Chicago-based lawyer reflects on historic U.S. Supreme Court free speech win

Harvey J. Barnett

Harvey J. Barnett

Most lawyers never get the chance to argue a case before the United States Supreme Court.  But at age 28, Chicago-based lawyer Harvey J. Barnett argued and won a significant First Amendment case before the court.

The case – Police Department of the City of Chicago v. Mosley (1972)  – still is cited today for its language against content-based discrimination against particular types of speech.

A federal postal worker, Earl Mosley,  picketed outside of Jones Commercial High School because, as an African-American, he fervently believed the school discriminated against black students.   “The student body at that time was 99% white,” Barnett recalls.

Mosley would picket peacefully around the school carrying signs such as “Jones High School practices black discrimination. Jones High School has a black quota.”

“There were very few commercial high schools in those days, teaching kids a trade,” Barnett explains. “Mr. Mosley believed that black kids need an opportunity to go to commercial schools to get ahead in life.”

However, Chicago passed an ordinance in March 1968 that prohibited all picketing within 150 feet of high schools with an exception for labor picketing.     Mosley contacted the ACLU and the civil liberties group filed a lawsuit in his name challenging the ordinance as a violation of both the First Amendment and the Equal Protection Clause of the Fourteenth Amendment.

The district court ruled in favor of the city and upheld the ordinance.   By this time, Barnett had graduated from Northwestern University law school and was working at a law firm.  He would work at the firm during the day and then volunteer with the ACLU a couple nights a week.

During his volunteer work, Barnett initially interviewed potential clients and screened clients.  He began to get more involved after the protests and mass arrests at the 1968 Democratic National Convention in Chicago, which included widespread claims of police brutality.

Barnett was asked to represent Mr. Mosley along with another attorney. “I only met Mr. Mosley once, but he was a fabulous man,” Barnett recalls.

He co-wrote the brief before the 7th Circuit, which reversed the lower court and invalidated the ordinance.  However, at about the same time, the Illinois Supreme Court had upheld a nearly-identical ordinance in Rockford, Illinois.   “This created a split of authority,” Barnett recalls, “and the case made its way to the U.S. Supreme Court. Our feeling was that this was a great free-speech case.”

Impressed with his legal acumen, the ACLU asked Barnett to argue the case before the U.S. Supreme Court.  “That was my first ‘Oh God’ moment,” Barnett said. “It was a bit overwhelming.”

Barnett says that he spoke only about 20 words before a stream of questions came from the Justices.  On June 26, 1972, the U.S. Supreme Court issued its opinion in favor of Earl Mosley.

“The central problem with Chicago’s ordinance is that it describes permissible picketing in terms of its subject matter,” wrote Justice Thurgood Marshall for the Court.   Marshall then penned a line that has been quoted countless times through the years:

But, above 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.

That passage has become First Amendment lore, expressing the idea that content-based discrimination is disfavored in free-speech law.

The court also found the Chicago ordinance violated the Equal Protection Clause, because it treated some picketers (labor picketers) better than someone like Earl Mosley, who picketed against racial discrimination.  “Freedom of expression, and its intersection with the guarantee of equal protection, would rest on a soft foundation indeed if government could distinguish among picketers on such a wholesale and categorical basis,” Marshall wrote.

Barnett sees the case as significant for two primary reasons:  “First, the decision advanced the content-based concept that Justice Marshall emphasized.  Second, it explained the intersection and intertwining of equal protection and the First Amendment.”

Barnett still ranks his Supreme Court victory at age 28 as a highlight of his legal career.  At age 71, he still practices law, serving of counsel with the law firm of Sperling & Slater.

Barnett started his own firm at age 35 with several other lawyers.  His firm later handled a Commerce Clause case that went before the U.S. Supreme Court. He also later became heavily involved in the human-rights issue of helping to free Jews from the Soviet Union during the 1980s.

“I’ve been fortunate to have a good legal career and help a lot of people,” Barnett says. “And I’ve made some money along the way.  But, my work with the Mosley case remains at the top of the list. To have my name associated with that case is very satisfying.”

Barnett notes that today Jones Commercial High School has a 90% minority student population.  “What Mr. Mosley did was quintessentially American,” Barnett reflects.  “He was a solitary figure who stood up for what he believed in – and he was right.  It still gives me chills.”

David L. Hudson Jr. is the First Amendment Ombudsman for the Newseum Institute.

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