Free Expression and Fair Juries : Two Supreme Court cases illuminate tricky speech and criminal trial issues

The U.S. Supreme Court made correct decisions in two Georgia cases last week that involved issues of race. In one, racial politics loomed in the background; in the other, questions of racial fairness were very much front and center.

A divided court limited the power of communities to require permits for parades and rallies as an unlawful impediment to free speech. The Forsyth County, Ga., parade ordinance was enacted in response to a series of tense marches in 1987 by black civil rights and white supremacist groups.

One parade turned violent when white supremacist bystanders taunted marchers with racial slurs and pelted them with stones and bottles. The largest of these demonstrations involved more than 20,000 people and officers from 10 law enforcement agencies, and it cost local and state government nearly $700,000 to police.

The public costs that these events imposed prompted rural Forsyth County to enact an ordinance in 1987 requiring that groups obtain a permit for parades and demonstrations. That’s OK. But the ordinance also authorized the county to adjust the cost of that permit “in order to meet the expense incident to the administration of the ordinance and to the maintenance of public order.” That’s the problem.

The white supremacist Nationalist Movement challenged the ordinance, refusing to pay a $100 fee that the county assessed for a planned demonstration to protest the federal holiday honoring Dr. Martin Luther King Jr. The Nationalist Movement contended the ordinance amounted to a “heckler’s veto” of free speech.

The court agreed. Justice Harry A. Blackmun wrote for a 5-4 majority that “the ordinance contains more than the possibility of censorship through uncontrolled discretion. As construed by the county, (it) often requires that the fee be based on the content of the speech.” Regulations permitting the government to “discriminate on the basis of the content of the message cannot be tolerated under the 1st Amendment.”

Also intolerable, the court rightly held, is racial discrimination in jury selection. This case, in which three white defendants were charged with assaulting a black couple in Albany, Ga., is the fifth the court has decided in recent years. Taken together, the court in these cases has essentially redefined the concept of peremptory challenges to preclude racial discrimination.

Georgia had sought to bar the white defendants from using peremptory challenges to exclude blacks from the jury. Writing for a 7-2 majority, Blackmun upheld the state’s action, rejecting the notion that a criminal defendant should be allowed to shape the jury according to race in an effort to get a more sympathetic jury. “It is an affront to justice to argue that a fair trial includes the right to discriminate against a group of citizens based upon their race,” he said. We agree.