Transcript

IN THE SUPREME COURT OF THE UNITED STATES

MICHAEL BOOS, J. MICHAEL WALLER, AND BRIDGET BROOKER, Petitioners v. MARION S. BARRY, JR., MAYOR, DISTRICT OF COLUMBIA, ET AL.

No. 86-803

November 9, 1987

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 1:58 p.m.

APPEARANCES:

RAYMOND D. BATTOCCHI, ESQ., Washington, D.C.; on behalf of Petitioners.

EDWARD E. SCHWAB, ESQ., Assistant Corporation Counsel for the District of Columbia, Washington, D.C.; on behalf of Respondents.

EDWIN S. KNEEDLER, ESQ., Assistant to the Solicitor-General, Department of Justice, Washington, D.C., as Amicus Curiae; in support of Respondents.

PROCEEDINGS

CHIEF JUSTICE REHNQUIST: Mr. Battocchi, you may proceed whenever you are ready.

ORAL ARGUMENT BY RAYMOND D. BATTOCCHI, ESQ. ON BEHALF OF PETITIONERS

MR. BATTOCCHI: Mr. Chief Justice, and may it please the Court:

This case involves the constitutionality of both clauses of a District of Columbia statute initially enacted by Congress in 1938. After stating the case we propose to divide our argument into three parts.

First, we contend that the first clause of the statute, which prohibits the display of specified flags and banners, violates the free speech guarantee of the First Amendment.

Second, we contend that the second clause of the statute, which gives the police the power to disperse congregations within these 500-foot zones, violates the First and Fifth Amendments.

Our third and narrowest, contention is that both clauses violate equal protection, because the Legislature has allowed parties to labor disputes to utter precisely the same speech and precisely the same conduct that Petitioners cannot.

The facts are simple and relatively straightforward: Petitioners are three young political activists. Each wishes to display signs containing messages critical of foreign governments and their policies and views on the public streets and sidewalks of the District of Columbia within 500 feet of the official government buildings they wish to criticize.

For example, some of the Petitioners who wish to display a pro-Sakharov, or a pro-Solidarity sign on Sakharov Plaza in front of the Soviet Embassy. One Petitioner wishes to display the American flag there. Another wishes to display a "stop the killing" sign in front of the Nicaraguan Embassy. Each Petitioner also wishes to congregate with two or more other people within the 500-foot zones, and each Petitioner is prohibited from either displaying signs or flags or congregating by Section 1115 of the D.C. Code.

There are numerous cases pending in the District of Columbia courts involving prosecutions under both clauses of this statute for displays of signs and congregations at the Soviet and Nicaraguan Embassies.

This is a 1983 suit that was instituted in the district courts seeking declaratory and injunctive relief; the district court on cross-motions for Summary Judgment, upheld both clauses of the statute and dismissed the Complaint.

The court of appeals in 1973 in the Zaimi case interpreted the first clause of the statute to apply only when there is a "display," of a flag or banner that produces one or more of the enumerated consequences specified later on in the first clause. In this case, the court of appeals, perhaps narrowing that definition further, construed the first clause to apply only to demonstrations in which signs are displayed designed to bring foreign governments into public disrepute or public odium.

So far as we can tell, neither Respondents nor the federal government challenge that construction. In other words, under the first clause, the only thing that is proscribed is the display of a flag or banner or a sign designed or adapted to bring a foreign government into disrepute.

We note at the outset that under this construction of the first clause, no violence is proscribed: it is not illegal for Petitioners to demonstrate or for anybody else to demonstrate; it is not illegal under the first clause for anybody to engage in any violent conduct.

There is a reference, and maybe several implications in the brief of the Respondents and the United States' suggesting that the first clause serves an interest in protecting a security of foreign persons and property. The court of appeals itself acknowledged that, in fact, the security interests asserted by the government in the court below was insufficient to justify the first clause; according to the court of appeals, the only conceivable interest that would sustain the validity of the first clause over a First Amendment challenge was the governmental interest in protecting the dignity of foreign persons and properties -- excuse me.

The essential holding of the court below was that a dignity interest on the part of foreign governments and foreign persons -- and by dignity interest, I mean "an interest in avoiding peaceful political insults," was not only a legitimate governmental interest, but an interest sufficiently compelling to override Petitioner's claim to First Amendment rights.

With respect to the second clause, the court of appeals narrowed its terms: the second clause on its face gives the police the power to disperse any congregation within the 500 foot zones and sets no limits whatsoever upon that dispersal power. The court of appeals read the dispersal power as "limited to those circumstances in which the police reasonably believed a threat to the security or peace of an embassy is present," and held that, "so-limited, the second clause suffers from no constitutional infirmities."

In our view, the first clause violates the First Amendment for several separate and independent reasons. We note at the outset that what is involved here is political speech on traditional public forums; Petitioners wish to speak out on interests -- on issues, involving foreign relations which are of the utmost public concern; they wish to do so at the seat of government, and therefore, in our view, this case involves the exercise of First Amendment rights in their most highly protected form.

Our first contention in this regard is that the first clause violates the First Amendment because it is viewpoint-discriminatory. The first clause does not prohibit any and all displays of signs and does not prohibit any and all displays designed to communicate ideas. The only displays prescribed by the first clause are those which are "designed to bring a foreign government or its acts or officers or views, into public odium or public disrepute."

In short, Petitioner Brooker can stand in front of the Soviet Embassy and wave the Soviet flag: she cannot wave the American flag.

QUESTION: However, the government says that that is not a viewpoint-discriminatory on any basis established by the government. It is simply the policy of the particular embassy in question. And I think also they stated that there are not a lot of people standing in line waiting to wave an American flag in front of the Russian Embassy. This statute addresses things that actually happened, not hypothetical situations.

MR. BATTOCCHI: Well, if I can take the first part first, Mr. Chief Justice, this statute does proscribe an acceptable and an unacceptable point of view: if someone stands in front of any embassy with a message designed to disagree with the acts or policies of a foreign government, that is proscribed. Of course, the proscription depends in part on a policeman's judgment as to what is designed to criticize a government and what is not.

QUESTION: But it is not enforcing a governmental point of view on anyone, not on the United States' governmental point of view on anyone.

MR. BATTOCCHI: The United States' governmental point of view mandated by Congress, is that views critical of foreign governments are illegal, but views supportive of foreign governments are not. That "governmental view" is embodied in the first clause.

As construed by the court of appeals, someone could stand in front of the Nicaraguan Embassy and hold up a sign saying, "We support Daniel Ortega." But if one word is changed on the sign, and the message is, "We oppose Daniel Ortega and we oppose the Contras," that is then proscribed and it becomes a criminal offense. So in our view, the statute is viewpoint-discriminatory in a very specific sense.

In some cases the Court has indicated that mere "content-based laws:" as I understand that term it means that a -- proscription of speech on all subjects except religion, for example, or all subjects except foreign affairs -- a content-based distinction is, if not a per-se violation of the First Amendment, one that raises serious constitutional questions and requires a compelling governmental interest in order to be sustained.

In this case we have a narrow proscription: this statute does not prohibit all speech -- it does not prohibit speech only on the subject of foreign affairs; it in fact singles out particular points of views.

QUESTION: But it does not prohibit speech anywhere else in the District of Columbia. On Conn -- con or pro on these things; it simply prohibits a particular kind of speech in a very narrow place right in front of a foreign mission. You can go anywhere else in the District of Columbia and say anything you want about the Nick - Nick -- Nicaraguan government pro or con, or about the Russian government.

MR. BATTOCCHI: That is true. The statute applies within the 500-foot zones. I do not think it is fair to say that it applies only in front of these buildings. It applies only in front of these buildings; the statute applies for a radius of almost two football fields around every foreign building in the District of Columbia.

It is also true that the statute is irrational in other ways: there is no proscription against speaking -- individuals --

QUESTION: Are you suggesting that the statute just prohibited a lot diff -- a lot more speech, would be -- fare, better under the First Amendment?

MR. BATTOCCHI: Not at all: no. I make that argument only because it buttresses our "vagueness" contention, and also shows in our view that the statute is arbitrary in terms of the way it is both enforced and written. No. We do not contend that a statute that prohibits more speech could be better than this one. We could --

QUESTION: Would it be more constitutional?

MR. BATTOCCHI: That is not our position. Our position is that, by discriminating between viewpoints, this statute essentially legitimatizes censorship: that is the position -- now.

QUESTION: Well, what if it just said, "No speech; no signs at all, within 500 feet of an embassy?"

MR. BATTOCCHI: Then the statute would not be vulnerable on a -- the basis of a viewpoint-discrimination or censorship attack, but the statute would, in our view, be invalid because of its overbreadth. If the statute said, and even as it is written, the statute does say, "there shall be no criticism of foreign governments," at least on picket signs, "anywhere within 500 feet of the official buildings of those foreign governments." That statute as-written, prohibits any kind of speech anywhere within what amounts to insult-free zones that cover a substantial portion of Northwest Washington D.C. in this connection.

QUESTION: Each zone covers a different insult? Right? I mean it is --

MR. BATTOCCHI: Each zone covers a different insult free government, correct. But the effect of that kind of an application of the statute is to insulate foreign governments from insults against them throughout a substantial part of Northwest Washington.

QUESTION: That is not entirely correct. If you are talking about the Russian Embassy, for example, they are insulated within a 500-foot radius of their own building, which is a tiny fraction of the area of the District of Columbia and a small fraction of the area of Northwest Washington.

And the same is true of every other embassy. It is just when you lump them altogether in a way which does not really make much sense constitutionally that you could come up with a sort of analysis that you do.

MR. BATTOCCHI: What you say is absolutely correct, Mr. Chief Justice, except that in the view of these Petitioners and many others who depend upon effective picketing to convey their views, if picketing is going to be effective, it has to be carried out somewhere where the message conveyed has some meaning. If people stand 2.5 football fields from the Russian Embassy and are in front of a faceless office building and hold up a sign criticizing the Soviet Union, the effectiveness of that message is substantially diminished and the likelihood that --

QUESTION: The Constitution gives them the right to have the most effective possible situs for their message?

MR. BATTOCCHI: Absolutely not. No. Our contention in connection with an overbreadth argument is narrow: it is that (a) this statute prohibits only expression and no conduct; that is, it prohibits what is most protected by the First Amendment and does not prohibit what the government has the most legitimate interest in outlawing, and secondly --

QUESTION: What Iranian violence is that?

MR. BATTOCCHI: This statute does not prohibit violence in any way.

QUESTION: But are there not other D.C. statutes that prohibit violence?

MR. BATTOCCHI: Yes, and that is the question --

QUESTION: Well, does the government have to put every single prohibition possibly applicable into the same statute?

MR. BATTOCCHI: No, Mr. Chief Justice, but that is exactly our point: our point is, there are other statutes that prohibit violence and untoward conduct. And the government's interest in prohibiting that is fully satisfied by those other statutes.

This statute prohibits only speech in the first clause, and unless the prohibition of speech is a governmental interest, there is no reason why this statute should remain on the books.

I would like to go one step further and briefly mention our additional contention that the statute is overly vague: the only criticism that is prohibited by the very words of the statute is that which is designed to bring a foreign government into public odium or public disrepute. Does that prohibit only the severest criticism or mild criticism of any kind? Stated differently, does this statute prohibit only that kind of vigorous, robust, wide-open criticism that has been constitutionally protected, at least since New York Times v. Sullivan, or does it prohibit even the most mild-mannered, gently-conveyed, political difference of opinion that has been constitutionally protected since Day One? The answer according to Respondents is, "it prohibits all criticism. "

Well, that in our view serves to accomplish two results: first it dramatizes again the sweeping overbreadth of the scope of the first clause.

Secondly, it makes this statute vulnerable because as applied by these respondents, it is being enforced arbitrarily and discriminatorily. The Record it not only --

QUESTION: Is that before us, is that included in your Petition for Certiorari?

MR. BATTOCCHI: Yet, the issue -- it is encompassed within the issues in our view, Your Honor. We made that point in the Petition.

QUESTION: But do we have anything in the Record that goes to that, that the court of appeals passed on?

MR. BATTOCCHI: The court of appeals noted this in a footnote.

QUESTION: Yes.

MR. BATTOCCHI: Yes. We believe that the fact that the District of Columbia government and the Respondents are letting thousands of people violate the statute at the South African Embassy with impunity. But on the other hand are prosecuting everybody that demonstrates at the Soviet or Nicaraguan Embassies, is relevant in two respects:

First, it shows that the potential for arbitrary and discriminatory enforcement of the laws, which is an important consideration in any vagueness context, is not a theoretical one, but an active fact.

Secondly, in the "equal protection" context, to the extent the government argues that what is at stake here is a compelling governmental interest of great constitutional magnitude, it is relevant in that regard.

QUESTION: I frankly do not see which of your three Certiorari questions presents that issue.

MR. BATTOCCHI: Does it violate the First Amendment, Mr. Chief Justice, the first question? Does it challenge the statute on "vagueness" grounds? And the court --

QUESTION: Does it represent the issue of discriminatory enforcement?

MR. BATTOCCHI: Yes, as we read Kolender and many of the other "vagueness" cases, the primary concern in the "vagueness" context is the potential for arbitrary and discriminatory enforcement. In our view here we not only have the potential for that, but the reality of it.

But also, just from a legal standpoint, in the "equal protection" context, the government's answer to our argument essentially is that the insult-free interest is one of great constitutional magnitude, a paramount value in our constitutional scheme, and in response to that, it is relevant for us to point out that the Record belies that assertion. If this interest is as paramount as the government contends, then how can it be that at the one place in the City of Washington, where there has been a great deal of exposure and where our activities are more visible to the world at-large than any place else, at the South African Embassy, they have let everybody violate the statute and get away with it. That certainly is relevant to whether the asserted compelling nature of this interest is in fact as important as the government suggests or whether the Record belies that assertion.

If I may, I would like to turn to the grounds upon which the government attempts to defend the first clause: the first interest asserted is the "dignity interest." As we understand the government's position, there is no dispute that this clause cannot be sustained as a reasonable or valid time, place or matter restriction because it is content-based and therefore, by definition, not a valid time, place or matter restriction. The government's position is that the first clause serves to further a compelling governmental interest and is narrowly tailored to accomplish that end. The compelling interest is the so-called "dignity interest."

Again, the "dignity interest" asserted by the government is not an interest in the context of speech or the style of expression; it is not the difference between speaking through a loudspeaker system and conveying messages in a more delicate way -- the interest is an interest in avoiding political disagreements or political insults.

In our view, the simplistic view we take of this issue, the argument that the avoidance of political insults is a compelling governmental interest which can override First Amendment rights, is a contradiction in terms. Insofar as we can tell, even though the Article II makes the President and Commander in Chief, it is clear in the Court's prior decisions that members of the public have a right to politically criticize the President for his conduct in office. Ever since Bridges v. California through Linmark v. Virginia, it has been established, as we read the cases, that ordinary members of the public have a right to politically criticize or otherwise criticize judges and Justices for the way they carry out their duties.

As on the basis of what we understand about the adoption and gratification of the First Amendment, it seems difficult to believe that those who wrote and ratified the First Amendment intended to empower the Congress to enshroud political opponents like King George or other world leaders, in an envelope that immunizes them from criticism. There was no reason two centuries ago why foreign leaders around the world should be protected from peaceful free speech from American citizens, and if anything, there is far less reason now.

As a practical matter in today's world --

QUESTION: Only in their embassies. You can criticize King George anywhere.

MR. BATTOCCHI: That is true, but that cuts two ways, Mr. Justice. In this connection we are addressing the legitimacy of the insult-free interest. If the insult-free interest is a legitimate one, for governments and for foreign officials, and it is sufficiently important to override First Amendment rights, then at a minimum, it should be applied evenhandedly. If it is not applied evenhandedly, if it is applied to people who depend upon picket signs to convey their views, it is not applied to others who own newspapers or own television stations, or who are even able to speak orally within the insult-free zones -- yes it is true that political insults are permissible everywhere outside the zones, but people have a right to be on the public streets and sidewalks in the District of Columbia --

QUESTION: But do you really contend that the statute -- that your argument would be cured by a statute that prohibited insults in all media that are available to the audience?

MR. BATTOCCHI: If I said or implied that, I certainly did not mean to. Absolutely not.

QUESTION: Well, if you are not implying it, why is the statute any better by suggesting that? What is your answer to it? I do not understand.

MR. BATTOCCHI: Could you ask the question again, Mr. Justice? I am not sure I have it.

QUESTION: Well, Justice Scalia asked you about the discriminatory aspect and you said, "well, it is bad because it is discriminatory. It only interferes with people who just have the means to carry a banner around in front of the embassy." And your cure for that would be, if your argument is valid, to ban it to everybody who wants to insult the ambassador.

MR. BATTOCCHI: I may have been addressing a narrower point than I should have: the insult-free interest is not legitimate anywhere inside or outside the zones --

QUESTION: And would the statute not be improved by broadening its coverage?

MR. BATTOCCHI: It would be made worse. It would be made more vulnerable to an overbreadth attack.

QUESTION: There is no "equal protection" problem here. I mean, the "one step at a time," approach to eliminating problems is well-established, right? You can reach some of the evils without having to reach all of the evils, can you not?

MR. BATTOCCHI: That is not the way we read this Court's "equal protection" decisions either.

QUESTION: So you are saying, then, that this statute would be better if it not only prohibited the picketing with signs within the 500 yards, but also speaking or anything else? That is a vice in and of itself, but it does not extend broadly enough within the 500 yards?

MR. BATTOCCHI: I certainly do not mean to convey that implication. This statute is bad (a) because it discriminates between points of views or between speakers; but (b) there is no right that prohibits anybody from speaking on political subjects at any times within these zones where people have a right to be. And to speak.

QUESTION: All right, but you do not say, "(c) if there is such a right, you cannot apply it just to signs and not apply it to speaking?" You do not say (c)?

MR. BATTOCCHI: That is not a -- major point.

QUESTION: See I thought you were saying (c), major or minor, I do not care. You are not saying (c) at all?

MR. BATTOCCHI: I am saying that further demonstrates the irrational way in which the --

QUESTION: So you are saying (c)?

MR. BATTOCCHI: I am saying that that is a fact, not a major contention, yes.

QUESTION: It is a minor contention?

MR. BATTOCCHI: It is a matter on which -- upon which we rely.

QUESTION: Do you want to assert (c) or not, just tell me?

MR. BATTOCCHI: No, sir. No. But I would like to make this clear in case I have not: the "equal protection" claim we make is based upon the "labor exemption" in the subsequent statute; that is, Section 1116. The argument we make with respect to the "viewpoint-discrimination" is essentially a First Amendment argument, and that argument is, "some people, whoever they may happen to be, can go over to these zones and hold up signs expressing one point of view. It is permitted. If it is a contrary point of view it is proscribed.

QUESTION: Yes, but you cure that by saying, "no signs at all," and you say that is worse. Your real argument, as I understand you is, that, "the fact that the listener or the audience does not like what you have to say is simply not an acceptable justification for prohibiting speech." That is your whole argument.

MR. BATTOCCHI: It is certainly an important one, but it -- yes, we make that argument. But --

QUESTION: Do you make any other argument? I do not see it, if you do.

MR. BATTOCCHI: I would like to address the "equal protection" question just to make sure that there is no misunderstanding about this. The "equal protection" claim is based upon Mosley and Carey and relies upon a later exemption in the statute. The "equal protection" claim, qua equal protection, is based on the fact that the Legislature has said, "even within these zones, anyone who is a party to a labor dispute can perpetrate the insults or engage in the conduct that is otherwise proscribed to anybody else."

The "equal protection" argument presupposes, unlike the First Amendment argument, that it would be legitimate for the Legislature to enact an all-out all-encompassing ban on speech. But even in that narrow context, if the Legislature allows someone to enter the zones and to utter insults under Mosley and under Carey, everybody else has to be allowed in.

If I have not made this clear, I want to make it very clear: we are not conceding in any way in a First Amendment contest, that it is proper to prohibit anybody from engaging in political free speech on any of these streets or sidewalks where the public has a right to be or which are traditionally used for expressive activity.

Briefly, I would like to mention, again in response to the "dignity-interest" claim, the existence of the federal statute nationwide which has fulfilled for the past decade or more the government's interest in ensuring the dignity and peace of foreign embassies throughout the United States in all of the 50 states. In connection with that statute, the Congress in 1972 imposed a ban on picketing that was content-neutral. In 1976 it came along and repealed the ban because of its concerns that prohibiting this speech was a violation of the First Amendment.

If Congress has ratified -- has implemented treaties entered into by the United States and concluded that peaceful picketing is not something which it can constitutionally proscribe in any of the 50 states, in our view it follows that the insult-free interest is no more legitimate in the District of Columbia.

I would like to mention just briefly our claim with respect to the second clause: the second clause on its face I think even Respondents concede, is overbroad. It gives the police completely limitless power to order dispersals of any congregations within the zone at any time. The court of appeals has narrowed the second clause. In our view it should not have done so, since it --

QUESTION: Did it narrow it or did it interpret it? Which do you say?

MR. BATTOCCHI: I think it rewrote it.

QUESTION: Yes, and you think it did not have the authority to do that, I suppose, is that one of your contentions?

MR. BATTOCCHI: Yes, Mr. Justice. But in the --

QUESTION: Even though the -- Court of Appeals for the District of Columbia could have?

MR. BATTOCCHI: As I understand the unique system we have here, the Court of Appeals for the District of Columbia is the functional equivalent of a state supreme court for these purposes, for purposes of interpreting a law applicable only in the District. In that context, the only appropriate limiting construction is one that is readily apparent and one was not here.

But briefly I would like to address the clause as narrowed by the court of appeals: It can mean one of two things. It gives the police power to disperse anybody if they conclude that a threat to the "peace" of the embassy is present. If that means what it normally means in a domestic breach of the peace context, then the statute is unconstitutional for the reasons that have been set forth in Cox and in many other cases. If the term, "peace" is more broadly-construed, the way apparently the majority interpreted it here to apply even to peaceful political insults, then a fortiori, the power to disperse those is overbroad.

QUESTION: Did you ask for a Rehearing in the court of appeals?

MR. BATTOCCHI: No, Mr. Justice, we did not.

QUESTION: And they did not go to a vote on a Rehearing sua sponte? On their own?

MR. BATTOCCHI: No, Mr. Justice.

I would like, if I may, to save a minute or so for rebuttal.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Battocchi.

Mr. Schwab, we will now hear from you.

ORAL ARGUMENT BY EDWARD E. SCHWAB, ESQ. ON BEHALF OF RESPONDENTS

MR. SCHWAB: Thank you, Mr. Chief Justice. May it please the Court:

Congress has reached a constitutionally permissible balance in enacting this statute: the balance is between strong national interests which support restrictions on demonstrations in the area of foreign embassies on the one hand, and on the other hand, the rights of demonstrators who seek to demonstrate at embassies and other property of foreign governments. The restrictions on speech are modest. The only restriction on demonstrations is within the immediate vicinity of foreign embassies; that is, within 500 feet of them.

The statute was enacted 50 years ago by Congress; it was enacted because the State Department and the Metropolitan Police Department that existing law was adequate to deal with demonstrations that were then being conducted near a number of embassies. It had the strong support of the State Department: Secretary of State Hull requested that the statute be enacted. It was drafted by the Chairman of the Foreign Relations Committee, and the statute has been repeatedly upheld in litigation in the lower federal courts in the District of Columbia.

QUESTION: But Congress and the President apparently no longer have any interest in it, is that right? I mean, it was originally a federal statute, but now it is a D.C. statute and Congress seems to have, with the approval of the President, seems to have worried about whether it was too broad and instead of deciding that itself, passed the buck to the D.C. government, suggesting that they re-examine it.

MR. SCHWAB: Congress has delegated this matter to the City Council and has suggested to the Council that it reexamine the statute, but the delegation itself indicates that the obligation of the United States being performed here in providing protection into these embassies, the statute also indicates that the Council should seek advice from the Secretary of the Treasury and the Secretary of State, and in fact has done that.

The Secretary of the Treasury's interest is involved because the Secret Service provides protection to foreign embassies. So we do not believe that there has been any congressional abandonment of national interests here; and certainly the Executive has not abandoned this, because they have been, the Executive, has been quite heavily involved in matters before the Council.

Representatives from the State Department and the Department of Justice and the Treasury Department have all testified; they have all submitted written statements -- Secretary Schultz has submitted a written statement, which is attached to the government's brief, the U.S. brief, in this case, and of course, they strongly support the statute as amicus curiae here.

So we do not feel --

QUESTION: It just seems to me to be a very peculiar way for the federal government to vindicate an assertedly vital federal interest to leave it to a city council to vindicate this enormous -- this protection, for foreign diplomats. It is assertedly so important that it warrants the silencing of speech. Have they delegated this to any other city councils in New York or elsewhere?

MR. SCHWAB: Well, the principal responsibility for protecting embassies in New York City falls on the New York Police Department. There is federal reimbursement for that, but the New York City Police Department is the agency that primarily protects foreign diplomats who lime in New York City.

QUESTION: Could New York adopt a municipal ordinance like this and purport to be vindicating a federal international interest?

MR. SCHWAB: Well, New York has adopted procedures that are very similar to 22-1115. We have discussed them in our brief. Though those procedures were upheld in litigation, basically what is done near the Russian Embassy in New York, is that there is a bull-pen about 120 feet from the Russian Embassy, the Embassy there to the U.N. where they let a small number of demonstrators picket in that bull-pen, and then any other demonstrations have to take place two or three blocks away from the Embassy. So that --

QUESTION: But the federal government has not intervened to establish any procedures there? They have left it up to the municipalities?

MR. SCHWAB: I am not sure of the extent of their involvement there. I do know that the current appropriations Act has a $7 million reimbursement to the City of New York for performing these functions. That is the State Department appropriations. We have discussed that briefly in our brief. I am sorry I cannot give you the page number, but it is --

QUESTION: This is for the U.N. and all that business?

MR. SCHWAB: Yes.

QUESTION: Well, that is a whole lot different from here.

MR. SCHWAB: Yes, it is different from this because in New York they are representatives in our country, but they are primarily to an international organization, while in the District of Columbia the representatives from foreign nations are representatives certified to this government. So there is a bit of a difference here.

And we believe that that difference would support this statute more strongly.

QUESTION: What is the difference in the federal interest?

MR. SCHWAB: I am sorry?

QUESTION: Does the city have any interest other than that of the federal government in this law?

MR. SCHWAB: No, other than the same interest that all citizens have in this country. There is no independent District of Columbia interest here.

QUESTION: Why does the federal government put them up to it?

MR. SCHWAB: The federal government did not enact -- I mean Congress, enacted this statute in 1938. Last year, Congress considered amending the statute and rather than doing that, it delegated that authority to the District of Columbia Council. Now, if the Council alters this law, then of course, anything that they enact has -- would not be effective until after a congressional layover period, and the Congress during that period could adopt a joint resolution to alter anything the Council does.

QUESTION: But the Secretary of State sent a letter?

MR. SCHWAB: That is correct.

QUESTION: And told them to do it?

MR. SCHWAB: No, no. The Secretary of State has sent a letter to the Council, informing the Council that it believes that strong national interests support the current statute in that --

QUESTION: Well I said that "he told them they should do it," and what do you say?

MR. SCHWAB: The Secretary of State is saying, "do not change the law."

QUESTION: May I ask, when you refer to the Secretary of State's letter, he indicates that it is terribly important to "ensure that the United States missions abroad receive reciprocal treatment."

Are there any other foreign governments that impose a 500 foot buffer zone around our Embassies, or any foreign governments that prohibit marching in front of one of our Embassies with a hostile sign?

MR. SCHWAB: I do not know of any, your Honor, but --

QUESTION: Then "reciprocal treatment" does not seem to justify the standard.

MR. SCHWAB: I do not think that -- from what I understand about "reciprocal treatment," it is not precise reciprocity. What it is is comparable protection.

QUESTION: What is the buffer zone in any other foreign country that you are familiar with? Maybe it is not 500. Is it 400?

MR. SCHWAB: I am sorry, I cannot answer that question.

QUESTION: What about signs? Do any of them prohibit anything even similar to signs, flags, parades? Out in front of our embassies?

MR. SCHWAB: I am sorry, I cannot answer that either.

QUESTION: Mr. Kneedler, who is representing the United States, may be able to answer that question. But from what I understand, the primary concern with regard to reciprocity, and that is in the declaration of James Nolan, who is Chief of Foreign -- I believe Chief of Foreign Missions from the State Department -- what the State Department wants is a situation where we provide protection at a substantial level in this country to foreign missions so that these matters can be negotiated with foreign governments, and that where we believe that insufficient security is provided around our Embassies elsewhere, we can -- our representatives, can meet with representatives with foreign governments and negotiate improved security, and that if we -- they -- we cannot --

QUESTION: Is it our foreign policy to object to hostile signs in front of our Embassies?

MR. SCHWAB: I know of only -- I think that there are some such objections, yes.

QUESTION: Unfriendly signs? Pardon me?

MR. SCHWAB: I think there have been such objections, Your Honor.

QUESTION: Tell me the process for the D.C. Council's changing this law. Could it be done by a simple vote of the Council? Would it have to be approved by the President? Does the President have any --

MR. SCHWAB: The process would be for the Council -- the President has no involvement.

QUESTION: None at all?

MR. SCHWAB: The Council would enact a provision, like any other Council law, then that is submitted to the Mayor of the District of Columbia. The Mayor can either sign or veto. If the Mayor vetoes, then it goes back to the Council and then they can override by I believe a two-thirds vote. Then, if it is signed or the veto is overridden, it is submitted to Congress and then there is a 30-day period -- I believe 30 legislative days, or roughly comparable legislative days, in that the provision sits before Congress, and Congress can then pass a joint resolution of disapproval. The joint resolution would require Presidential signature. So the only time the President would ever get involved is where Congress has voted to disapprove or to somehow alter an act of the Council.

The only presidential involvement that there has been in this whole area is that the President signs the home rule legislation, which gave the District Government its limited home rule.

QUESTION: I suppose there may be some question as to whether he has to sign the disapproval? The congressional disapproval?

MR. SCHWAB: Well, there is some question as to whether he has to sign, but I mean, as far as the Constitution is concerned, but I believe the law has been changed so that the only way to disapprove is by joint resolution, and that joint resolution requires either a veto or a signature. It requires presentment.

QUESTION: Mr. Schwab, is the Council considering changes in this statute?

MR. SCHWAB: Yes, the Council has introduced a bill that is a very similar to 18 U.S.C. Section 112.

QUESTION: And what has happened to that?

MR. SCHWAB: It has held hearings on the bill; it has heard testimony from many interested organizations in the District; it has heard testimony from the State Department; from the Treasury Department and from the Department of Justice. And it has received Secretary Schultz' letter. As far as I know, nothing further has occurred after the hearings.

QUESTION: What changes will it make, Mr. Schwab, if it becomes law?

MR. SCHWAB: Well, the primary change that would be made, I think, is that picketing would be permitted. Actions that, of demonstrators, that affect ingress or egress to embassies would be unlawful -- I mean that impair ingress or egress -- any acts of coercion or intimidation or threatening actions -- that would be prohibited by the law.

Now, my time is just about up. I would like to say that we believe that the Decision of the court of appeals should be affirmed. We believe it is very soundly reasoned, and now you will hear from Mr. Kneedler, who will state the interest of the United States. Thank you.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Schwab.

Now we will hear from you, Mr. Kneedler.

ORAL ARGUMENT BY EDWIN S. KNEEDLER, ESQ. AS AMICUS CURIAE IN SUPPORT OF RESPONDENTS

MR. KNEEDLER: Thank you, Mr. Chief Justice and may it please the Court:

The Petitioners in this case lose sight of the fact that the target of the demonstrations in this case is not an organ of domestic government, as has been true in most of the cases that this Court has considered, such as the Edwards case and the Grace case. It concerns the diplomatic representatives of a foreign government and a foreign mission in the seat of government in the United States. And the function of a diplomatic mission such as that is not to either participate in or to be the staging ground for domestic political disputes or controversies within the United States. It has a quite distinct function of carrying on that country's diplomatic mission with the United States Government, and as a matter of practice, and as a matter of obligation under the Vienna Convention on Diplomatic Relations, those dealings with the United States are to be carried on directly with the United States Government and the foreign embassy has an obligation to remain removed from the internal affairs of the United States.

These considerations set a diplomatic mission in the District of Columbia apart from the domestic political process. In our view, that unique status of diplomatic missions under the Constitution and under the First Amendment means that Congress may interpose what is here a modest geographical separation between the diplomatic representative of a foreign government and persons in the United States who seek to demonstrate against the position of the foreign government.

Or, as Senator Pittman, the principal sponsor in 1938 put it, "all the statute seeks to do is to protect the representatives and the mission from having criticism of their government brought to their attention right in their faces."

QUESTION: But that is not this statute.

MR. KNEEDLER: That is the statute, Your Honor.

QUESTION: I thought this was an act of the District of Columbia.

MR. KNEEDLER: No. This statute was enacted by Congress in 1938 at a time when there was considerable --

QUESTION: And then it later was dropped, was it not?

MR. KNEEDLER: No, the statute has not been repealed or affected. There was a proposal in 1986 to repeal the statute, in fact the Senate passed that. The Congress declined to repeal it. What Congress did instead was pass a sense of the Congress' resolution and asked the District of Columbia government, the Council, to consider whether revisions in the statute might be appropriate. But the statute as enacted by Congress remains on the books and Congress declines to repeal it.

QUESTION: Has it been enforced?

MR. KNEEDLER: It is being enforced, yes.

QUESTION: The statute?

MR. KNEEDLER: The statute is being enforced.

QUESTION: Who is enforcing it?

MR. KNEEDLER: The responsibility under the statute resides with the Metropolitan Police Department.

QUESTION: That is what I thought.

MR. KNEEDLER: But that has been true from the outset. The enforcement of statutes such as this has always been the responsibility of the Metropolitan Police Force. There is no general federal police force in District of Columbia. The Metropolitan Police Force, even before home rule, was the principal entity for these things. The Secret Service does have backup responsibility. The Secret Service is very interested in this statute because of its importance in establishing a security perimeter around embassies. But the day-to-day enforcement, the arrests under it are made by the Police Department.

QUESTION: Mr. Kneedler, K confess that I am inclined to view a statute dealing with this subject that is passed by the Congress quite differently from one that is passed say by the Omaha City Council, which may desire to protect a consulate in Omaha. I originally thought that this was a federal statute; it originally was a federal statute?

MR. KNEEDLER: And it still is a federal statute.

QUESTION: Well, it is, but when Congress passes I guess what is referred to as a "Sense of the Congress Resolution," but which in effect says to the District government, "you decide what to do with this thing." It may well violate the Constitution. Is that an expression by Congress that it really is not calling the shots with respect to this any more? And leaving it up to the District of Columbia government?

MR. KNEEDLER: I think not. Not completely and not finally. First of all, Congress, as Mr. Schwab mentioned, has the responsibility and the authority to review statutes passed by the District of Columbia government, so if this should be repealed or revised, Congress has the authority to overturn that.

Secondly, when Congress sent it to the District of Columbia government, it in no way disclaimed the important national interest and law of nations underlying it. In fact, it recognized that there were security interests and said that they may have to be balanced against other interests.

And thirdly, Congress quite specifically said that the D.C. Council should take this into account with the views of the Secretary of State and the Secretary of the Treasury because of their diplomatic and security interest in the matter.

QUESTION: But that certainly is an abnegation, at least, of any views by the Congress on the point. Congress is basically saying, "well, we really have not made the judgment that the international interests require this any more."

MR. KNEEDLER: No. The judgment -- what Congress said is, "we have not made the judgment that the interests that underlay the statute in 1938 are no longer in force." Congress again -- had before it a proposal to repeal this statute and declined to do it. So as far as the law, as it now stands, 22-1115 is still on the books as Congress passed it, and the Executive Branch, the Secretary of State, the Secret Service, and the Justice Department have all strongly opposed any reduction.

QUESTION: Has the Federal Government made New York City do anything like this?

MR. KNEEDLER: Well, the Federal Government has not attempted to do -- what the United States does in New York is to cooperate with the city police in New York in establishing appropriate security perimeters around U.N. missions up there.

But the District of Columbia --

QUESTION: Have they tried to make New York pass a bill like this?

MR. KNEEDLER: No, they have not tried. But their alternative --

QUESTION: Is there any reason why? It is more of it in New York than there is here.

MR. KNEEDLER: Perhaps Congress could enact a nationwide statute. It so far has chosen to concentrate on the seat of government of the United States.

QUESTION: Because they ride herd on the District of government. They have the veto power on the District of government. Is that not the reason?

MR. KNEEDLER: That is one of the principal reasons. And also as the affidavit of one of the State Department officials in the Record says, foreign governments attach particular importance to what happens in the District of Columbia precisely because it is the seat of government of the United States. We have here not simply consulates but the embassies of foreign governments which are the symbolic presence of those governments in the United States. And so any violation of the security or dignity of an embassy would have particularly grave consequences as viewed in another nation.

QUESTION: Mr. Kneedler, do you think that the court of appeals has the authority to narrow the construction of a D.C. ordinance?

MR. KNEEDLER: Well, I think that -- I agree with Justice White. I would not say it is a narrowing, I would say that it is an interpretation of the statute against the background --

QUESTION: Well, do you think that the court of appeals has the authority to narrow the construction of a D.C. ordinance?

MR. KNEEDLER: Yes, and in this case we agree with the District of Columbia on this point. They have a footnote in their brief in which they say where the statute involved affects important federal interests rather than purely local interests, that the D.C. Court of Appeals does have that authority. And 22-1115 was enacted by Congress to serve important national and international interests. So yes, we do think that. And in any event, I think that this Court has that authority to attach the construction that was given to the second clause by the Court of Appeals.

QUESTION: Mr. Kneedler, can I ask a question? The two -- two justifications for the statute are for security on the one hand and the dignity interest on the other. Do you think the security interest by itself is sufficient to justify the first clause of the statute?

MR. KNEEDLER: Perhaps not in every application. Certainly the sort of demonstrations that -- one category of demonstrations Congress was responding to in 1938 involved picketing by 30 or 40 people or even larger demonstrations. I think at that point the security interests coincide with the dignity interests. As the, if you get down to a single picket, then the security interest may be reduced. Although, even so, a hostile picket at least carries some potential beyond an ordinary pedestrian.

QUESTION: Let me ask the other question, then: do you think the dignity interest by itself would be sufficient to support the first clause?

MR. KNEEDLER: Yes I do. And the dignity --

QUESTION: That is because we do not want to insult our guests when they are invited here on a diplomatic mission?

MR. KNEEDLER: That is a part of it. The Vienna Convention to which the United States is a party, requires party-states to take appropriate steps to protect the peace of a mission against impairment, and to protect the dignity of a mission.

Now, "appropriate steps" is something that depends upon what is appropriate under the laws of that country.

QUESTION: Is the Convention essential to justify the statute in your view?

MR. KNEEDLER: Well, the Vienna Convention simply is a culmination or a codification of a duty to protect the dignity of foreign missions that antedated it. In fact, when Congress enacted this statute in 1938 --

QUESTION: Would it be constitutional to have a statute that said that "at no diplomatic gathering in either the White House or the State Department, shall any guest say anything offensive to any Ambassador?"

MR. KNEEDLER: I do not know that that would be -- I mean, that would obviously raise separate questions. There may be --

QUESTION: But is that not precisely the same question that a person walking in front of the embassy with a sign --

MR. KNEEDLER: Well, I think Congress may well have that authority. It would be quite similar in this unique context to a "fighting words" sort of statute, which is what we analogize this statute to, words that are particularly likely to cause offense, and "something delivered face-to-face," which is the phrase that the Court used in Chaplinski --

QUESTION: That is what I am thinking of, a face-to-face comment to the Ambassador. Could we make it a crime to say something unpleasant to the Ambassador at a social gathering?

MR. KNEEDLER: Well, it depends -- yes. But again -- unpleasant in the way the statutes speak to --

QUESTION: Yes, criticizing his government's policy?

MR. KNEEDLER: That is right. And that is not far-removed from the sort of words that were discussed in Chaplinski itself, where the Court was referring to words that were, "damn fascisti" and that sort of thing spoken word-to-word, or face-to-face, and if a legislature can do that with respect to two citizens on the street, it can surely do that to prevent offense to --

QUESTION: So you agree that is the same case as this statute?

MR. KNEEDLER: Yes. In this case we are talking about -- I think that this case is even stronger where we have a specific diplomatic undertaking in the conventions which Congress recognized in 1938, not to protect any insults in the newspaper or anywhere else, but to protect the premises, and that the purposes of this are related to the diplomatic immunities that go back 200 years, which are to enable citizens to -- diplomatic personnel to operate with independence and to be free from intimidation and coercion. And this being free from picketing that might undermine the independence of diplomatic personnel is critical to the performance of the diplomatic function.

QUESTION: It would not be violated by someone standing right at the front door and yelling insults?

MR. KNEEDLER: This statute has been construed to reach that, although there may be a breach of the peace statute that would separately reach that.

I would like to make several other points in closing. I do not have this much time: with respect to the reciprocity point that Justice Stevens mentioned, at page 14 of our brief, we reproduce a paragraph from the Record that explains the importance that the State Department attaches to this statute in urging foreign governments to establish a security perimeter around --

QUESTION: Have any done so? Have any established a 500 foot --

MR. KNEEDLER: Not in the form of statutes, but this is -- the Vienna Convention refers to taking appropriate steps, not to be appropriate in the --

QUESTION: But have any of them taken either of the two appropriate steps, one a 500 foot buffer zone, or two, no signs in front of the embassy?

MR. KNEEDLER: Not specifically a 500 foot buffer zone. As this passage recites, the State Department has been successful in establishing some security perimeter, some space in which demonstrations, including signs, cannot occur. So that has happened. And when you determine what is appropriate under the Vienna Convention, it is sensible to take into account the special sensitivity in this country to giving local police too much discretion in deciding how far away a demonstration should be located or how it should be conducted.

The Court's Decision last term in Houston v. Hill is the latest example of a case where the Court was concerned about testing that discretion. This statute, 22-1115 has as a virtue of establishing a clear rule that both the Secret Service can work and respect that diplomatic personnel know that they are secure within that 500 foot perimeter, and demonstrators know precisely where the borderline is in terms of what they can do and what they cannot.

And this statute has been on the books for 50 years and has operated with that 500 foot buffer zone around U.S. Embassies in the United States, and it has operated efficiently, and nothing in this Court's First Amendment jurisprudence requires that that congressional judgment be overturned.

There are other examples where the nature of the forum allows these sorts of restrictions. The jails in Adderly, Cox v. Louisiana, with respect to picketing near courthouses, are very similar. In fact, Cox rests on a number of the same considerations that underlay 22-1115, which is the importance in that case to protect the judicial function; in this case to protect the diplomatic function, from both real and apparent political pressures, and to allow it to function freely without the outside interference that might be more appropriately be directed at the political branches of the United States Government.

So as we have set forth in our briefs, Cox v. Louisiana is dispositive of this case.

I would also like to say that, under this Court's decision in Renton, this is not a case that -- this is not a statute that should be viewed as resting on any judgment of the United States with respect to the viewpoint of the content of what is being said. This is a statute that is not justified on the content, but is instead justified on the content neutral consequences that would flow from the sorts of demonstrations that the statute is directed to.

QUESTION: District Police do not enforce the statute. What does Congress do about that?

MR. KNEEDLER: Well, Congress certainly has oversight responsibilities over the District police. I would like to say that the claim as I understand that Petitioners have is not that the statute is not being enforced -- arrests are made at the South African Embassy. I think they are referring -- they are objecting to whether prosecutions then go forward. And that issue is not in this case. The court, the panel, declined to reach that question.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Kneedler.

Mr. Battocchi, you have one minute remaining.

ORAL ARGUMENT BY RAYMOND D. BATTOCCHI, ESQ. ON BEHALF OF PETITIONERS -- REBUTTAL

MR. BATTOCCHI: Mr. Chief Justice, if I have not made this clear, I would like to. The Vienna Convention of 1961 is the only treaty that is implicated here. That is the document that prescribes the international obligation to protect foreign missions. The Congress implemented that treaty in 1972 through 18 U.S.C. 112, which is the nationwide federal statute. That statute prohibits conduct, but does not prohibit speech, at least by implication. Congress, in passing a nationwide federal statute, has concluded that the First Amendment does not allow it to proscribe speech that is insulting to foreigners.

As one final point, the District of Columbia has a police line regulation which was upheld in the Cullinane case. It allows the police to remove people from areas, to set up a police line to keep them out of areas when they reasonably that is necessary to protect persons and property. That police line regulation would remain standing even if the second clause is stricken and would give the District of Columbia police all the authority they legitimately need to protect the persons and property of any foreign governments or forcing officials.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Battocchi. The case is submitted.

THE MARSHALL: The Honorable Court is adjourned until tomorrow at 10:00.

[Whereupon at 2:57 the case in the above-entitled case was submitted.]