Police Dept. of Chicago v. Mosley

408 U.S. 92, 92 S. Ct. 2286, 33 L. Ed. 2d 212, 1972 U.S. LEXIS 133
CourtSupreme Court of the United States
DecidedJune 26, 1972
Docket70-87
StatusPublished
Cited by1,512 cases

This text of 408 U.S. 92 (Police Dept. of Chicago v. Mosley) is published on Counsel Stack Legal Research, covering Supreme Court of the United States primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Police Dept. of Chicago v. Mosley, 408 U.S. 92, 92 S. Ct. 2286, 33 L. Ed. 2d 212, 1972 U.S. LEXIS 133 (1972).

Opinion

408 U.S. 92 (1972)

POLICE DEPARTMENT OF THE CITY OF CHICAGO ET AL.
v.
MOSLEY.

No. 70-87.

Supreme Court of United States.

Argued January 19, 1972.
Decided June 26, 1972.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT.

Richard L. Curry argued the cause for petitioners. With him on the briefs were William R. Quinlan and Edmund Hatfield.

Harvey J. Barnett argued the cause for respondent. With him on the brief were Ronald L. Barnard and Hal M. Brown.

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 building *93 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. *94 § 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." 432 F. 2d 1256, 1259 (1970). We granted certiorari, 404 U. S. 821 (1971), to consider this case along with Grayned v. City of Rockford, post, p. 104, 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 because 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 picketing 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 *95 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 (1971); Weber v. Aetna Casualty Co., 406 U. S. 164 (1972); Dunn v. Blumstein, 405 U. S. 330, 335 (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 (1971); Street v. New York, 394 U. S. 576 (1969); New York Times Co. v. Sullivan, 376 U. S. 254, 269-270 (1964), and cases cited; NAACP v. Button, 371 U. S. 415, 445 (1963); Wood v. Georgia, 370 U. S. 375, 388-389 (1962); Terminiello v. Chicago, 337 U. S. 1, 4 (1949); De Jonge v. Oregon, 299 U. S. 353, 365 (1937). To permit the continued building of our politics *96 and culture, and to assure self-fulfillment for each individual, our people are guaranteed the right to express any thought, free from government censorship. The essence of this forbidden censorship 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 wide-open." New York Times Co. v. Sullivan, supra, at 270.

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 facilities. 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

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Bluebook (online)
408 U.S. 92, 92 S. Ct. 2286, 33 L. Ed. 2d 212, 1972 U.S. LEXIS 133, Counsel Stack Legal Research, https://law.counselstack.com/opinion/police-dept-of-chicago-v-mosley-scotus-1972.