Boos v. Barry

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 the First 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 the two 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 with anti-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. Michael Waller wanted to put up a sign that said "STOP THE KILLING" in front of the Nicaraguan 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 authority of 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 a flag, banner, placard, or other device with the purpose of intimidating, coercing, or "bring[ing] into public odium" any foreign government, or individual or 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 more people.) The first part of this law, the basis for the petition by Boos and others, 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 Supreme Court by President Ronald Reagan and rejected by the Senate. A divided panel affirmed 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. Though the display clause restricted speech on the basis of content, which taken by itself would be unconstitutional, in this case the court found sufficient justification in view of the "compelling governmental interest" represented, as well as the fact that the law was narrowly drawn for the specific purpose of serving 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.