Police Dept. of City of Chicago v. Mosley | Cases | Westlaw

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.’ 432 F.2d 1256, 1259 (1970). We granted certiorari, 404 U.S. 821, 92 S.Ct. 42, 30 L.Ed.2d 48 (1971), to consider this case along with Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222, in which an almost identical ordinance was upheld by the Illinois Supreme Court, 46 Ill.2d 492, 496, 263 N.E.2d 866, 868 (1970). 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.

Because Chicago treats some picketing differently from others, we analyze this ordinance in terms of the *95 Equal Protection Clause of the Fourteenth Amendment. Of course, the equal protection claim in this case is closely intertwined with First Amendment interests;³ the Chicago ordinance **2290 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 an appropriate governmental interest suitably furthered by the differential treatment. See Reed v. Reed, 404 U.S. 71, 75—77, 92 S.Ct. 251, 253—254, 30 L.Ed.2d 225 (1971); Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972); Dunn v. Blumstein, 405 U.S. 330, 335, 92 S.Ct. 995, 999, 31 L.Ed.2d 274 (1972).

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. Cohen v. California, 403 U.S. 15, 24, 91 S.Ct. 1780, 1787, 29 L.Ed.2d 284 (1971); Street v. New York, 394 U.S. 576, 89 S.Ct. 1354, 22 L.Ed.2d 572 (1969); New York Times Co. v. Sullivan, 376 U.S. 254, 269—270, 84 S.Ct. 710, 720—721, 11 L.Ed.2d 686 (1964), and cases cited; NAACP v. Button, 371 U.S. 415, 445, 83 S.Ct. 328, 344, 9 L.Ed.2d 405 (1963); Wood v. Georgia, 370 U.S. 375, 388—389, 82 S.Ct. 1364, 1371—1372, 8 L.Ed.2d 569 (1962); Terminiello v. Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 895, 93 L.Ed. 1131 (1949); De Jonge v. Oregon, 299 U.S. 353, 365, 57 S.Ct. 255, 260, 81 L.Ed. 278 (1937). To permit the continued building of our politics *96 and culture, and to assure self-fulfillment for each individual, our people are guaranteed the right to express any thought, free from government consorship. The essence of this forbidden consorship 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 wise-open.’ New York Times Co. v. Sullivan, supra, 376 U.S., at 270, 84 S.Ct., at 721.

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 fcilities. There is an ‘equality of status in the field of ideas,'⁴ 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.

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. Cox v. New Hampshire, 312 U.S. 569, 575—576, 61 S.Ct. 762, 765—766, 85 L.Ed. 1049 (1941); Poulos v. New Hampshire, 345 U.S. 395, 398, 73 S.Ct. 760, 762, 97 L.Ed. 1105 (1953); Cox v. Louisiana, 379 U.S. 536, 554—555, 85 S.Ct. 453, 464—465, 13 L.Ed.2d 471 (1965); Cox v. Louisiana, 379 U.S., at 554—555, 85 S.Ct., at 464; **2292 Adderley v. Florida, 385 U.S. 39, 46—48, 87 S.Ct. 242, 246—247, 17 L.Ed.2d 149 (1966). Similarly, under an equal protection analysis, there may be sufficient regulatory interests justifying selective exclusions or distinctions among pickets. 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 *99 from a public forum must be carefully scrutinized. Because picketing plainly involves expressive conduct within the protection of the First Amendment, see, e.g., Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940); Chauffeurs, Teamsters & Helpers Local Union 795 v. Newell, 356 U.S. 341, 78 S.Ct. 779, 2 L.Ed.2d 809 (1958); Garner v. Louisiana, 368 U.S. 157, 185, 82 S.Ct. 248, 263, 7 L.Ed.2d 207 (1961) (Harlan, J., concurring in judgment); Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963); Cox v. Louisiana, supra, 379 U.S., at 546, 85 S.Ct., at 459; Amalgamated Food Employees v. Logan Valley Plaza, 391 U.S. 308, 314—315, 88 S.Ct. 1601, 1606—1607 (1968); id., at 337, 88 S.Ct., at 1618 (White, J., dissenting); Gregory v. City of Chicago, 394 U.S. 111, 112, 89 S.Ct. 946, 947, 22 L.Ed.2d 134 (1969); Shuttlesworth v. City of Birmingham, 394 U.S., at 155, 89 S.Ct., at 941, discriminations among pickets must be tailored to serve a substantial governmental interest. Cf. Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968).

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.'⁶ 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 commands of the Equal Protection Clause.’ Reed v. Reed, 404 U.S., at 76, 92 S.Ct., at 254. It does not.

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.⁷ Predictions about imminent disruption from picketing involve *101 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. ‘(I)n our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.’ Tinker v. Des Moines Independent Community School District, 393 U.S., at 508, 89 S.Ct., at 737. Some labor picketing is peaceful, some disorderly; the same is true of picketing on other themes. No labor picketing could be more peaceful or less prone to violence than Mosley's solitary vigil. In seeking to restrict nonlabor picketing that is clearly more disruptive than peaceful labor picketing, Chicago may not prohibit all nonlabor picketing at the school forum.

The Equal Protection Clause requires that statutes affecting First Amendment interests be narrowly tailored to their legitimate objectives. Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968); see generally Dunn v. Blumstein, 405 U.S., at 342—343, 92 S.Ct., at 1003.⁸ Chicago may not vindicate its interest in preventing disruption by the wholesale exclusion of picketing on all but one preferred subject. Given what Chicago tolerates from labor picketing, the excesses of some nonlabor picketing may not be *102 controlled by a broad ordinance prohibiting both peaceful and violent picketing. Such excesses ‘can be controlled by narrowly drawn statutes,’ Saia v. New York, 334 U.S., at 562, 68 S.Ct., at 1150, focusing on the abuses and dealing evenhandedly with picketing regardless of subject matter. Chicago's ordinance imposes a selective restriction on expressive conduct far ‘greater than is essential to the furtherance of (a substantial governmental) **2294 interest.’ United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968). 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.⁹