United States v. Grace
Decided on Apr. 20, 1983; 461 US 171


A. Issues Discussed: Free Speech

B. Legal Question Presented:

Does prohibiting, among other things, the "display [of] any flag, banner, or device designed or adapted to bring into public notice any party, organization, or movement" in the United States Supreme Court building and on its grounds, violates the First Amendment?


A. Background:

"In May 1978 appellee Thaddeus Zywicki, standing on the sidewalk in front of the Supreme Court building, distributed leaflets to passerby. The leaflets were reprints of a letter to the editor of the Washington Post from a United States Senator concerning the removal of unfit judges from the bench. A Supreme Court police officer approached Zywicki and told him, accurately, that Title 40 of the United States Code prohibited the distribution of leaflets on the Supreme Court grounds, which includes the sidewalk. Zywicki left.

In January 1980 Zywicki again visited the sidewalk in front of the Court to distribute pamphlets containing information about forthcoming meetings and events concerning 'the oppressed peoples of Central America.' Zywicki again was approached by a Court police officer and was informed that the distribution of leaflets on the Court grounds was prohibited by law. The officer indicated that Zywicki would be arrested if the leafletting continued. Zywicki left.

Zywicki reappeared in February 1980 on the sidewalk in front of the Court and distributed handbills concerning oppression in Guatemala. Zywicki had consulted with an attorney concerning the legality of his activities and had been informed that the Superior Court for the District of Columbia had construed the statute that prohibited leafletting to prohibit only conduct done with the specific intent to influence, impede, or obstruct the administration of justice. Zywicki again was told by a Court police officer that he would be subject to arrest if he persisted in his leafletting. Zywicki complained that he was being denied a right that others were granted, referring to the newspaper vending machines located on the sidewalk. Nonetheless, Zywicki left the grounds.

Around noon on March 17, 1980, appellee Mary Grace entered upon the sidewalk in front of the Court and began to display a four foot by two and a half foot sign on which was inscribed the verbatim text of the First Amendment. A Court police officer approached Grace and informed her that she would have to go across the street if she wished to display the sign. Grace was informed that Title 40 of the United States Code prohibited her conduct and that if she did not cease she would be arrested. Grace left the grounds.

On May 13, 1980, Zywicki and Grace filed the present suit in the United States District Court for the District of Columbia. They sought an injunction against continued enforcement of 40 U.S.C. 13k and a declaratory judgment that the statute was unconstitutional on its face. On August 7, 1980, the District Court dismissed the complaint for failure to exhaust administrative remedies. Appellees took an appeal, arguing that the District Court's action was improper and that the Court of Appeals should grant the relief requested in the complaint.

The Court of Appeals determined that the District Court's dismissal for failure to exhaust administrative remedies was erroneous and went on to strike down 13k on its face as an unconstitutional restriction on First Amendment rights in a public place."

On appeal the US Supreme Court affirmed the judgment of the US Court of Appeals for the District of Columbia.

B. Counsel of Record:
Opposing Side
Unavailable Unavailable
C. The Arguments:
Opposing Side
Unavailable Unavailable
Opposing Side
Brief of amici curiae urging affirmance by Stephen Hut, Jr., Arthur B. Spitzer, and Charles S. Sims for the American Civil Liberties Union et al.

Sebastian K. D. Graber argued the cause for appellees. With him on the brief were Norman A. Townsend and Bradley S. Stetler.

Solicitor General Lee argued the cause for appellants. With him on the briefs were Assistant Attorney General McGrath, Deputy Solicitor General Geller, David A. Strauss, Anthony J. Steinmeyer, and Marc Richman.

"The First Amendment provides that 'Congress shall make no law... abridging the freedom of speech...' There is no doubt that as a general matter peaceful picketing and leafletting are expressive activities involving 'speech' protected by the First Amendment.

It is also true that 'public places' historically associated with the free exercise of expressive activities, such as streets, sidewalks, and parks, are considered, without more, to be 'public forums...'

Publicly owned or operated property does not become a 'public forum' simply because members of the public are permitted to come and go at will... There is little doubt that in some circumstances the government may ban the entry on to public property that is not a 'public forum' of all persons except those who have legitimate business on the premises...

The prohibitions imposed by 13k technically cover the entire grounds of the Supreme Court as defined in 40 U.S.C. 13p. That section describes the Court grounds as extending to the curb of each of the four streets enclosing the block on which the building is located. Included within this small geographical area, therefore, are not only the building, the plaza and surrounding promenade, lawn area, and steps, but also the sidewalks. The sidewalks comprising the outer boundaries of the Court grounds are indistinguishable from any other sidewalks in Washington, D.C., and we can discern no reason why they should be treated any differently. Sidewalks, of course, are among those areas of public property that traditionally have been held open to the public for expressive activities and are clearly within those areas of public property that may be considered, generally without further inquiry, to be public forum property... The public sidewalks forming the perimeter of the Supreme Court grounds, in our view, are public forums and should be treated as such for First Amendment purposes.

We thus perceive insufficient justification for 13k's prohibition of carrying signs, banners, or devices on the public sidewalks surrounding the building. We hold that under the First Amendment the section is unconstitutional as applied to those sidewalks. Of course, this is not to say that those sidewalks, like other sidewalks, are not subject to reasonable time, place, and manner restrictions, either by statute or by regulations issued pursuant to 40 U.S.C. 13l."

The US Supreme Court affirmed the judgment of the US Court of Appeals for the District of Columbia.

Justice Vote: 7 Pro vs. 2 Con

  • White, B. Pro (Wrote majority opinion)
  • Burger, W. Pro (Joined majority opinion)
  • Brennan, W. Pro (Joined majority opinion)
  • Blackmun, H. Pro (Joined majority opinion)
  • Powell, L. Pro (Joined majority opinion)
  • Rehnquist, W. Pro (Joined majority opinion)
  • O'Connor, S.D. Pro (Joined majority opinion)
  • Marshall, T. Con (Wrote dissenting opinion)
  • Stevens, J.P. Con (Wrote dissenting opinion)

The ACLU, as amicus curiae, urged affirmance of the US Court of Appeals for the District of Columbia's judgment; the Supreme Court affirmed in a 7-2 vote, giving the ACLU an apparent win.