MICHAEL BOOS, ET AL., PETITIONERS V. MARION S. BARRY, JR., MAYOR,
DISTRICT OF COLUMBIA, ET AL.

   No. 86-803

   In the Supreme Court of the United States

   October Term, 1987

   On Writ of Certiorari to the United States Court of Appeals for the
District of Columbia Circuit

   Brief for the United States as Amicus Curiae Supporting Respondents

            TABLE OF CONTENTS
   Question presented
   Interest of the United States
   Statement
   Introduction and summary of argument
   Argument:
      Section 22-1115 of the District of Columbia Code is
      consistent with the First Amendment because it is
      narrowly tailored to further the compelling
      governmental interests in protecting the security,
      dignity and peaceful enjoyment of foreign missions
      in the District of Columbia
      A. Section 22-1115 was enacted to secure the inviolability of
         foreign missions and encourage reciprocal protection
         for United States missions abroad, and it continues to
         further those purposes
      B. Section 22-1115 serves compelling governmental interests
         grounded in the constitutional provisions that command
         respect for the Law of Nations and the rights of
         Ambassadors
      C. The narrowly tailored restrictions in Section 22-1115
         are consistent with the First Amendment
   Conclusion
   Appendix

                          QUESTION PRESENTED

   Whether D.C. Code Section 22-1115 (191) -- which makes it unlawful,
within 500 feet of a foreign embassy in the District of Columbia, (i)
to display signs designed, inter alia, to bring the foreign government
into "public odium" or its policies into "public disrepute," or (ii)
to congregate and refuse to disperse after having been ordered to do
so by the police -- violates the First Amendment to the United States
Constitution.

                     INTEREST OF THE UNITED STATES

   D.C. Code Section 22-1115 (1981) is designed to assure the
security, dignity and peace of foreign missions in the District of
Columbia and to promote reciprocal protection for United States
missions abroad.  The question of the constitutionality of Section
22-1115 therefore is of great importance to the United States.

                               STATEMENT

   1. This case involves a facial First Amendment challenge to D.C.
Code Section 22-1115 (1981) (App., infra, 1a), which was enacted by
Congress in 1938 (S.J. Res. 191, ch. 29, Section 1, 52 Stat. 30) to
regulate picketing and demonstrations directed against foreign
embassies in the District of Columbia.  As relevant here, Section
22-1115 makes it unlawful to "display any flag, banner, placard, or
device designed or adapted to intimidate, coerce, or bring into public
odium any foreign government, party, or organization * * * or to bring
into public disrepute (the) political, social, or economic acts,
views, or purposes of any foreign government, party, or organization"
within 500 feet of a building used by a foreign government as its
embassy, legation or consulate, or for other official purposes.
Section 22-1115 further makes it unlawful "to congregate within 500
feet of any such building or premises, and refuse to disperse after
having been ordered so to do by the police authorities of the said
District."

   2. Petitioners are three individuals who wish to carry placards
critical of the policies of the governments of the Soviet Union and
Nicaragua in front of the embassies of those governments.  Petitioner
Waller, for example, wishes to carry in front of the Nicaraguan
Embassy a sign stating "STOP THE KILLING" (J.A. 7-8).  /1/
Petitioners, along with respondent Finzer, brought this action against
the Mayor and other officials of the District of Columbia, seeking a
declaratory judgment that Section 22-1115 is unconstitutional on its
face and an injunction barring its enforcement (Pet. App. 5a).
Respondents submitted uncontradicted declarations of State Department,
Secret Service, and Metropolitan Police officials, attesting to the
importance of Section 22-1115 in assuring security and respect for
foreign missions and reciprocal protection for United States missions
abroad (Pet. App. 5a-6al, 19a n.7;  J.A. 16-30).

   The district court granted respondents' motion for summary judgment
(Pet. App. 105a-110a), relying upon Frend v. United States, 100 F.2d
691 (D.C. Cir. 1938), cert. denied, 306 U.S. 640 (1939), which
likewise sustained Section 22-1115 against a First Amendment challenge
(Pet. App. 106a).  The court rejected petitioners' effort to avoid the
controlling force of Frend by arguing that Section 22-1115 is not
"content neutral." In the court's view, the line drawn by Section
22-1115 is reasonable because "(d)emonstrations in opposition to the
policies of a foreign government are obviously more likely to result
in violence against foreign personnel or property than demonstrations
in support of a foreign government" (id. at 108a-109a).

   3.a. The court of appeals affirmed (Pet. App. 1a-54a).  It first
concluded that Section 22-1115 serves compelling interests in
furtherance of Congress's express power "(t)o define and punish * * *
Offences against the Law of Nations" (Art. I, Section 8, Cl. 10).
Based on an exhaustive analysis of historical materials, culminating
in Article 22 of the Vienna Convention on Diplomatic Relations, Mar.
18, 1961, 23 U.S.T. 3227, the court reaffirmed its holding in Frend
that Section 22-1115 is a proper implementation by Congress of the
Nation's duty under international law to accord due respect to foreign
diplomats and to take appropriate steps to protect foreign missions
against intrusion or any disturbance of their peace or dignity (Pet.
App. 8a-18a).  The court found "highly pertinent" the uncontradicted
declarations of the responsible Federal and District of Columbia
officials describing the need for a buffer zone around foreign
embassies for security purposes and the "sensitive foreign policy
concerns" regarding reciprocal protection for United States missions
abroad (id. at 18a;  see id. at 18a-22a).

   The court also found Section 22-1115 to be consistent with the
First Amendment.  The court stressed that Section 22-1115 "imposes
only a very minor geographic limitation on speech," since petitioners
may demonstrate against the policies of a foreign government anywhere
in the District of Columbia except within 500 feet of its official
premises, and may freely express their views by speech, on radio and
television, or in print (Pet. App. 23a-26a).  In rejecting the notion
that petitioners nevertheless should be permitted to picket in front
of an embassy in order to maximize their visibility, the court stated
that there is no First Amendment "right to the backdrop most
interesting to press photographers or television cameramen" (id. at
24a), and that petitioners' interest in confronting representatives of
foreign governments with their criticism is far less substantial than
the interest of others in demonstrating in front of the White House,
the Capitol, or the Supreme Court.  Shielding leaders of our
government from public protest is "incompatible with our democratic
structure," the court reasoned, but foreign ambassadors "have no
similar obligation to be accessible to public attack, and our policy
does not have the same interest in ensuring that they are" (id. at
23a).

   Finally, the court held that although Congress is free to enact a
broader statute prohibiting all picketing within the 500-foot area,
the fact that Section 22-1115 is more narrowly drawn to bar only
picketing that is critical of the target government does not render it
invalid.  The court questioned whether it was even necessary to
scrutinize Section 22-1115 under First Amendment principles applicable
to statutes that regulate speech on the basis of content, because here
the statute is justified by the secondary effects of picketing on the
security and dignity of the particular embassy, not by any "preferred
view" of the United States Government regarding the subject matter
(Pet. App. 38a-39a n.15, citing City of Renton v. Playtime Theatres,
Inc., No. 84-1360 (Feb. 25, 1986)).  But the court held that Section
22-1115 is valid even if First Amendment principles governing
content-based restrictions are applicable, because it is narrowly
tailored to bar the conduct that most immediately threatens to impair
the special status of foreign missions, while leaving other activity
unregulated (id. at 26a-38a, 48a-51a).  /2/

   b. Judge Wald dissented (Pet. App. 55a-102a).  She agreed with the
majority that Congress constitutionally could bar all embassy-related
demonstrations within 500 feet of an embassy in order to protect its
security and dignity (id. at 90a-95a).  However, Judge Wald believed
that Section 22-1115 violates the First Amendment because it draws a
"viewpoint-based" distinction between picketing opposed to and
picketing in favor of the policies of the foreign government (Pet.
App. 87a-91a).

                 INTRODUCTION AND SUMMARY OF ARGUMENT

   Petitioners ask this Court to invalidate, as unconstitutional on
its face, a statute that imposes a modest geographical limitation on
demonstrations against foreign governments in the District of
Columbia.  In so doing, they ask the Court to overturn almost 50 years
of settled legal precedent and practical experience in the Nation's
Capital.

   As this Court repeatedly has recognized, "(j)udging the
constitutionality of an Act of Congress is properly considered '"the
gravest and most delicate duty that this Court is called upon to
perform,"'" and the "duly enacted and carefully considered decision of
a co-equal and representative branch of our Government" is entitled to
substantial deference.  Walters v. National Ass'n of Radiation
Survivors, 473 U.S. 305, 319 (1985), quoting Rostker v. Goldberg, 453
U.S. 57, 64 (1981), and Blodgett v. Holden, 275 U.S. 142, 148 (1927)
(Holmes, J.).  Especially is that so where, as here, the Act of
Congress concerns the conduct of this Nation's foreign relations and
difficult predictive judgments regarding the diplomatic responses of
other nations.  Chicago & Southern Air Lines, Inc. v. Waterman
Steamship Corp., 333 U.S. 103, 111 (1948).  The First Amendment
furnishes no basis for second-guessing Congress's considered judgment
in this case.

   D.C. Code Section 22-1115 was enacted by Congress in 1938, at a
time when events in Europe and the Far East placed in stark relief
both the critical role of diplomatic missions in facilitating
intercourse and mutual protection among nations and the unique
sensibilities and vulnerabilities of those missions in times of
international tension.  Immediately after it was enacted, Section
22-1115 was sustained by the D.C. Circuit against a First Amendment
challenge in Frend v. United States, 100 F.2d 691 (1938).  The court
in Frend found that the statute's "reasonable and proper restrictions"
were narrowly tailored to further an obligation under the Law of
Nations to regard ambassadors with special respect and to protect a
foreign mission against invasion or "any other act tending to disturb
(its) peace or dignity" (id. at 693).  This Court, without dissent,
denied review of the court of appeals' ruling in Frend.  306 U.S. 640
(1939).  Ever since, Section 22-1115 has been repeatedly sustained by
the courts /3/ and has operated reasonably and efficiently to accord
respect and protection to foreign missions in the District of
Columbia.

   This accumulated experience shows that Section 22-1115 has a number
of virtues.  First, it supplies a clear rule to guide law-enforcement
personnel and private individuals regarding the limitations on
picketing and other demonstrations targeted at foreign embassies.  /4/
Indeed, in Cox v. Louisiana, 379 U.S. 559 (1965), this Court cited
Section 22-1115 with approval for this very reason.  The Court there
observed that Section 22-1115 states an "express limitation" that
proscribes "certain acts" within the specified 500-foot area (379 U.S.
at 568 n.1), in contrast to the statute in Cox, which prohibited
picketing "near" a courthouse and therefore required "a degree of
on-the-spot administrative interpretation" to give precise scope to
the prohibition in particular circumstances (id. at 568).  The
500-foot line also serves as a readily ascertainable security
perimeter for the Secret Service and Metropolitan Police in protecting
premises that may be a focal point for hostile action.

   From another perspective, the fixed buffer established by Section
22-1115 furnishes foreign diplomats with a special measure of
certainty in their safe and quiet enjoyment of the diplomatic
premises, which serve as a sanctuary in the midst of an unfamiliar
environment.  The resulting insulation from harassment or
intimidation, whether real or apparent, frees the personnel of the
mission to concentrate on the independent pursuit of diplomatic
matters that are of mutual interest to their nation and ours.
Enforcement of Section 22-1115 facilitates the diplomatic process in
another way as well, because it is a mark of the respect this Nation
has for the ambassador and the government he represents, and thereby
contributes to the good will that is essential to the conduct of
foreign affairs.  Finally, the 500-foot rule serves as explicit and
concrete evidence to the community of nations that the United States
has fulfilled its "special duty" under Article 22(2) of the Vienna
Convention by taking what Congress has determined to be "appropriate
steps to protect the premises of (foreign) mission(s) against
intrusion or damage and to prevent any disturbance of the mission(s)
or impairment of (their) dignity." 23 U.S.T. at 3237.  Fulfillment of
that commitment in turn strengthens the position of the President and
the Secretary of State in urging foreign governments to take
appropriate steps to afford comparable protection to our missions
abroad.

   The declarations submitted in this case by the officials who are
responsible for the protection of foreign embassies in the District of
Columbia attest to the continued importance of the security and
foreign policy concerns that led to the enactment of Section 22-1115.
In addition, the flagrant violation of international law that
culminated in the seizure of the American Embassy in Tehran and the
capture of our diplomatic personnel (see Dames & Moore v. Regan, 453
U.S. 654, 662, 676 (1981)) serves as a vivid reminder that it is
imperative to remain punctilious in our respect for foreign missions
at the "Seat of the Government of the United States" (Art. I, Section
8, Cl. 17) and to strive to instill a reciprocal respect for
diplomatic missions abroad.

   The Constitution, in each of its first three Articles, manifests a
firm commitment by the Framers to enable the United States to accord
the requisite respect and protection to ambassadors and their
diplomatic missions, a power that had been lacking under the Articles
of Confederation.  Thus, Article I confers on Congress the power to
"define and punish * * * Offences against the Law of Nations" (Art. I,
Section 8, Cl. 10), which includes infractions against the rights of
ambassadors.  Article II provides that the President "shall receive
Ambassadors and other public Ministers" (Section 3), which, under
diplomatic practice, implied that the ambassador or public minister
would have the usual privileges.  And Article III confers original
jurisdiction on this Court in "all Cases affecting Ambassadors, other
public Ministers and Consuls" (Art. III, Section 2, Cl. 2), both out
of respect for the sovereigns they represent, and because of the
impact such cases might have on the peace of the Nation.  The
Constitution itself therefore establishes the compelling nature of the
governmental interest underlying Section 22-1115.

   The First Amendment does not deprive Congress of the power to
implement the United States' obligations under the Law of Nations by
means of the modest limitations on picketing and congregating under
Section 22-1115.  The statute imposes no restriction on the freedom to
express opinions through speech or the press, to conduct
demonstrations against the policies of a foreign government anywhere
in the District of Columbia except within the 500-foot buffer zone, or
to use the streets and sidewalks within that zone for purposes
unrelated to the foreign mission.

   Basically, therefore, Section 22-1115 takes away no forum or
opportunity to communicate that would exist without the presence of
diplomatic representatives of foreign governments or their embassies.
But they are here solely for the purpose of conducting diplomatic
business, and a foreign embassy properly stands on the sidelines of
the robust debate of public issues that the First Amendment was
intended to protect.  Indeed, the right of petition under the First
Amendment itself does not extend to the presentation of grievances to
a foreign government.  By the same token, the Constitution and
longstanding federal legislation contemplate that relations with
foreign sovereigns will be conducted by the representatives of the
people, not directly by the people themselves.  Concomitantly, foreign
diplomatic personnel have a reciprocal obligation under Article 41(1)
of the Vienna Convention to deal directly with the Department of State
and to refrain from interfering in the internal affairs of the United
States.

   Against this background, the constitutionality of Section 22-1115
follows a fortiori from Cox v. Louisiana, 379 U.S. 559 (1965), where
the Court sustained a prohibition against picketing near a court
house, in order to protect the independence of the judicial process
against similar threats of harassment or coercion and to prevent an
appearance to the public that the targets of the picketing might be
affected by such conduct.  Nor is Section 22-1115 properly regarded as
impermissibly "content-based" or "viewpoint-based," since its
application does not depend upon any preference on the part of the
United States government with respect to the subject of the
demonstration or the viewpoint of the participants.  In any event,
Section 22-1115 is valid because it is narrowly tailored to serve the
compelling interest in preventing the conduct that is most likely to
undermine the independence of the foreign mission and provoke
retaliatory measures, while at the same time preserving other avenues
of expression.

                               ARGUMENT

 SECTION 22-1115 OF THE DISTRICT OF COLUMBIA CODE IS CONSISTENT WITH
THE FIRST AMENDMENT BECAUSE IT IS NARROWLY TAILORED TO FURTHER THE
COMPELLING GOVERNMENTAL INTERESTS IN PROTECTING THE SECURITY, DIGNITY
AND PEACEFUL ENJOYMENT OF FOREIGN MISSIONS IN THE DISTRICT OF COLUMBIA

 A. SECTION 22-1115 WAS ENACTED TO SECURE THE INVIOLABILITY OF FOREIGN
MISSIONS AND ENCOURAGE RECIPROCAL PROTECTION FOR UNITED STATES
MISSIONS ABROAD, AND IT CONTINUES TO FURTHER THOSE PURPOSES

   D.C. Code Section 22-1115 is the product of a deliberate
congressional judgment (i) that the narrowly tailored restrictions it
imposes are necessary to address important security and foreign policy
concerns associated with foreign embassies, and (ii) that these
restrictions preserve adequate alternative means for the expression of
opinions concerning the policies of foreign governments and other
issues of public concern.  That congressional judgment is confirmed by
present-day circumstances, and it is entitled to substantial deference
by this Court.

   1.a. Secretary of State Cordell Hull recommended immediate passage
of what is now Section 22-1115 in 1937 in response to complaints by
representatives of foreign governments that "their missions are being
interfered with by individuals and groups" (S. Rep. 1072, 75th Cong.,
1st Sess. 2 (1937)).  /5/ He explained that "diplomatic officers are
clothed with certain immunities under international law" in order "to
allow governments to transact official business free from interruption
which might flow from molestation of or interference with their
representatives" (ibid.).  He therefore urged that they be protected
as well from "any attempted intimidation or coercion" associated with
picketing (ibid.).  Secretary Hull also stressed that "(t)he United
States with its 338 diplomatic missions and consulates is, perhaps
more than any other country, interested in obtaining for its
representatives the protection which they must have if they are to
function effectively" (ibid.).  The latter consideration was presented
with special urgency, because many United States citizens had at that
time taken refuge in diplomatic compounds in China and were dependent
for their safety upon whatever protection would be assured by the
Chinese and Japanese Governments.  81 Cong. Rec. 8484-8485, 8587, 8590
(1937).  Senator Pittman, the Chairman of the Foreign Relations
Committee and the sponsor of the bill, insisted that "when we are
appealing to the justice and the humanity of other governments to
protect our embassies and our legations and our consulates, at least
we must show some intent upon our part to treat their embassies and
their consulates in our country the same way" (id. at 8485).  See also
S. Rep. 1072, supra, at 1-2;  H.R. Rep. 1516, 75th Cong., 1st Sess. 1
(1937).

   Senator Pittman also explained that the protection afforded by the
bill was intended to implement obligations under international law to
secure the inviolability of ambassadors and other diplomatic
personnel, who are "'requisite for negotiations and friendly
intercourse'" (81 Cong. Rec. 8587 (1937), quoting 1 J. Kent,
Commentaries on American Law 45 (7th ed. 1851)).  He observed that
ambassadors "come here under special privileges" (81 Cong. Rec. 8587
(1937)) and "live as guests in this country" (id at 8588;  see also
id. at 8589), and that their embassies and legations are the
"sanctuaries" within which they live and work (id. at 8587).  The
purpose of the bill, he stated, was to protect members of the mission
"in the free and safe use and enjoyment of their sanctuaries" (ibid.)
-- in order to avoid "harassment and annoyance of representatives of
foreign governments" (id. at 8591) and apprehension among the
diplomats and their families (id. at 8587;  see also id. at 8589,
8591, 8592), /6/ as well as to protect our diplomatic missions abroad
from the risk of retaliation (id. at 8485, 8486, 8587, 8590).  In
addition, there was fear that demonstrations could embroil this
country in internal disputes between political factions in other
countries (id. at 8592-8593).

   b. By the same token, Congress was sensitive to First Amendment
values when it enacted Section 22-1115.  Senator Pittman made clear
that the measure was "not for the purpose of suppression or subduing
any expressions on the part of our people" (81 Cong. Rec. 8485
(1937)).  He pointed out that people opposed to the policies of a
foreign government "would have an absolute right to say as much in any
newspaper" and "to say it in any speech whenever they wanted to" (id.
at 8589);  and he noted as well that "in a city as large as this,
(there are) numerous parks and so many places in which societies may
express their opinions" (id. at 8485).  But he did not believe that
"people who may make speeches which would not be subject to punishment
if made in a park (should) be permitted to go to the front door of an
embassy and make the same speeches" (id. at 8589;  see also id. at
8588).  Accordingly, Congress sought to impose limitations only to the
extent necessary to preserve the security and dignity of the embassy,
while permitting the nearby streets and sidewalks to be used for other
activities.  Senator Pittman stated, for example, that the statute had
been drawn so as to permit "a perfectly peaceful parade down the
street past an embassy, having nothing to do whatever with the embassy
or the ambassador or the country which he represents," but to bar such
conduct where "the very purpose of the parade (is) to criticize the
ruler of some government or its ambassador or minister" (id. at 8484).
 /7/

   Furthermore, Congress specifically considered and rejected an
alternative to Section 22-1115 that would have permitted picketing but
subjected it to regulation under an already-existing ordinance that
barred disorderly assemblies on streets or in front of public
buildings if offensive or abusive language might insult pasersby.  See
81 Cong. Rec. 8588, 8593 (1937).  In opposing this alternative,
Senator Barkley inquired (id. at 8592):  "Does not the Senator
recognize the difference between picketing a factory, or store, * * *
and the picketing of an embassy or legation in the United States?"
Congress ultimately agreed with the Attorney General and the Secretary
of State that the proposed alternative was both insulting and
inadequate, because it accorded diplomatic representatives no more
respect than an ordinary passerby and because it did not protect them
from having their government called into public odium "right in their
faces" (id. at 8587-8588, 8593).  See Zaimi, 476 F.2d at 519-522.  /8/

   2.a. The record in this case confirms that the concerns that led
Congress to enact Section 22-1115 remain substantial.  In a
declaration submitted in the disstrict court, James Nolan, the
Director of the Office of Foreign Missions (see 22 U.S.C. (& Supp.
III) 4303), stated that Section 22-1115 is "essential to the foreign
policy interests of the United States Government" (J.A. 24).  He
elaborated (id. at 25):

         Department of State Security Officers at our embassies abroad
      seek host government cooperation in establishing police-enforced
      demonstration proximity limits at maximum distances from
      American facilities.  Most governments are forthcoming in
      granting these requests.  In other countries where groups are
      permitted to demonstrate near American facilities, we have
      suffered the unfortunate consequences of personal injury and
      property damage.  Any diminution in the zone of safety afforded
      foreign missions in this country could have an adverse impact
      upon the continued willingness of other governments to establish
      maximum buffer zones.

   Similarly, the Assistant Secretary of State for Security, David
Fields, stated that because the District of Columbia is the Nation's
Capital, "(t)he security and respect accorded the large numbers of
embassies and missions (here) are * * * given exceptionally close
scrutiny by foreign governments" (J.A. 17).  He also noted that
international events can "create high emotions and sharp feelings
against foreign countries and governments," which may cause
demonstrations that begin peacefully to turn violent (J.A. 17-18).
For this reason, Mr. Fields stated his opinion that the 500-foot
buffer zone "is critical to the maintenance of effective security,"
since lesser protection could "vastly increase the risk * * * of
injury or damage to protected persons or property due to any loss of
crowd control" (J.A. 18-19).  /9/ The Special Agent in Charge of the
Secret Service's protective operations further pointed out that at the
White House and Vice President's residence, the Secret Service
maintains a presence inside the structure and uses surveillance
equipment to monitor the area between the building and the surrounding
fence.  By contrast, "Secret Service personnel are prohibited by
international law and comity from entering onto the premises of a
foreign embassy," and they therefore cannot maintain a command center
in the compound or a defensive fall-back position inside its perimeter
(J.A. 21-22).

   b. Petitioners submitted no evidence in district court to
contradict the foregoing declarations by officials who are responsible
for the enforcement of Section 22-1115 and the protection of foreign
embassies generally.  /10/ Furthermore, both courts below credited
those uncontradicted declarations, finding them "highly pertinent to
the compelling interests served by section 22-1115" (Pet. App. 18a;
see also id. at 108-110a)).  The record before this Court thus
establishes the continuing force of the security and foreign policy
interests underlying Section 22-1115, including its importance in the
delicate task of encouraging other nations to assure reciprocal
protection for United States missions abroad.  /11/ See also 22 U.S.C.
4306(d) (recognizing "(t)he international obligation of the United
States to facilitate the provision of adequate and secure facilities
for foreign missions in the Nation's Capital").

   Far from responding to these very real concerns, petitioners appear
almost to regard it as a virtue that their picketing might trigger
adverse reactions from foreign governments or their people, for they
invoke the proposition that speech may "'best serve its high purpose
when it induces a condition of unrest, * * * stirs people to anger,'"
and "'invites dispute'" (Br. 25 & n. 17, quoting Terminiello v.
Chicago, 337 U.S. 1, 4 (1949), and Young v. American Mini Theatres,
Inc., 427 U.S. 50, 64 (1976) (plurality opinion)).  That proposition
is singularly inapposite in this case.  The quoted passages stand for
the principle that the First Amendment's commitment to robust debate
among the people of the United States cannot be defeated because of
the sensibilities of the audience.  Here, however, the immediate
impact of petitioners' picketing or demonstrations in front of a
foreign embassy would be felt not by their fellow citizens, but by the
accredited diplomatic representatives of a foreign sovereign.
Congress has determined that such conduct is indeed likely to
"invite() dispute" -- but between the United States and the foreign
government concerned.  And Congress has determined that such conduct
is indeed likely to "stir() people to anger" -- but in a foreign
country, where our diplomatic personnel and other citizens might be
endangered.  There is a compelling interest in preventing that from
happening.

   The United States, in fact, may be especially vulnerable to such
retaliatory measures, because its highly visible presence abroad makes
its diplomatic and consular missions an attractive focal point for
those opposed to this Nation's policies.  And because many other
nations and their people are particularly sensitive to assaults on
their dignity, retaliatory measures abroad may be out of all
proportion to the offending conduct in the United States.
"'Experience has shown that international controversies of the gravest
moment, sometimes even leading to war, may arise from real or imagined
wrongs to another's subjects inflicted, or permitted, by a
government.'" Zschernig v. Miller, 389 U.S. 429, 441 (1968) (quoting
Hines v. Davidowitz, 312 U.S. 52, 64 (1941)).  As we shall now show,
the Constitution confers upon Congress the necessary authority to
prevent such provocations.

 B. SECTION 22-1115 SERVES COMPELLING GOVERNMENTAL INTERESTS GROUNDED
IN THE CONSTITUTIONAL PROVISIONS THAT COMMAND RESPECT FOR THE LAW OF
NATIONS AND THE RIGHTS OF AMBASSADORS

   1. The United States Constitution was adopted against the
background of a widely shared recognition that relations among nations
must be governed by certain fundamental principles -- comprising the
Law of Nations -- that are to be respected, given content, and
enforced by each nation within its territory.  One of the primary
subjects addressed by the Law of Nations concerned the special status,
rights, and immunities of ambassadors.  These attributes evolved from
the obvious truth that although "(i)t is necessary that nations should
treat and hold intercourse together," they practicably can do so only
through ambassadors and other public ministers.  E. Vattel, The Law of
Nations 452 (J. Chitty ed. 1859.  Vattel explained the necessary
corollary to this proposition (id. at 463):

         The respect which is due to sovereigns should redound to
      their representatives * * * .  Whoever offends and insults a
      public minister commits a crime the more deserving of severe
      punishment, as he might thereby involve his country and his
      sovereign in very serious difficulties and trouble.

   The respect owing an ambassador, and the corresponding insulation
of him from offense and insult, had a significant functional
justification as well:  if the ambassador was not secure and
independent from local restraints and affronts, he could not
adequately serve the distant sovereign he represented, especially
where his task might be unpopular.  E. Vattel, supra, at 464, 470-471;
 The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116, 137-139,
143 (1812).

   For these reasons, the Law of Nations had long recognized that an
ambassador is entitled to certain privileges and immunities attaching
to his station.  These included the personal "inviolability" of the
ambassador, his immunity from the jurisdiction of the receiving
nation, and the free exercise of his religion.  E. Vattel, supra, at
464, 470-471, 477, 482-483, 488-489.  The ambassador's immunity also
extended to his retinue and property, "in order to enable him to live
with dignity, and quietly to attend to the discharge of his functions"
(id. at 492;  see also id. at 496-497).  The independence and
inviolability of the ambassador required like protection for his
house, which was "to be safe from all outrage" (id. at 494-495).  /12/

   2. In the period immediately following the Declaration of
Independence, the Continental Congress sought to assure the world that
the "law of nations (would be) strictly observed" by the United States
(14 J. Continental Cong. 635 (1779)).  But, as James Madison later
observed in The Federalist No. 42, at 265 (C. Rossiter ed. 1961), the
Articles of Confederation "contain(ed) no provision for the case of
offenses against the law of nations;  and consequently (left) it in
the power of any indiscreet member to embroil the Confederacy with
foreign nations." The Continental Congress therefore found it
necessary on several occasions to urge the States to enact legislation
to protect ambassadors and to honor the law of Nations.  /13/

   The imperfect ability of the United States under the Articles of
Confederation to speak forcefully and with one voice in the area of
foreign affairs was one of the principal defects leading to the
adoption of the Constitution.  It was regarded as a matter "of high
importance to the peace of America that she observe the laws of
nations," and it was anticipated that this would be "perfectly and
punctually done" by the new national government (The Federalist No. 3,
at 43 (Jay) (C. Rossiter ed. 1961)).  The Framers were particularly
intent upon securing respect and protection for the status and
privileges of ambassadors -- a purpose set forth in each of the first
three Articles of the Constitution.

   Article I expressly grants Congress the power to "define and punish
* * * Offences against the Law of Nations" (Art. I, Section 8, Cl.
10).  This provision was specifically designed to cure the defect in
the Articles of Confederation that had prevented Congress from, inter
alia, protecting against invasions of "the rights of an ambassador" (1
M. Farrand, Records of the Federal Convention of 1787, at 25 (1966)).

   Article II contemplates that the President personally "shall
receive Ambassadors and other public Ministers" sent by foreign
nations (Art. II. Section 3), a responsibility that engages an
obligation on the part of this Nation to respect the ambassador or
minister and the government he represents.  In fact, under established
practice at the time the Constitution was adopted, the consent to
receive an ambassador implied a consent that he would possess the
usual privileges (The Schooner Exchange, 11 U.S. (7 Cranch) at 139),
as well as an undertaking "to grant him the most particular
protection" (E. Vattel, supra, at 465).

   Article III manifests an exacting solicitude for representatives of
foreign sovereigns by providing that "The judicial Power shall extend
* * * to all Cases affecting Ambassadors, other public Ministers and
Consuls" (Art. III, Section 2, Cl. 1).  Indeed, Article III commits
such cases to this Court's original jurisdiction (Art. III, Section 2,
Cl. 2), "out of respect for the sovereignties they represent" and
because "(a)ll questions in which they are concerned are so directly
connected with the public peace" (The Federalist No. 81, at 487
(Hamilton)).  /14/

   It is unmistakably clear from the text and purposes of these three
provisions of the Constitution that the Framers intended to vest the
federal government with full authority to assure respect for the
safety and dignity of ambassadors and other public ministers who are
sent by foreign nations and received by the President.  The First
Congress promptly acted to secure certain of these protections, /15/
and the immunities of foreign ministers and their dwellings and
retinues were immediately "recognised by the United States in their
fullest extent" (1 Op. Att'y Gen. 141, 143 (1804);  see id. at 26, 28
(1792);  1 Kent, supra, at 46-47);  see also Respublica v. Keating, 1
Dall. 111, 117 (Oyer. & Term. Pa. 1784).

   3. The limited regulation of picketing and congregating under D.C.
Code Section 22-1115 (1981) falls squarely within the deliberately
broad constitutional powers conferred on Congress in this area.  As
one commentator observed while the bill was pending before Congress,
"the (practice of) picketing foreign official premises (was) of recent
origin" (Preuss, Protection of Foreign Diplomatic and Consular
Premises Against Picketing, 31 Am. J. Int'l L. 705, 708 & n.10
(1937)).  But Congress surely had the power to address this new threat
to the special status of foreign missions and the fulfillment of the
diplomatic function.  In fact, the provision for Congress to "define"
as well as "punish" offenses against the Law of Nations (Art. I,
Section 8, Cl. 10) was included for the very purpose of enabling it to
prescribe new offenses that did not have precise counterparts in the
past practice of the United States or other nations.  See 2 Farrand,
supra, at 316, 614-615;  United States v. Smith, 18 U.S. (5 Wheat.)
153, 159 (1820);  cf. The Federalist No. 42, at 265-266 (Madison).

   In the judgment of Congress in 1938, the prohibition against
picketing and congregating in the immediate vicinity of a foreign
embassy or other official premises was necessary to prevent impairment
of the inviolability of the premises, as well as to further the
ultimate purpose of all diplomatic privileges and immunities -- to
enable diplomatic personnel to pursue their duties without fear,
personal affront, interruption, or intimidation, whether real or
apparent.  S. Rep. 1072, supra, at 2;  H.R. Rep. 1516, supra, at 1;
81 Cong. Rec. 8587, 8589, 8592 (1937) (remarks of Sen. Pittman).  /16/
These are unquestionably governmental interests of the highest order,
and they amply justify the modest geographic limitation on picketing
and demonstrations that Congress deemed required to create a buffer or
transition zone between the inviolable premises of the diplomatic
mission and the ordinary streets and sidewalks beyond.  /17/

   Moreover, the foundation for Section 22-1115 in the Law of Nations
has been confirmed by the Vienna Convention.  Article 22(2) of the
Convention provides that the receiving state "is under a special duty
to take all appropriate steps to protect the premises of the mission
against any intrusion or damage and to prevent any disturbance of the
peace of the mission or impairment of its dignity." This provision
does not explicitly address the question of picketing and other
demonstrations in the vicinity of a foreign mission.  Nor is there any
occasion here to decide whether Article 22(2) in itself imposes a
mandatory duty on the signatory states to prohibit some or all such
activity within some area surrounding an embassy.  For, whatever the
answer to that question, the limited restrictions imposed by D.C. Code
Section 22-1115 are unquestionably "appropriate steps" for this Nation
to take in the implementation and enforcement of Article 22(2) within
the United States.  Compare U.S. Const. Amends. XIII, Section 2, XIV,
Section 5;  and XV, Section 2 (Congress shall have the power to
"enforce" those Articles by "appropriate" legislation);  City of Rome
v. United States, 446 U.S. 156, 173-178 (1980).  /18/ "A right secured
by the laws of nations * * * is one the United States * * * are bound
to protect" (United States v. Arjona, 120 U.S. 479, 487 (1887)).  The
measures Congress has deemed appropriate to protect the rights secured
to ambassadors by the Law of Nations therefore serve a compelling
national interest, because it is a matter "of high importance to the
peace of America that she observe the law of nations" (The Federalist
No. 3, at 43) (Jay).  /19/

 C. THE NARROWLY TAILORED RESTRICTIONS IN SECTION 22-1115 ARE
CONSISTENT WITH THE FIRST AMENDMENT

   The First Amendment does not deprive Congress of the power to
protect the security, dignity, and peaceful enjoyment of diplomatic
missions by means of the modest limitations on picketing and
congregating contained in Section 22-1115.  To the contrary,
especially in light of the unique status of diplomatic missions
recognized by the Constitution itself, Section 22-1115 is well within
the scope of permissible regulation under the First Amendment.

   1. As Senator Pittman, the principal sponsor, made clear during the
legislative debates, the enactment of Section 22-1115 was "not for the
purpose of suppressing or subduing any expressions on the part of our
people" (81 Cong. Rec. 8485 (1937)).  Nor does Section 22-1115 have a
significant effect on freedom of expression.  Petitioners and others
are entirely free to express their views on any subject in their own
speech, in the press, or the broadcast media;  they may conduct
demonstrations in opposition to the policies of the Soviet Union,
Nicaragua, or any other nation anywhere in the District of Columbia,
except within 500 feet of the official premises of the government
concerned;  and even within that area, petitioners and others are free
to use the streets and sidewalks for a broad range of conduct,
including picketing that is unrelated to the foreign mission whose
status is specifically protected.  All Congress has prohibited within
the 500-foot zone is certain conduct addressed to the embassy itself:
demonstrations or picketing designed or adapted either to intimidate
or harass the foreign government or its diplomatic representatives, or
to call that government into public odium or disrepute.  Petitioners
contend that the First Amendment does not permit Congress to bar even
this conduct.  But they wholly fail to appreciate the significance of
the fact that the most immediate target of their proposed conduct
would be the diplomatic representatives of a foreign government.

   2. The purpose of a foreign embassy in the District of Columbia is
not to participate in or to be a staging ground for domestic political
demonstrations and debate.  Its purpose is to support the ambassador
and other mission personnel in their official diplomatic dealings with
the United States Government.  That discourse is not conducted in the
public arena, and it is severed from the political process.  Moreover,
the unique status of ambassadors and diplomatic missions under the
Constitution strongly supports the conclusion that the First Amendment
does not prohibit Congress from interposing a certain distance between
American citizens and the official representative of a foreign
sovereign.

   a. A basic premise of petitioners' argument is that just as the
people have the right to picket or demonstrate before a legislature
(Br. 9, citing Edwards v. Louisiana, 372 U.S. 229, 235 (1963)) and the
White House (Br. 17), which are the "political branches" of government
(Br. 21), they also have the right to picket or demonstrate before the
embassy of a foreign government (Br. 21, 25).  The two situations,
however, are very different.

   In the first situation, the activity is addressed to an organ of
domestic government, either federal or state.  Such conduct directly
implicates core First Amendment values.  Indeed, in Edwards v.
Louisiana, the Court stated that the individuals involved had
"peaceably assembled at the site of the State Government" and there
"peaceably expressed their grievances" (372 U.S. at 235) -- conduct
squarely covered by the Petition Clause of the First Amendment.  And
more generally, the "'opportunity for free political discussion'"
protected by the First Amendment serves "'the end that government may
be responsive to the will of the people'" (New York Times Co. v.
Sullivan, 376 U.S. 254, 269 (1964), quoting Stromberg v. California,
283 U.S. 359, 369 (1931)).  In this sense, "'speech concerning public
affairs is more than self-expression;  it is the essence of
self-government'" (Connick v. Myers, 461 U.S. 138, 145 (1983), quoting
Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964)).

   Picketing before the embassy of a foreign government has a
different character under the First Amendment.  It is self-evident
that a foreign embassy occupies no place in the domestic political
structure established by the Constitution, and the embassy therefore
is properly on the sidelines of the robust debate that is the essence
of self-government under that structure.  The First Amendment itself
reflects this detachment, for appeals to a foreign government
necessarily are excluded from the right of the people to petition "the
Government" /20/ -- the right most directly implicated in cases, such
as Edwards v. Louisiana, in which the people appeal directly to
governmental authority.  These considerations drawn from the First
Amendment itself undermine the notion that that Amendment must be
construed to bar Congress from prescribing a narrow buffer zone that
separates a foreign embassy from private citizens who are seeking to
present their grievances against that embassy's government by means of
picketing and demonstrations.

   b. Other aspects of the constitutional structure reinforce this
conclusion.  First, as we have explained (see pages 20-22, supra), the
first three Articles of the Constitution manifest a firm intention on
the part of the Framers to protect the privileged status and special
immunities of ambassadors and their premises.  The purpose of this is
to assure diplomatic agents "independency" from the legal institutions
of the receiving state that could undermine their resolve and loyalty
to a distant sovereign.  See The Schooner Exchange, 11 U.S. (7 Cranch)
at 139, 143;  E. Vattel, supra, at 464, 469-471, 491, 494-495;  2 J.
Story, supra, Section 1658, at 432.  Indeed, at the time the
Constitution was adopted, the ambassador's unique status often was
explained by the "political fiction" that he was "extraterritorial,
and therefore, in point of law, not within the jurisdiction of the
sovereign at whose court he resides" (The Schooner Exchange, 11 U.S.
(7 Cranch) at 138).  See also 1 Kent, supra, at 46 ("By fiction of
law, an ambassador is considered as if he were out of the territory of
the foreign power.").  Like many legal fictions, this theory
metaphorically conveys a fundamental truth:  that a foreign ambassador
and his embassy stand outside of our society and are independent of
its legal and political institutions.  The First Amendment was adopted
only a short time after these attributes of diplomatic status were
expressed in the Constitution itself.  There accordingly is no reason
to believe that the First Amendment was intended to divest Congress of
the power to take these same attributes of diplomatic status into
account in prescribing a statutory rule of "immunity" from picketing
and demonstrations in the immediate vicinity of a foreign mission in
the Nation's Capital -- conduct that, like others addressed by
diplomatic immunities, could undermine the independence of diplomatic
personnel by exposing them to the potential for intimidation,
harassment, and affront.

   It also is instructive that the Constitution unmistakably
contemplates that relations with representatives of foreign
governments will be conducted not by the people directly, but by the
representatives of the people.  Under the Constitution, it is the
President who receives a foreign ambassador, a function that is but a
particular manifestation of the President's status as the "'sole organ
of the nation in its external relations'" (United States v.
Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936), quoting 10
Annals of Cong. 613 (1800) (remarks of John Marshall)), even where the
rights of individuals are directly affected.  See Dames & Moore v.
Regan, supra.  As a result, although Congress of course retains its
proper legislative role in this area, diplomatic communications with a
foreign government remain the exclusive responsibility of the
Executive Branch.  Congress recognized early in the Nation's history,
when it enacted the Logan Act (Act of Jan. 30, 1799, ch. 1, 1 Stat.
613), that attempts by private citizens to intervene directly with
foreign sovereigns could have unfortunate consequences for the
Executive's conduct of foreign relations.  /21/ Here, Congress
similarly concluded that private picketing and demonstrations directly
in front of a foreign embassy in the Nation's Capital present a
substantial potential for disrupting the conduct of foreign affairs.

   c. It is significant as well that the members of a foreign mission
in the United States have reciprocal obligations that serve to divorce
them from political controversy within the United States.  Article
41(2) of the Vienna Convention provides that the official mission
"shall be conducted with or through the Ministry for Foreign Affairs
of the receiving State" -- in this country, the Department of State.
See 22 U.S.C. 2656;  Act of July 27, 1789, ch. 4, Section 1, 1 Stat.
28.  Article 41(1) provides that all persons enjoying diplomatic
privileges and immunities in the receiving State "have a duty not to
interfere in the internal affairs of that State." Similar obligations
were recognized early in the Nation's history.  See 1 Op. Att'y Gen.
74, 75 (1797) ("(a) foreign minister here is to correspond with the
Secretary of State on matters which interest his nation," and he "has
no authority to communicate his sentiments to the people of the United
States").

   d. We of course do not suggest that petitioners and others are not
constitutionally entitled to engage in open and robust debate of
public issues facing the Nation merely because those issues happen to
involve foreign governments or their policies.  We suggest only that
the recognized independence of an ambassador and his mission from
domestic institutions strongly supports the conclusion that the First
Amendment does not bar Congress from interposing a modest geographic
separation between the embassy of a foreign government and one of the
forums -- the public streets and sidewalks -- in which the Nation's
public debate takes place.  That is all Section 22-1115 does.  It
merely prevents demonstrations or picketing in the immediate vicinity
of a foreign embassy that would directly confront diplomatic personnel
with criticism of their government "right in their faces" (81 Cong.
Rec. 8588 (1937) (remarks of Sen. Pittman)).

   Petitioners insist that what is at issue here is "pure speech" (see
Pet. Br. 21;  see id. at 13-16).  But that obviously is incorrect.
Section 22-1115 bars picketing and congregating;  it therefore is not
concerned "with free speech alone, but with expression mixed with
particular conduct." Cox v. Louisiana, 379 U.S. 559, 564 (1965).
"(W)here speech and conduct are joined in a single course of action,
the First Amendment values must be balanced against competing societal
interests." City of Los Angeles v. Preferred Communications, Inc., No.
85-390 (June 2, 1986), slip op. 6.  That is especially so where, as
here, the competing social interests derive directly from explicit
provisions of the Constitution itself.  Petitioners rely on the
proposition that public streets and sidewalks, "'time out of mind,
have been used for purposes of assembly, communicating thoughts
between citizens, and discussing public questions'" (Pet. Br. 8,
quoting Hague v. CIO, 307 U.S. 496, 515 (1939) (opinion of Roberts,
J.)).  But it is equally true that, time out of mind, the premises
occupied by diplomatic representatives (which here are immediately
adjacent to those streets and sidewalks) have been regarded as
inviolable and entitled to special respect and protection.  And just
as First Amendment freedoms need "breathing space" if they are to
survive (NAACP v. Button, 371 U.S. 415, 433 (1963)), so too may
diplomatic missions and their personnel in a foreign land
constitutionally be afforded a limited measure of breathing space for
the performance of their delicate functions (which are mutually
beneficial to both nations).  The balance Congress struck in Section
22-1115 between these competing considerations is clearly legitimate
under the First Amendment.

   e. In light of the foregoing considerations, the constitutionality
of Section 22-1115 follows a fortiori from Cox v. Louisiana, 379 U.S.
559 (1965), and in fact the Court there cited Section 22-1115 with
approval.  Id. at 568 n.1.  In Cox, the Court sustained a state
statute that prohibited picketing or parading on public streets and
sidewalks "near" a courthouse -- which the Court believed could
embrace the area "within the sight and hearing of those * * * inside
the courthouse" (id. at 568, 571-572).  The Court held that "(t)here
can be no question that a State has a legitimate interest in
protecting its judicial system from the pressures which picketing near
a courthouse might create," in order to ensure that the administration
of justice is "unhindered" and "free from outside control and
influence" (id. at 562) and to "protect the judicial process from
being misjudged in the minds of the public" (id. at 565).  /22/

   The interests supporting Section 22-1115 are similarly compelling.
As Congress found in 1938, picketing and demonstrations directed to
and in the immediate vicinity of an embassy could undermine the
independence of the embassy personnel, a consequence that the United
States attempts to prevent in foreign capitals by prohibiting it in
the District of Columbia.  And, as Congress also recognized, there is
a strong governmental interest in protecting against even the
appearance that attempts are being made to influence diplomatic
representatives or their government by picketing or demonstrations in
the immediate vicinity of the mission premises.

   3.a. Contrary to petitioners' further submission, under City of
Renton v. Playtime Theatres, Inc., No. 84-1360 (Feb. 25, 1986),
Section 22-1115 is not properly regarded as either "content-based" or
"viewpoint-based" for purposes of First Amendment analysis.  In
Renton, the Court sustained an ordinance that required an adult motion
picture to be separated by at least 1,000 feet from any church,
school, or residential zone.  The Court found that the ordinance was
"aimed not at the content of the films shown" but "at the secondary
effects of such theaters on the surrounding community" (slip op. 5
(emphasis in original)).  The Court therefore found the ordinance to
be "completely consistent with (its) definition of 'content-neutral'
speech regulations as those that 'are justified without reference to
the content of the regulated speech'" (id. at 6, quoting Virginia
Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U.S.
748, 771 (1976)).

   Similarly here, Section 22-1115 merely requires that picketing and
demonstrations directed against a foreign government must be separated
by 500 feet from that government's official premises.  This
requirement applies to all embassies and buildings occupied by foreign
governments in the District of Columbia, irrespective of the views of
the United States toward that government or its policies.
Furthermore, Section 22-1115 applies without regard to the subject
matter of any particular incident of picketing or congregating and
without regard to the viewpoint of the participants.  In other words,
the statute is in no way based on any preference of the United States
Government regarding the position petitioners or any other persons
wish to espouse.  /23/ Instead, Section 22-1115 is justified entirely
on the basis of the "secondary effects" to which such picketing or
congregating might give rise, as a result of its impact on the
diplomatic personnel of the mission or on the mission itself.  Those
effects -- which include the increased risk of injury to the physical
security of the mission, the potential impairment of the independence
of mission personnel and the dignity and peace of the mission, the
potential for retaliatory action by the foreign government, and the
implications for reciprocal protection -- are all content-neutral and
viewpoint-neutral.

   Accordingly, the limited geographical restrictions in Section
22-1115 clearly are "not * * * affected by sympathy or hostility for
the point of view being expressed by the communicator" (Young v.
American Mini Theatres, Inc., 427 U.S. 50, 67-68 (1976) (plurality
opinion)).  Rather, here, as in Renton, the statute "does not
contravene the fundamental principle that underlies our concern about
'content-based' speech regulations:  that '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'" (slip op. at 6-7, quoting Police Department v. Mosley, 408
U.S. 92, 95-96 (1972)).  /24/

   b. Moreover, even content-based or viewpoint-based restrictions are
permissible if they are narrowly tailored to serve governmental
interests that are "substantial" (Carey v. Brown, 447 U.S. 455, 461
(1980)) or "compelling" (Perry Education Ass'n v. Perry Local
Educators Ass'n, 460 U.S. 37, 45 (1983)).  Here, those standards
plainly are satisfied.  As we have explained, the governmental
interest in protecting the security, peace, and dignity of a foreign
mission is compelling.  Furthermore, Section 22-1115 is narrowly
tailored to accomplish that end, and in fact it was so tailored
precisely to ensure that it would not curtail other expressive
conduct.  The "special duty" under Article 22(2) of the Vienna
Convention does not require the receiving State to protect the mission
against such things as noise, traffic, and even picketing and parades
that are associated with the normal use of the streets and sidewalks
in the neighborhood and that do not have a direct nexus to the mission
or interfere with its effective functioning.  For this reason, Section
22-1115 preserves the right of the people to use the streets and
sidewalks for the full range of activities that are unrelated to the
foreign mission, since in that situation the presence of the mission
is irrelevant and the streets and sidewalks are properly regarded as
having the same character as those outside the 500-foot buffer zone.
But where individuals seek to engage in conduct that is directed
against the foreign government or its policies -- where they wish to
picket or demonstrate precisely because of, not in spite of, the
presence of the mission -- the streets and sidewalks do not have the
same character as those in other parts of the City.  Cf. Personnel
Administrator v. Feeney, 442 U.S. 256, 279 (1979).  In that situation,
the individuals seek to take advantage of the presence of the mission.
 That purpose directly implicates the justification for the 500-foot
buffer zone, and the protections of Section 22-1115 therefore are
triggered.  /25/

   Section 22-1115's distinction between conduct opposing or favoring
the policies of the government in question is eminently sensible in
light of its statutory purposes.  One of those purposes is to afford
mission premises an added measure of security against physical
intrusion or damage, and as the district court observed,
"(d)emonstrations in opposition to the policies of a foreign
government are obviously more likely to result in violence against
personnel or property than demonstrations in support" (Ped. App.
109a).  The statute also is designed to reach conduct that may have
the effect of intimidating, harassing, or chilling diplomatic
personnel, and thereby undermine the independence that is essential
for the diplomatic process to function.  That consequence obviously
would result only from picketing or congregating in opposition to the
foreign government's policies.  Accordingly, to paraphrase Cox, the
statute is "narrowly drawn to punish specific conduct that infringes a
substantial (federal) interest in protecting the (diplomatic) process"
(379 U.S. at 564).  Finally, the statute is intended to guard against
occasions that might induce foreign nations or their people to take
hostile measures against this Nation or its citizens in retaliation
for a pretended or real affront at its embassy in Washington.  Once
again, that purpose requires barring only conduct that opposes the
policies of the foreign government.  Indeed, in this respect, the
statute is similar to one that makes it unlawful to utter "fighting
words," since the rationale of the prohibition is to prevent violence
(or its functional equivalent) that may result.  It has never been
thought that a "fighting words" statute must be "viewpoint neutral" in
the sense that if it makes it unlawful to shout an expletive at
another person, it also must make it unlawful to shout:  "Well done."

                              CONCLUSION

   The judgment of the court of appeals should be affirmed.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   RICHARD K. WILLARD

      Assistant Attorney General

   LAWRENCE G. WALLACE

      Deputy Solicitor General

   EDWIN S. KNEEDLER

      Assistant to the Solicitor General

   ANTHONY J. STEINMEYER

   BARBARA BIDDLE

      Attorneys

   AUGUST 1987

   /1/ Petitioners also stated that they wished to congregate with two
or more persons within 500 feet of the official buildings of foreign
governments (J.A. 5, 8, 11).

   /2/ The court also rejected petitioners' contention that the last
clause of Section 22-1115 -- which makes it unlawful to congregate
within the 500-foot area and refuse to disperse when so ordered -- is
unconstitutional because it does not contain standards defining when
police officers may give a dispersal order (Pet. App. 40a-43a).  The
court explained that the authority of the police to order dispersal is
directly tied to the purposes of Section 22-1115 as a whole, and
therefore may be exercised "when the police reasonably believe that a
threat to the security or peace of the embassy is present," but not
"for reasons having nothing to do with the nearby embassy" (id. at
43a).

   /3/ See Pet. App. 1a-54a;  Jewish Defense League, Inc. v.
Washington, 347 F. Supp. 1300 (D.D.C. 1972) (three-judge court);  Jews
for Urban Justice v. Wilson, 311 F. Supp. 1158 (D.D.C. 1970);  see
also Zaimi v. United States, 476 F.2d 511, 515-516 (D.C. Cir. 1973).

   /4/ During the 3 1/2 years preceding this suit, there were 98
demonstrations directed against foreign embassies in the District of
Columbia that were subject to the 500-foot rule under Section 22-1115
(J.A. 27-28).

   /5/ The floor debates identified some of the incidents that had
prompted the bill:  pickets in front of the Italian embassy carrying
banners stating "Mussolini murders babies";  groups of demonstrators
chanting "Down with Mussolini";  picketers in front of the Polish
Embassy protesting persecutions in Poland;  and attempts by
demonstrators to make speeches on the steps of the German and Italian
embassies.  81 Cong. Rec. 8486 (1937).

   /6/ Senator Pittman observed that "some foreign representatives
have found it necessary to move their families away from their
official homes during such periods of picketing" (81 Cong. Rec. 8587
(1937);  see also id. at 8592).

   /7/ The remarks quoted in this sentence were made at a time in the
debates when the basic prohibition was drafted in much broader terms
that were not limited to picketing that was specifically directed to
the foreign embassy.  See 81 Cong. Rec. 8484 (1937).  Under that early
version, conduct that did not concern the embassy -- such as the
parade mentioned by Senator Pittman -- would have been allowed only by
means of a permit.  See ibid.  However, the Senate later substituted
for this version the first clause of Section 22-1115 as finally
enacted (id. at 8586-8593), which altogether excludes from coverage
any picketing that is not directed to the embassy, without the need to
obtain a permit.  Congress thereby eliminated any discretion the
police otherwise might have had to either allow or prohibit signs and
banners that were not directed to a foreign government.  Compare
Kolender v. Lawson, 461 U.S. 352, 357-361 (1983).  Moreover, in Frend,
the court construed Section 22-1115 to withhold from the police any
discretion to grant permits for some demonstrations that oppose the
policies of the foreign government.  100 F.2d at 694.

   /8/ We agree with the court of appeals that the second clause of
Section 22-1115 should not be read to make it unlawful, within the
500-foot buffer zone, to congregate and refuse to disperse where the
congregation and the dispersal order have "nothing to do with the
nearby embassy" (Pet. App. 43a).  Rather, read in the context of the
statute as a whole, as well as the special duty under Article 22(2) of
the Vienna Convention that the statute implements, the second clause
only addresses congregating that is reasonably believed to impair the
security, dignity, or peace of the embassy.  For example, the second
clause bars congregating that is the functional equivalent of the
display of signs barred by the first clause -- i.e., congregating
(albeit without signs) that is "designed or adapted" to coerce,
intimidate or harass the foreign government or its diplomatic
personnel;  to bring the foreign government "into public odium" or its
policies into "public disrepute";  or to interfere with the "free and
safe pursuit" of the diplomatic personnel's duties.  Therefore,
because the two clauses have essentially the same purpose, we discuss
picketing and congregating (demonstrating) together in this brief.

   /9/ Mr. Fields cited the example of a demonstration near the Soviet
Embassy by a group of Afghans protesting the Soviet invasion of
Afghanistan.  The demonstrators broke through police lines, but
because of the 500-foot distance separating them from the Embassy, the
police were able to reestablish control before they actually reached
the building.  "Had the distance separating the demonstrators from the
Embassy been less," he observed, "property damage and personal injury
to the embassy and its occupants might well have resulted(,) with
potentially serious consequences for U.S. foreign relations and the
security of U.S. personnel overseas" (J.A. 18).  The Deputy Chief of
the Metropolitan Police Department identified several other violent
incidents of the sort that Section 22-1115 seeks to prevent:  the
temporary takeover and ransacking of the Iranian Interest Section of
the Algerian Embassy on Wisconsin Avenue in 1981, during which a
demonstrator was shot and other demonstrators and Interest Section
personnel were injured;  the temporary takeover of the Nicaraguan
Embassy/Chancery on New Hampshire Avenue in 1978, during which two
Secret Service officers were injured;  and events in London involving
the Syrian and Libyan Embassies (J.A. 29;  see also J.A. 22).

   /10/ Contrary to the ACLU's contention (Amicus Br. 14-16), Congress
did not, in Section 1302 of the Omnibus Diplomatic Security and
Antiterrorism Act of 1986, Pub. L. No. 99-399, 100 Stat. 897,
"renounce()" any imperative federal interest in Section 22-1115.  As
the ACLU concedes, the Congress as a whole rejected the Senate bill's
provision to repeal Section 22-1115.  See H.R. Conf. Rep. 99-783, 99th
Cong., 2d Sess. 88 (1986).  Congress instead included in Section 1302
a statement of the sense of Congress that Section 22-1115 "may" be
inconsistent with the reasonable exercise of the rights of speech and
assembly and that the obligation to provide adequate security for
foreign missions must be "balanced" against the exercise of those
rights.  These uncertain expressions obviously do not purport either
to "renounce the importance of protecting the security, dignity, and
peace of foreign missions in Washington, or to repeal Section 22-1115.
 Indeed, Section 1302 further states the sense of Congress that "the
Council of the District of Columbia should review and, if appropriate,
make revisions in the laws of the District of Columbia concerning
demonstrations near foreign embassies" (100 Stat. 897 (emphasis
added)).  Congress therefore has clearly not reached a concluded view
that any "revision" of Section 22-1115 is "appropriate," much less the
outright repeal that petitioners essentially seek by means of this
facial challenge to the statute.  To the contrary, even if the Council
concluded that some revisions were warranted, Congress might
ultimately disagree.  Moreover, Section 1302(3) further states the
sense of the Congress that the Council of the District of Columbia
should undertake that review "in consultation with the Secretary of
State and the Secretary of the Treasury," thereby recognizing the
important foreign policy and security interests that would be
implicated.

   In connection with the District of Columbia Council's review of
Section 22-1115, the Department of State, Department of Justice and
the Secret Service have taken the firm position that Section 22-1115
should not be amended.  For example, in a June 30, 1987, letter to the
Chairman of the Council of the District of Columbia, the Secretary of
State stated that the protection of foreign embassies is of "vital
importance" to his Department;  that the United States "takes * * *
seriously" its obligation under Article 22(2) of the Vienna Convention
to protect the security, peace and dignity of foreign missions and
"expects other governments to do the same";  and that he is "deeply
concerned" about elimination of the "500-foot rule" in Section
22-1115, since "(s)uch a change, at the very time when we are urging
other governments to increase security for our diplomats abroad, could
place our diplomats at risk" (App., infra, 2a-3a).

   /11/ The importance of reciprocity, which underlies all relations
between nations, is recognized in the positive law of the United
States.  Of particular relevance here, it is embodied both in Article
47 of the Vienna Convention (23 U.S.T. at 3248-3249) and in the Acts
of Congress that specifically address the privileges and immunities of
diplomatic personnel and the location of foreign missions in the
United States.  See 22 U.S.C. (& Supp. III) 254c, 4304(b);  H.R. Rep.
97-102, 97th Cong., 1st Sess. Pt. 1, at 25-29 (1981);  Digest of
United States Practice in International Law 108-109 (1978).

   /12/ The sensibilities of a nation offended by a failure to respect
the immunities of an ambassador were well illustrated by a notorious
event in the early Eighteenth Century, in which "an arrest of the
Russian ambassador in a civil suit in England, in the reign of Queen
Anne, was wellnigh bringing the two countries into open hostilities,"
until England made a "humiliating" atonement (2 J. Story, Commentaries
on the Constitution Section 1659, at 434 (2d ed. 1851)).

   /13/ The Continental Congress adopted a resolution in 1781 calling
on the States to enact laws punishing infractions against the law of
nations, including "infractions of the immunities of ambassadors and
other public ministers, authorised and received as such by the United
States in Congress assembled" (21 J. Continental Cong. 1136-1137).  In
particular, Congress recommended enactment of measures protecting
ambassadors against "violence offered to their persons, houses,
carriages and property" and "disturbance given to the free exercise of
their religion" (id. at 1137).  Again in 1785, the Continental
Congress directed the Secretary of Foreign Affairs to draft an act to
be recommended to the States "for securing the privileges and
immunities of public Ministers from foreign powers" (29 J. Continental
Cong. 655).

   /14/ See also Marbury v. Madison, 5 U.S. (1 Cranch) 137, 175 (1803)
(this original jurisdiction stems from "the solicitude of the
convention, respecting our peace with foreign powers");  Ames v.
Kansas, 111 U.S. 449, 464 (1884).

   /15/ See Judiciary Act of 1789, ch. 20, Section 13, 1 Stat. 80;
Act of Apr. 30, 1790, ch. 9, Sections 25, 26, 28, 1 Stat. 117-118.

   /16/ Congress's perception of the threat and its judgment regarding
the appropriate response had the support of contemporary commentators.
 See, e.g., Preuss, supra;  Stowell, Respect Due to Foreign
Sovereigns, 31 Am. J. Int'l L. 301 (1937).  In sustaining Section
22-1115 in 1938, the D.C. Circuit in Frend also cited (100 F.2d at 693
n.3) the Harvard Research Draft on "Diplomatic Privileges and
Immunities," which had formulated a general duty of receiving states
to "protect the premises occupied or used by a mission * * * against
any invasion or other act tending to disturb the peace or dignity of
the mission" (26 Am. J. Int'l Law 50 (Supp. 1932)).  The commentary to
the Harvard Research Draft stated that the provision not only
contemplated protection against physical intrusion and against crowds
who were collected in the vicinity to "express abuse, contempt or even
disapprobation of the sending state or its mission";  but also that a
simialr duty "would seem to exist to protect such premises against
so-called 'picketing,' this being an act tending to disturb the peace
and dignity of the mission" (26 Am. J. Int'l Law Supp. at 709).

   /17/ As the court below observed (Pet. App. 9a-11a), earlier
expressions also lend support to Congress's determination in 1938 that
the protection for ambassadors and diplomatic missions should extend
beyond the prevention of physical harm and should encompass as well
verbal "insults" of the countries they represent that are delivered
"right in their faces" (81 Cong. Rec. 8587-8588 (1937)).  See E.
Vattel, supra, at 464 (emphasis added) ("Whoever offends and insults a
public minister commits a crime the more deserving of severe
punishment");  1 Op. Att'y Gen. 41-42 (1794) (emphasis added)
(indicating that violation would occur where "persons tumultuously
assembled before the house of a foreign (minister), requiring him to
deliver up certain persons supposed to be resident with him, and
insulting him with improper language");  1 Op. Att'y Gen. 52 (1794)
(emphasis added) ("in the case of a foreign public minister, the
municipal law (of libel) is strengthened by the law of nations, which
secures the minister a peculiar protection, not only from violence,
but also from insult");  1 Op. Att'y Gen. 71, 72-73 (1797) (emphasis
added) ("An affront to an ambassador is just cause for national
displeasure, and * * * it is usual (for nations) to complain of
insults to their ambassadors");  United States v. Hand, 26 Fed. Cas.
103, 104-105 (C.C.D. Pa. 1810) (No. 15,297) (emphasis added)
(protection is given to an ambassador's house in order "to guard him,
as well against insults, as real personal injury");  see also
Respublica v. Keating, 1 Dall. at 117 (the minister's house "is to be
defended against all outrage;  it is under a peculiar protection of
the laws;  to invade its freedom is a crime against the State and all
other nations").

   /18/ Section 22-1115 implements Article 22(2) in two ways:  (i) it
directly promotes the peace and dignity of the mission premises and
the diplomatic personnel's quiet use and enjoymnent of them;  and (ii)
by establishing a buffer to guard against potential violence, it
"protect(s) the premises of the mission against any intrusion or
damage." When the Vienna Convention was before the Senate, the State
Department's description stated that the Article 22(2) "duty of
protecting the premises of a diplomatic mission against intrusion,
damage, and disturbance of the peace is reflected in Section 22-1115
of the District of Columbia Code" (Vienna Convention on Diplomatic
Relations:  Hearing on Exec. H Before the Subcomm. of the Senate Comm.
on Foreign Relations, 89th Cong., 1st Sess. 49 (1965)).

   Congress enacted the Diplomatic Relations Act of 1972 (86 Stat.
1072) to facilitate implementation of the Convention in other
respects.  Congress included in that Act certain protections for
foreign officials (18 U.S.C. 112(b), discussed at note 19, infra) and
a restriction against certain picketing of foreign official premises
outside the District of Columbia (18 U.S.C. (Supp. III 1973) 112(c)).
The latter provision was not extended to the District of Columbia
because D.C. Code Section 22-1115 (1981) already regulated such
picketing.  See S. Rep. 1105, 92d Cong., 2d Sess. 19 (1972);  118
Cong. Rec. 31035-31036 (1972).  Congress repealed the special
picketing provision applicable outside the District of Columbia in
1976, in order to allow greater latitude for freedom of expression
(Pub. L. No. 94-467, Section 5, 90 Stat. 1999;  see Pet. App. 56a-57a
n.1 (Wald, J., dissenting)), but Congress did not repeal D.C. Code
Section 22-1115.

   /19/ Under Article 22(2) of the Convention, each receiving state
must determine the "appropriate" steps to be taken to implement the
Convention's central protections, in light of that state's own
circumstances, experience, and legal structure.  It is therefore
irrelevant that other nations have not taken identical approaches to
the regulation of picketing near foreign missions.  See Pet. Br.
32-33;  ACLU Amicus Br. 25-27.  For example, although petitioners and
the ACLU rely on the absence of a flat ban on picketing near embassies
in London, in most cases the conduct of demonstrations there is
committed to the discretion of the police and participants are kept at
a distance, on the far side of the street.  Diplomatic Immunities and
Privileges:  Foreign Affairs Committee, First Report, 1985, Cmnd. No.
9497, at 17.  In this country, by contrast, there may be some
reluctance to confer comparably broad discretion on police officers
(see, e.g., City of Houston v. Hill, No. 86-243 (June 15, 1987), slip
op. 13), and a fixed perimeter may therefore be more "appropriate."
See B. Sen, A Diplomat's Handbook of International Law and Practice
97-98 (1979) (noting that if demonstrations cannot be prevented, the
government should "prescribe a certain area around the mission
premises in which such demonstrations will not be permitted").
Similarly, the receiving state may choose to rely on strict
enforcement of generally applicable police regulations to fulfill its
obligations under Article 22(2), rather than to enact a special
statute.  See, e.g., 7 M. Whiteman, Digest of International Law 385
(1970) (noting amendment of bylaws by Ottawa City Council "to give
police greater authority to curb public demonstrations, notably,
though not specifically mentioned, those at diplomatic missions").

   Petitioners and the ACLU err in relying (Pet. Br. 29-30;  ACLU
Amicus Br. 18, 24) in 18 U.S.C. 112(b), which imposes somewhat less
restrictive limitations on demonstrations outside the District of
Columbia, for the proposition that D.C. Code Section 22-115 exceeds
the scope of the United States' proper responsibilities under the
Convention.  As the court below observed, 18 U.S.C. 112(b) is not the
only source of protection for premises elsewhere in the country,
because "Congress relies to some extent on the state and local
governments to provide whatever additional measures are necessary to
protect foreign nationals, aware perhaps that security needs may
differ from state to state" (Pet. App. 25a n.9);  see also Concerned
Jewish Youth v. McGuire, 621 F.2d 471, 475 (2d Cir. 1980), cert.
denied, 450 U.S. 913 (1981).

   In any event, the difference between the two approaches is readily
explainable by the greater concentration of foreign missions in the
District of Columbia, the presence here of the embassies of all
foreign nations, which, unlike consulates and similar missions
elsewhere, embody the symbolic political presence of the sending State
in our territory;  and the additional security requirements
attributable to the status of embassies and of this Nation's Capital
(Pet. App. 25a n. 9).  See 3 U.S.C. 202.  The difference of course
also reflects the fact that, under the Constitution, Congress has
exclusive legislative jurisdiction over the District of Columbia (Art.
I, Section 8, Cl. 17;  see 2 J. Story, supra, Section 1219, at 116;
The Federalist No. 43, at 272 (Madison)), while in the States any
federal legislation would overlap with existing state law.  Congress
therefore may find it more "appropriate" under Article 22(2) of the
Vienna Convention to legislate comprehensively for the District of
Columbia.

   /20/ See Laker Airways Ltd. v. Pan American World Airways, 604 F.
Supp. 280, 287 (D.D.C. 1984);  Australia/Eastern U.S.A. v. United
States, 537 F. Supp. 807 (D.D.C. 1982);  Occidental Petroleum Corp. v.
Buttes Gas & Oil Co., 331 F. Supp. 92, 108 (C.D. Cal. 1971), aff'd,
461 F.2d 1261 (9th Cir.), cert. denied, 409 U.S. 950 (1972).

   /21/ The Logan Act, now codified at 18 U.S.C. 953, makes it
unlawful for a citizen of the United States to carry on correspondence
or intercourse with a foreign government, or any officer or agent
thereof, with the intent to influence the measures of a foreign
government in relation to disputes or controversies with the United
States or to defeat the measures of the United States.  See S. Doc.
696, 64th Cong., 2d Sess. 1-11 (1917);  Waldron v. British Petroleum
Co., 231 F. Supp. 72, 89 n.30 (S.D.N.Y. 1964);  cf. American Banana
Co. v. United Fruit Co., 213 U.S. 347, 356 (1909).

   /22/ In United States v. Grace, 461 U.S. 171, 182-183 (1983), the
Court recognized the importance of the interest in maintaining the
appearance of judicial independence.  However, it invalidated a
prohibition against carrying signs on the Supreme Court grounds
insofar as it applied to the public sidewalks on the perimeter,
because the statute imposed a "total ban" on carrying any signs (id.
at 182), and therefore was not tailored to picketing that concerned a
case pending before the Court (id. at 187 (Marshall, J., concurring in
part and dissenting in part)).

   /23/ For example, if two foreign governments were in dispute,
Section 22-1115 would permit those favoring either side to demonstrate
in the immediate vicinity of the embassy of the government they favor,
but not of the government they disfavor.

   /24/ For the same reason, this also is not a case, such as that
described in the passage in City Council v. Taxpayers for Vincent, 466
U.S. 789 (194), quoted by petitioners (Br. 11), in which the
regulation reflects "a desire to * * * exclude the expression of
certain points of view from the marketplace of ideas" (id. at 804).
Nor does the Government "'pick and choose' between different views,"
as petitioners suggest (Br. 12, quoting Perry Education Ass'n v. Perry
Local Educators Ass'n, 460 U.S. 37, 55 (1983)).

   /25/ Petitioners also contend (Br. 43-46) that the statutory scheme
violates equal protection principles, under Police Department v.
Mosley, 408 U.S. 92 (1972), and Carey v. Brown, 447 U.S. 455 (1979),
because of a proviso contained in D.C. Code Section 22-1116.  The
proviso states "that nothing in (Section 22-1115) shall be construed
to prohibit picketing, as a result of a bona fide labor dispute
regarding the alteration, repair, or construction of either buildings
or premises occupied, for business purposes, wholly or in part, by
representatives of foreign governments." We agree with the court of
appeals (Pet. App. 48a n. 19) that this contention was properly
rejected by the three-judge district court in Jewish Defense League,
Inc. v. Washington, 347 F. Supp. 1300 (D.D.C. 1970).  Picketing
incident to a bona fide labor dispute would in all probability be
directed not to the foreign government or its embassy and diplomatic
personnel, but to the contractor who was performing the repair work.
Moreover, such a labor dispute concerns domestic matters, and it
therefore is quite different from the sort of controversies
surrounding a foreign government's national and international policies
to which Section 22-1115 is directed.  Thus, Congress reasonably could
conclude that the picketing and demonstrations prohibited by Section
22-1115 would be "'clearly more disruptive'" (Carey, 447 U.S. at 460
(quoting Mosley, 408 U.S. at 100)) of the security, peace and dignity
of the mission than a labor dispute.

   In any event, the labor proviso was added without debate, almost as
an afterthought, following the Senate's completion of its debate on
the substance of Section 22-1115.  81 Cong. Rec. 8593 (1937).  It
therefore is clearly severable from Section 22-1115, which Congress
believed to be of significant importance.  Cf. Carey, 447 U.S. at 459
n.2.  As the three-judge court in Jewish Defense League observed,
there is "nothing to indicate that Congress would have preferred to
void section 1115, and thus dispense with all domestic legislation
carrying out this particular international obligation, if the labor
picketing proviso could not be constitutionally sustained" (347 F.
Supp. at 1302).  See Alaska Airlines, Inc. v. Brock, No. 85-920 (Mar.
25, 1987), slip op. 5.

   APPENDIX