Boos v. Barry

485 U. S. 312

March 22, 1988

Some protesters wanted to gather at the embassies of the Soviet Union and Nicaragua and display critical signs about those nations. A District of Columbia regulation prohibited both congregating and displaying critical signs within 500 feet of embassies, supposedly because ambassadors deserve the highest level of dignity. The protesters claimed that these rules were obvious First Amendment violations.

The Court unanimously upheld the congregation ban, but struck down the signage ban 5-3 (Kennedy did not participate). A federal court had long ago interpreted the congregation ban to cover only violent congregations, and allow for peaceful ones. While federal courts could not usually narrow a DC regulation like this, the regulation had been originally passed by Congress rather than the DC Council, so it was ok. Because the federal court had narrowed the reach so drastically, an equal protection challenge based on labor unions being statutorily exempted was moot.

On the signage issue, there was no narrowing federal court ruling, and O’Connor did find that it violated the First Amendment. Because the regulation only banned signs that brought foreign nations into “disrepute,” it was a content based speech restriction. Furthermore, the regulation was not written to combat the secondary effects of this speech, like congestion or visual clutter, but the speech itself. While affording “dignity” to ambassadors was a possibly compelling interest, O’Connor did not find the regulation narrowly tailored enough to pass muster.

In an irrelevant concurrence joined by Marshall, Brennan whined about a previous decision which had allowed speech to be banned if its secondary effects were harmful. Rehnquist, joined by White and Blackmun, dissented. As is typical, he offered no argument; this time he simply said ‘read what the dissenting judge in the lower court wrote.’ Rehnquist’s unexpressed objections notwithstanding, the Court made the right decision. And I have to say, I really hated the idea of ambassadors deserving “dignity,” and freedom from offense. This is a deeply unbiblical notion. Evil nations must be openly called out as evil – just read the Old Testament prophets.

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