Remembering a milestone in pamphleteering
Forty years ago today, the U.S. Supreme Court protected the right of peaceful pamphleteering and reaffirmed that prior restraints on communication are an anathema to the First Amendment in Organization for a Better Austin v. Keefe.
The case involved the Organization for a Better Austin, a racially integrated community group in the Chicago neighborhood, which was opposed to real estate tactics known as blockbusting or panic peddling. These practices played on racial fears of some white residents about more black families moving into the neighborhood. The idea was to get the residents to sell their properties at a reduced value.
The group claimed that real estate agent Jerome Keefe engaged in such practices; Keefe adamantly denied the accusation. Next, the group tried to persuade real estate agents to sign an agreement that they wouldn’t solicit properties in the Austin community. Keefe refused to sign, saying state law protected his right to solicit business however he wished.
The group then distributed leaflets critical of Keefe in his hometown of Westchester, Ill. Keefe sought an injunction in state court to prevent further distribution of the leaflets. A trial court entered a temporary injunction barring members of the group “from passing out pamphlets, leaflets or literature of any kind, and from picketing, anywhere in the City of Westchester, Illinois.” An Illinois appeals court affirmed that decision, citing Keefe’s privacy rights and saying it believed the group’s actions were coercive.
On appeal, the U.S. Supreme Court reversed in its May 17, 1971, decision. The Court, in an opinion written by Chief Justice Warren Burger, emphasized that “peaceful pamphleteering is a form of communication protected by the First Amendment.” Burger also said that just because some people might find the leaflets offensive was not a reason to ban them, writing that “so long as the means are peaceful, the communication need not meet standards of acceptability.”
Burger also reiterated that there is a presumption against prior restraints on communication: “No prior decisions support the claim that the interest of an individual in being free from public criticism of his business practices in pamphlets or leaflets warrants use of the injunctive power of a court.”