High Court Sanctions Picketing at Foreign Embassies

The Supreme Court, expanding the public’s right to demonstrate, ruled Tuesday that protesters in the nation’s capital may peacefully picket and carry hostile placards in front of foreign embassies.

On a 5-3 vote, the justices struck down a 50-year-old District of Columbia ordinance that permitted the police to arrest demonstrators who were within 500 feet of an embassy or a spot where a foreign dignitary was speaking.

Freedom of Speech Cited

The high court concluded that the nation’s guarantee of freedom of speech on political topics outweighed its international duty to protect the “dignity” of foreign ambassadors.

However, in a separate 8-0 vote, the justices upheld a part of the law that allows police to break up any demonstration that poses “a security threat” to an embassy or its officials.

The ruling (Boos vs. Barry, 86-803) substantially overturns an opinion written in 1986 by Robert H. Bork, then an appeals court judge, whom President Reagan nominated unsuccessfully to the Supreme Court last year. Bork said that a “buffer zone” around the embassies protected ambassadors in keeping with international law, without unduly limiting Americans’ rights to free speech.

Bork View Rejected

During his confirmation fight, Bork’s supporters noted that no opinion of his had ever been overturned by the Supreme Court. The Reagan Administration in a friend of the court brief urged the high court to adopt Bork’s view in this case, but only three justices did so: Chief Justice William H. Rehnquist and Justices Byron R. White and Harry A. Blackmun.

Instead, two conservative justices, Sandra Day O’Connor and Antonin Scalia, joined with the liberal bloc to substantially strike down the law.

An odd coalition of conservative and liberal groups, ranging from the Young Americans for Freedom to the American Civil Liberties Union, brought this case to the high court and celebrated the outcome as a major victory.

“This says you can congregate in front of an embassy and display whatever message you want, and that’s what we were fighting for,” said attorney Raymond D. Battocchi, who represented three young conservatives who wanted to carry placards reading “RELEASE SAKHAROV” and “STOP THE KILLING” in front of the embassies of the Soviet Union and Nicaragua.

The 500-foot buffer zone around embassies has been highlighted in anti-apartheid demonstrations in recent years as celebrities and lawmakers have been arrested for crossing the line outside the South African embassy.

Arthur Spitzer, legal director for the ACLU in Washington, said that those demonstrators, as well as rabbis picketing outside the Soviet embassy, were arrested simply for gathering near the embassies.

“We simply wanted the right to gather and demonstrate peacefully, and that’s what the court has given us,” Spitzer said.

Despite the ruling, Edward Schwab, assistant corporation counsel for the city, said: “It looks like we still have the tools to control demonstrations if there is a disturbance of the peace or some threat to the safety of the mission.”

Wording of 1938 Law

In 1938, Congress enacted a law that made it “unlawful to display any flag, banner, placard or device . . . to intimidate, coerce or bring into public odium any foreign government” within 500 feet of an embassy. Moreover, protesters were forbidden “to congregate within 500 feet of any such building or premises” if asked to disperse by police officers.

Later, the law was incorporated into the city code when the District of Columbia became self-governing. However, in the last decade, Congress has amended the law to allow peaceful protests and sign-carrying at foreign embassies outside of Washington.

The law in the District of Columbia is “inconsistent with the First Amendment,” Justice O’Connor wrote for the court, because it forbids political expression on a public street. In addition, she wrote, the law discriminates on the basis of the message carried. Persons carrying placards praising the Soviet Union would not be in violation.

O’Connor’s View

The provision against congregating near an embassy can be upheld, O’Connor wrote, only if it is limited to situations “when the police reasonably believe that a threat to the security of the peace of the embassy is present.” The law “does not prohibit peaceful demonstrations,” she added.

Meanwhile, in a unanimous ruling, the court said that states may not regulate the sale of long-term securities by natural gas firms (Schneidewind vs. ANR Pipeline, 86-986). Attorneys for Michigan said that 41 states have some form of regulation of financing arrangements by utilities, but the justices said that the Federal Energy Regulatory Commission has jurisdiction in this area.