Police Department of City of Chicago v. Mosley 8212 87

• Court: U.S. Supreme Court
• Writing for the Court: MARSHALL
• Citation: Police Department of City of Chicago v. Mosley 8212 87, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972)
• Decision Date: 26 June 1972
• Docket Number: No. 70,70
• Parties: POLICE DEPARTMENT OF the CITY OF CHICAGO et al., Petitioners, v. Earl D. MOSLEY. —87

408 U.S. 92

92 S.Ct. 2286

33 L.Ed.2d 212

POLICE DEPARTMENT OF the CITY OF CHICAGO et al., Petitioners,

v Earl D. MOSLEY.

No. 70—87.

Argued Jan. 19, 1972.

Decided June 26, 1972.

Syllabus

City ordinance prohibiting all picketing within 150 feet of a school, except peaceful picketing of any school involved in a labor dispute, found by the Court of Appeals to be unconstitutional because overbroad, held violative of the Equal Protection Clause of the Fourteenth Amendment since it makes an impermissible distinction between peaceful labor picketing and other peaceful picketing. Pp. 94—102.

432 F.2d 1256, affirmed.

Harvey J. Barnett, Chicago, Ill., for respondent Earl D. Mosley.

Richard L. Curry, Chicago, Ill., for petitioners Police Department of City of Chicago and others.

Mr. 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 build- ing 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. . . .' Municipal Code, c. 193 1(i).

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.

On March 26, 1968, Chapter 193—1(i) was passed, to become effective on April 5. 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.¹ Thereafter, he brought this action in the United States District Court for the Northern District of Illinois, seeking declaratory and injunctive relief, pursuant to 28 U.S.C. s 2201 and 42 U.S.C. § 1983. 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.' 462 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 becuase 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 pikceting next to a school.² 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;³ 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 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 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.

Guided by these principles, we have frequently condemned such discrimination among different users of the same medium for expression. In Niemotko v. Maryland, 340 U.S. 268, 71 S.Ct. 325, 95 L.Ed. 267 (1951), a group of Jehovah's Witnesses were denied a permit to use a city park for Bible talks, although other political and religious groups had been allowed to put the park to analogous uses. Concluding that the permit was denied because of the city's 'dislike for or disagreement with the Witnesses or their views,' this Court held that the permit refusal violated '(t)he right to equal protection of the laws, in the exercise of those freedoms of speech and religion protected by the First and Fourteenth Amendments.' Id., at 272, 71 S.Ct., at 328. The Court followed Niemotko in Fowler v. Rhode Island, 345 U.S. 67, 73 S.Ct. 526, 97 L.Ed. 828 (1953), where again the Jehovah's Witnesses were refused permission to conduct religious services in a park, although other religious groups had been permitted to do so. Similarly, because of their potential use as instruments for selectively suppressing some points of view, this Court has condemned licensing schemes that lodge broad discretion in a public official to permit speech-related activity, see, e.g., Shuttlesworth v. Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969); Cox v. Louisiana, 379 U.S. 536, 555—558, 85 S.Ct. 453, 464—466, 13 L.Ed.2d 471 (1965); Staub v. City of Baxley, 355 U.S. 313, 321—325, 78 S.Ct. 277, 281—284, 2 L.Ed.2d 302 (1958), and cases cited; Saia v. New York, 334 U.S. 558, 560 562, 68 S.Ct. 1148, 1149—1151, 92 L.Ed. 1574 (1948).⁵

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, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (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. It thus is trying to prescribe by law what matters of public interest people whom it allows to assemble on its streets may and may not discuss. This seems to me to be censorship in a most odious form, unconstitutional under the First and Fourteenth Amendments. And to deny this appellnt 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...