Boos v. Barry

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Boos v. Barry

485 U.S. 312 (1988)

The "display clause" of District of Columbia Code, § 22-1115 prohibited the display of

any flag, banner, placard, or device designed or adapted to . . . bring into public odium any foreign government, party, or organization, or any officer or officers thereof, or to bring into public disrepute political, social, or economic acts, views, or purposes of any foreign government, party or organization . . . within 500 feet of any building or premises within the District of Columbia used or occupied by any foreign government or its representative or representatives as an embassy, legation, consulate, or for other official purposes.

Boos sued D.C.'s Mayor Barry because he said that this Code denied him his First Amendment right to picket outside the Soviet embassy.

Analysis of the display clause must begin with several important features of that provision. First, the display clause operates at the core of the First Amendment by prohibiting petitioners from engaging in classically political speech. We have recognized that the First Amendment reflects a "profound national commitment" to the principle that "debate on public issues should be uninhibited, robust, and wide-open," New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964), and have consistently commented on the central importance of protecting speech on public issues. See, e.g., Connick v. Myers, 461 U.S. 138, 145 (1983); NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913 (1982); Carey v. Brown, supra, at 467. This has led us to scrutinize carefully any restrictions on public issue picketing. See, e.g., United States v. Grace, 461 U.S. 171 (1983); Carey v. Brown, supra; Police Department of Chicago v. Mosley, 408 U.S. 92 (1972).

Second, the display clause bars such speech on public streets and sidewalks, traditional public fora that

time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.

Hague v. CIO, 307 U.S. 496, 515 (1939) (Roberts, J.). In such places, which occupy a "special position in terms of First Amendment protection," United States v. Grace, 461 U.S. at 180, the government's ability to restrict expressive activity "is very limited." Id. at 177.

Third, § 22-1115 is content-based. Whether individuals may picket in front of a foreign embassy depends entirely upon whether their picket signs are critical of the foreign government or not. One category of speech has been completely prohibited within 500 feet of embassies. Other categories of speech, however, such as favorable speech about a foreign government or speech concerning a labor dispute with a foreign government, are permitted.

The Court went on to explain that 22-1115 was "content-based" even though it was viewpoint neutral. Pay close attention to what follows, because it is key to understanding why the DMCA is unconstitutional.

Both respondents and the United States have now made such an argument in this Court. They contend that the statute is not content-based because the government is not itself selecting between viewpoints; the permissible message on a picket sign is determined solely by the policies of a foreign government.

We reject this contention, although we agree the provision is not viewpoint-based. The display clause determines which viewpoint is acceptable in a neutral fashion by looking to the policies of foreign governments. While this prevents the display clause from being directly viewpoint-based, a label with potential First Amendment ramifications of its own, see, e.g., City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984); Schacht v. United States, 398 U.S. 58, 63 (1970), it does not render the statute content-neutral. Rather, we have held that a regulation that "does not favor either side of a political controversy" is nonetheless impermissible because the "First Amendment's hostility to content-based regulation extends . . . to prohibition of public discussion of an entire topic." Consolidated Edison Co. v. Public Service Comm'n, 447 U.S. 530, 537 (1980). Here the government has determined that an entire category of speech -- signs or displays critical of foreign governments -- is not to be permitted

The DMCA is similarly a viewpoint neutral, content-based law regulating speech. Though the law does not require or prohibited anyone from taking any particular stance on any particular topic, it does mandate that certain types of content may not appear in online videos (and audio clips, and presumably written material as well). The law requires anyone making a video who wants to use any piece of another person's video to get the other person's permission before doing so. This requirement is mandatory, no matter how small a piece of the original video is used and no matter how fair the usage is. This law will prevent many otherwise legal, non libelous videos from being made, because it gives the original creator absolute veto power over the use of his videos by those who he doesn't like or those who would use his videos to expose his behavior or his ideas in an unfavorable light. For example, a scoundrel could upload a video threatening to kill someone, send a link to his video to his victim, then remove his video within 24 hours. The victim of this harassment will not be able to convincingly document this behavior online without using a clip of the original harassing video. Oh, the victim could say "this scoundrel made a video threatening to kill me", but since the video had been removed by the harasser, he will be unable to back his statement up with the proof needed to convince a third party. Similarly, someone claiming to to have psychic powers can prevent a real magician from using pieces of his videos to expose him. Indeed, the DMCA is written in such a way that a true charlatan can get ANY video exposing him removed from the internet--even if he didn't own the copyright to the original video, provided that the person who posted the video to the internet decided not to fight back because he valued his right to remain anonymous over the importance of seeing the video posted. Even barring the fraudulent misuse of the DMCA, it is likely that many people will refuse to give their adversaries permission to use their videos in a way that would legitimately call their integrity or their ideology into question.

After noting that § 22-1115 is a regulation of content-based speech, the Court went on to say:

Our cases indicate that as a content-based restriction on political speech in a public forum, § 22-1115 must be subjected to the most exacting scrutiny. Thus, we have required the State to show that the "regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end." Perry Education Assn. v. Perry Local Educators' Assn., 460 U.S. at 45. Accord, Board of Airport Comm'rs of Los Angeles v. Jews for Jesus, 482 U.S. [p322] 569, 572-573 (1987); Cornelius v. NAACP Legal Defense & Educational Fund, Inc., 473 U.S. 788, 800 (1985); United States v. Grace, 461 U.S. at 177.

The display clause of § 22-1115 was written with the intent of protecting the security and the dignity of foreign diplomatic personnel. Its restrictions on free speech were justified as necessary to fulfill our obligations under international law. The Court expressed considerable skepticism when it examined whether there was a compelling governmental interest in fulfilling our international obligations in this manner. However, it did not rule the law was unconstitutional on this bases. Instead, the Court ruled

Even if we assume that international law recognizes a dignity interest and that it should be considered sufficiently "compelling" to support a content-based restriction on speech, we conclude that § 22-1115 is not narrowly tailored to serve that interest.

The Court went on to note that § 22-1115 was only applicable to the District of Columbia, and that Congress had passed an analogous law (Title 18 U.S.C. § 112(b)(2)) that covered the rest of the country. §112 was narrowly tailored to fulfill our international obligation to protect the security of foreign diplomatic personnel without stepping on the free speech rights of U.S. Citizens. After reviewing the legislative history of §112, the Court determined that

the claim that the display clause is sufficiently narrowly tailored is gravely weakened: if ever it did so, Congress no longer considers this statute necessary to comply with our international obligations. Relying on congressional judgment in this delicate area, we conclude that the availability of alternatives such as § 112 amply demonstrates that the display clause is not crafted with sufficient precision to withstand First Amendment scrutiny. It may serve an interest in protecting the dignity of foreign missions, but it is not narrowly tailored; a less restrictive alternative is readily available. Cf. Wygant v. Jackson Bd. of Ed., 476 U.S. 267, 280, n. 6 (1986) (plurality opinion). Thus, even assuming for present purposes that the dignity interest is "compelling," we hold that the display clause of § 22-1115 is inconsistent with the First Amendment.