United States v. Grace, 461 U.S. 171 (1983)

JUSTICE STEVENS, concurring in part and dissenting in part.

On three occasions, Zywicki distributed leaflets and handbills. I would not construe that activity as the "display" of any "flag, banner, or device." A typical passerby would not have learned Zywicki’s message from the "display" of his literature. Only after the material left Zywicki’s possession would his message have become intelligible.

On one occasion, Grace carried a sign on which the text of the First Amendment was written. I agree that this was the "display" of a "device," but I do not agree that her device was "designed or adapted to bring into public notice any party, organization, or movement." A typical passerby could not, merely by observing her sign, confidently link her with any specific party, organization, or "movement" as that term was understood when this statute was drafted.*

I see no reason to stretch the language of the statute to encompass the activities of either Zywicki or Grace. As a matter of statutory interpretation, we should not infer that Congress intended to abridge free expression in circumstances not plainly covered by the language of the statute. As a matter of judicial restraint, we should avoid the unnecessary adjudication of constitutional questions.

Because neither of the appellees has violated the statute, I would affirm the judgment of the Court of Appeals to the extent that it requires that appellants be restrained from causing appellees’ arrest for engaging in the activities disclosed by this record.

*

6 Oxford English Dictionary 729 (1933) ("movement," definition 6). See also Webster’s International Dictionary 1604 (2d ed.1934) ("movement," definition 4).