CRS Annotated Constitution
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Public Issue Picketing and Parading.—The early cases held that picketing and parading were forms of expression entitled[p.1175]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,[p.1176]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. Sullivan149 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,[p.1177]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[p.1178]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[p.1179]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
Supplement: [P. 1179, add to text at end of section:]
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,145 the Court refined principles governing issuance of “content–neutral” injunctions that restrict expressive activity.146 The appropriate test, the Court stated, is “whether the challenged provisions of the injunction burden no more speech than necessary to serve a significant governmental interest.” 147 Regular time, place, and manner analysis (requiring that regulation be narrowly 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.” 148 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 of clinic staff was not sufficiently justified, the restriction covering a much larger zone than an earlier residential picketing ban that the Court had upheld.149
In Schenck v. Pro–Choice Network of Western New York,150 the Court applied Madsen to another injunction that placed restrictions on demonstrating outside an abortion clinic. The Court upheld the portion of the injunction that banned “demonstrating within fifteen feet from either side or edge of, or in front of, doorways or doorway entrances, parking lot entrances, driveways and driveway entrances of such facilities”—what the Court called “fixed buffer zones.” 151 It struck down a prohibition against demonstrating “within fifteen feet of any person or vehicles seeking access to or leaving such facilities”—what it called “floating buffer zones.” 152 The Court cited “public safety and order” 153 in upholding the fixed buffer zones, but it found that the floating buffer zones “burden more speech than is necessary to serve the relevant governmental interests” 154 because they make it “quite difficult for a protester who wishes to engage in peaceful expressive activity to know how to remain in compliance with the injunction.” 155 The Court also upheld a provision specifying that “once sidewalk counselors who had entered the buffer zones were required to ‘cease and desist’ their counseling, they had to retreat 15 feet from the people they had been counseling and had to remain outside the boundaries of the buffer zones.” 156
In Hill v. Colorado,157 the Court upheld a Colorado statute that makes it unlawful, within 100 feet of the entrance to any health care facility, to “knowingly approach” within eight feet of another person, without that person’s consent, “for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with such other person.” 158 This decision is notable because it upheld a statute, and not, as in Madsen and Schenck, merely an injunction directed to particular parties. The Court found the statute to be a content–neutral time, place, and manner regulation of speech that “reflects an acceptable balance between the constitutionally protected rights of law–abiding speakers and the interests of unwilling listeners. . . .” 159 The restrictions are content–neutral because they regulate only the places where some speech may occur, and because they apply equally to all demonstrators, regardless of viewpoint. Although the restrictions do not apply to all speech, the “kind of cursory examination” that might be required to distinguish casual conversation from protest, education, or counseling is not “problematic.” 160 The law is narrowly tailored to achieve the state’s interests. The eight–foot restriction does not significantly impair the ability to convey messages by signs, and ordinarily allows speakers to come within a normal conversational distance of their targets. Because the statute allows the speaker to remain in one place, persons who wish to hand out leaflets may position themselves beside entrances near the path of oncoming pedestrians, and consequently are not deprived of the opportunity to get the attention of persons entering a clinic.
Different types of issues were presented by Hurley v. Irish–American Gay Group,161 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.” 162
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[p.1181]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
Supplement: [P. 1181, add to text after n.168:]
Talley’s anonymity rationale was strengthened in McIntyre v. Ohio Elections Commission,163 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.164
The handbilling cases were distinguished in City Council v. Taxpayers for Vincent,169 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 posting signs “it is the medium of expression itself” that creates the visual blight. Hence, a prohibition on posting signs, unlike a prohibition on distributing handbills, is narrowly tailored to curtail no more speech than necessary to accomplish the city’s legitimate purpose.170
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[p.1182]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
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