Boos v. Barry

LOCATION: Dickinson School District Superintendent's Office

DOCKET NO.: 86-803
DECIDED BY: Rehnquist Court (1988-1990)

CITATION: 485 US 312 (1988)
ARGUED: Nov 09, 1987
DECIDED: Mar 22, 1988

Facts of the case

A provision in the District of Columbia Code prohibited the display of signs within 500 feet of a foreign embassy which tended to "bring that government into public odium or public disrepute." Congregations of three or more persons within the 500 feet limit were prohibited as well. Boos and others were denied permission to display signs criticizing the Soviet Union in front of that country's embassy.


Did the District of Columbia Code violate the First Amendment of the Constitution?

Media for Boos v. Barry

Audio Transcription for Oral Argument - November 09, 1987 in Boos v. Barry

William H. Rehnquist:

Mr. Battocchi, you may proceed whenever you are ready.

Raymond D. Battocchi:

Mr. Chief Justice, and may it please the Court:

This case involves the constitutionality of both clauses of a District of Columbia statute initially enacted by Congress in 1938.

After stating the case we propose to divide our argument into three parts.

First, we contend that the first clause of the statute, which prohibits the display of specified flags and banners, violates the free speech guarantee of the First Amendment.

Second, we contend that the second clause of the statute, which gives the police the power to disperse congregations within these 500-foot zones, violates the First and Fifth Amendments.

Our third and narrowest, contention is that both clauses violate equal protection, because the Legislature has allowed parties to labor disputes to utter precisely the same speech and precisely the same conduct that Petitioners cannot.

The facts are simple and relatively straightforward: Petitioners are three young political activists.

Each wishes to display signs containing messages critical of foreign governments and their policies and views on the public streets and sidewalks of the District of Columbia within 500 feet of the official government buildings they wish to criticize.

For example, some of the Petitioners who wish to display a pro-Sakharov, or a pro-Solidarity sign on Sakharov Plaza in front of the Soviet Embassy.

One Petitioner wishes to display the American flag there.

Another wishes to display a "stop the killing" sign in front of the Nicaraguan Embassy.

Each Petitioner also wishes to congregate with two or more other people within the 500-foot zones, and each Petitioner is prohibited from either displaying signs or flags or congregating by Section 1115 of the D.C. Code.

There are numerous cases pending in the District of Columbia courts involving prosecutions under both clauses of this statute for displays of signs and congregations at the Soviet and Nicaraguan Embassies.

This is a 1983 suit that was instituted in the district courts seeking declaratory and injunctive relief; the district court on cross-motions for Summary Judgment, upheld both clauses of the statute and dismissed the Complaint.

The court of appeals in 1973 in the Zaimi case interpreted the first clause of the statute to apply only when there is a "display", of a flag or banner that produces one or more of the enumerated consequences specified later on in the first clause.

In this case, the court of appeals, perhaps narrowing that definition further, construed the first clause to apply only to demonstrations in which signs are displayed designed to bring foreign governments into public disrepute or public odium.

So far as we can tell, neither Respondents nor the federal government challenge that construction.

In other words, under the first clause, the only thing that is proscribed is the display of a flag or banner or a sign designed or adapted to bring a foreign government into disrepute.

We note at the outset that under this construction of the first clause, no violence is proscribed: it is not illegal for Petitioners to demonstrate or for anybody else to demonstrate; it is not illegal under the first clause for anybody to engage in any violent conduct.

There is a reference, and maybe several implications in the brief of the Respondents and the United States' suggesting that the first clause serves an interest in protecting a security of foreign persons and property.

The court of appeals itself acknowledged that, in fact, the security interests asserted by the government in the court below was insufficient to justify the first clause; according to the court of appeals, the only conceivable interest that would sustain the validity of the first clause over a First Amendment challenge was the governmental interest in protecting the dignity of foreign persons and properties... excuse me.

The essential holding of the court below was that a dignity interest on the part of foreign governments and foreign persons... and by dignity interest, I mean

"an interest in avoiding peaceful political insults. "

was not only a legitimate governmental interest, but an interest sufficiently compelling to override Petitioner's claim to First Amendment rights.

With respect to the second clause, the court of appeals narrowed its terms: the second clause on its face gives the police the power to disperse any congregation within the 500 foot zones and sets no limits whatsoever upon that dispersal power.

The court of appeals read the dispersal power as

"limited to those circumstances in which the police reasonably believed a threat to the security or peace of an embassy is present. "

and held that,

"so-limited, the second clause suffers from no constitutional infirmities. "