POLICE DEPARTMENT OF CHICAGO v. MOSLEY 408 U.S. 92 (1972)

Mosley is the leading modern decision linking equal protection doctrine with the first amendment. Chicago adopted an ordinance prohibiting picketing within 150 feet of a school during school hours, but excepting peaceful labor picketing. Earl Mosley had been picketing on the public sidewalk adjoining a high school, carrying a sign protesting "black discrimination," and after the ordinance was adopted he sought declaratory and injunctive relief, arguing that the ordinance was unconstitutional. The Supreme Court unanimously agreed with him.

justice thurgood marshall, for the Court, concluded that the exemption of labor picketing violated the equal protection clause of the fourteenth amendment. This conclusion followed the lead of Justice hugo l. black, concurring in cox v. louisiana (1965). Yet Justice Marshall's opinion speaks chiefly to First Amendment values and primarily cites First Amendment decisions. "[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." As Chief Justice warren e. burger noted in a brief concurrence, so broad a statement is not literally true; the Court has upheld regulations of speech content in areas ranging from defamation to obscenity. Yet Mosley properly stakes out a presumption in favor of "equality of status in the field of ideas"—a phrase borrowed from alexander meiklejohn.

theMosley opinion makes two main points. First, regulations of message content are presumptively unconstitutional, requiring justification by reference to state interests of compelling importance. Second, "time, place, and manner" regulations that selectively exclude speakers from a public forum must survive careful judicial scrutiny to ensure that the exclusion is the minimum necessary to further a significant government interest. Together, these statements declare a principle of major importance: the principle of equal liberty of expression.

Kenneth L. Karst
(1986)

Bibliography

Karst, Kenneth L. 1976 Equality as a Central Principle of the First Amendment. University of Chicago Law Review 43:20–68.