485 U.S. 312 (1988)
Petitioners Bridget M. Brooker, Michael Boos, and J. Michael Waller wished to display signs critical of the Governments of the Soviet Union and Nicaragua on the public sidewalks within 500 feet of the embassies of those Governments in Washington, D.C.12
Brooker and Boos planned to carry signs stating “RELEASE SAKHAROV” and “SOLIDARITY” in front of the Soviet Embassy.3 Waller intended to display a sign reading “STOP THE KILLING” within 500 feet of the Nicaraguan Embassy.4 All of the petitioners also wished to congregate with two or more other persons within 500 feet of official foreign buildings.5
Congress enacted D.C. Code § 22-1115 in 1938 pursuant to its authority under Article I, § 8, cl. 10, of the Constitution to define and punish offenses against the law of nations.6 The statute prohibits the display within 500 feet of a foreign embassy of any sign tending to bring a foreign government into public odium or disrepute.7 It also makes it unlawful to congregate within 500 feet of such a building and refuse to disperse after a police order to do so.8
Petitioners, together with respondent Father R. David Finzer, brought a facial First Amendment challenge to the statute in the District Court for the District of Columbia, naming the Mayor and other District law enforcement officials as defendants.9 The United States intervened as amicus curiae supporting the constitutionality of the statute.10 The District Court granted respondents’ motion for summary judgment.11 A divided panel of the Court of Appeals for the District of Columbia Circuit affirmed in part.12 The Supreme Court granted certiorari.13
Whether the display clause of D.C. Code § 22-1115 violates the First Amendment?14
Yes. The display clause prohibits petitioners Boos, Brooker, and Waller from displaying signs critical of foreign governments such as those stating RELEASE SAKHAROV and STOP THE KILLING within 500 feet of the Soviet and Nicaraguan embassies on public sidewalks.17 This restriction operates at the core of the First Amendment by banning classically political speech in traditional public forums based entirely on the content of the message.18 Only signs tending to bring a foreign government into public odium or disrepute are barred while other categories of speech remain permitted.19
Although the interest in protecting the dignity of foreign diplomats under the Vienna Convention may qualify as compelling, the clause fails narrow tailoring.20 Congress developed the significantly less restrictive 18 U.S.C. § 112 to implement the same international obligations outside the District of Columbia.21 This demonstrates that the display clause is not the least restrictive means available.22
The display clause of D.C. Code § 22-1115 violates the First Amendment.23
Related opinions on this issue
Justice Brennan joined the holding that the display clause is content-based and merits strict scrutiny.24 He wrote separately to object to any application of the Renton secondary-effects framework to political speech.25 Brennan warned that the approach would allow governments to suppress disfavored political expression by inventing secondary rationalizations such as congestion or visual clutter.26
It would also plunge courts into indeterminate inquiries into legislative motive rather than applying the traditional bright-line rule.27 Under that rule any content-based restriction is subject to strict scrutiny regardless of asserted purpose.28
Whether the congregation clause of D.C. Code § 22-1115 violates the First Amendment?29
A statute regulating the place and manner of demonstrations in traditional public forums does not violate the First Amendment if it does not reach a substantial amount of constitutionally protected conduct.30 The statute must not be impermissibly vague when given a narrowing construction that limits its application to groups posing a genuine security threat.
No. The congregation clause as narrowed by the Court of Appeals applies only to assemblages of three or more persons within 500 feet of an embassy.31 The police must reasonably believe that the congregation threatens the security or peace of the embassy.32 The clause applies only when the congregation is directed at the embassy itself.33 This site-specific regulation of the place and manner of demonstrations reaches no substantial amount of protected conduct.34 It leaves peaceful congregations untouched and applies solely where demonstrations turn violent and lose First Amendment protection.35
The clause also survives vagueness review.36 In the particular context of embassy protection the term peace gives fair notice that the measure of disturbance is whether normal embassy activities have been or are about to be disrupted.37
The congregation clause of D.C. Code § 22-1115 does not violate the First Amendment.38
Related opinions on this issue
Chief Justice Rehnquist dissented from the majority's invalidation of the display clause.39 For the reasons stated by Judge Bork in his majority opinion below, he would have upheld that portion of § 22-1115 prohibiting the display of signs tending to bring a foreign government into public odium or disrepute.40 Rehnquist joined the majority in concluding that the congregation clause as narrowed by the Court of Appeals is constitutional and does not violate the Equal Protection Clause.41
He agreed that the Court of Appeals' construction properly limits police discretion to congregations presenting a threat to embassy security or peace, thereby avoiding any constitutional infirmity in that provision.42
Whether the labor picketing exemption in D.C. Code § 22-1116 violates the Equal Protection Clause?43
No. Because the display clause has already been held unconstitutional, the only remaining prohibition is the congregation clause.46 The Court of Appeals construed that clause to bar only congregations threatening embassy security or peace.47 Peaceful labor congregations therefore receive the same treatment as peaceful non-labor congregations.48 The statute cannot reasonably be read to protect violent labor activity given its focus on bona fide labor disputes and the general rule that statutes should be construed to avoid constitutional difficulties.49
The labor picketing exemption in D.C. Code § 22-1116 does not violate the Equal Protection Clause.50
Whether the Court of Appeals' narrowing construction of the congregation clause is permissible?51
Federal courts have the power and duty to adopt narrowing constructions of federal statutes when such constructions are fairly possible and avoid constitutional difficulties.52
Yes. D.C. Code § 22-1115 was enacted by Congress rather than the District of Columbia Council.53 Federal courts therefore possess authority to narrow the congregation clause to permit dispersal only of congregations directed at an embassy that threaten its security or peace.54 This construction is reasonable and readily apparent from prior District of Columbia decisions.55
It eliminates both the risk of unbridled police discretion and any substantial overbreadth while preserving the national interest in embassy protection that prompted the original legislation.56
The Court of Appeals' narrowing construction of the congregation clause is permissible.57