ARGUMENT I.

The Massachusetts Statute and Hill v. Colorado Violate the Core of the Public Forum Doctrine That Is Rooted in the Right of Assembly. The iconic image of a sidewalk protest epitomizes our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open. . . .” New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). That commitment is undermined by the Massachusetts statute, which indefinitely closes a public sidewalk to peaceful expressive activity in the absence of any exigent circumstances. A similar problem plagues this Court’s precedent in Hill. As Justice Kennedy explained in his dissent, Hill leaves unprotected core political expression conducted “in a peaceful manner and on a profound moral issue, to a fellow citizen on a public sidewalk.” Hill, 530 U.S. at 765 (Kennedy, J., dissenting). Hill’s analysis charts a course for government manipulation of the public forum to suppress 8 unwanted expression. It exalts form over substance. As Laurence Tribe has observed, Hill is “slam-dunk simple and slam-dunk wrong.” Laurence Tribe, quoted in Colloquium, Professor Michael W. McConnell’s Response, 28 Pepp. L. Rev. 747, 750 (2001). See also Kathleen M. Sullivan, Sex, Money, and Groups: Free Speech and Association Decisions in the October 1999 Term, 28 Pepp. L. Rev. 723, 737 (2001) (“Hill showed a striking readiness to accept the Colorado legislature’s effort to draw a facially neutral statute to achieve goals clearly targeting particular content.”). Justice Kennedy noted that Hill “contradicts more than a half century of well-established First Amendment principles.” Id. In fact, the principles that Hill contradicts extend much earlier, to the genesis of the First Amendment.

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