Speech Plus - The Constitutional Law of Leafleting, Picketing, and Demonstrating

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.


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 and marching, distribution of leaflets and pamphlets, addresses to publicly assembled audiences, door-to-door solicitation, and sit-ins. There is also a class of conduct, now only vaguely defined, that 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 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 on the highest court of Massachusetts, future Justice Oliver Wendell 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,1444 and on review the United States Supreme Court endorsed Holmes’ view.1445 Years later, beginning with Hague v. CIO,1446 the Court reconsidered the issue. Justice Roberts wrote in Hague: “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.” Although this opinion was not itself joined by a majority of the Justices, the Court subsequently endorsed the view in several opinions.1447

The Roberts view was called into question in the 1960s, however, when the Court seemed to leave the issue open,1448 and when a majority endorsed an opinion by Justice Black asserting his own narrower view of speech rights in public places.1449 Later decisions restated and quoted the Roberts language from Hague, and that is now the position of the Court.1450 Public streets and parks,1451 including those adjacent to courthouses1452 and foreign embassies,1453 as well as public libraries1454 and the grounds of legislative bodies,1455 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.1456 Moreover, not all public properties are public forums. “[T]he First Amendment does not guarantee access to property simply because it is owned or controlled by the government.”1457 “The crucial question is whether the manner of expression is basically compatible with the normal activity of a particular place at a particular time.”1458 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.1459 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.1460 The Court, however, remains divided with respect to the reach of the public forum doctrine.1461

Speech in public forums is subject to time, place, and manner regulations that 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.1462 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,1463 must serve a significant governmental interest,1464 and must leave open ample alternative channels for communication of the information.1465 The Court has written that a time, place, or manner regulation “must be narrowly tailored to serve the government’s legitimate, content-neutral interests but that it need not be the least restrictive or least intrusive means of doing so. Rather, the requirement of narrow tailoring is satisfied . . . [s]o long as the means chosen are not substantially broader than necessary to achieve the government’s interest . . . .”1466 A content-neutral time, place, and manner regulation of the use of a public forum must also “contain adequate standards to guide the official’s decision and render it subject to effective judicial review.”1467 Unlike a content-based licensing scheme, however, it need not “adhere to the procedural requirements set forth in Freedman.”1468 These requirements include that the “burden of proving that the film [or other speech] is unprotected expression must rest on the censor,” and that the censor must, “within a specified brief period, either issue a license or go to court to restrain showing the film. Any restraint imposed in advance of a final judicial determination on the merits must similarly be limited to preservation of the status quo for the shortest fixed period compatible with sound judicial resolution.”1469

A corollary to the rule forbidding regulation based 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.1470 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.1471 The Court has also applied its general strictures against prior restraints in the contexts of permit systems and judicial restraint of expression.1472

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,1473 and may not vary a demonstration licensing fee based on an estimate of the amount of hostility likely to be engendered,1474 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 unclear.1475

The Court has defined three categories of public property for public forum analysis. First, there is the traditional public forum— places such as streets and parks that 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 a legitimate interest.1476 Second, there is the designated public forum, where the government opens property for communicative activity and thereby creates 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),”1477 but, within the framework of such legitimate limitations, “a content-based prohibition must be narrowly drawn to effectuate a compelling state interest.”1478 Third, with respect to “[p]ublic property which is not by tradition or designation a forum for public communication,” the government “may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on [sic] speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view.”1479 The distinction between the first and second categories, on the one hand, and third category, on the other, can therefore determine the outcome of a case, because speakers may be excluded from the first and second categories only for a “compelling” governmental interest, whereas exclusion from the third category need only be “reasonable.”

The Court 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.1480 Less problematic was the Court’s conclusion that utility poles and other municipal property did not constitute a public forum for the posting of signs.1481 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.1482 The Court pinpointed the government’s intention as the key to whether a public forum has been created: “The 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.”1483 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.1484

Application of these principles continues to raise often difficult questions. In United States v. Kokinda, a majority of Justices, who ultimately upheld a ban on soliciting contributions on postal premises under the “reasonableness” review governing nonpublic fora, could not agree on the public forum status of a sidewalk located entirely on postal service property.1485 Two years later, in International Society for Krishna Consciousness, Inc. v. Lee, the Court similarly divided as to whether non-secured areas of airport terminals, including shops and restaurants, constitute public fora.1486 A five-Justice majority held that airport terminals are not public fora and upheld regulations banning the repetitive solicitation of money within the terminals.1487

A decade later, the Court considered the public forum status of the Internet. In United States v. American Library Association, Inc., a four-Justice plurality held that “Internet access in public libraries is neither a ‘traditional’ nor a ‘designated’ public forum.”1488 The plurality therefore did not apply strict scrutiny in upholding the Children’s Internet Protection Act, which provides that a public school or “library may not receive federal assistance to provide Internet access unless it installs software to block images that constitute obscenity or child pornography, and to prevent minors from obtaining access to material that is harmful to them.”1489

More recently, in Packingham v. North Carolina, the Court appeared to equate the Internet to traditional public fora like a street or public park. Specifically, Justice Kennedy, writing for the Court, observed that, “[w]hile in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace—the ‘vast democratic forums of the Internet’ in general, and social media in particular.”1490 Consequently, the Court struck down a North Carolina law making it a felony for registered sex offenders to use commercial social networking websites that allow minor children to be members, such as Facebook. Applying strict scrutiny, the Court held that the North Carolina law impermissibly restricted lawful speech as it was not narrowly tailored to serve the government’s interest in protecting minors from registered sex offenders because it “foreclose[d] access to social media altogether,” thereby “prevent[ing] the user from engaging in the legitimate exercise of First Amendment rights.”1491

Nevertheless, although Internet access in public libraries is not a public forum, and particular Web sites, like particular newspapers, would not constitute public forums, the Internet as a whole might be viewed as a public forum, despite its lack of a historic tradition. The Supreme Court has not explicitly held that the Internet as a whole is a public forum, but, in Reno v. ACLU, which struck down a prohibition in the Communications Decency Act of 1996 on “indecent” material on the Internet, the Court noted that the Internet “constitutes a vast platform from which to address and hear from a worldwide audience of millions of readers, viewers, researchers, and buyers. Any person or organization with a computer connected to the Internet can ‘publish’ information.”1492

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.1493 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,1494 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.”1495 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,1496 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.”1497 “[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.”1498 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.”1499

Four years later, the Court answered the reserved question in the negative.1500 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 that they could rightfully be excluded. The center had not dedicated its property to a public use, the Court said; rather, it had 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 to communicate.

Then, the Court formally overruled Logan Valley Plaza, holding that shopping centers are not functionally equivalent to the company town involved in Marsh.1501 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 laws1502 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.1503 Henceforth, only when private property “‘has taken on all the attributes of a town’” is it to be treated as a public forum.1504

Picketing and Boycotts by Labor Unions.—Though “logically relevant” to what might be called “public issue” picketing, the cases dealing with application of economic pressures by labor unions are set apart by different “economic and social interests,”1505 and consequently are dealt with separately here.

It was in a labor case that the Court first held picketing to be entitled to First Amendment protection.1506 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. . . .”1507 The Court further reasoned that “the 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 opportunity to test the merits of ideas by competition for acceptance in the market of public opinion.”1508

The Court soon recognized several caveats. Peaceful picketing may be enjoined if it is associated with violence and intimidation.1509 Although initially the Court continued to find picketing protected in the absence of violence,1510 it soon decided a series of cases recognizing a potentially far-reaching exception: injunctions against peaceful picketing in the course of a labor controversy may be enjoined when such picketing is counter to valid state policies in a domain open to state regulation.1511 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.”1512 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.”1513 Although the Court has not disavowed this broad language, the Vogt exception has apparently not swallowed the entire Thornhill rule.1514 The Court has indicated that “a broad ban against peaceful picketing might collide with the guarantees of the First Amendment.”1515

Public Issue Picketing and Parading.—The early cases held that picketing and parading were forms of expression entitled to some First Amendment protection.1516 Those early cases did not, however, explicate the difference in application of First Amendment principles that 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.1517 A series of other cases concerned the permissible characteristics of permit systems in which parades and meetings were licensed, and expanded the procedural guarantees that must accompany a permissible licensing system.1518 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 court’s ruling that, although 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.1519

A series of civil rights picketing and parading cases led the Court to formulate standards much like those it has established in the labor field, but more protective of expressive activity. The process began with Edwards v. South Carolina,1520 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.”1521 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.”1522 “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.”1523

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 the 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.1524 Subsequently, however, the Court upheld a ban on residential picketing in Frisby v. Shultz,1525 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 targeted a single residence, and it is unclear whether the Court would uphold a broader restriction on residential picketing.1526

In 1982, the Justices confronted a case, that, like Hughes v. Superior Court,1527 involved a state court injunction on picketing, although this one also involved a damage award. NAACP v. Claiborne Hardware Co.1528 may join in terms of importance such cases as New York Times Co. v. Sullivan1529 in requiring the states to observe enhanced constitutional standards before they may impose liability upon persons for engaging in expressive conduct that implicates the First Amendment. The case arose in the context of a protest against racial conditions by black citizens of Claiborne County, 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 joint and several liability 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; although 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.1530 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.1531 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.”1532 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),1533 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.1534

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.”1535 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.1536 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.1537 Because 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.1538 As to the field secretary of the local NAACP, the Court refused to permit imposition of damages based upon speeches that could be read as advocating violence, because 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.1539 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.”1540

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.1541

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,1542 the Court refined principles governing issuance of “content-neutral” injunctions that restrict expressive activity.1543 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.”1544 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.”1545 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.1546

In Schenck v. Pro-Choice Network of Western New York,1547 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.”1548 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.”1549 The Court cited “public safety and order”1550 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”1551 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.”1552 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.”1553

In Hill v. Colorado,1554 the Court upheld a Colorado statute that made 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.”1555 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 . . . .”1556 The restrictions were content-neutral because they regulated only the places where some speech may occur, and because they applied equally to all demonstrators, regardless of viewpoint. Although the restrictions did 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.”1557 The law was narrowly tailored to achieve the state’s interests. The eight-foot restriction did not significantly impair the ability to convey messages by signs, and ordinarily allowed speakers to come within a normal conversational distance of their targets. Because the statute allowed the speaker to remain in one place, persons who wished to hand out leaflets could position themselves beside entrances near the path of oncoming pedestrians, and consequently were not deprived of the opportunity to get the attention of persons entering a clinic.

In McCullen v. Coakley, the Court retained a content-neutral analysis similar to that in Hill, but nonetheless struck down a statutory 35-foot buffer zone at entrances and driveways of abortion facilities.1558 The Court concluded that the buffer zone was not narrowly tailored to serve governmental interests in maintaining public safety and preserving access to reproductive healthcare facilities, the concerns claimed by Massachusetts to underlie the law.1559 The opinion cited several alternatives to the buffer zone that would not curtail the use of public sidewalks as traditional public fora for speech, nor significantly burden the ability of those wishing to provide “sidewalk counseling” to women approaching abortion clinics. Specifically, the Court held that, to preserve First Amendment rights, targeted measures, such as injunctions, enforcement of anti-harassment ordinances, and use of general crowd control authority, as needed, are preferable to broad, prophylactic measures.1560

Different types of issues were presented by Hurley v. Irish-American Gay Group,1561 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.”1562

Leafleting, Handbilling, and the Like.—In Lovell v. City of Griffin,1563 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.”1564 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,1565 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.”1566 In Talley v. California,1567 the Court struck down an ordinance that 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 discussions of public matters of importance.”1568 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 “the ordinance is in no manner so limited . . . . Therefore we do not pass on the validity of an ordinance limited to these or any other supposed evils.”1569

Talley’s anonymity rationale was strengthened in McIntyre v. Ohio Elections Comm’n,1570 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, although 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.1571

The handbilling cases were distinguished in City Council v. Taxpayers for Vincent,1572 in which the Court held that a city may prohibit altogether the use of utility poles for posting of signs. Although 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.1573 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.1574 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.1575 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.1576

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,1577 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,1578 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.1579 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.1580 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.1581

Door-to-Door Solicitation and Charitable Solicitation.—In one of the Jehovah’s Witness cases, 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 night shifts, 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.”1582

Later, although 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.”1583 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 housetohouse for charitable or political purposes.

However, an ordinance that limited solicitation of contributions door-to-door by charitable organizations to those that 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.1584 A privacy rationale was rejected, as just as much intrusion was likely by permitted as by non-permitted solicitors. A rationale of prevention of fraud was unavailing, 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.

Schaumburg was extended in Secretary of State v. Joseph H. Munson Co.,1585 and Riley v. National Federation of the Blind.1586 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. In Riley, the Court invalidated a North Carolina fee structure containing even more flexibility.1587 The Court saw “no nexus between the percentage of funds retained by the fundraiser and the likelihood that the solicitation is fraudulent,” and was similarly hostile to any scheme that shifts the burden to the fundraiser to show that a fee structure is reasonable.1588 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.1589

In Watchtower Bible & Tract Soc’y v. Village of Stratton, the Court struck down an ordinance that made it a misdemeanor to engage in door-to-door advocacy—religious, political, or commercial— without first registering with the mayor and receiving a permit.1590 “It is offensive to the very notion of a free society,” the Court wrote, “that a citizen must first inform the government of her desire to speak to her neighbors and then obtain a permit to do so.”1591 The ordinance violated the right to anonymity, burdened the freedom of speech of those who hold “religious or patriotic views” that prevent them from applying for a license, and effectively banned “a significant amount of spontaneous speech” that might be engaged in on a holiday or weekend when it was not possible to obtain a permit.1592

The Problem of “Symbolic Speech”.—Very little expression is “mere” speech. If it is oral, it may be noisy enough to be disturbing,1593 and, if it is written, it may be litter;1594 in either case, it may amount to conduct that is prohibitable in specific circumstances.1595 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 symbol1596 or in refusing to salute a flag as a symbol.1597 Sit-ins and stand-ins may effectively express a protest about certain things.1598

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.”1599 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, although 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.”1600 The Court has suggested that this standard is virtually identical to that applied to time, place, or manner restrictions on expression.1601

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. 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,1602 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.1603

A few years later the Court reversed two other flag desecration convictions, one on due process/vagueness grounds, the other under the First Amendment. These cases 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,1604 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.”1605

The First Amendment was the basis for reversal in Spence v. Washington,1606 which set aside a conviction under a statute punishing the display of a United States flag to which something is attached or superimposed; 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, and 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 privately 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 left unclear whether that interest extended beyond protecting the physical integrity of the flag.1607

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. Johnson1608 the Court rejected a state desecration statute designed to protect the flag’s symbolic value, and then in United States v. Eichman1609 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.1610 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. § 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.”1611 The law was designed to be content-neutral and to protect the “physical integrity” of the flag.1612 Nonetheless, in overturning 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,”1613 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.”1614 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.1615

1444 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.”

1445 Davis v. Massachusetts, 167 U.S. 43, 48 (1897).

1446 307 U.S. 496 (1939). Only Justice Black joined the Roberts opinion, but only Justices McReynolds and Butler dissented from the result.

1447 E.g., Schneider v. Town of Irvington, 308 U.S. 147, 163 (1939); Kunz v. New York, 340 U.S. 290, 293 (1951).

1448 Cox v. Louisiana, 379 U.S. 536, 555 (1965). For analysis of this case in the subject SUP. CT. REV. 1.

1449 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).

1450 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).

1451 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).

1452 Narrowly drawn statutes that 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).

1453 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.

1454 Brown v. Louisiana, 383 U.S. 131 (1966) (sit-in in library reading room).

1455 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).

1456 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).

1457 United States Postal Serv. v. Council of Greenburgh Civic Assn’s, 453 U.S. 114 (1981).

1458 Grayned v. City of Rockford, 408 U.S. 104, 116 (1972).

1459 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, 505 U.S. 672 (1992) (publicly owned airport terminal).

1460 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).

1461 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, 505 U.S. 672 (1992) with id. at 693 (Justice Kennedy concurring).

1462 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).

1463 Niemotko v. Maryland, 340 U.S. 268 (1951); Cox v. Louisiana, 379 U.S. 536 (1965); Police Dep’t of Chicago v. Mosle, 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.

1464 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).

1465 Heffron v. ISKCON, 452 U.S. 640, 654–55 (1981); Consolidated Edison Co. v. PSC, 447 U.S. 530, 535 (1980).

1466 Ward v. Rock Against Racism, 491 U.S. 781, 798–99, 800 (1989).

1467 Thomas v. Chicago Park Dist., 534 U.S. 316, 323 (2002).

1468 534 U.S. at 322, citing Freedman v. Maryland, 380 U.S. 51 (1965). See National Socialist Party v. Village of Skokie, 432 U.S. 43 (1977).

1469 Freedman v. Maryland, 380 U.S. 51, 58–59 (1965).

1470 Police Dep’t of Chicago v. Mosle, 408 U.S. 92 (1972) (ordinance void that 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) (striking down college rule permitting access to all student organizations except religious groups); Niemotko v. Maryland, 340 U.S. 268 (1951) (striking down denial of permission to use parks for some groups but not for others); R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) (striking down ordinance that prohibited symbols, such as burning crosses, that constituted fighting words that insult on the basis of some factors, such as race, but not on the basis of other factors). 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); Capitol Square Review Bd. v. Pinette, 515 U.S. 753 (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, 515 U.S. 819 (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).

1471 E.g., Hague v. CIO, 307 U.S. 496, 516 (1939); Schneider v. Town of Irvington, 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, 505 U.S. 123 (1992). But see Walker v. City of Birmingham, 388 U.S. 307 (1967) (same rule not applicable to injunctions).

1472 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. The Court also voided an injunction against a protest meeting that was issued ex parte, without notice to the protestors and with, of 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).

1473 The only 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).

1474 Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992) (a fee based on anticipated crowd response necessarily involves examination of the content of the speech, and is invalid as a content regulation).

1475 Dicta 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). Yet the Court 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.”

1476 “[A]lthough a park is a traditional public forum for speeches and other transitory expressive acts, the display of a permanent monument in a public park is not a form of expression to which forum analysis applies. Instead, the placement of a permanent monument in a public park is best viewed as a form of government speech and is therefore not subject to scrutiny under the Free Speech Clause.” Pleasant Grove City, Utah v. Summum, 555 U.S. at 464..

1477 Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45, 46 n.7 (1983).

1478 460 U.S. at 46.

1479 460 U.S. at 46. Candidate debates on public television are an example of this third category of public property: the “nonpublic forum.” Arkansas Educational Television Comm’n v. Forbes, 523 U.S. 666, 679 (1998). “Although public broadcasting as a general matter does not lend itself to scrutiny under the forum doctrine [i.e., public broadcasters ordinarily are entitled to the editorial discretion to engage in viewpoint discrimination], candidate debates present the narrow exception to this rule.” Id. at 675. A public broadcaster, therefore, may not engage in viewpoint discrimination in granting or denying access to candidates. Under the third type of forum analysis, however, it may restrict candidate access for “a reasonable, viewpoint-neutral” reason, such as a candidate’s “objective lack of support.” Id. at 683.

1480 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).

1481 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.

1482 Cornelius v. NAACP Legal Defense and Educational Fund, 473 U.S. 788 (1985). The precedential value of Cornelius may be subject to question, because 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.

1483 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.

1484 Justice Kennedy criticized this approach in ISKCON v. Lee, 505 U.S. 672, 695 (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 (citation omitted).

1485 497 U.S. 720, 727 (1990) (“[R]egulation of speech activity where the Government has not dedicated its property to First Amendment activity is examined only for reasonableness.”).

1486 505 U.S. 672 (1992).

1487 Id. at 683 (“[N]either by tradition nor purpose can the terminals be described as satisfying the standards we have previously set out for identifying a public forum.”).

1488 539 U.S. 194, 205–06 (2003) (“We have ‘rejected the view that traditional public forum status extends beyond its historic confines.’ The doctrines surrounding traditional public forums may not be extended to situations where such history is lacking.” (quoting Ark. Educ. TV Comm’n v. Forbes, 523 U.S. 666, 679 (1998))). While decided on constitutional vagueness grounds, in Reno v. American Civil Liberties Union, the Court struck down a provision of the Communications Decency Act of 1996 that prohibited the use of an “interactive computer service” (i.e., the Internet) to display indecent material “in a manner available to a person under 18 years of age.” 521 U.S. 844, 860 (1997). The Court did not consider the Internet’s status as a forum for free speech, but observed that the Internet “constitutes a vast platform from which to address and hear from a world-wide audience of millions of readers, viewers, researchers, and buyers. Any person or organization with a computer connected to the Internet can ‘publish’ information.” Id. at 853.

1489 American Library Association, 539 U.S. at 199; see also id. at 206 (“A public library does not acquire Internet terminals in order to create a public forum for Web publishers to express themselves, any more than it collects books in order to provide a public forum for the authors of books to speak.”).

1490 Packingham v. North Carolina582 U.S. ___, No. 15–1194, slip op. at 4–5 (2017) (quoting Am. Civil Liberties Union, 521 at 868); see also id. at ___, slip op. at 6 (“This case is one of the first this Court has taken to address the relationship between the First Amendment and the modern Internet. As a result, the Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium.”).

1491 Id. at ___, slip op. at 6, 8; see id. at 7 (“[G]iven the broad wording of the North Carolina statute at issue, it might well bar access not only to commonplace social media websites but also to websites as varied as Amazon.com, Washingtonpost.com, and Webmd.com.”). The Court was careful to point out, however, that its opinion should not be read as barring states from enacting laws more specific than that of North Carolina, noting that “[s]pecific criminal acts are not protected speech even if speech is the means for their commission.” Id. (citing Brandenburg v. Ohio 395 U. S. 444, 447–49 (1969)). Indeed, “it can be assumed that the First Amendment permits a State to enact specific, narrowly tailored laws that prohibit a sex offender from engaging in conduct that often presages a sexual crime, like contacting a minor or using a website to gather information about a minor.” Id.

1492 521 U.S. at 853. A federal court of appeals wrote: “Aspects of cyberspace may, in fact, fit into the public forum category, although the Supreme Court has also suggested that the category is limited by tradition. Compare Forbes, 523 U.S. at 679 (‘reject[ing] the view that traditional public forum status extends beyond its historic confines’ [to a public television station]) with Reno v. ACLU, 521 U.S. 844, 851–53 (1997) (recognizing the communicative potential of the Internet, specifically the World Wide Web).” Putnam Pit, Inc. v. City of Cookeville, 221 F.3d 834, 843 (6th Cir. 2000) (alternate citations to Forbes and Reno omitted). In Putnam Pit, the city denied a private Web site’s request that the city’s Web site establish a hyperlink to it, even though the city’s Web site had established hyperlinks to other private Web sites. The court of appeals found that the city’s Web site was a nonpublic forum, but that even nonpublic forums must be viewpoint neutral, so it remanded the case for trial on the question of whether the city’s denial of a hyperlink had discriminated on the basis of viewpoint.

1493 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).

1494 326 U.S. 501 (1946).

1495 326 U.S. at 506.

1496 Amalgamated Food Employees Union v. Logan Valley Plaza, 391 U.S. 308 (1968).

1497 391 U.S. at 319. Justices Black, Harlan, and White dissented. Id. at 327, 333, 337.

1498 391 U.S. at 319–20.

1499 391 U.S. at 320 n.9.

1500 Lloyd Corp. v. Tanner, 407 U.S. 551 (1972).

1501 Hudgens v. NLRB, 424 U.S. 507 (1976). Justice Stewart’s opinion for the subject U.S. at 517–18, but Justice Powell, the author of the Lloyd Corp. opinion, did not believe that to be the case, id. at 523.

1502 But see Sears, Roebuck & Co. v. Carpenters, 436 U.S. U.S. 180 (1978).

1503 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.

1504 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)).

1505 Niemotko v. Maryland, 340 U.S. 268, 276 (1951).

1506 Thornhill v. Alabama, 310 U.S. 88 (1940). Picketing as an aspect of communication was recognized in Senn v. Tile Layers Union, 301 U.S. 468 (1937).

1507 310 U.S. at 102.

1508 310 U.S. at 104–05. 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.

1509 Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U.S. 287 (1941).

1510 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).

1511 Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949) (upholding on basis of state policy forbidding agreements in restraint of trade an injunction against picketing to persuade business owner not to deal with non-union peddlers); International Bhd. of Teamsters v. Hanke, 339 U.S. 470 (1950) (upholding injunction against union picketing protesting non-union proprietor’s failure to maintain union shop card and observe union’s limitation on weekend business hours); Building Service Emp. Intern. Union v. Gazzam, 339 U.S. 532 (1950) (injunction against picketing to persuade innkeeper to sign contract that would force employees to join union in violation of state policy that employees’ choice not be coerced); Local 10, United Ass’n of Journeymen Plumbers v. Graham, 345 U.S. 192 (1953) (injunction against picketing in conflict with state’s right-to-work statute).

1512 Bakery & Pastry Drivers Local v. Wohl, 315 U.S. 769, 776–77 (1942) (concurring opinion).

1513 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).

1514 The dissenters in Vogt asserted that the Court had “come full circle” from Thornhill. 354 U.S. at 295 (Justice Douglas, joined by Chief Justice Warren and Justice Black).

1515 NLRB v. Fruit & Vegetable Packers, 377 U.S. 58, 63 (1964) (requiring—and finding absent in NLRA—“clearest indication” that Congress intended to prohibit all consumer picketing at secondary establishments). See also 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).

1516 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).

1517 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).

1518 See, e.g., Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969); National Socialist Party v. Village of Skokie, 432 U.S. 43 (1977); Carroll v. President & Commr’s of Princess Anne, 393 U.S. 175 (1968).

1519 Hughes v. Superior Court, 339 U.S. 460 (1950). This ruling, allowing content-based restriction, seems inconsistent with NAACP v. Claiborne Hardware, discussed under this topic, infra.

1520 372 U.S. 229 (1963).

1521 372 U.S. at 235. See also Fields v. South Carolina, 375 U.S. 44 (1963); Henry v. City of Rock Hill, 376 U.S. 776 (1964).

1522 Cox v. Louisiana, 379 U.S. 536, 555 (1965).

1523 379 U.S. at 563.

1524 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 denied, 436 U.S. 953, cert. denied, 439 U.S. 916 (1978).

1525 487 U.S. 474 (1988).

1526 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).

1527 339 U.S. 460 (1950).

1528 458 U.S. 886 (1982).

1529 376 U.S. 254 (1964).

1530 NAACP v. Claiborne Hardware Co., 458 U.S. 886, 907–08 (1982).

1531 458 U.S. at 908.

1532 458 U.S. 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.” 458 U.S. at 925.

1533 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).

1534 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, which permits a regulation “if it is within the constitutional power of the 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 restiction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” 458 U.S. at 912, n.47, quoting O’Brien, 391 U.S. 367, 376–77 (1968) (footnotes omitted).

1535 458 U.S. at 916–17.

1536 458 U.S. at 917–18.

1537 458 U.S. 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).

1538 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.

1539 458 U.S. at 926–29. The field secretary’s “emotionally charged rhetoric . . . did not transcend the bounds of protected speech set forth in Brandenburg v. Ohio, 395 U.S. 444 (1969).”

1540 458 U.S. 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).

1541 “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.” “[P]etitioners’ ultimate objectives were unquestionably legitimate. The charge of illegality . . . derives from the means employed by the participants to achieve those goals. The use of speeches, marches, and threats of social ostracism cannot provide the basis for a damages award. But violent conduct is beyond the pale of constitutional protection.” “The taint of violence colored the conduct of some of the petitioners. They, of course, may be held liable for the consequences of their violent deeds. The burden of demonstrating that it colored the entire collective effort, however, is not satisfied by evidence that violence occurred or even that violence contributed to the success of the boycott. [The burden can be met only] by findings that adequately disclose the evidentiary basis for concluding that specific parties agreed to use unlawful means, that carefully identify the impact of such unlawful conduct, and that recognizes the importance of avoiding the imposition of punishment for constitutionally protected activity. . . . A court must be wary of a claim that the true color of a forest is better revealed by reptiles hidden in the weeds than by the foliage of countless freestanding trees.” 458 U.S. at 933–34.

1542 512 U.S. 753 (1994).

1543 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 specific dispute between real parties.” There had been no similarly disruptive demonstrations by pro-abortion factions at the abortion clinic. 512 U.S. at 762.

1544 512 U.S. at 765.

1545 512 U.S. at 765.

1546 Referring to Frisby v. Schultz, 487 U.S. 474 (1988).

1547 519 U.S. 357 (1997).

1548 519 U.S. at 366 n.3.

1549 519 U.S. at 366 n.3.

1550 519 U.S. at 376.

1551 519 U.S. at 377.

1552 519 U.S. at 378.

1553 519 U.S. at 367.

1554 530 U.S. 703 (2000).

1555 530 U.S. at 707.

1556 530 U.S. at 714.

1557 530 U.S. at 722.

1558 573 U.S. ___, No. 12–1168, slip op. at 11–18 (2014).

1559 Id. at 19–23.

1560 Id. at 23–29.

1561 515 U.S. 557 (1995).

1562 515 U.S. at 573.

1563 303 U.S. 444 (1938).

1564 303 U.S. at 452.

1565 303 U.S. at 451.

1566 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).

1567 362 U.S. 60 (1960).

1568 362 U.S. at 64, 65.

1569 362 U.S. 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).

1570 514 U.S. 334 (1995).

1571 In Buckley v. American Constitutional Law Foundation, 525 U.S. 182 (1999), the Court struck down a Colorado statute requiring initiative-petition circulators to wear identification badges. It found that “the restraint on speech in this case is more severe than was the restraint in McIntyre” because “[p]etition circulation is a less fleeting encounter, for the circulator must endeavor to persuade electors to sign the petition. . . . [T]he badge requirement compels personal name identification at the precise moment when the circulator’s interest in anonymity is greatest.” Id. at 199. In Watchtower Bible & Tract Soc’y v. Village of Stratton, 536 U.S. 150, 166 (2002), concern for the right to anonymity was one reason that the Court struck down an ordinance that made it a misdemeanor to engage in door-to-door advocacy without first registering with the mayor and receiving a permit.

1572 466 U.S. 789 (1984).

1573 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.

1574 City of Ladue v. Gilleo, 512 U.S. 43 (1994).

1575 512 U.S. at 54, 57.

1576 512 U.S. at 54. The city’s legitimate interest in reducing visual clutter could be addressed by “more temperate” measures, the Court suggested. Id. at 58.

1577 334 U.S. 558, 561 (1948).

1578 336 U.S. 77 (1949).

1579 Grayned v. City of Rockford, 408 U.S. 104 (1972).

1580 408 U.S. 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.

1581 Ward v. Rock Against Racism, 491 U.S. 781 (1989).

1582 Martin v. City of Struthers, 319 U.S. 141, 147 (1943).

1583 Hynes v. Mayor of Oradell, 425 U.S. 610, 616–17 (1976).

1584 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 the 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).

1585 467 U.S. 947 (1984).

1586 487 U.S. 781 (1988).

1587 A fee of up to 20% of collected receipts was deemed reasonable, a fee of 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.

1588 487 U.S. at 793.

1589 487 U.S. at 800. North Carolina’s requirement for licensing of professional fundraisers was also invalidated in Riley, id. at 801–02. In Illinois ex rel. Madigan v. Telemarketing Assocs., 538 U.S. 600 (2003), the Court held unanimously that the First Amendment does not prevent a state from bringing fraud actions against charitable solicitors who falsely represent that a “significant” amount of each dollar donated would be used for charitable purposes.

1590 536 U.S. 150 (2002).

1591 536 U.S. at 165–66.

1592 536 U.S. at 167.

1593 E.g., Saia v. New York, 334 U.S. 558 (1948); Kovacs v. Cooper, 336 U.S. 77 (1949).

1594 E.g., Schneider v. Town of Irvington, 308 U.S. 147 (1939).

1595 Cf. Cohen v. California, 403 U.S. 15 (1971).

1596 Stromberg v. California, 283 U.S. 359 (1931).

1597 West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943).

1598 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).

1599 West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 632 (1943).

1600 United States v. O’Brien, 391 U.S. 367, 377 (1968).

1601 Clark v. Community for Creative Non-Violence, 468 U.S. 288, 298 & n.8 (1984).

1602 394 U.S. 576 (1969).

1603 394 U.S. 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 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).

1604 415 U.S. 566 (1974).

1605 415 U.S. at 578.

1606 418 U.S. 405 (1974).

1607 418 U.S. 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, however, dismissed, “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).

1608 491 U.S. 397 (1989).

1609 496 U.S. 310 (1990).

1610 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.

1611 The Flag Protection Act of 1989, Pub. L. 101–131 (1989).

1612 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”).

1613 United States v. Eichman, 496 U.S. at 316.

1614 496 U.S. at 317.

1615 In the 101st Congress, 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), and 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). In every Congress since then (though the 111th in 2009), constitutional amendments to allow Congress or the states to prohibit flag desecration have been proposed. In each Congress from the 104th through the 109th (1995– 2006), the House passed such a proposal, but the Senate either rejected it or did not vote on it.

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