Facts
- Earl Mosley, a federal postal employee, peacefully picketed near Jones Commercial High School in Chicago for several months, protesting alleged racial discrimination and carrying a sign accusing the school of maintaining a “black quota.”
- Chicago amended its disorderly conduct ordinance to prohibit picketing or demonstrations on public ways within 150 feet of a primary or secondary school during school hours and certain buffer times before and after.
- The ordinance exempted “peaceful picketing of any school involved in a labor dispute,” permitting labor-related picketing where other picketing was barred.
- Police warned Mosley he would be arrested if he continued picketing within the restricted zone, and he ceased picketing there.
- Mosley filed suit in federal district court seeking declaratory and injunctive relief against enforcement of the ordinance.
- The district court upheld the ordinance; the Seventh Circuit reversed.
- The Supreme Court granted review and affirmed the Seventh Circuit, invalidating the ordinance.
Issues
- Whether a city may prohibit picketing near schools while exempting labor-dispute picketing, consistent with the First and Fourteenth Amendments.
- Whether selective access to a traditional public forum based on the subject of speech violates the Equal Protection Clause as informed by First Amendment protections.
- Whether the ordinance qualified as a valid, content-neutral time, place, and manner regulation.
Decision
- The Court affirmed the judgment invalidating the ordinance.
- The ordinance violated the Equal Protection Clause because it drew a content-based distinction between labor picketing and other peaceful picketing.
- The Court treated sidewalks and similar public ways as traditional public forums where selective exclusions based on subject matter are presumptively unconstitutional.
- The ordinance was not saved as a time, place, and manner restriction because it regulated the subject of picketing rather than applying evenhandedly to all picketing near schools.
- Concurring Justices agreed the ordinance was unconstitutional; the Chief Justice stressed that evenhanded, nondiscriminatory school-protective regulations remained permissible.
Legal Principles
- Picketing is expressive conduct protected by the First Amendment; government discrimination among picketers must be narrowly tailored to serve a substantial governmental interest.
- Government may not grant forum access to some speakers while denying others based on what they intend to say.
- Once a public forum is opened to some speech, excluding other speech based on subject matter is constitutionally suspect and requires heightened justification.
- Content-neutral time, place, and manner restrictions may be valid if applied evenhandedly; content-based distinctions are not justified merely by asserting general concerns such as preventing disruption.
- Differential treatment of speech must be supported by a justification for the distinction; absent evidence that excluded speech is more disruptive than permitted speech, the classification fails equal protection review.
Conclusion
The Court held that Chicago’s school-zone picketing ordinance was unconstitutional because it allowed labor-dispute picketing while barring other peaceful picketing, creating a subject-matter-based exclusion from a traditional public forum that violated equal protection and First Amendment principles requiring evenhanded access to public spaces for expression.