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Law School Case Brief

Police Dep't of Chi. v. Mosley - 408 U.S. 92, 92 S. Ct. 2286 (1972)


Under the Equal Protection Clause of the Fourteenth Amendment, 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, 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.


Prior to enactment of an ordinance prohibiting picketing near school buildings while school was in session, respondent Mosley frequently picketed a high school in the City of Chicago, carrying a sign saying that the school practiced discrimination. After the ordinance passed, petitioner Police Department of Chicago informed Mosley  that if his picketing continued he would be arrested. Respondent Mosley brought an action alleging a violation of his constitutional rights in that the ordinance punished activity protected by the First Amendment, and that by exempting only peaceful labor picketing from its prohibition against picketing, the ordinance denied him equal protection of the law. The district court dismissed the complaint. The United States Court of Appeals for the Seventh Circuit reversed, holding that because the ordinance prohibited even peaceful picketing near a school, it was overbroad and unconstitutional on its face. The United States Supreme Court granted the petition for certiorari review.


Did the ordinance, which prohibited even peaceful picketing near a school, violate the Equal Protection Clause of the Fourteenth Amendment?




The Court affirmed the court of appeals' judgment, holding that the ordinance was unconstitutional because it made an impermissible distinction between labor picketing and other peaceful picketing, thereby violating the Equal Protection Clause of the Fourteenth Amendment. The Court rejected the city’s arguments that although it permitted peaceful labor picketing, it may prohibit all nonlabor picketing because, as a class, nonlabor picketing was more prone to produce violence than labor picketing. The Court averred that freedom of expression, and its intersection with the guarantee of equal protection, would rest on a soft foundation indeed if government could distinguish among picketers on such a wholesale and categorical basis.

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