First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

In its early cases, the Supreme Court held that picketing and parading were forms of expression entitled to some First Amendment protection.1 Those early cases did not, however, explicate the difference in application of First Amendment principles that the difference between mere expression and speech-plus would entail. Many of these cases concerned disruptions or feared disruptions of the public peace occasioned by the expressive activity and the ramifications of this on otherwise protected activity.2 A series of other cases concerned the permissible characteristics of permit systems in which parades and meetings were licensed, and expanded the procedural guarantees that must accompany a permissible licensing system.3 In Hughes v. Superior Court, however, the Supreme Court upheld an injunction against picketers asking a grocery store to adopt a quota-hiring system for Black employees, affirming the state court’s ruling that picketing to coerce the adoption of racially discriminatory hiring was contrary to state public policy.4

A series of civil rights picketing and parading cases led the Court to formulate standards seemingly more protective of expressive activity. The process began with Edwards v. South Carolina,5 in which the Court reversed a breach of the peace conviction of several Black protesters for their refusal to disperse as ordered by police. The statute was so vague, the Court concluded, that the demonstrators had been convicted simply because they peaceably expressed unpopular views. Describing the demonstration upon the grounds of the legislative building in South Carolina’s capital, Justice Potter Stewart observed that “[t]he circumstances in this case reflect an exercise of these basic [ First Amendment] constitutional rights in their most pristine and classic form.” 6 In subsequent cases, however, the Court rejected the idea that the First Amendment “afford[s] the same kind of freedom to those who would communicate ideas by conduct such as patrolling, marching, and picketing on streets and highways, as . . . to those who communicate ideas by pure speech.” 7 The Court emphasized that “certain forms of conduct mixed with speech may be regulated or prohibited,” and further concluded that picketing and parading may be regulated under a sufficiently narrowly drawn statute “even though [such conduct is] intertwined with expression and association.” 8

The Court must determine, of course, whether the regulation is aimed primarily at conduct, or whether instead the aim is to regulate the content of speech. In a series of decisions, the Court refused to permit restrictions on parades and demonstrations, and reversed convictions for breach of the peace and similar offenses, when, in the Court’s view, opponents of the demonstrators’ messages had created the disturbance.9 Subsequently, however, the Court upheld a ban on residential picketing in Frisby v. Shultz,10 finding that the city ordinance was narrowly tailored to serve the “significant” governmental interest in protecting residential privacy. As interpreted, the ordinance banned only picketing that targeted a single residence, and it is unclear whether the Court would uphold a broader restriction on residential picketing.11

In 1982’s NAACP v. Claiborne Hardware Co.,12 the Justices confronted a case, that, like Hughes v. Superior Court,13 involved a state court injunction on picketing, although this one also involved a damage award. The case arose in the context of a protest against racial conditions by Black citizens of Claiborne County, Mississippi. Listing demands that included desegregation of public facilities, hiring Black policemen, hiring more Black employees by local stores, and ending verbal abuse by police, the local chapter of the National Association for the Advancement of Colored People, Inc. (NAACP) unanimously voted to boycott the area’s White merchants. The boycott was carried out through speeches and nonviolent picketing and solicitation of others to cease doing business with the merchants. Individuals were designated to watch stores and identify Black people patronizing the stores; their names were then announced at meetings and published. Persuasion of others included social pressures and threats of social ostracism. Acts of violence did occur from time to time, directed in the main at Black people who did not observe the boycott.

The state Supreme Court imposed joint and several liability upon leaders and participants in the boycott, and upon the NAACP, for all of the merchants’ lost earnings during a seven-year period on the basis of the common law tort of malicious interference with the merchants’ business, holding that the existence of acts of physical force and violence and the use of force, violence, and threats to achieve the ends of the boycott deprived it of any First Amendment protection.

Reversing, the Supreme Court observed that the goals of the boycotters were legal and that most of their means were constitutionally protected; although violence was not protected, its existence alone did not deprive the other activities of First Amendment coverage, particularly where there was no evidence that the boycott organizers authorized, ratified, or even had specific knowledge of the violence. Thus, speeches and nonviolent picketing, both to inform the merchants of grievances and to encourage others to join the boycott, were protected activities, and association for those purposes was also protected.14 The Court ruled that the activity was protected even though nonparticipants had been urged to join by threats of social ostracism: “[s]peech does not lose its protected character . . . simply because it may embarrass others or coerce them into action.” 15 The boycott had a disruptive effect upon local economic conditions and resulted in loss of business for the merchants, but in the Court’s view, these consequences did not justify suppression of the boycott. Government may regulate certain economic activities having an incidental effect upon speech (for example, labor organizing or business conspiracies to restrain competition),16 but that power of government does not extend to suppression of picketing and other boycott activities involving, as this case did, speech upon matters of public affairs with the intent of affecting governmental action and motivating private actions to achieve racial equality.17

The critical issue for the lower court, however, had been the occurrence of violent acts. The Supreme Court first affirmed that the “ First Amendment does not protect violence” or prevent a state “from imposing tort liability for business losses that are caused by violence and by threats of violence.” 18 Nonetheless, the Court stressed that the First Amendment demands precision of regulation “[w]hen such conduct occurs in the context of constitutionally protected activity,” limiting “the grounds that may give rise to damages liability and . . . the persons who may be held accountable for those damages.” 19 In other words, the states may impose damages for the consequences of violent conduct, but they may not award compensation for the consequences of nonviolent, protected activity.20 Thus, the state courts had to compute, upon proof by the merchants, what damages had been the result of violence, and only those nonviolent persons who associated with others with an awareness of violence and an intent to further it could similarly be held liable.21 Because most of the acts of violence had occurred early on, in 1966, there was no way constitutionally that much if any of the later losses of the merchants could be recovered in damages.22 As to the field secretary of the local NAACP, the Court refused to permit imposition of damages based upon speeches that could be read as advocating violence, because they did not meet the standard for speech likely to incite imminent lawless action.23 The award against the NAACP fell with the denial of damages against its local head, and, in any event, the protected right of association required a rule that would immunize the NAACP without a finding that it “authorized—either actually or apparently—or ratified unlawful conduct.” 24

Claiborne Hardware is, thus, a seminal decision in the Court’s effort to formulate standards governing state power to regulate or to restrict expressive conduct that comes close to or crosses over the line to encompass some violent activities; it requires great specificity and the drawing of fine discriminations by government so as to reach only that portion of the activity that does involve violence or the threat of violence.25

More recently, disputes arising from anti-abortion protests outside abortion clinics have occasioned another look at principles distinguishing lawful public demonstrations from proscribable conduct. In Madsen v. Women’s Health Center,26 the Court refined principles governing issuance of “content-neutral” injunctions that restrict expressive activity.27 The appropriate test, the Court stated, is “whether the challenged provisions of the injunction burden no more speech than necessary to serve a significant governmental interest.” 28 Regular time, place, and manner analysis (requiring that regulation be narrowly tailored to serve a significant governmental interest) “is not sufficiently rigorous,” the Court explained, “because injunctions create greater risk of censorship and discriminatory application, and because of the established principle that an injunction should be no broader than necessary to achieve its desired goals.” 29 Applying its new test, the Court upheld an injunction prohibiting protesters from congregating, picketing, patrolling, demonstrating, or entering any portion of the public right-of-way within thirty-six feet of an abortion clinic—after concluding that the injunction targeted this particular group of protesters because of their past actions, rather than because of the content or viewpoint of their speech. The Court also upheld the injunction’s noise restrictions designed to ensure the health and well-being of clinic patients. Other aspects of the injunction, however, did not pass the test. The Court believed inclusion of private property within the thirty-six-foot buffer was not adequately justified, nor was inclusion in the noise restriction of a ban on “images observable” by clinic patients. A ban on physically approaching any person within 300 feet of the clinic unless that person indicated a desire to communicate burdened more speech than necessary, in the Court’s view. Also, a ban on demonstrating within 300 feet of the residences of clinic staff was not sufficiently justified, as the Court said the restriction covered a much larger zone than an earlier residential picketing ban that the Court had upheld.30

In Schenck v. Pro-Choice Network of Western New York,31 the Court applied the Madsen test to another injunction that placed restrictions on demonstrating outside an abortion clinic. The Court upheld the portion of the injunction that banned “demonstrating within fifteen feet from either side or edge of, or in front of, doorways or doorway entrances, parking lot entrances, driveways and driveway entrances of such facilities” —what the Court called “fixed buffer zones.” 32 It struck down a prohibition against demonstrating “within fifteen feet of any person or vehicles seeking access to or leaving such facilities” —what it called “floating buffer zones.” 33 The Court cited “public safety and order” 34 in upholding the fixed buffer zones, but it found that the floating buffer zones “burden[ed] more speech than is necessary to serve the relevant governmental interests” 35 because they made it “quite difficult for a protester who wishes to engage in peaceful expressive activity to know how to remain in compliance with the injunction.” 36 The Court also upheld a “provision, specifying that once sidewalk counselors who had entered the buffer zones were required to ‘cease and desist’ their counseling, they had to retreat 15 feet from the people they had been counseling and had to remain outside the boundaries of the buffer zones.” 37

In Hill v. Colorado,38 the Court upheld a Colorado statute that made it unlawful, within 100 feet of the entrance to any health care facility, to “knowingly approach” within eight feet of another person, without that person’s consent, “for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with such other person.” 39 This decision is notable because it upheld a statute, and not, as in Madsen and Schenck, merely an injunction directed to particular parties. The Court found the statute to be a content-neutral time, place, and manner regulation of speech that “reflect[ed] an acceptable balance between the constitutionally protected rights of law-abiding speakers and the interests of unwilling listeners.” 40 The restrictions were content-neutral because they regulated only the places where some speech may occur, and because they applied equally to all demonstrators, regardless of viewpoint. Although the restrictions did not apply to all speech, the Court deemed the “kind of cursory examination” that might be required to distinguish casual conversation from protest, education, or counseling not “problematic,” noting that it often would not be necessary to know the exact content of speech to determine whether a person’s course of conduct was covered by the law.41 The Court further held that the law was narrowly tailored to achieve the state’s interests, saying that the eight-foot restriction did not significantly impair the ability to convey messages by signs, and ordinarily allowed speakers to come within a normal conversational distance of their targets. Because the statute allowed the speaker to remain in one place, persons who wished to hand out leaflets could position themselves beside entrances near the path of oncoming pedestrians, and consequently were not deprived of the opportunity to get the attention of persons entering a clinic.

In McCullen v. Coakley, the Court applied the same content-neutral analysis as that in Hill, but nonetheless struck down a statutory thirty-five-foot buffer zone at entrances and driveways of abortion facilities.42 The Court concluded that the buffer zone was not narrowly tailored to serve governmental interests in maintaining public safety and preserving access to reproductive healthcare facilities, the concerns claimed by Massachusetts to underlie the law.43 The opinion cited several alternatives to the buffer zone that would not curtail the use of public sidewalks as traditional public forums for speech, nor significantly burden the ability of those wishing to provide “sidewalk counseling” to women approaching abortion clinics. Specifically, the Court held that, to preserve First Amendment rights, targeted measures, such as injunctions, enforcement of anti-harassment ordinances, and use of general crowd control authority, as needed, are preferable to broad, prophylactic measures.44

Different types of issues were presented by Hurley v. Irish-American Gay Group,45 in which the Court held that a state’s public accommodations law could not be applied to compel private organizers of a St. Patrick’s Day parade to accept in the parade a unit that would proclaim a message that the organizers did not wish to promote. Each participating unit affects the message conveyed by the parade organizers, the Court observed, and application of the public accommodations law to the content of the organizers’ message contravened the “fundamental rule . . . that a speaker has the autonomy to choose the content of his own message.” 46

Footnotes

1

Hague v. CIO, 307 U.S. 496 (1939); Cox v. New Hampshire, 312 U.S. 569 (1941); Kunz v. New York, 340 U.S. 290 (1951); Niemotko v. Maryland, 340 U.S. 268 (1951).

2

Cantwell v. Connecticut, 310 U.S. 296 (1940); Chaplinsky v. New Hampshire, 315 U.S. 568 (1942); Terminiello v. City of Chicago, 337 U.S. 1 (1949); Feiner v. New York, 340 U.S. 315 (1951).

3

See, e.g., Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969); National Socialist Party v. Village of Skokie, 432 U.S. 43 (1977); Carroll v. President & Commr’s of Princess Anne, 393 U.S. 175 (1968).

4

Hughes v. Superior Court, 339 U.S. 460 (1950).

5

372 U.S. 229 (1963).

6

Id. at 235. See also Fields v. South Carolina, 375 U.S. 44 (1963); Henry v. City of Rock Hill, 376 U.S. 776 (1964).

7

Cox v. Louisiana, 379 U.S. 536, 555 (1965). Nonetheless, in this opinion, the Court concluded that a state breach-of-the-peace law granting city officials “completely uncontrolled discretion” to permit parades or demonstrations was unconstitutional. Id. at 557–58. The Court described the facts as “strikingly similar to those present in Edwards v. South Carolina.” Id. at 544–45.

8

Id. at 563. The Court ruled the state law at issue in this opinion sufficiently narrowly drawn, as it targeted picketing near a courthouse, with the intent of interfering with the administration of justice. Id. at 562, 564.

9

Edwards v. South Carolina, 372 U.S. 229 (1963); Cox v. Louisiana, 379 U.S. 536 (1965); Gregory v. City of Chicago, 394 U.S. 111 (1969); Bachellar v. Maryland, 397 U.S. 564 (1970). See also Collin v. Smith, 447 F. Supp. 676 (N.D. Ill.), aff’d, 578 F.2d 1197 (7th Cir.), stay denied, 436 U.S. 953 (1978), cert. denied, 439 U.S. 916 (1978).

10

487 U.S. 474 (1988).

11

An earlier case involving residential picketing had been resolved on equal protection rather than First Amendment grounds, the ordinance at issue making an exception for labor picketing. Carey v. Brown, 447 U.S. 455 (1980).

12

458 U.S. 886 (1982).

13

339 U.S. 460 (1950).

14

NAACP v. Claiborne Hardware Co., 458 U.S. 886, 907–08 (1982).

15

Id. at 910. The Court cited Thomas v. Collins, 323 U.S. 516, 537 (1945), a labor picketing case, and Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971), a public issues picketing case, which had also relied on the labor cases. Compare NLRB v. Retail Store Employees, 447 U.S. 607, 618–19 (1980) (Stevens, J., concurring) (labor picketing that coerces or “signals” others to engage in activity that violates valid labor policy, rather than attempting to engage reason may be prohibited). To the contention that liability could be imposed on “store watchers” and on a group known as “Black Hats” who also patrolled stores and identified Black patrons of the businesses, the Court responded: “There is nothing unlawful in standing outside a store and recording names. Similarly, there is nothing unlawful in wearing black hats, although such apparel may cause apprehension in others.” 458 U.S. at 925.

16

See, e.g., FTC v. Superior Ct. Trial Laws. Ass’n, 493 U.S. 411 (1990) (upholding application of per se antitrust liability to trial lawyers association’s boycott designed to force higher fees for representation of indigent defendants by court-appointed counsel).

17

In evaluating the permissibility of government regulation in this context that has an incidental effect on expression, the Court applied the standards of United States v. O’Brien, which permits a regulation “if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” 458 U.S. at 912, n.47, quoting O’Brien, 391 U.S. 367, 376–77 (1968) (footnotes omitted).

18

458 U.S. at 916.

19

Id. at 916–17.

20

Id. at 917–18.

21

Id. at 918–29, relying on a series of labor cases and on the subversive activities association cases, e.g., Scales v. United States, 367 U.S. 203 (1961), and Noto v. United States, 367 U.S. 290 (1961).

22

458 U.S. at 920–26. The Court distinguished Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U.S. 287 (1941), in which an injunction had been sustained against both violent and nonviolent activity, not on the basis of special rules governing labor picketing, but because the violence had been “pervasive.” 458 U.S. at 923.

23

Id. at 926–29. The field secretary’s “emotionally charged rhetoric . . . did not transcend the bounds of protected speech set forth in Brandenburg v. Ohio, 395 U.S. 444 (1969).”

24

458 U.S. at 931. In ordinary business cases, the rule of liability of an entity for actions of its agents is broader. E.g., Am. Soc’y of Mech. Eng’rs v. Hydrolevel Corp., 456 U.S. 556 (1982). The different rule in cases of organizations formed to achieve political purposes rather than economic goals appears to require substantial changes in the law of agency with respect to such entities. Vicarious Liability and the Right of Association: NAACP v. Claiborne Hardware Co., 96 Harv. L. Rev. 171, 174–76 (1982).

25

“Concerted action is a powerful weapon. History teaches that special dangers are associated with conspiratorial activity. And yet one of the foundations of our society is the right of individuals to combine with other persons in pursuit of a common goal by lawful means.”

“[P]etitioners’ ultimate objectives were unquestionably legitimate. The charge of illegality . . . derives from the means employed by the participants to achieve those goals. The use of speeches, marches, and threats of social ostracism cannot provide the basis for a damages award. But violent conduct is beyond the pale of constitutional protection.”

“The taint of violence colored the conduct of some of the petitioners. They, of course, may be held liable for the consequences of their violent deeds. The burden of demonstrating that it colored the entire collective effort, however, is not satisfied by evidence that violence occurred or even that violence contributed to the success of the boycott. [The burden can be met only] by findings that adequately disclose the evidentiary basis for concluding that specific parties agreed to use unlawful means, that carefully identify the impact of such unlawful conduct, and that recognizes the importance of avoiding the imposition of punishment for constitutionally protected activity. . . . A court must be wary of a claim that the true color of a forest is better revealed by reptiles hidden in the weeds than by the foliage of countless freestanding trees.” 458 U.S. at 933–34.

26

512 U.S. 753 (1994).

27

The Court rejected the argument that the injunction was necessarily content-based or viewpoint-based because it applied only to anti-abortion protesters. The Court stated: “An injunction by its very nature applies only to a particular group (or individuals) . . . . It does so, however, because of the group’s past actions in the context of a specific dispute between real parties.” There had been no similarly disruptive demonstrations by pro-abortion factions at the abortion clinic. Id. at 762. For more discussion of the standards for content-based and content-neutral regulations in public forums, see Amdt1.7.7.1 The Public Forum.

28

Id. at 765.

29

Id. at 765.

30

Referring to Frisby v. Schultz, 487 U.S. 474 (1988).

31

519 U.S. 357 (1997).

32

Id. at 366 n.3.

33

Id.

34

Id. at 376.

35

Id. at 377.

36

Id. at 378.

37

Id. at 367.

38

530 U.S. 703 (2000).

39

Id. at 707.

40

Id. at 714.

41

Id. at 722.

42

573 U.S. 464, 478-485 (2014).

43

Id. at 492-94.

44

Id.

45

515 U.S. 557 (1995).

46

Id.. at 573.