7 Contemporary Speech Doctrine and the Principle of Content Discrimination

Foundations of the Content Discrimination Doctrine

The emergence of these principles is linked to a pair of rulings decided on the same day in 1972. The cases, Chicago Police Department v. Mosley and Grayned v. Rockford, involved conflicts between protests against alleged racism in two Illinois public high schools and city ordinances that limited such protests. The primary difference between the two cases was that Mosely’s anti-picketing law was struck down as an unconstitutional content-based regulation, while Grayned’s anti-noise law was instead upheld as a constitutional content-neutral regulation. Aside from helping to establish the principle as fundamental to free speech doctrine, the cases also provide a nice contrast as to what laws might fall into which category.

Chicago Police Department v. Mosley

408 U.S. 92 (1972)

Facts: Chicago had a city ordinance that prohibited picketing within 150 feet of a school during school hours. However, the ordinance made an explicit exception for “labor picketing.” Mosley, a postal employee who had been protesting racial discrimination against black students, sued that this exception was unconstitutional under the First Amendment.

Question: Did Chicago’s anti-picketing ordinance violate the First Amendment’s free speech clause and the Equal Protection Clause of the Fourteenth Amendment?

Vote: Yes, 9-0

For the Court: Justice Marshall

Concurring opinion: Chief Justice Burger

JUSTICE MARSHALL delivered the opinion of the Court.

At issue in this case is the constitutionality of the following Chicago ordinance:

“A person commits disorderly conduct when he knowingly:

(i) Pickets or demonstrates on a public way within 150 feet of any primary or secondary school building while the school is in session and one-half hour before the school is in session and one-half hour after the school session has been concluded, provided that this subsection does not prohibit the peaceful picketing of any school involved in a labor dispute…

The suit was brought by Earl Mosley, a federal postal employee, who for seven months prior to the enactment of the ordinance had frequently picketed Jones Commercial High School in Chicago. During school hours and usually by himself, Mosley would walk the public sidewalk adjoining the school, carrying a sign that read: “Jones High School practices black discrimination. Jones High School has a black quota.” His lonely crusade was always peaceful, orderly, and quiet, and was conceded to be so by the city of Chicago.

… Seeing a newspaper announcement of the new ordinance, Mosley contacted the Chicago Police Department to find out how the ordinance would affect him; he was told that, if his picketing continued, he would be arrested. On April 4, the day before the ordinance became effective, Mosley ended his picketing next to the school. Thereafter, he brought this action in the United States District Court for the Northern District of Illinois, seeking declaratory and injunctive relief … He alleged a violation of constitutional rights in that (1) the statute punished activity protected by the First Amendment; and (2) by exempting only peaceful labor picketing from its general prohibition against picketing, the statute denied him “equal protection of the law in violation of the First and Fourteenth Amendments.”

After a hearing, the District Court granted a directed verdict dismissing the complaint. The Seventh Circuit reversed, holding that, because the ordinance prohibited even peaceful picketing next to a school, it was overbroad, and therefore “patently unconstitutional on its face.” We granted certiorari to consider this case along with Grayned v. City of Rockford, in which an almost identical ordinance was upheld by the Illinois Supreme Court. We affirm the judgment of the Seventh Circuit, although we decide this case on the ground not reached by that court. We hold that the ordinance is unconstitutional because it makes an impermissible distinction between labor picketing and other peaceful picketing.

I

The city of Chicago exempts peaceful labor picketing from its general prohibition on picketing next to a school. The question we consider here is whether this selective exclusion from a public place is permitted. Our answer is “No.”

Because Chicago treats some picketing differently from others, we analyze this ordinance in terms of the Equal Protection Clause of the Fourteenth Amendment. Of course, the equal protection claim in this case is closely intertwined with First Amendment interests; the Chicago ordinance affects picketing, which is expressive conduct; moreover, it does so by classifications formulated in terms of the subject of the picketing. As in all equal protection cases, however, the crucial question is whether there is all appropriate governmental interest suitably furthered by the differential treatment.

The central problem with Chicago’s ordinance is that it describes permissible picketing in terms of its subject matter. Peaceful picketing on the subject of a school’s labor-management dispute is permitted, but all other peaceful picketing is prohibited. The operative distinction is the message on a picket sign. But, above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.

To permit the continued building of our politics and culture, and to assure self-fulfillment for each individual, our people are guaranteed the right to express any thought, free from government censorship. The essence of this forbidden censorship is content control. Any restriction on expressive activity because of its content would completely undercut the “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.”

Necessarily, then, under the Equal Protection Clause, not to mention the First Amendment itself, government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views. And it may not select which issues are worth discussing or debating in public facilities. There is an “equality of status in the field of ideas,” and government must afford all points of view an equal opportunity to be heard. Once a forum is opened up to assembly or speaking by some groups, government may not prohibit others from assembling or speaking on the basis of what they intend to say. Selective exclusions from a public forum may not be based on content alone, and may not be justified by reference to content alone…

The late Mr. Justice Black, who thought that picketing was not only a method of expressing an idea but also conduct subject to broad state regulation, nevertheless recognized the deficiencies of laws like Chicago’s ordinance. This was the thrust of his opinion concurring in Cox v. Louisiana (1965):

[B]y specifically permitting picketing for the publication of labor union views [but prohibiting other sorts of picketing], Louisiana is attempting to pick and choose among the views it is willing to have discussed on its streets… This seems to me to be censorship in a most odious form, unconstitutional under the First and Fourteenth Amendments. And to deny this appellant and his group use of the streets because of their views against racial discrimination, while allowing other groups to use the streets to voice opinions on other subjects, also amounts, I think, to an invidious discrimination forbidden by the Equal Protection Clause of the Fourteenth Amendment.

We accept Mr. Justice Black’s quoted views.

II

This is not to say that all picketing must always be allowed. We have continually recognized that reasonable “time, place and manner” regulations of picketing may be necessary to further significant governmental interests…. Conflicting demands on the same place may compel the State to make choices among potential users and uses. And the State may have a legitimate interest in prohibiting some picketing to protect public order. But these justifications for selective exclusions from a public forum must be carefully scrutinized. Because picketing plainly involves expressive conduct within the protection of the First Amendment, discriminations among pickets must be tailored to serve a substantial governmental interest.

III

In this case, the ordinance itself describes impermissible picketing not in terms of time, place, and manner, but in terms of subject matter. The regulation “thus slip[s] from the neutrality of time, place, and circumstance into a concern about content.” This is never permitted. In spite of this, Chicago urges that the ordinance is not improper content censorship, but rather a device for preventing disruption of the school. Cities certainly have a substantial interest in stopping picketing which disrupts a school. “The crucial question, however, is whether [Chicago’s ordinance] advances that objective in a manner consistent with the command of the Equal Protection Clause.”

It does not.

Although preventing school disruption is a city’s legitimate concern, Chicago itself has determined that peaceful labor picketing during school hours is not an undue interference with school. Therefore, under the Equal Protection Clause, Chicago may not maintain that other picketing disrupts the school unless that picketing is clearly more disruptive than the picketing Chicago already permits. If peaceful labor picketing is permitted, there is no justification for prohibiting all nonlabor picketing, both peaceful and nonpeaceful. “Peaceful” nonlabor picketing, however the term “peaceful” is defined, is obviously no more disruptive than “peaceful” labor picketing. But Chicago’s ordinance permits the latter and prohibits the former…

Similarly, we reject the city’s argument that, although it permits peaceful labor picketing, it may prohibit all nonlabor picketing because, as a class, nonlabor picketing is more prone to produce violence than labor picketing. Predictions about imminent disruption from picketing involve judgments appropriately made on an individualized basis, not by means of broad classifications, especially those based on subject matter. Freedom of expression, and its intersection with the guarantee of equal protection, would rest on a soft foundation indeed if government could distinguish among picketers on such a wholesale and categorical basis…

The Equal Protection Clause requires that statutes affecting First Amendment interests be narrowly tailored to their legitimate objectives. Chicago may not vindicate its interest in preventing disruption by the wholesale exclusion of picketing on all but one preferred subject… Chicago’s ordinance imposes a selective restriction on expressive conduct far “greater than is essential to the furtherance of [a substantial governmental] interest.” Far from being tailored to a substantial governmental interest, the discrimination among pickets is based on the content of their expression. Therefore, under the Equal Protection Clause, it may not stand.

CHIEF JUSTICE BURGER, concurring.

I join the Court’s opinion, but with the reservation that some of the language used in the discussion of the First Amendment could, if read out of context, be misleading. Numerous holdings of this Court attest to the fact that the First Amendment does not literally mean that we “are guaranteed the right to express any thought, free from government censorship.” This statement is subject to some qualifications, as for example those of Roth v. United States (1957); Chaplinsky v. New Hampshire (1942). See also New York Times Co. v. Sullivan (1964).

Grayned v. Rockford

408 U.S. 104 (1972)

Facts: Grayned had taken part in a civil rights protest outside a public high school (witnesses for the government and for the protestors diverged sharply on how noisy or disruptive the protests were). He and other protestors were charged and convicted for violating two city ordinances: 1) an ordinance that prohibited picketing in front of schools (with an exception for labor picketing), and 2) an anti-noise ordinance in effect during school hours.

Grayned sued, arguing that the statutes were unconstitutional, either on their face and/or as applied to his conduct.

Question: Did Rockford’s anti-picketing and anti-noise ordinance violate the First Amendment’s free speech clause and the Equal Protection Clause of the Fourteenth Amendment?

Vote: Yes, 9-0; No, 8-1

For the Court: Justice Marshall

Dissenting opinion: Justice Douglas

JUSTICE MARSHALL delivered the opinion of the Court.

Appellant Richard Grayned was convicted for his part in a demonstration in front of West Senior High School in Rockford, Illinois. Negro students at the school had first presented their grievances to school administrators. When the principal took no action on crucial complaints, a more public demonstration of protest was planned. On April 25, 1969, approximately 200 people — students, their family members, and friends — gathered next to the school grounds. Appellant, whose brother and twin sisters were attending the school, was part of this group. The demonstrators marched around on a sidewalk about 100 feet from the school building, which was set back from the street. Many carried signs which summarized the grievances: “Black cheerleaders to cheer too”; “Black history with black teachers”; “Equal rights, Negro counselors.” Others, without placards, made the “power to the people” sign with their upraised and clenched fists.

In other respects, the evidence at appellant’s trial was sharply contradictory. Government witnesses reported that the demonstrators repeatedly cheered, chanted, baited policemen, and made other noise that was audible in the school; that hundreds of students were distracted from their school activities and lined the classroom windows to watch the demonstration; that some demonstrators successfully yelled to their friends to leave the school building and join the demonstration; that uncontrolled latenesses after period changes in the school were far greater than usual, with late students admitting that they had been watching the demonstration; and that, in general, orderly school procedure was disrupted. Defense witnesses claimed that the demonstrators were at all times quiet and orderly; that they did not seek to violate the law, but only to “make a point”; that the only noise was made by policemen using loudspeakers; that almost no students were noticeable at the schoolhouse windows; and that orderly school procedure was not disrupted.

After warning the demonstrators, the police arrested 40 of them, including appellant. For participating in the demonstration, Grayned was tried and convicted of violating two Rockford ordinances, hereinafter referred to as the “anti-picketing” ordinance and the “anti-noise” ordinance… We conclude that the anti-picketing ordinance is unconstitutional, but affirm the court below with respect to the anti-noise ordinance.

I

At the time of appellant’s arrest and conviction, Rockford’s anti-picketing ordinance provided that “A person commits disorderly conduct when he knowingly: …

(i) Pickets or demonstrates on a public way within 150 feet of any primary or secondary school building while the school is in session and one-half hour before the school is in session and one-half hour after the school session has been concluded, provided that this subsection does not prohibit the peaceful picketing of any school involved in a labor dispute…

This ordinance is identical to the Chicago disorderly conduct ordinance we have today considered in Police Department of Chicago v. Mosley. For the reasons given in Mosley, we … hold that [this ordinance] violates the Equal Protection Clause of the Fourteenth Amendment. Appellant’s conviction under this invalid ordinance must be reversed.

II

The anti-noise ordinance reads, in pertinent part, as follows:

[N]o person, while on public or private grounds adjacent to any building in which a school or any class thereof is in session, shall willfully make or assist in the making of any noise or diversion which disturbs or tends to disturb the peace or good order of such school session or class thereof…

The crucial question, then, is whether the ordinance sweeps within its prohibitions what may not be punished under the First and Fourteenth Amendments. Specifically, appellant contends that the Rockford ordinance unduly interferes with First and Fourteenth Amendment rights to picket on a public sidewalk near a school. We disagree…

Clearly, government has no power to restrict such activity because of its message. Our cases make equally clear, however, that reasonable “time, place and manner” regulations may be necessary to further significant governmental interests, and are permitted. For example, two parades cannot march on the same street simultaneously, and government may allow only one… If overamplified loudspeakers assault the citizenry, government may turn them down…

Although a silent vigil may not unduly interfere with a public library, making a speech in the reading room almost certainly would. That same speech should be perfectly appropriate in a park. The crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time. Our cases make clear that, in assessing the reasonableness of a regulation, we must weigh heavily the fact that communication is involved; the regulation must be narrowly tailored to further the State’s legitimate interest…

In light of these general principles, we do not think that Rockford’s ordinance is an unconstitutional regulation of activity around a school. Our touchstone is Tinker v. Des Moines School District, in which we considered the question of how to accommodate First Amendment rights with the “special characteristics of the school environment.” Tinker held that the Des Moines School District could not punish students for wearing black armbands to school in protest of the Vietnam war… But we nowhere suggested that students, teachers, or anyone else has an absolute constitutional right to use all parts of a school building or its immediate environs for his unlimited expressive purposes. Expressive activity could certainly be restricted, but only if the forbidden conduct “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” The wearing of armbands was protected in Tinker because it: “neither interrupted school activities nor sought to intrude in the school affairs or the lives of others. They caused discussion outside of the classrooms, but no interference with work and no disorder.”

Just as Tinker made clear that school property may not be declared off limits for expressive activity by students, we think it clear that the public sidewalk adjacent to school grounds may not be declared off limits for expressive activity by members of the public. But in each case, expressive activity may be prohibited if it “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.”

We would be ignoring reality if we did not recognize that the public schools in a community are important institutions, and are often the focus of significant grievances. Without interfering with normal school activities, daytime picketing and handbilling on public grounds near a school can effectively publicize those grievances to pedestrians, school visitors, and deliverymen, as well as to teachers, administrators, and students. Some picketing to that end will be quiet and peaceful, and will in no way disturb the normal functioning of the school. For example, it would be highly unusual if the classic expressive gesture of the solitary picket disrupts anything related to the school, at least on a public sidewalk open to pedestrians. On the other hand, schools could hardly tolerate boisterous demonstrators who drown out classroom conversation, make studying impossible, block entrances, or incite children to leave the schoolhouse.

Rockford’s anti-noise ordinance goes no further than Tinker says a municipality may go to prevent interference with its schools. It is narrowly tailored to further Rockford’s compelling interest in having an undisrupted school session conducive to the students’ learning, and does not unnecessarily interfere with First Amendment rights. Far from having an impermissibly broad prophylactic ordinance, Rockford punishes only conduct which disrupts or is about to disrupt normal school activities. That decision is made, as it should be, on an individualized basis, given the particular fact situation. Peaceful picketing which does not interfere with the ordinary functioning of the school is permitted.

And the ordinance gives no license to punish anyone because of what he is saying…

Rockford’s modest restriction on some peaceful picketing represents a considered and specific legislative judgment that some kinds of expressive activity should be restricted at a particular time and place, here in order to protect the schools. Such a reasonable regulation is not inconsistent with the First and Fourteenth Amendments. The anti-noise ordinance is not invalid on its face.

JUSTICE DOUGLAS, dissenting in part.

While I join Part I of the Court’s opinion, I would also reverse the appellant’s conviction under the anti-noise ordinance…

Appellant was one of 200 people picketing a school and carrying signs promoting a black cause — “Black cheerleaders to cheer too,” “Black history with black teachers,” “We want our rights,” and the like. Appellant, however, did not himself carry a picket sign. There was no evidence that he yelled or made any noise whatsoever. Indeed, the evidence reveals that appellant simply marched quietly and on one occasion raised his arm in the “power to the people” salute…

Twenty-five policemen were stationed nearby. There was noise, but most of it was produced by the police who used loudspeakers to explain the local ordinance and to announce that arrests might be made. The picketing did not stop, and some 40 demonstrators, including appellant, were arrested.

The picketing lasted 20 to 30, minutes and some students went to the windows of the classrooms to observe it. It is not clear how many there were. The picketing was, however, orderly or, as one officer testified, “very orderly.” There was no violence. And appellant made no noise whatever…

The school where the present picketing occurred was the center of a racial conflict. Most of the pickets were indeed students in the school. The dispute doubtless disturbed the school; and the blaring of the loudspeakers of the police was certainly a “noise or diversion” in the meaning of the ordinance. But there was no evidence that appellant was noisy or boisterous or rowdy. He walked quietly and in an orderly manner. As I read this record, the disruptive force loosed at this school was an issue dealing with race — an issue that is preeminently one for solution by First Amendment means.  That is all that was done here; and the entire picketing, including appellant’s part in it, was done in the best First Amendment tradition…

Notably, the reasoning in this pair of cases relied not only on the First Amendment but also on the Equal Protection Clause of the Fourteenth Amendment. Marshall argues that Mosley is entitled to not only free speech but “equality of status in the field of ideas.” This doesn’t mean that every idea is equally logical, moral, or empirically grounded, of course; it means instead that it’s not the job of the government to decide which ideas are good or bad, correct or incorrect. That task, the argument goes, is for private actors and the marketplace of ideas. Speakers and speech should be treated equally by the government, regardless of their identity or content.