Boos v. Barry

Petitioners
Michael Boos, Bridget M. Brooker, J. Michael Waller, Father R. David Finzer
Respondents
Marian Barry, Mayor of Washington, D.C., and other officials of the Districtof Columbia
Petitioners' Claim
That Section 22-1115 of the District of Columbia Code, which forbade the display of any sign within 500 feet of a foreign embassy if that sign brings theforeign government into "public odium" or "public disrepute," and also prohibited congregation of three or more persons within 500 feet of a foreign embassy, was in violation of the First Amendment's protection of free speech.
Chief Lawyer for Petitioners
Raymond D. Battocchi
Chief Lawyer for Respondents
Edward E. Schwab
Justices for the Court
William J. Brennan, Jr., Thurgood Marshall, Sandra Day O'Connor (writing forthe Court), Antonin Scalia, John Paul Stevens
Justices Dissenting
Harry A. Blackmun, William H. Rehnquist, Byron R. White (Anthony M. Kennedy did not participate)
Place
Washington, D.C.
Date of Decision
22 March 1988
Decision
The decision of the lower court was affirmed in part and reversed in part, the finding being that the display clause of Section 22-1115 was in violation of the First Amendment, but the congregation clause was not.
Significance
Boos v. Barry opened the way for more direct picketing of foreign embassies and other installations representative of a foreign government on U.S.soil. More significantly, it expanded the realm of protected speech under theFirst Amendment. On the other hand, it allowed certain aspects of public congregation for the purposes of protest to remain questionable. Thus it could be used, for instance, in decisions relating to protests outside abortion clinics.
In 1988, both Russia and Nicaragua were under the control of Communist governments, the regime in the latter nation being financially sponsored in large part by the leadership of the former. Examples of human rights offenses by thetwo governments included the imprisonment of physicist Anatoly Sakharov by the Soviet Union; the suppression of the Solidarity movement in Poland, a Soviet satellite nation at that time; and the brutal prosecution of the war withanti-government Contra forces by the Sandinista regime in Nicaragua. Bridget M. Brooker and Michael Boos both wished to display signs reading "RELEASE SAKHAROV" and "SOLIDARITY" in front of the Soviet embassy, and J. MichaelWaller wanted to put up a sign that said "STOP THE KILLING" in front of theNicaraguan embassy. All three wished to hold assemblies of more than two persons within 500 feet of these official buildings, and they were aware that D.C. Code Section 22-1115 prevented them from doing so. Therefore they joined with Father R. David Finzer in bringing a facial First Amendment challenge to the District of Columbia statute, naming as respondents the mayor and other law enforcement officials of the district.
Enacted by Congress in 1938, Section 22-1115 was created under the authorityof Article I, Section 8, Clause 10 of the U.S. Constitution to "define and punish . . . Offenses against the Law of Nations." The law made it unlawful, within 500 feet of a foreign embassy of the District of Columbia, to display aflag, banner, placard, or other device with the purpose of intimidating, coercing, or "bring[ing] into public odium" any foreign government, or individualor organization representing that foreign government. It also prohibited persons from congregation within 500 feet of such a building or premises. (Congregation, under D.C. common law, was defined as an assemblage of three or morepeople.) The first part of this law, the basis for the petition by Boos andothers, was called the "display clause," the second part the "congregation clause."
The respondents submitted a motion for summary judgment to the district court, which granted it, using as precedent the case of Frend v. United States (1938), which had upheld Section 22-1115 against First Amendment questions. The case went on to the U.S. Court of Appeals, District of Columbia Circuit, on which sat Robert Bork, who had recently been nominated for the SupremeCourt by President Ronald Reagan and rejected by the Senate. A divided panelaffirmed the motion of the lower court, but though it considered the Frend case "persuasive precedent," the court of appeals decided that the Frend decision was not binding because the Supreme Court, in the 50 years that had passed since 1938, had "developed constitutional law in ways that must be taken into account."
In reviewing Boos v. Barry, the court of appeals considered the display and congregation clauses separately, and found both constitutional. Thoughthe display clause restricted speech on the basis of content, which taken byitself would be unconstitutional, in this case the court found sufficient justification in view of the "compelling governmental interest" represented, aswell as the fact that the law was narrowly drawn for the specific purpose ofserving that interest. With regard to the congregation clause, the court of appeals held that, properly construed, the clause simply allows police to disperse crowds when those crowds present a threat to peace or security, and therefore is permissible under the First Amendment.
A Five-Part Decision
Justice O'Connor delivered the opinion for the Court, a complex five-part decision over the second part of which the Court was split. In Part I, she stated that the Court reversed the court of appeals with regard to the display clause, but affirmed it in the area of the congregation clause. In this she wasjoined by Justices Brennan, Marshall, Stevens, and Scalia.
The Split Over Part II
In Part II-A, Justice O'Connor, joined by Justices Stevens and Scalia, foundthat the display clause was indeed content-based, since its prohibition of picketing was based on whether or not the picket signs were critical of the government in question. Even if it were construed as content-neutral because itdoes not choose between different viewpoints, she said, it still violated theFirst Amendment by prohibiting an entire category of speech--signs criticalof a foreign government. She also rejected the argument that the clause was content-neutral on the basis of the claim that its purpose was not to suppressfree speech, but rather "the secondary effect" of upholding the obligation to protect foreign diplomats from speech offensive to them. She used as her basis Renton v. Playtime Theatres (1986), which established that the phrase "secondary effects" applies to secondary features associated with a typeof speech, but not with its content.
Justices Brennan and Marshall, while agreeing with O'Connor that even under the Renton analysis, the display clause was content-based, disagreed with her use of it as a basis. Since the Renton case related to sexuallyexplicit materials and not political speech, they said, it presented "dangers" in that it could be used to deny free speech on the basis of the possibleoffense such speech could cause. Therefore they were opposed to content-baseddenial of free speech regardless of the reasoning behind it.
Part II-B also turned on the issue of content-based political speech, and inthis O'Connor was joined by the same majority as in Part I. Citing an earliercase involving pornographer Larry Flynt, publisher of Hustler magazine, and the Rev. Jerry Falwell, O'Connor noted that the Court had made it clear that American citizens must tolerate offensive speech in order to preservefreedom. In the present situation, she said, the Court was not persuaded thatthere was a compelling difference between American citizens and foreign officials which would entitle the latter to be protected from offensive speech. After review of possible arguments, the Court held that even if the interest of protecting the dignity of foreign officials could be shown as "compelling,"the display clause was in violation of the First Amendment.
Parts III, IV, and V
The Court was unanimous on Part III, which addressed the petitioners' facialoverbreadth challenge to the congregation clause, holding that it gave the police unrestricted authority to suppress demonstrations. While the clause could be considered to violate free speech if taken alone, the Court stated, in line with the display clause and the Court of Appeals' interpretation of the law as applying only to the dispersal of demonstrations directed at an embassy, it was sufficiently narrow not to constitute a violation of free speech. Therefore the Court upheld the lower court's ruling.
In Part IV, the Court addressed the petitioners' claims that their right to equal protection was in question because Section 22-1116 excludes labor picketing from the forms of protest prohibited under Section 22-1115. This, however, was not a valid argument, O'Connor stated, because 22-1116 could not be construed to protect violent labor picketing. Since the display clause had already been found unconstitutional, 22-1116 could only apply to the congregationclause. So, if labor picketers were not violent, their protests were in effect no different from any other kind of protests--all of which would be permitted so long as they constituted no threat to the peace. (Thus the Court's ruling on 22-1115 would make 22-1116 superfluous.) The Court was unanimous on Part IV.
In Part V, O'Connor spoke for the same majority as in Parts I and II-B when she concluded that the display clause was unconstitutional on its face becauseit was content-based and not sufficiently narrow to be construed as servinga compelling state interest. The Court also concluded in Part V that the congregation clause was not unconstitutional on its face. Thus the Court reversedthe judgment of the Court of Appeals in part, and affirmed it in part.
In a dissent joined by Justices Blackmun and White, Chief Justice Rehnquist agreed with Judge Bork's decision in the lower court, upholding the display clause. The three dissenters agreed with the rest of the Court that the congregation clause was not unconstitutional.
Related Cases

• Frend v. United States, 69 App. D.C. 281,100 (1938).
  
• Renton v. Playtime Theaters, 475 U.S. 41 (1986).
  
• Hustler Magazine v. Falwell, 485 U.S. 46 (1988).

Foreign Embassies
Along with its many federal buildings and headquarters of national organizations, the city of Washington, D.C. is dotted with foreign embassies. There arethe vast facilities representing large nations which enjoy significant interaction with the United States, embassies which in many cases employ hundredsof staff members. But there are also embassies for countries such as Luxembourg, a nation smaller than many U.S. counties; or Mongolia, which has fewer people than Chicago.
Large or small, however, a certain feature applies to all embassies and consulates (commercial delegations located in cities other than the capital). Thatis the concept of extraterritoriality, an agreement of internationallaw which exempts diplomatic personnel from the legal jurisdiction of the host country. For Americans overseas, extraterritoriality has often been a saving grace, as for instance when a U.S. citizen wrongfully accused of a crime byauthorities under a dictatorial regime obtains asylum in a U.S. facility. Onthe other hand, the concept of extraterritoriality raises considerable ire at home, often for relatively petty reasons: for instance, Washingtonians areroutinely annoyed to find cars bearing embassy license plates parked in "no parking" slots.
More serious was the abuse of extraterritoriality committed by officials at the Libyan People's Bureau (i.e. embassy) in London on 22 April 1984. After persons inside opened fire on bystanders and killed a British policewoman, British authorities demanded that the Libyans turn over the perpetrators. The Libyans refused to do so, and the incident led to the severing of diplomatic ties between Britain and Libya.
Sources
Jentleson, Bruce W. and Thomas G. Paterson, eds. Encyclopedia of U.S. Foreign Relations. New York: Oxford University Press, 1997.