involved in Marsh. 123 Suburban malls may be the ''new town squares'' in the view of sociologists, but they are private property in the eye of the law. The ruling came in a case in which a union of employees engaged in an economic strike against one store in a shopping center was barred from picketing the store within the mall. The rights of employees in such a situation are generally to be governed by federal labor laws 124 rather than the First Amendment, although there is also the possibility that state constitutional provisions may be interpreted more expansively by state courts to protect some kinds of public issue picketing in shopping centers and similar places. 125 Henceforth, only when private property '''has taken on all the attributes of a town''' is it to be treated as a public forum. 126
Picketing and Boycotts by Labor Unions .--Though ''logically relevant'' to what might be called ''public issue'' picketing, the cases dealing with the invocation of economic pressures by labor unions are set apart by different ''economic and social interests.'' 127 Therefore, these cases are dealt with separately here. It was, however, in a labor case that the Court first held picketing to be entitled to First Amendment protection. 128 Striking down a flat prohibition on picketing to influence or induce someone to do something, the Court said: ''In the circumstances of our times the dissemination of information concerning the facts of a labor dispute must be regarded as within that area of free discussion that is guaranteed by the Constitution . . . .
''[T]he group in power at any moment may not impose penal sanctions on peaceful and truthful discussion of matters of public interest merely on a showing that others may thereby be persuaded to take action inconsistent with its interests. Abridgment of the liberty of such discussion can be justified only where the clear danger of substantive evils arises under circumstances affording no oppor tunity to test the merits of ideas by competition for acceptance in the market of public opinion.'' 129 Peaceful picketing in a situation in which violence had occurred and was continuing, however, was held proscribable. 130 In the absence of violence, the Court continued to find picketing protected, 131 but there soon was decided a class of cases in which the Court sustained injunctions against peaceful picketing in the course of a labor controversy when such picketing was counter to valid state policies in a domain open to state regulation. 132 These cases proceeded upon a distinction drawn by Justice Douglas. ''Picketing by an organized group is more than free speech, since it involves patrol of a particular locality and since the very presence of a picket line may induce action of one kind or another, quite irrespective of the nature of the ideas which are being disseminated. Hence those aspects of picketing make it the subject of restrictive regulations.'' 133 The apparent culmination of this course of decision was the Vogt case in which Justice Frankfurter broadly rationalized all the cases and derived the rule that ''a State, in enforcing some public policy, whether of its criminal or its civil law, and whether announced by its legislature or its courts, could constitutionally enjoin peaceful picketing aimed at preventing effectuation of that policy.'' 134 There the matters rests, although there is some indication that Thornhill stands for something more than that a State may not enforce a blanket prohibition on picketing. 135
Public Issue Picketing and Parading .--The early cases held that picketing and parading were forms of expression entitled to some First Amendment protection. 136 Those early cases did not, however, explicate the difference in application of First Amendment principles which the difference between mere expression and speech-plus would entail. Many of these cases concerned disruptions or feared disruptions of the public peace occasioned by the expressive activity and the ramifications of this on otherwise protected activity. 137 A series of other cases concerned the permissible characteristics of permit systems in which parades and meetings were licensed, and more recent cases have expanded the procedural guarantees which must accompany a permissible licensing system. 138 In one case, however, the Court applied the rules developed with regard to labor picketing to uphold an injunction against the picketing of a grocery chain by a black group to compel the chain to adopt a quota-hiring system for blacks. The Supreme Court affirmed the state courts' ruling that, while no law prevented the chain from hiring blacks on a quota basis, picketing to coerce the adoption of racially discriminatory hiring was contrary to state public policy. 139
A series of civil rights picketing and parading cases led the Court to formulate standards much like those it had established in the labor field, but more protective of expressive activity. The process began with Edwards v. South Carolina, 140 in which the Court reversed a breach of the peace conviction of several blacks for their refusal to disperse as ordered by police. The statute was so vague, the Court concluded, that demonstrators could be convicted simply because their presence ''disturbed'' people. Describing the demonstration upon the grounds of the legislative building in South Carolina's capital, Justice Stewart observed that ''[t]he circumstances in this case reflect an exercise of these basic [First Amendment] constitutional rights in their most pristine and classic form.'' 141 In subsequent cases, the Court observed: ''We emphatically reject the notion urged by appellant that the First and Fourteenth Amendments afford the same kind of freedom to those who would communicate ideas by conduct such as patrolling, marching, and picketing on streets and highways, as those amendments afford to those who communicate ideas by pure speech.'' 142 ''The conduct which is the subject to this statute--picketing and parading--is subject to regulation even though intertwined with expression and association. The examples are many of the application by this Court of the principle that certain forms of conduct mixed with speech may be regulated or prohibited.'' 143
The Court must determine, of course, whether the regulation is aimed primarily at conduct, as is the case with time, place, and manner regulations, or whether instead the aim is to regulate content of speech. In a series of decisions, the Court refused to permit restrictions on parades and demonstrations, and reversed convictions imposed for breach of the peace and similar offenses, when, in the Court's view, disturbance had resulted from opposition to the messages being uttered by demonstrators. 144 More recently, however, the Court upheld a ban on residential picketing in Frisby v. Shultz, 145 finding that the city ordinance was narrowly tailored to serve the ''significant'' governmental interest in protecting residential privacy. As interpreted, the ordinance banned only picketing that targets a single residence, and it is unclear whether the Court would uphold a broader restriction on residential picketing. 146
In 1982 the Justices confronted a case, that, like Hughes v. Superior Court, 147 involved a ''contrary-to-public-policy'' restriction on picketing and parading. NAACP v. Claiborne Hardware Co. 148 may join in terms of importance such cases as New York Times Co. v. Sullivan 149 in requiring the States to observe new and enhanced constitutional standards in order to impose liability upon persons for engaging in expressive conduct implicating the First Amendment. The case arose in the context of a protest against racial conditions by black citizens of Port Gibson, Mississippi. Listing demands that included desegregation of public facilities, hiring of black policemen, hiring of more black employees by local stores, and ending of verbal abuse by police, a group of several hundred blacks unanimously voted to boycott the area's white merchants. The boycott was carried out through speeches and nonviolent picketing and solicitation of others to cease doing business with the merchants. Individuals were designated to watch stores and identify blacks patronizing the stores; their names were then announced at meetings and published. Persuasion of others included social pressures and threats of social ostracism. Acts of violence did occur from time to time, directed in the main at blacks who did not observe the boycott.
The state Supreme Court imposed liability, joint and several, upon leaders and participants in the boycott, and upon the NAACP, for all of the merchants' lost earnings during a seven-year period on the basis of the common law tort of malicious interference with the merchants' business, holding that the existence of acts of physical force and violence and the use of force, violence, and threats to achieve the ends of the boycott deprived it of any First Amendment protection.
Reversing, the Court observed that the goals of the boycotters were legal and that most of their means were constitutionally protected; while violence was not protected, its existence alone did not deprive the other activities of First Amendment coverage. Thus, speeches and nonviolent picketing, both to inform the merchants of grievances and to encourage other blacks to join the boycott, were protected activities, and association for those purposes was also protected. 150 That some members of the group might have engaged in violence or might have advocated violence did not result in loss of protection for association, absent a showing that those associating had joined with intent to further the unprotected activities. 151 Nor was protection to be denied because nonparticipants had been urged to join by speech, by picketing, by identification, by threats of social ostracism, and by other expressive acts: ''[s]peech does not lose its protected character . . . simply because it may embarrass others or coerce them into action.'' 152 The boycott had a disruptive effect upon local economic conditions and resulted in loss of business for the merchants, but these consequences did not justify suppression of the boycott. Government may certainly regulate certain economic activities having an incidental effect upon speech (e.g., labor picketing or business conspiracies to restrain competition), 153 but that power of government does not extend to suppression of picketing and other boycott activities involving, as this case did, speech upon matters of public affairs with the intent of affecting governmental action and motivating private actions to achieve racial equality. 154
The critical issue, however, had been the occurrence of violent acts and the lower court's conclusion that they deprived otherwise protected conduct of protection. ''The First Amendment does not protect violence . . . . No federal rule of law restricts a State from imposing tort liability for business losses that are caused by violence and by threats of violence. When such conduct occurs in the context of constitutionally protected activity, however, 'precision of regulation' is demanded . . . . Specifically, the presence of activity protected by the First Amendment imposes restraints on the grounds that may give rise to damages liability and on the persons who may be held accountable for those damages.'' 155 In other words, the States may impose damages for the consequences of violent conduct, but they may not award compensation for the consequences of nonviolent, protected activity. 156 Thus, the state courts had to compute, upon proof by the merchants, what damages had been the result of violence, and could not include losses suffered as a result of all the other activities comprising the boycott. And only those nonviolent persons who associated with others with an awareness of violence and an intent to further it could similarly be held liable. 157 Since most of the acts of violence had occurred early on, in 1966, there was no way constitutionally that much if any of the later losses of the merchants could be recovered in damages. 158 As to the head of the local NAACP, the Court refused to permit imposition of damages based upon speeches that could be read as advocating violence, inasmuch as any violent acts that occurred were some time after the speeches, and a ''clear and present danger'' analysis of the speeches would not find them punishable. 159 The award against the NAACP fell with the denial of damages against its local head, and, in any event, the protected right of association required a rule that would immunize the NAACP without a finding that it ''authorized--either actually or apparently--or ratified unlawful conduct.'' 160
Claiborne Hardware is, thus, a seminal decision in the Court's effort to formulate standards governing state power to regulate or to restrict expressive conduct that comes close to or crosses over the line to encompass some violent activities; it requires great specificity and the drawing of fine discriminations by government so as to reach only that portion of the activity that does involve violence or the threat of violence, and forecloses the kind of ''public policy'' limit on demonstrations that was approved in Hughes v. Superior Court. 161
More recently, disputes arising from anti-abortion protests outside abortion clinics have occasioned another look at principles distinguishing lawful public demonstrations from proscribable conduct. In Madsen v. Women's Health Center, Supp.61 the Court refined principles governing issuance of ''content-neutral'' injunctions that restrict expressive activity. Supp.62 The appropriate test, the Court stated, is ''whether the challenged provisions of theinjunction burden no more speech than necessary to serve a significant governmental interest.'' Supp.63 Regular time, place, and manner analysis (requiring that regulation benarrowly tailored to serve a significant governmental interest) ''is not sufficiently rigorous,'' the Court explained, because injunctions create greater risk of censorship and discriminatory application, and because of the established principle that an injunction should be no broader than necessary to achieve its desired goals.'' Supp.64 Applying its new test, the Court upheld an injunction prohibiting protesters from congregating, picketing, patrolling, demonstrating, or entering any portion of the public right-of-way within 36 feet of an abortion clinic. Similarly upheld were noise restrictions designed to ensure the health and well-being of clinic patients. Other aspects of the injunction, however, did not pass the test. Inclusion of private property within the 36-foot buffer was not adequately justified, nor was inclusion in the noise restriction of a ban on ''images observable'' by clinic patients. A ban on physically approaching any person within 300 feet of the clinic unless that person indicated a desire to communicate burdened more speech than necessary. Also, a ban on demonstrating within 300 feet of the residences ofclinic staff was not sufficiently justified, the restriction covering a much larger zone than an earlier residential picketing ban that the Court had upheld. Supp.65
Different types of issues were presented by Hurley v. Irish-American Gay Group, Supp.66 in which the Court held that a state's public accommodations law could not be applied to compel private organizers of a St. Patrick's Day parade to accept in the parade a unit that would proclaim a message that the organizers did not wish to promote. Each participating unit affects the message conveyed by the parade organizers, the Court observed, and application of the public accommodations law to the content of the organizers' message contravened the ''fundamental rule . . . that a speaker has the autonomy to choose the content of his own message.'' Supp.67
Leafleting, Handbilling, and the Like .--In Lovell v. City of Griffin, 162 the Court struck down a permit system applying to the distribution of circulars, handbills, or literature of any kind. The First Amendment, the Court said, ''necessarily embraces pamphlets and leaflets. These indeed have been historic weapons in the defense of liberty, as the pamphlets of Thomas Paine and others in our own history abundantly attest.'' 163 State courts, responding to what appeared to be a hint in Lovell that prevention of littering and other interests might be sufficient to sustain a flat ban on literature distribution, 164 upheld total prohibitions and were reversed. ''Mere legislative preferences or beliefs respecting matters of public convenience may well support regulation directed at other personal activities, but be insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of democratic institutions . . . . We are of the opinion that the purpose to keep the streets clean and of good appearance is insufficient to justify an ordinance which prohibits a person rightfully on a public street from handing literature to one willing to receive it. Any burden imposed upon the city authorities in cleaning and caring for the streets as an indirect consequence of such distribution results from the constitutional protection of the freedom of speech and press.'' 165 In Talley v. California, 166 the Court struck down an ordinance which banned all handbills that did not carry the name and address of the author, printer, and sponsor; conviction for violating the ordinance was set aside on behalf of one distributing leaflets urging boycotts against certain merchants because of their employment discrimination. The basis of the decision is not readily ascertainable. On the one hand, the Court celebrated anonymity. ''Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind. Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all . . . . [I]dentification and fear of reprisal might deter perfectly peaceful discussion of public matters of importance.'' 167 On the other hand, responding to the City's defense that the ordinance was aimed at providing a means to identify those responsible for fraud, false advertising, and the like, the Court noted that it ''is in no manner so limited . . . [and] [t]herefore we do not pass on the validity of an ordinance limited to these or any other supposed evils.'' 168 Talley's anonymity rationale was strengthened in McIntyre v. Ohio Elections Comm'n, Supp.68 invalidating Ohio's prohibition on the distribution of anonymous campaign literature. There is a ''respected tradition of anonymity in the advocacy of political causes,'' the Court noted, and neither of the interests asserted by Ohio justified the limitation. The State's interest in informing the electorate was ''plainly insufficient,'' and, while the more weighty interest in preventing fraud in the electoral process may be accomplished by a direct prohibition, it may not be accomplished indirectly by an indiscriminate ban on a whole category of speech. Ohio could not apply the prohibition, therefore, to punish anonymous distribution of pamphlets opposing a referendum on school taxes.
The handbilling cases were distinguished in City Council v. Taxpayers for Vincent, Supp.69 in which the Court held that a city may prohibit altogether the use of utility poles for posting of signs. While a city's concern over visual blight could be addressed by an anti-littering ordinance not restricting the expressive activity of distributing handbills, in the case of utility pole signs ''it is the medium of expression itself'' that creates the visual blight. Hence, the city's prohibition, unlike a prohibition on Distributing handbills, was narrowly tailored to curtail no more speech than necessary to accomplish the city's legitimate purpose. Supp.70 Ten years later, however, the Court unanimously invalidated a town's broad ban on residential signs that permitted only residential identification signs, ''for sale'' signs, and signs warning of safety hazards. Supp.71 Prohibiting homeowners from displaying political, religious, or personal messages on their own property entirely foreclosed ''a venerable means of communication that is unique and important,'' and that is ''an unusually cheap form of communication'' without viable alternatives for many residents. Supp.72 The ban was thus reminiscent of total bans on leafleting, distribution of literature, and door-to-door solicitation that the Court had struck down in the 1930s and 1940s. The prohibition in Vincent was distinguished as not removing a ''uniquely valuable or important mode of communication,'' and as not impairing citizens' ability to communicate. Supp.73
Sound Trucks, Noise .--Physical disruption may occur by other means than the presence of large numbers of demonstrators. For example, the use of sound trucks to convey a message on the streets may disrupt the public peace and may disturb the privacy of persons off the streets. The cases, however, afford little basis for a general statement of constitutional principle. Saia v. New York, 171 while it spoke of ''loud-speakers as today indispensable instruments of effective public speech,'' held only that a particular prior licensing system was void. A five-to-four majority upheld a statute in Kovacs v. Cooper, 172 which was ambiguous with regard to whether all sound trucks were banned or only ''loud and raucous'' trucks and which the state court had interpreted as having the latter meaning. In another case, the Court upheld an antinoise ordinance which the state courts had interpreted narrowly to bar only noise that actually or immediately threatened to disrupt normal school activity during school hours. 173 But the Court was careful to tie its ruling to the principle that the particular requirements of education necessitated observance of rules designed to preserve the school environment. 174 More recently, reaffirming that government has ''a substantial interest in protecting its citizens from unwelcome noise,'' the Court applied time, place, and manner analysis to uphold New York City's sound amplification guidelines designed to prevent excessive noise and assure sound quality at outdoor concerts in Central Park. 175
Door-to-Door Solicitation .--In another Jehovah's Witness case, the Court struck down an ordinance forbidding solicitors or distributors of literature from knocking on residential doors in a community, the aims of the ordinance being to protect privacy, to protect the sleep of many who worked nightshifts, and to protect against burglars posing as canvassers. The five-to-four majority concluded that on balance ''[t]he dangers of distribution can so easily be controlled by traditional legal methods, leaving to each householder the full right to decide whether he will receive strangers as visitors, that stringent prohibition can serve no purpose but that forbidden by the Constitution, the naked restriction of the dissemination of ideas.'' 176
More recently, while striking down an ordinance because of vagueness, the Court observed that it ''has consistently recognized a municipality's power to protect its citizens from crime and undue annoyance by regulating soliciting and canvassing. A narrowly drawn ordinance, that does not vest in municipal officers the undefined power to determine what messages residents will hear, may serve these important interests without running afoul of the First Amendment.'' 177 The Court indicated that its precedents supported measures that would require some form of notice to officials and the obtaining of identification in order that persons could canvas house-to-house for charitable or political purposes.
However, an ordinance which limited solicitation of contributions door-to-door by charitable organizations to those which use at least 75% of their receipts directly for charitable purposes, defined so as to exclude the expenses of solicitation, salaries, overhead, and other administrative expenses, was invalidated as overbroad. 178 A privacy rationale was rejected, inasmuch as just as much intrusion was likely by permitted solicitors as by unpermitted ones. A rationale of prevention of fraud was unavailing, inasmuch as it could not be said that all associations that spent more than 25% of their receipts on overhead were actually engaged in a profit making enterprise, and, in any event, more narrowly drawn regulations, such as disclosure requirements, could serve this governmental interest.
Shaumberg was extended in Secretary of State of Maryland v. Joseph H. Munson Co., 179 and Riley v. National Fed'n of the Blind. 180 In Munson the Court invalidated a Maryland statute limiting professional fundraisers to 25% of the amount collected plus certain costs, and allowing waiver of this limitation if it would effectively prevent the charity from raising contributions. And in Riley the Court invalidated a North Carolina fee structure containing even more flexibility. 181 The Court sees ''no nexus between the percentage of funds retained by the fundraiser and the likelihood that the solicitation is fraudulent,'' and is similarly hostile to any scheme that shifts the burden to the fundraiser to show that a fee structure is reasonable. 182 Moreover, a requirement that fundraisers disclose to potential donors the percentage of donated funds previously used for charity was also invalidated in Riley, the Court indicating that the ''more benign and narrowly tailored'' alternative of disclosure to the state (accompanied by state publishing of disclosed percentages) could make the information publicly available without so threatening the effectiveness of solicitation. 183
The Problem of ''Symbolic Speech.'' --Very little expression is ''mere'' speech. If it is oral, it may be noisy enough to be disturbing, 184 and, if it is written, it may be litter; 185 in either case, it may amount to conduct that is prohibitable in specific cir cumstances. 186 Moving beyond these simple examples, one may see as well that conduct may have a communicative content, intended to express a point of view. Expressive conduct may consist in flying a particular flag as a symbol 187 or in refusing to salute a flag as a symbol. 188 Sit-ins and stand-ins may effectively express a protest about certain things. 189
Justice Jackson wrote: ''There is no doubt that, in connection with the pledge, the flag salute is a form of utterance. Symbolism is a primitive but effective way of communicating ideas. The use of an emblem or flag to symbolize some system, idea, institution, or personality is a short cut from mind to mind.'' 190 When conduct or action has a communicative content to it, governmental regulation or prohibition implicates the First Amendment, but this does not mean that such conduct or action is necessarily immune from governmental process. Thus, while the Court has had few opportunities to formulate First Amendment standards in this area, in upholding a congressional prohibition on draft-card burnings, it has stated the generally applicable rule. ''[A] government regulation is sufficiently justified if it is within the constitutional power of Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedom is no greater than is essential to the furtherance of that government interest.'' 191 The Court has suggested that this standard is virtually identical to that applied to time, place, or manner restrictions on expression. 192
Although almost unanimous in formulating and applying the test in O'Brien, the Court splintered when it had to deal with one of the more popular forms of ''symbolic'' conduct of the late 1960s and early 1970s--flag burning and other forms of flag desecration. The Court remains closely divided to this day. No unifying theory capable of application to a wide range of possible flag abuse actions emerged from the early cases. Thus, in Street v. New York, 193 the defendant had been convicted under a statute punishing desecration ''by words or act'' upon evidence that when he burned the flag he had uttered contemptuous words. The conviction was set aside because it might have been premised on his words alone or on his words and the act together, and no valid governmental interest supported penalizing verbal contempt for the flag. 194
A few years later the Court reversed two other flag desecration convictions, one on due process/vagueness grounds, the other under the First Amendment. were decided by the Court in a manner that indicated an effort to begin to resolve the standards of First Amendment protection of ''symbolic conduct.'' In Smith v. Goguen, 195 a statute punishing anyone who ''publicly . . . treats contemptuously the flag of the United States . . . ,'' was held unconstitutionally vague, and a conviction for wearing trousers with a small United States flag sewn to the seat was overturned. The language subjected the defendant to criminal liability under a standard ''so indefinite that police, court, and jury were free to react to nothing more than their own preferences for treatment of the flag.'' 196
The First Amendment was the basis for reversal in Spence v. Washington, 197 in which a conviction under a statute punishing the display of a United States flag to which something is attached or superimposed was set aside; Spence had hung his flag from his apartment window upside down with a peace symbol taped to the front and back. The act, the Court thought, was a form of communication, and because of the nature of the act, the factual context and environment in which it was undertaken, the Court held it to be protected. The context included the fact that the flag was pri vately owned, that it was displayed on private property, and that there was no danger of breach of the peace. The nature of the act was that it was intended to express an idea and it did so without damaging the flag. The Court assumed that the State had a valid interest in preserving the flag as a national symbol, but whether that interest extended beyond protecting the physical integrity of the flag was left unclear. 198
The underlying assumption that flag burning could be prohibited as a means of protecting the flag's symbolic value was later rejected. Twice, in 1989 and again in 1990, the Court held that prosecutions for flag burning at a public demonstration violated the First Amendment. First, in Texas v. Johnson 199 the Court rejected a state desecration statute designed to protect the flag's symbolic value, and then in United States v. Eichman 200 rejected a more limited federal statute purporting to protect only the flag's physical integrity. Both cases were decided by 5-to-4 votes, with Justice Brennan writing the Court's opinions. 201 The Texas statute invalidated in Johnson defined the prohibited act of ''desecration'' as any physical mistreatment of the flag that the actor knew would seriously offend other persons. This emphasis on causing offense to others meant that the law was not ''unrelated to the suppression of free expression'' and that consequently the deferential standard of United States v. O'Brien was inapplicable. Applying strict scrutiny, the Court ruled that the State's prosecution of someone who burned a flag at a political protest was not justified under the State's asserted interest in preserving the flag as a symbol of nationhood and national unity. The Court's opinion left little doubt that the existing Federal statute, 18 U.S.C. Sec. 700, and the flag desecration laws of 47 other states would suffer a similar fate in a similar case. Doubt remained, however, as to whether the Court would uphold a ''content-neutral'' statute protecting the physical integrity of the flag.
Immediately following Johnson, Congress enacted a new flag protection statute providing punishment for anyone who ''knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States.'' 202 The law was designed to be content-neutral, and to protect the ''physical integrity'' of the flag. 203 Nonetheless, in upholding convictions of flag burners, the Court found that the law suffered from ''the same fundamental flaw'' as the Texas law in Johnson. The government's underlying interest, characterized by the Court as resting upon ''a perceived need to preserve the flag's status as a symbol of our Nation and certain national ideals,'' 204 still related to the suppression of free expression. Support for this interpretation was found in the fact that most of the prohibited acts are usually associated with disrespectful treatment of the flag; this suggested to the Court ''a focus on those acts likely to damage the flag's symbolic value.'' 205 As in Johnson, such a law could not withstand ''most exacting scrutiny'' analysis.
The Court's ruling in Eichman rekindled congressional efforts, postponed with enactment of the Flag Protection Act, to amend the Constitution to authorize flag desecration legislation at the federal and state levels. In both the House and the Senate these measures failed to receive the necessary two-thirds vote. 206
[Footnote 75] Commonwealth v. Davis, 162 Mass. 510, 511 (1895). ''For the Legislature absolutely or conditionally to forbid public speaking in a highway or public park is no more an infringement of rights of a member of the public than for the owner of a private house to forbid it in the house.''
[Footnote 76] Davis v. Massachusetts, 167 U.S. 43, 48 (1897).
[Footnote 77] 307 U.S. 496, 515 (1939). Only Justice Black joined the opinion and Chief Justice Hughes generally concurred in it, but only Justices McReynolds and Butler dissented from the result.
[Footnote 78] E.g., Schneider v. State, 308 U.S. 147, 163 (1939); Kunz v. New York, 340 U.S. 290, 293 (1951).
[Footnote 79] Cox v. Louisiana, 379 U.S. 536, 555 (1965). For analysis of this case in the broader context, see Kalven, The Concept of the Public Forum: Cox v. Louisiana, 1965 Sup. Ct. Rev. 1.
[Footnote 80] Adderley v. Florida, 385 U.S. 39 (1966). See id. at 47-48; Cox v. Louisiana, 379 U.S. 559, 578 (1965) (Justice Black concurring in part and dissenting in part); Jamison v. Texas, 318 U.S. 413, 416 (1943) (Justice Black for the Court).
[Footnote 81] E.g., Shuttlesworth v. City of Birmingham, 394 U.S. 147, 152 (1969); Grayned v. City of Rockford, 408 U.S. 104, 115 (1972); Carey v. Brown, 447 U.S. 455, 460 (1980).
[Footnote 82] Hague v. CIO, 307 U.S. 496 (1939); Niemotko v. Maryland, 340 U.S. 268 (1951); Kunz v. New York, 340 U.S. 290 (1951); Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969); Coates v. City of Cincinnati, 402 U.S. 611 (1971); Grayned v. City of Rockford, 408 U.S. 104 (1972); Greer v. Spock, 424 U.S. 828, 835 -36 (1976); Carey v. Brown, 447 U.S. 455 (1980).
[Footnote 83] Narrowly drawn statutes which serve the State's interests in security and in preventing obstruction of justice and influencing of judicial officers are constitutional. Cox v. Louisiana, 379 U.S. 559 (1965). A restriction on carrying signs or placards on the grounds of the Supreme Court is unconstitutional as applied to the public sidewalks surrounding the Court, since it does not sufficiently further the governmental purposes of protecting the building and grounds, maintaining proper order, or insulating the judicial decisionmaking process from lobbying. United States v. Grace, 461 U.S. 171 (1983).
[Footnote 84] In Boos v. Barry, 485 U.S. 312 (1988), the Court struck down as content-based a District of Columbia law prohibiting the display of any sign within 500 feet of a foreign embassy if the sign tends to bring the foreign government into ''public odium'' or ''public disrepute.'' However, another aspect of the District's law, making it unlawful for three or more persons to congregate within 500 feet of an embassy and refuse to obey a police dispersal order, was upheld; under a narrowing construction, the law had been held applicable only to congregations directed at an embassy, and reasonably believed to present a threat to the peace or security of the embassy.
[Footnote 85] Brown v. Louisiana, 383 U.S. 131 (1966) (sit-in in library reading room).
[Footnote 86] Edwards v. South Carolina, 372 U.S. 229 (1963); Jeanette Rankin Brigade v. Capitol Police Chief, 342 F. Supp. 575 (D.C. 1972) (three-judge court), aff'd, 409 U.S. 972 (1972) (voiding statute prohibiting parades and demonstrations on United States Capitol grounds).
[Footnote 87] E.g., Grayned v. City of Rockford, 408 U.S. 104 (1972) (sustaining ordinance prohibiting noisemaking adjacent to school if that noise disturbs or threatens to disturb the operation of the school); Brown v. Louisiana, 383 U.S. 131 (1966) (silent vigil in public library protected while noisy and disruptive demonstration would not be); Tinker v. Des Moines Independent School District, 393 U.S. 503 (1969) (wearing of black armbands as protest protected but not if it results in disruption of school); Cameron v. Johnson, 390 U.S. 611 (1968) (preservation of access to courthouse); Frisby v. Schultz, 487 U.S. 474 (1988) (ordinance prohibiting picketing ''before or about'' any residence or dwelling, narrowly construed as prohibiting only picketing that targets a particular residence, upheld as furthering significant governmental interest in protecting the privacy of the home).
[Footnote 88] United States Postal Service v. Council of Greenburgh Civic Ass'ns, 453 U.S. 114, 129 (1981).
[Footnote 89] Grayned v. City of Rockford, 408 U.S. 104, 116 (1972).
[Footnote 90] E.g., Adderley v. Florida, 385 U.S. 39 (1966) (jails); Lehman v. City of Shaker Heights, 418 U.S. 298 (1974) (advertising space in city rapid transit cars); Greer v. Spock, 424 U.S. 828 (1976) (military bases); United States Postal Service v. Council of Greenburgh Civic Ass'ns, 453 U.S. 114 (1981) (private mail boxes); Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (1983) (interschool mail system); ISKCON v. Lee, 112 S. Ct. 2701 (1992) (publicly owned airport terminal).
[Footnote 91] E.g., Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975) (municipal theater); Madison School District v. WERC, 429 U.S. 167 (1976) (school board meeting); Heffron v. ISKCON, 452 U.S. 640 (1981) (state fair grounds); Widmar v. Vincent, 454 U.S. 263 (1981) (university meeting facilities).
[Footnote 92] Compare United States Postal Service v. Council of Greenburgh Civic Ass'ns, 454 U.S. 114, 128 -31 (1981), with id. at 136-40 (Justice Brennan concurring), and 142 (Justice Marshall dissenting). For evidence of continuing division, compare ISKCON v. Lee, 112 S. Ct. 2701 (1992) with id. at 27 (Justice Kennedy concurring).
[Footnote 93] See, e.g., Heffron v. ISKCON, 452 U.S. 640, 647 -50 (1981), and id. at 656 (Justice Brennan concurring in part and dissenting in part) (stating law and discussing cases); Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984) (prohibition of sleep-in demonstration in area of park not designated for overnight camping).
[Footnote 94] Niemotko v. Maryland, 340 U.S. 268 (1951); Capitol Square Review Bd. v. Pinette, 115 S. Ct. 2440(1995) (denial of permission to Ku Klux Klan, allegedly in order to avoid Establishment Clause violation, to place a cross in plaza on grounds of state capitol); Rosenberger v.University of Virginia, 115 S. Ct. 2510 (1995) (University's subsidy for printing costs of student publications, available for student ''news, information, opinion, entertainment, or academic communications,'' could not be withheld because of the religious content of a student publication); Lamb's Chapel v. Center Moriches School Dist., 508 U.S. 384 (1993) (school district rule prohibiting after-hours use of school property for showing of a film presenting a religious perspective on child-rearing and family values, but allowing after-hours use for non-religious social, civic, and recreational purposes); Cox v. Louisiana, 379 U.S. 536 (1965); Police Department v. Mosley, 408 U.S. 92 (1972); Madison School District v. WERC, 429 U.S. 167 (1976); Carey v. Brown, 447 U.S. 455 (1980); Widmar v. Vincent, 454 U.S. 263 (1981). In Lehman v. City of Shaker Heights, 418 U.S. 298 (1974), a divided Court permitted the city to sell commercial advertising space on the walls of its rapid transit cars but to refuse to sell political advertising space.
[Footnote 95] E.g., the governmental interest in safety and convenience of persons using public forum, Heffron v. ISKCON, 452 U.S. 640, 650 (1981); the interest in preservation of a learning atmosphere in school, Grayned v. City of Rockford, 408 U.S. 104, 115 (1972); and the interest in protecting traffic and pedestrian safety in the streets, Cox v. Louisiana, 379 U.S. 536, 554 -55 (1965); Kunz v. New York, 340 U.S. 290, 293 -94 (1951); Hague v. CIO, 307 U.S. 496, 515 -16 (1939).
[Footnote 96] Heffron v. ISKCON, 452 U.S. 640, 654 -55 (1981); Consolidated Edison Co. v. PSC, 447 U.S. 530, 535 (1980).
[Footnote 97] Ward v. Rock Against Racism, 491 U.S. 781, 798 , 800 (1989).
[Footnote 98] Police Department v. Mosley, 408 U.S. 92 (1972) (ordinance void which barred all picketing around school building except labor picketing); Carey v. Brown, 447 U.S. 455 (1980) (same); Widmar v. Vincent, 454 U.S. 263 (1981) (college rule permitting access to all student organizations except religious groups); Niemotko v. Maryland, 340 U.S. 268 (1951) (permission to use parks for some groups but not for others). These principles apply only to the traditional public forum and to the governmentally created ''limited public forum.'' Government may, without creating a limited public forum, place ''reasonable'' restrictions on access to nonpublic areas. See, e.g. Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 48 (1983) (use of school mail system); and Cornelius v. NAACP Legal Defense and Educational Fund, 473 U.S. 788 (1985) (charitable solicitation of federal employees at workplace). See also Lehman v. City of Shaker Heights, 418 U.S. 298 (1974) (city may sell commercial advertising space on the walls of its rapid transit cars but refuse to sell political advertising space).
[Footnote 99] E.g., Hague v. CIO, 307 U.S. 496, 516 (1939); Schneider v. State, 308 U.S. 147, 164 (1939); Cox v. New Hampshire, 312 U.S. 569 (1941); Poulos v. New Hampshire, 345 U.S. 395 (1953); Staub v. City of Baxley, 355 U.S. 313, 321 -25 (1958); Cox v. Louisiana, 379 U.S. 536, 555 -58 (1965); Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150 -53 (1969). Justice Stewart for the Court described these and other cases as ''holding that a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license without narrow, objective, and definite standards to guide the licensing authority is unconstitutional.'' Id. at 150-51. A person faced with an unconstitutional licensing law may ignore it, engage in the desired conduct, and challenge the constitutionality of the permit system upon a subsequent prosecution for violating it. Id. at 151; Jones v. Opelika, 316 U.S. 584, 602 (1942) (Chief Justice Stone dissenting), adopted per curiam on rehearing, 319 U.S. 103 (1943). See also City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750 (1988) (upholding facial challenge to ordinance vesting in the mayor unbridled discretion to grant or deny annual permit for location of newsracks on public property); Riley v. National Fed'n of the Blind, 487 U.S. 781 (1988) (invalidating as permitting ''delay without limit'' licensing requirement for professional fundraisers); Forsyth County v. Nationalist Movement, 112 S. Ct. 2395 (1992). But see Walker v. City of Birmingham, 388 U.S. 307 (1967) (same rule not applicable to injunctions).
[Footnote 100] In Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969), the Court reaffirmed the holdings of the earlier cases, and, additionally, both Justice Stewart, for the Court, id. at 155 n.4, and Justice Harlan concurring, id. at 162-64, asserted that the principles of Freedman v. Maryland, 380 U.S. 51 (1965), governing systems of prior censorship of motion pictures, were relevant to permit systems for parades and demonstrations. These standards include prompt and expeditious administrative handling of requests and prompt judicial review of adverse actions. See National Socialist Party v. Village of Skokie, 432 U.S. 43 (1977). The Court also voided an injunction against a protest meeting which was issued ex parte, without notice to the protestors and with, or course, no opportunity for them to rebut the representations of the seekers of the injunction. Carroll v. President and Comm'rs of Princess Anne, 393 U.S. 175 (1968).
[Footnote 101] The only available precedent is Kunz v. New York, 340 U.S. 290 (1951). The holding was on a much narrower basis, but in dictum the Court said: ''The court below has mistakenly derived support for its conclusions from the evidence produced at the trial that appellant's religious meetings had, in the past, caused some disorder. There are appropriate public remedies to protect the peace and order of the community if appellant's speeches should result in disorder and violence.'' Id. at 294. A different rule applies to labor picketing. See Milk Wagon Drivers Local 753 v. Meadowmoor Dairies, 312 U.S. 287 (1941) (background of violence supports prohibition of all peaceful picketing). The military may ban a civilian, previously convicted of destroying government property, from reentering a military base, and may apply the ban to prohibit the civilian from reentering the base for purposes of peaceful demonstration during an Armed Forces Day ''open house.'' United States v. Albertini, 472 U.S. 675 (1985).
[Footnote 102] Forsyth County v. Nationalist Movement, 112 S. Ct. 2395 (1992) (a fee based on anticipated crowd response necessarily involves examination of the content of the speech, and is invalid as a content regulation).
[Footnote 103] Dicta clearly indicate that a hostile reaction will not justify suppression of speech, Hague v. CIO, 307 U.S. 496, 502 (1939); Cox v. Louisiana, 379 U.S. 536, 551 (1965); Bachellar v. Maryland, 397 U.S. 564, 567 (1970), and one holding appears to point this way. Gregory v. City of Chicago, 394 U.S. 111 (1969). On the other hand, the Court has upheld a breach of the peace conviction of a speaker who refused to cease speaking upon the demand of police who feared imminent violence. Feiner v. New York, 340 U.S. 315 (1951). In Niemotko v. Maryland, 340 U.S. 268, 273 (1951) (concurring opinion), Justice Frankfurter wrote: ''It is not a constitutional principle that, in acting to preserve order, the police must proceed against the crowd whatever its size and temper and not against the speaker.''
[Footnote 104] Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 -46 (1983).
[Footnote 105] 460 U.S. at 46 .
[Footnote 106] Id.
[Footnote 107] Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (1983). This was a 5-4 decision, with Justice White's opinion of the Court being joined by Chief Justice Burger and by Justices Blackmun, Rehnquist, and O'Connor, and with Justice Brennan's dissent being joined by Justices Marshall, Powell, and Stevens. See also Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260 (1988) (student newspaper published as part of journalism class is not a public forum).
[Footnote 108] City Council v. Taxpayers for Vincent, 466 U.S. 789 (1984) (upholding an outright ban on use of utility poles for signs). The Court noted that ''it is of limited utility in the context of this case to focus on whether the tangible property itself should be deemed a public forum.'' Id. at 815 n.32.
[Footnote 109] Cornelius v. NAACP Legal Defense and Educational Fund, 473 U.S. 788 (1985). Precedential value of Cornelius may be subject to question, since it was decided by 4-3 vote, the non-participating Justices (Marshall and Powell) having dissented in Perry. Justice O'Connor wrote the opinion of the Court, joined by Chief Justice Burger and by Justices White and Rehnquist. Justice Blackmun, joined by Justice Brennan, dissented, and Justice Stevens dissented separately.
[Footnote 110] 473 U.S. at 802 . Justice Blackmun criticized ''the Court's circular reasoning that the CFC is not a limited public forum because the Government intended to limit the forum to a particular class of speakers.'' Id. at 813-14.
[Footnote 111] Justice Kennedy criticized this approach in ISKCON v. Lee, 112 S. Ct. 2701, 27, (1992) (concurring), contending that recognition of government's authority to designate the forum status of property ignores the nature of the First Amendment as ''a limitation on government, not a grant of power.'' Justice Brennan voiced similar misgivings in his dissent in United States v. Kokinda: ''public forum categories-- originally conceived of as a way of preserving First Amendment rights-- have been used . . . as a means of upholding restrictions on speech''. 497 U.S. at 741 (emphasis original) (citation omitted).
[Footnote 112] United States v. Kokinda, 497 U.S. 720 (1990) (upholding a ban on solicitation on the sidewalk).
[Footnote 113] ISKCON v. Lee, 112 S. Ct. 2701 (1992).
[Footnote 114] Lee v. ISKCON, 112 S. Ct. 2709 (1992).
[Footnote 115] In Garner v. Louisiana, 368 U.S. 157, 185 , 201-07 (1961), Justice Harlan, concurring, would have reversed breach of the peace convictions of ''sit-in'' demonstrators who conducted their ''sit-in'' at lunch counters of department stores. He asserted that the protesters were sitting at the lunch counters where they knew they would not be served in order to demonstrate that segregation at such counters existed. ''Such a demonstration . . . is as much a part of the 'free trade in ideas' . . . as is verbal expression, more commonly thought of as 'speech.''' Conviction for breach of peace was void in the absence of a clear and present danger of disorder. The Justice would not, however protect ''demonstrations conducted on private property over the objection of the owner . . . , just as it would surely not encompass verbal expression in a private home if the owner has not consented.'' He had read the record to indicate that the demonstrators were invitees in the stores and that they had never been asked to leave by the owners or managers. See also Frisby v. Schultz, 487 U.S. 474 (1988) (government may protect residential privacy by prohibiting altogether picketing that targets a single residence).
[Footnote 116] 326 U.S. 501 (1946).
[Footnote 117] Id. at 506.
[Footnote 118] Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, 391 U.S. 308 (1968).
[Footnote 119] Id. at 319. Justices Black, Harlan, and White dissented. Id. at 327, 333, 337.
[Footnote 120] Id. at 319-20.
[Footnote 121] Id. at 320 n.9.
[Footnote 122] Lloyd Corp. v. Tanner, 407 U.S. 551 (1972).
[Footnote 123] Hudgens v. NLRB, 424 U.S. 507 (1976). Justice Stewart's opinion for the Court asserted that Logan Valley had in fact been overruled by Lloyd Corp., id. at 517-18, but Justice Powell, the author of the Lloyd Corp. opinion, did not believe that to be the case, id. at 523.
[Footnote 124] But see Sears, Roebuck & Co. v. Carpenters, 436 U.S. U.S. 180 (1978).
[Footnote 125] In PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980), the Court held that a state court interpretation of the state constitution to protect picketing in a privately owned shopping center did not deny the property owner any federal constitutional rights. But cf. Pacific Gas & Elec. v. Public Utilities Comm'n, 475 U.S. 1 (1986), holding that a state may not require a privately owned utility company to include in its billing envelopes views of a consumer group with which it disagrees, a majority of Justices distinguishing PruneYard as not involving such forced association with others' beliefs.
[Footnote 126] Hudgens v. NLRB, 424 U.S. 507, 516 -17 (1976) (quoting Justice Black's dissent in Logan Valley Plaza, 391 U.S. 308, 332 -33 (1968).
[Footnote 127] Niemotko v. Maryland, 340 U.S. 268, 276 (1951) (Justice Frankfurter concurring).
[Footnote 128] Thornhill v. Alabama, 310 U.S. 88, 102 , 104-05 (1940). Picketing as an aspect of communication was recognized in Senn v. Tile Layers Union, 301 U.S. 468 (1937).
[Footnote 129] See also Carlson v. California, 310 U.S. 106 (1940). In AFL v. Swing, 312 U.S. 321 (1941), the Court held unconstitutional an injunction against peaceful picketing based on a State's common-law policy against picketing in the absence of an immediate dispute between employer and employee.
[Footnote 130] Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U.S. 287 (1941).
[Footnote 131] Bakery & Pastry Drivers Local v. Wohl, 315 U.S. 769 (1942); Carpenters & Joiners Union v. Ritter's Cafe, 315 U.S. 722 (1942); Cafeteria Employees Union v. Angelos, 320 U.S. 293 (1943).
[Footnote 132] Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949); International Bhd. of Teamsters Union v. Hanke, 339 U.S. 470 (1950); Building Service Emp. Intern. Union v. Gazzam, 339 U.S. 532 (1950); Local Union, Journeymen v. Graham, 345 U.S. 192 (1953).
[Footnote 133] Bakery & Pastry Drivers Local v. Wohl, 315 U.S. 769, 776 -77 (1942) (concurring opinion).
[Footnote 134] International Bhd. of Teamsters v. Vogt, 354 U.S. 284, 293 (1957). See also American Radio Ass'n v. Mobile Steamship Ass'n, 419 U.S. 215, 228 -32 (1974); NLRB v. Retail Store Employees, 447 U.S. 607 (1980); International Longshoremens' Ass'n v. Allied International, 456 U.S. 212, 226 -27 (1982).
[Footnote 135] Cf. the opinions in NLRB v. Fruit & Vegetable Packers, 377 U.S. 58 (1964); Youngdahl v. Rainfair, 355 U.S. 131, 139 (1957) (indicating that where violence is scattered through time and much of it was unconnected with the picketing, the State should proceed against the violence rather than the picketing).
[Footnote 136] Hague v. CIO, 307 U.S. 496 (1939); Cox v. New Hampshire, 312 U.S. 569 (1941); Kunz v. New York; 340 U.S. 290 (1951); Niemotko v. Maryland, 340 U.S. 268 (1951).
[Footnote 137] Cantwell v. Connecticut, 310 U.S. 296 (1940); Chaplinsky v. New Hampshire, 315 U.S. 568 (1942); Terminiello v. City of Chicago, 337 U.S. 1 (1949); Feiner v. New York, 340 U.S. 315 (1951).
[Footnote 138] Supra, p.1167.
[Footnote 139] Hughes v. Superior Court, 339 U.S. 460 (1950). This ruling, allowing content-based restriction, seems inconsistent with NAACP v. Claiborne Hardware, infra, text accompanying nn.147-61.
[Footnote 140] 372 U.S. 229 (1963).
[Footnote 141] Id. at 235. See also Fields v. South Carolina, 375 U.S. 44 (1963); Henry v. City of Rock Hill, 376 U.S. 776 (1964).
[Footnote 142] Cox v. Louisiana, 379 U.S. 536, 555 (1965).
[Footnote 143] Id. at 563.
[Footnote 144] Edwards v. South Carolina, 372 U.S. 229 (1963); Cox v. Louisiana, 379 U.S. 536 (1965); Gregory v. City of Chicago, 394 U.S. 111 (1969); Bachellar v. Maryland, 397 U.S. 564 (1970). See also Collin v. Smith, 447 F. Supp. 676 (N.D.Ill.), aff'd, 578 F.2d 1197 (7th Cir.), stay den., 436 U.S. 953 , cert. denied, 439 U.S. 916 (1978).
[Footnote 145] 487 U.S. 474 (1988).
[Footnote 146] An earlier case involving residential picketing had been resolved on equal protection rather than First Amendment grounds, the ordinance at issue making an exception for labor picketing. Carey v. Brown, 447 U.S. 455 (1980).
[Footnote 147] 339 U.S. 460 (1950).
[Footnote 148] 458 U.S. 886 (1982). The decision was unanimous, with Justice Rehnquist concurring in the result and Justice Marshall not participating. The Court's decision was by Justice Stevens.
[Footnote 149] 376 U.S. 254 (1964).
[Footnote 150] NAACP v. Claiborne Hardware Co., 458 U.S. 886, 907 -08 (1982).
[Footnote 151] Id. at 908.
[Footnote 152] Id. at 910. The Court cited Thomas v. Collins, 323 U.S. 516, 537 (1945), a labor picketing case, and Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971), a public issues picketing case, which had also relied on the labor cases. Compare NLRB v. Retail Store Employees, 447 U.S. 607, 618 -19 (1980) (Justice Stevens concurring) (labor picketing that coerces or ''signals'' others to engage in activity that violates valid labor policy, rather than attempting to engage reason, prohibitable). To the contention that liability could be imposed on ''store watchers'' and on a group known as ''Black Hats'' who also patrolled stores and identified black patronizers of the businesses, the Court did not advert to the ''signal'' theory. ''There is nothing unlawful in standing outside a store and recording names. Similarly, there is nothing unlawful in wearing black hats, although such apparel may cause apprehension in others.'' Id. at 458 U.S., 925.
[Footnote 153] See, e.g., FTC v. Superior Court Trial Lawyers Ass'n, 493 U.S. 411 (1990) (upholding application of per se antitrust liability to trial lawyers association's boycott designed to force higher fees for representation of indigent defendants by court-appointed counsel).
[Footnote 154] Id. at 912-15. In evaluating the permissibility of government regulation in this context that has an incidental effect on expression, the Court applied the standards of United States v. O'Brien, 391 U.S. 367, 376 -77 (1968), which requires that the regulation be within the constitutional power of government, that it further an important or substantial governmental interest, that it be unrelated to the suppression of speech, and that it impose no greater restraint on expression than is essential to achievement of the interest.
[Footnote 155] Id. at 458 U.S., 916-17.
[Footnote 156] Id. at 917-18.
[Footnote 157] Id. at 918-29, relying on a series of labor cases and on the subversive activities association cases, e.g., Scales v. United States, 367 U.S. 203 (1961), and Noto v. United States, 367 U.S. 290 (1961).
[Footnote 158] 458 U.S. at 920 -26. The Court distinguished Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U.S. 287 (1941), in which an injunction had been sustained against both violent and nonviolent activity, not on the basis of special rules governing labor picketing, but because the violence had been ''pervasive.'' 458 U.S. at 923 .
[Footnote 159] 458 U.S. at 926 -29. The head's ''emotionally charged rhetoric . . . did not transcend the bounds of protected speech set forth in Brandenburg v. Ohio, 395 U.S. 444 (1969).''
[Footnote 160] Id. at 931. In ordinary business cases, the rule of liability of an entity for actions of its agents is broader. E.g., American Soc'y of Mech. Eng'rs v. Hydrolevel Corp., 456 U.S. 556 (1982). The different rule in cases of organizations formed to achieve political purposes rather than economic goals appears to require substantial changes in the law of agency with respect to such entities. Note, 96 Harv. L. Rev. 171, 174-76 (1982).
[Footnote 161] ''Concerted action is a powerful weapon. History teaches that special dangers are associated with conspiratorial activity. And yet one of the foundations of our society is the right of individuals to combine with other persons in pursuit of a common goal by lawful means.
[Footnote 61 (1996 Supplement)] 114 S. Ct. 2516 (1994).
[Footnote 62 (1996 Supplement)] The Court rejected the argument that the injunction was necessarily content-based or viewpoint-based because it applied only to anti-abortion protesters. ''An injunction by its very nature applies only to a particular group (or individuals). . . . It does so, however, because of the group's past actions in the context of a specificdispute.'' There had been no similarly disruptive demonstrations by pro-abortion factions at the abortion clinic. Id. at 2523.
[Footnote 63 (1996 Supplement)] Id. at 2525.
[Footnote 64 (1996 Supplement)] Id. at 2524-25.
[Footnote 65 (1996 Supplement)] Referring to Frisby v. Schultz, 487 U.S. 474 (1988).
[Footnote 66 (1996 Supplement)] 115 S. Ct. 2338 (1995).
[Footnote 67 (1996 Supplement)] Id. at 2347.
[Footnote 162] 303 U.S. 444 (1938).
[Footnote 163] Id. at 452.
[Footnote 164] Id. at 451.
[Footnote 165] Schneider v. Town of Irvington, 308 U.S. 147, 161 , 162 (1939). The Court noted that the right to distribute leaflets was subject to certain obvious regulations, id. at 160, and called for a balancing, with the weight inclined to the First Amendment rights. See also Jamison v. Texas, 318 U.S. 413 (1943).
[Footnote 166] 362 U.S. 60 (1960).
[Footnote 167] Id. at 64, 65.
[Footnote 168] Id. at 64. In Zwickler v. Koota, 389 U.S. 241 (1967), the Court directed a lower court to consider the constitutionality of a statute which made it a criminal offense to publish or distribute election literature without identification of the name and address of the printer and of the persons sponsoring the literature. The lower court voided the law, but changed circumstances on a new appeal caused the Court to dismiss. Golden v. Zwickler, 394 U.S. 103 (1969).
[Footnote 68 (1996 Supplement)] 115 S. Ct. 1511 (1995).
[Footnote 69 (1996 Supplement)] 466 U.S. 789 (1984).
[Footnote 70 (1996 Supplement)] Justice Brennan argued in dissent that adequate alternative forms of communication were not readily available because handbilling or other person-to-person methods would be substantially more expensive, and that the regulation for the sake of aesthetics was not adequately justified.
[Footnote 71 (1996 Supplement)] City of Ladue v. Gilleo, 114 S. Ct. 2038 (1994).
[Footnote 72 (1996 Supplement)] Id. at 2045, 2046.
[Footnote 73 (1996 Supplement)] Id. at 2045. Ladue's legitimate interest in reducing visual clutter could be addressed by ''more temperate'' measures, the Court suggested. Id. at 2047.
[Footnotes 169-170] Deleted in 1996 Supplement.
[Footnote 171] 334 U.S. 558, 561 (1948).
[Footnote 172] 336 U.S. 77 (1949).
[Footnote 173] Grayned v. City of Rockford, 408 U.S. 104 (1972).
[Footnote 174] Id. at 117. Citing Saia and Kovacs as examples of reasonable time, place, and manner regulation, the Court observed: ''If overamplifled loudspeakers assault the citizenry, government may turn them down.'' Id. at 116.
[Footnote 175] Ward v. Rock Against Racism, 491 U.S. 781 (1989).
[Footnote 176] Martin v. City of Struthers, 319 U.S. 141, 147 (1943).
[Footnote 177] Hynes v. Mayor of Oradell, 425 U.S. 610, 616 -17 (1976). Justices Brennan and Marshall did not agree with the part of the opinion approving the regulatory power. Id. at 623.
[Footnote 178] Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620 (1980). See also Larson v. Valente, 456 U.S. 228 (1982) (state law distinguishing between religious organizations and their solicitation of funds on basis of whether organizations received more than half of their total contributions from members or from public solicitation violates establishment clause). Meyer v. Grant, 486 U.S. 414 (1988) (criminal penalty on use of paid circulators to obtain signatures for ballot initiative suppresses political speech in violation of First and Fourteenth Amendments).
[Footnote 179] 467 U.S. 947 (1984).
[Footnote 180] 487 U.S. 781 (1988).
[Footnote 181] A fee of up to 20% of collected receipts was deemed reasonable, a fee between 20 and 35% was permissible if the solicitation involved advocacy or the dissemination of information, and a fee in excess of 35% was presumptively unreasonable, but could be upheld upon one of two showings: that advocacy or dissemination of information was involved, or that otherwise the charity's ability to collect money or communicate would be significantly diminished.
[Footnote 182] 487 U.S. at 793 .
[Footnote 183] Id. at 800. North Carolina's requirement for licensing of professional fundraisers was also invalidated in Riley, id. at 801-02.
[Footnote 184] E.g., Saia v. New York, 334 U.S. 558 (1948); Kovacs v. Cooper, 336 U.S. 77 (1949).
[Footnote 185] E.g., Schneider v. Town of Irvington, 308 U.S. 147 (1939).
[Footnote 186] Cf. Cohen v. California, 403 U.S. 15 (1971).
[Footnote 187] Stromberg v. California, 283 U.S. 359 (1931).
[Footnote 188] West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943).
[Footnote 189] In Brown v. Louisiana, 383 U.S. 131 (1966), the Court held protected a peaceful, silent stand-in in a segregated public library. Speaking of speech and assembly, Justice Fortas said for the Court: ''As this Court has repeatedly stated, these rights are not confined to verbal expression. They embrace appropriate types of action which certainly include the right in a peaceable and orderly manner to protest by silent and reproachful presence, in a place where the protestant has every right to be, the unconstitutional segregation of public facilities.'' Id. at 141-42. See also Garner v. Louisiana, 368 U.S. 157, 185 , 201 (1961) (Justice Harlan concurring). On a different footing is expressive conduct in a place where such conduct is prohibited for reasons other than suppressing speech. See Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984) (upholding Park Service restriction on overnight sleeping as applied to demonstrators wishing to call attention to the plight of the homeless).
[Footnote 190] West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 632 (1943).
[Footnote 191] United States v. O'Brien, 391 U.S. 367, 377 (1968).
[Footnote 192] Clark v. Community for Creative Non-Violence, 468 U.S. 288, 298 & n.8 (1984).
[Footnote 193] 394 U.S. 576 (1969).
[Footnote 194] Id. at 591-93. Four dissenters concluded that the First Amendment did not preclude a flat proscription of flag burning or flag desecration for expressive purposes. Id. at 594 (Chief Justice Warren), 609 (Justice Black), 610 (Justice White), and 615 (Justice Fortas). In Radich v. New York, 401 U.S. 531 (1971), aff'g 26 N.Y. 2d 114, 257 N.E. 2d 30 (1970), an equally divided Court, Justice Douglas not participating, sustained a flag desecration conviction of one who displayed sculptures in a gallery, using the flag in some apparently sexually bizarre ways to register a social protest. Defendant subsequently obtained his release on habeas corpus, United States ex rel. Radich v. Criminal Court, 459 F.2d 745 (2d Cir. 1972), cert. denied 409 U.S. 115 (1973).
[Footnote 195] 415 U.S. 566 (1974).
[Footnote 196] Id. at 578.
[Footnote 197] 418 U.S. 405 (1974).
[Footnote 198] Id. at 408-11, 412-13. Subsequently, the Court vacated, over the dissents of Chief Justice Burger and Justices White, Blackmun, and Rehnquist, two convictions for burning flags and sent them back for reconsideration in the light of Goguen and Spence. Sutherland v. Illinois, 418 U.S. 907 (1974); Farrell v. Iowa, 418 U.S. 907 (1974). The Court did, however, dismiss, ''for want of a substantial federal question,'' an appeal from a flag desecration conviction of one who, with no apparent intent to communicate but in the course of ''horseplay,'' blew his nose on a flag, simulated masturbation on it, and finally burned it. Van Slyke v. Texas, 418 U.S. 907 (1974).
[Footnote 199] 491 U.S. 397 (1989).
[Footnote 200] 496 U.S. 310 (1990).
[Footnote 201] In each case Justice Brennan's opinion for the Court was joined by Justices Marshall, Blackmun, Scalia, and Kennedy, and in each case Chief Justice Rehnquist and Justices White, Stevens, and O'Connor dissented. In Johnson the Chief Justice's dissent was joined by Justices White and O'Connor, and Justice Stevens dissented separately. In Eichman Justice Stevens wrote the only dissenting opinion, to which the other dissenters subscribed.
[Footnote 202] The Flag Protection Act of 1989, Pub. L. 101-131.
[Footnote 203] See H.R. Rep. No. 231, 101st Cong., 1st Sess. 8 (1989) (''The purpose of the bill is to protect the physical integrity of American flags in all circumstances, regardless of the motive or political message of any flag burner'').
[Footnote 204] United States v. Eichman, 496 U.S. at 316 .
[Footnote 205] Id. at 317.
[Footnote 206] The House defeated H.J. Res. 350 by vote of 254 in favor to 177 against (136 Cong. Rec. H4086 (daily ed. June 21, 1990); the Senate defeated S.J. Res. 332 by vote of 58 in favor to 42 against (136 Cong. Rec. S8737 (daily ed. June 26, 1990).