LOCATION: Jones Commercial High School
DOCKET NO.: 70-87
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the Seventh Circuit
CITATION: 408 US 92 (1972)
ARGUED: Jan 19, 1972
DECIDED: Jun 26, 1972
Harvey J. Barnett - Argued the cause for the respondent
Hal M. Brown -
Richard L. Curry - Argued the cause for the petitioners
William R. Quinlan -
Facts of the case
Chicago adopted an ordinance prohibiting picketing within 150 feet of a school during school hours; the law made an exception for peaceful labor picketing. Mosley had been picketing near a public high school; he was protesting "black discrimination." Mosley sought a declaration that the ordinance was unconstitutional.
Does the Chicago ordinance violate the freedom of speech Clause of the First Amendment?
Media for Police Department of the City of Chicago v. Mosley
Audio Transcription for Oral Argument - January 19, 1972 in Police Department of the City of Chicago v. Mosley
Warren E. Burger:
70-87, Police Department of Chicago against Mosley and Grayned against Rockford.
I understand that the order of appearance is now by requested counsel will be Mr. Barnett first, Miss. Hal, second and Mr. Curry and then Mr. Quinlan, is that correct?
Warren E. Burger:
Very well, you may proceed Mr. Barnett.
Harvey J. Barnett:
Mr. Chief Justice and may it please the Court.
I am the attorney for the respondent Earl D. Mosley.
This case is on certiorari to the United States Court of Appeals for the Seventh Circuit and it has been consolidated with the case of Grayned versus the City of Rockford, which is on appeal for the Supreme Court of Illinois.
This case concerns a disorderly conduct ordinance of the City of Chicago which prohibits all picketing on a public way within 150 feet of a primary or secondary school.
The ordinance exempts from this prohibition, the picketing of a school involved in a labor dispute.
It became effective on April 5, 1968. Since September, 1967, respondent Earl D. Mosley had picketed Jones Commercial High School, located in the city of Chicago.
He simply walked in the public sidewalk, adjoining Jones High School, carrying a sign which reflected his belief that Jones High School was discriminating against blacks in its admission policies and in the treatment that are afforded to him.
It was admitted at trial by the city that at all times Mr. Mosley's activities were peaceful, orderly and quite.
It was further admitted at the trial by petitioners that at no time did Mr. Mosley’s activities in picketing the school by himself or with a few other persons ever caused a disturbance at the school or interfered with traffic around the school.
After being advised of the passage of this ordinance, Mr. Mosley contacted the Chicago Police Department and was told that he would be arrested, if he continued his activities in picketing Jones.
The city admitted at trial that it intended to enforce this ordinance and in fact Mr. Mosley would be arrested if he continued to picket the school.
He then filed this declaratory judgment action, seeking a declaratory judgment and an injunction against the enforcement of this ordinance.
On the grounds that had violated his right to Freedom of Speech and there was a violation of Equal Protection Clause.
The Lower Court after a trial, held that the ordinance was constitutional.
On appeal, the Seventh Circuit Court of Appeals reversed, finding that the ordinance on its face violated Mr. Mosley’s rights to Freedom of Speech, because the ordinance was overly broad.
This ordinance was a violation of the First Amendment right to Freedom of Speech because it is overly broad.
The vice of this ordinance is that it sweeps within its prohibition, protected free speech, such as the quite, peaceful picketing of respondent Mr. Mosley.
In fact Mr. Mosley engaged in almost the identical activity as that engaged in by Mr. Thornhill in the case of Thornhill versus Alabama, some 30 years ago.
This Court has held that peaceful picketing is protected free speech and the state can regulate only the abuses of picketing which is articulated as the test of the regulation of the manner of picketing or the purpose of picketing when there is something in the manner or purpose which gives grounds for the dis-allowance of that picketing.
What about the place?
Harvey J. Barnett:
If the court please the -- at no time have I been able to find any decision of the court which has stated that place and place alone is sufficient to permit the regulation of picketing.
It must be coupled with something in the manner of picketing or the purpose of picketing which would give grounds for the disallowance of that picketing.
And do you think the statute that prohibits you from picketing where you are standing?
Harvey J. Barnett:
Well I would say, Your Honor that that statute would be lawful, but Your Honor the difference between that case and this case is that we have picketing here on the public way which in no way -- which prohibits the respondent in this case from lawfully and legitimately exercising his right to Freedom of Speech.
The ordinance which Your Honor or the statute which Your Honor would propose, I think would be attached to some legitimate state concern.
All I am trying to say is that I think you have put too much baggage on the train, that's all I want to say?