Boos v. Barry
The Split Over Part Ii
In Part II-A, Justice O'Connor, joined by Justices Stevens and Scalia, found that 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 it does not choose between different viewpoints, she said, it still violated the First Amendment by prohibiting an entire category of speech--signs critical of 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 suppress free 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 type of 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 sexually explicit 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 possible offense such speech could cause. Therefore they were opposed to content-based denial of free speech regardless of the reasoning behind it.
Part II-B also turned on the issue of content-based political speech, and in this O'Connor was joined by the same majority as in Part I. Citing an earlier case 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 preserve freedom. In the present situation, she said, the Court was not persuaded that there 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.