461 U.S. 171 (1983), 81-1863, United States v. Grace

Docket Nº:No. 81-1863.
Citation:461 U.S. 171, 103 S.Ct. 1702, 75 L.Ed.2d 736
Party Name:UNITED STATES, et al., Appellants v. Mary T. GRACE, et al.
Case Date:April 20, 1983
Court:United States Supreme Court
 
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Page 171

461 U.S. 171 (1983)

103 S.Ct. 1702, 75 L.Ed.2d 736

UNITED STATES, et al., Appellants

v.

Mary T. GRACE, et al.

No. 81-1863.

United States Supreme Court.

April 20, 1983

Argued Jan. 18, 1983.

[103 S.Ct. 1703] Syllabus[*]

SYLLABUS

Title 40 U.S.C. § 13k prohibits the "display [of] any flag, banner, or device designed or adapted to bring into public notice any party, organization, or movement" in the United States Supreme Court building or on its grounds, which are defined to include the public sidewalks constituting the outer boundaries of the grounds. One appellee was threatened with arrest by Court police officers for violation of the statute when he distributed leaflets concerning various causes on the sidewalk in front of the Court. The other appellee was similarly threatened with arrest for displaying [103 S.Ct. 1704] on the sidewalk a picket sign containing the text of the First Amendment. Appellees then filed suit in Federal District Court, seeking an injunction against enforcement of § 13k and a declaratory judgment that it was unconstitutional on its face. The District Court dismissed the complaint for failure to exhaust administrative remedies. The Court of Appeals, after determining that such dismissal was erroneous, struck down § 13k on its face as an unconstitutional restriction on First Amendment rights in a public place.

Held: Section 13k, as applied to the public sidewalks surrounding the Court building, is unconstitutional under the First Amendment. Pp. 1706-1710.

(a) The conduct of each appellee falls into the statutory ban, and hence it is proper to reach the constitutional question involved. P. 1706.

(b) As a general matter, peaceful picketing and leafletting are expressive activities involving "speech" protected by the First Amendment. "Public places," such as streets, sidewalks, and parks, historically associated with the free exercise of expressive activities, are considered, without more, to be "public forums." In such places, the government may enforce reasonable time, place, and manner regulations, but additional restrictions, such as an absolute prohibition of a particular type of expression, will be upheld only if narrowly drawn to accomplish a compelling governmental interest. Pp. 1706-1707.

(c) The Court grounds are not transformed into "public forum" property merely because the public is permitted to freely enter and leave the grounds at practically all times and is admitted to the building during specified hours. But where the sidewalks forming the perimeter of the grounds are indistinguishable from any other sidewalks in Washington,

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D.C., they should not be treated any differently and thus are public forums for First Amendment purposes. Pp. 1707-1708.

(d) Insofar as it totally bans specified communicative activity on the public sidewalks around the Court grounds, § 13k cannot be justified as a reasonable place restriction. A total ban on carrying a flag, banner, or device on the public sidewalks does not substantially serve the purposes of the statute of which § 13k is a part to provide for the maintenance of law and order on the Court grounds. Nor do § 13k's prohibitions here at issue sufficiently serve the averred purpose of protecting the Court from outside influence or preventing it from appearing to the public that the Court is subject to such influence or that picketing or marching is an acceptable way of influencing the Court, where, as noted, the public sidewalks surrounding the Court grounds are no different than other public sidewalks in the city. Pp. 1708-1710.

214 U.S.App.D.C. 375, 665 F.2d 1193, affirmed in part and vacated in part.

COUNSEL

Solicitor General Lee argued the cause for appellants. With him on the briefs were Assistant Attorney General McGrath, Deputy Solicitor General Geller, David A. Strauss, Anthony J. Steinmeyer, and Marc Richman.

Sebastian K.D. Graber argued the cause for appellees. With him on the brief were Norman A. Townsend and Bradley S. Stetler.*

* A. Stephen Hut, Jr., Arthur B. Spitzer, and Charles S. Sims filed a brief for the American Civil Liberties Union et al. as amici curiae urging affirmance.

Robert L. Gnaizda and Sidney M. Wolinsky filed a brief for the League of United Latin American Citizens as amicus curiae.

Sol. Gen. Rex E. Lee, Washington, D.C., for appellants.

Sebastian K.D. Graber, Alexandria, Va., for appellees.

OPINION

Justice WHITE delivered the opinion of the Court.

In this case we must determine whether 40 U.S.C. § 13k, which prohibits, among other things, the "display [of] ... any flag, banner, or device designed or adapted to bring into public

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notice any party, organization, or movement"1 in the United States Supreme Court building and on its grounds, violates the First Amendment.

[103 S.Ct. 1705] I

In May 1978 appellee Thaddeus Zywicki, standing on the sidewalk in front of the Supreme Court building, distributed leaflets to passersby. The leaflets were reprints of a letter to the editor of The Washington Post from a United States Senator concerning the removal of unfit judges from the bench. A Supreme Court police officer approached Zywicki and told him, accurately, that Title 40 of the United States Code prohibited the distribution of leaflets on the Supreme Court grounds, which includes the sidewalk. Zywicki left.

In January 1980 Zywicki again visited the sidewalk in front of the Court to distribute pamphlets containing information about forthcoming meetings and events concerning "the oppressed peoples of Central America." Zywicki again was approached by a Court police officer and was informed that the distribution of leaflets on the Court grounds was prohibited by law. The officer indicated that Zywicki would be arrested if the leafletting continued. Zywicki left.

Zywicki reappeared in February 1980 on the sidewalk in front of the Court and distributed handbills concerning oppression in Guatemala. Zywicki had consulted with an attorney concerning the legality of his activities and had been informed that the Superior Court for the District of Columbia had construed the statute that prohibited leafletting, 40 U.S.C. § 13k, to prohibit only conduct done with the specific intent to influence, impede, or obstruct the administration of

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justice. 2 Zywicki again was told by a Court police officer that he would be subject to arrest if he persisted in his leafletting. Zywicki complained that he was being denied a right that others were granted, referring to the newspaper vending machines located on the sidewalk. Nonetheless, Zywicki left the grounds.

Around noon on March 17, 1980, appellee Mary Grace entered upon the sidewalk in front of the Court and began to display a four foot by two and a half foot sign on which was inscribed the verbatim text of the First Amendment. A Court police officer approached Grace and informed her that she would have to go across the street if she wished to display the sign. Grace was informed that Title 40 of the United States Code prohibited her conduct and that if she did not cease she would be arrested. Grace left the grounds.

On May 13, 1980, Zywicki and Grace filed the present suit in the United States District Court for the District of Columbia. They sought an injunction against continued enforcement of 40 U.S.C. § 13k and a declaratory judgment that the statute was unconstitutional on its face. On August 7, 1980, the District Court dismissed the complaint for failure to exhaust administrative remedies. 3 Appellees took an appeal, arguing that the District Court's action was improper and that the Court of Appeals should grant the relief requested in the complaint.

The Court of Appeals determined that the District Court's dismissal for failure to exhaust administrative remedies was erroneous and went on to strike down § 13k on its face as an unconstitutional restriction on First Amendment rights in a

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public place. 4

The Government appealed from the Court of Appeals' judgment. We noted [103 S.Ct. 1706] probable jurisdiction, 457 U.S. ----, 102 S.Ct. 2955, 73 L.Ed.2d 1347.

II

Section 13k prohibits two distinct activities: it is unlawful either "to parade, stand, or move in processions or assemblages in the Supreme Court Building or grounds," or "to display therein any flag, banner, or device designed or adapted to bring into public notice any party, organization, or movement." Each appellee appeared individually on the public sidewalks to engage in expressive activity and it goes without saying that the threat of arrest to which each appellee was subjected was for violating the prohibition against the display of a "banner or device." Accordingly, our review is limited to the latter portion of the statute. 5 Likewise, the controversy presented by appellees concerned their right to use the public sidewalks surrounding the Court building for the communicative activities they sought to carry out, and we shall address only whether the proscriptions of § 13k are constitutional as applied to the public sidewalks.

Our normal course is first to "ascertain whether a construction of the statute is fairly possible by which the [constitutional]

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question may be avoided." Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 296, 76 L.Ed. 598 (1932). See New York v. Ferber, 458 U.S. ----, ---- n. 24, 102 S.Ct. 3348, 3361 n. 24, 73 L.Ed.2d 1113 (1982). Appellees did not make a statutory construction argument before the lower courts, but at oral argument, the question was raised whether § 13k reached the types of conduct in which appellees engaged, and we should answer it. We agree with the United States that the statute covers the particular conduct of Zywicki or Grace and that it is therefore proper to reach the constitutional question involved in this case.

The statutory ban is on the display of a "flag, banner, or device designed or adapted to bring into public...

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