dissenting:
Perhaps no two national interests engender so much deserved passion as the security of our citizens at home and abroad and the freedom of these same citizens to speak out on issues of public importance. Recent times have, unfortunately, taught us that we cannot always have a full measure of both. But even within the shadow of treachery and terrorism, we must not too hastily surrender our free speech birthright to phantom national security interests and international obligations. We must at the least demand reasonable proof that genuine issues of security or treaty obligations are implicated. The survival of our most cherished freedoms in time of trial requires that courts carefully scrutinize the strength of competing foreign relations and free speech interests and ensure that the “delicate balance” is rightly struck.
Everyone involved in this case is all too cognizant of the dangers right now facing our embassies abroad and the embassies of foreign sovereigns in our own country. I would be reluctant to challenge the validity of a 100 or even a 500 foot ban on picketing or demonstrating in front of an embassy based on genuine security concerns. That is not, however, what is involved in this case. This case involves the discriminatory application of a ban to some demonstrators but not others, based not on the need to protect the embassy’s security but on the more amorphous need to prevent affronts to the “dignity” of the embassy.
I realize, too, that we must inevitably defer to the superior knowledge and responsibilities of the political branches of our government on the risks involved in certain courses of conduct in foreign affairs. But I am equally convinced that we must adamantly protect free speech and the right to express political dissent, not just about our own country’s but about other countries’ policies. Debate over such essential matters must not be unnecessarily restricted, particularly if there is no offsetting gain to security at home and abroad. To permit fears of irrational behavior by others to so dominate our thinking that we do not insist on proof that *1478substantial restrictions on free speech are in fact required by “national interests and international obligations,” maj. op. at 1455, presents risks to our basic freedoms that are more deadly than any terrorists’ blows.
A painstaking assessment of the plaintiffs’ facial attack on the constitutionality of this statute leads me to conclude that parts of it violate the first amendment. The majority makes an eloquent case for upholding the statute in its entirety because Congress1 and the executive, the branches charged with protecting foreign countries’ presence here and our own citizens abroad, have approved it. It is inappropriate, the majority argues, for the judiciary to scrutinize too severely the decision of those branches that this particular law is “necessary to fulfill our obligations.” Maj. op. at 1459-60. Summing up its case for superdeference, the opinion concludes that
a court cannot lightly dispute a determination by the political branches that the statute meets important international obligations, that the interests at stake are compelling, or that those interests cannot be met by a statute with a more narrow reach.
Id.
The majority’s warning is intimidating but, like much of the free speech/national security debate, assumes that a choice rather than an accommodation must be made between the two goals. Although the majority rightly identifies the core issue in this case as the need to strike a permissible accommodation “between the United States’ national interests and international obligations and the first amendment’s guarantee of free speech,” maj. op. at 1455, the only accommodation it recognizes as legitimate is that struck by Congress or the executive. It is too willing, in my view, to sacrifice first amendment freedoms to the generality of political decisionmaking in the area of foreign affairs without carefully inquiring whether international obligations and national security concerns are really implicated at all, and if they are, whether the statute fulfills those interests with the least amount of intrusion into cherished constitutional rights.
Thus, the fatal flaws I see in the statute and in the District Court’s decision summarily upholding it have nothing to do with the degree of deference we must give to the assessments of the other branches on matters of foreign affairs. Rather, they involve quintessentially legal judgments about accommodating one aspect of *1479the Law of Nations, relating to “appropriate” safeguarding of an embassy’s “dignity,” with the dictates of first amendment law, already established in Supreme Court decisions. I am, to paraphrase a recent Supreme Court pronouncement on deference in the context of foreign affairs,
cognizant of the interplay between [this case] and the conduct of this Nation’s foreign relations, and [I] recognize the premier role which both Congress and the Executive play in this field. But under the Constitution, one of the judiciary’s characteristic roles is to interpret [that document], and [I] cannot shirk this responsibility merely because our decision may have significant political overtones.
Japan Whaling Association v. American Cetacean Society, — U.S.—,—, 106 S.Ct. 2860, 2865, 92 L.Ed.2d 166 (1986). There is still room for the courts to levy “severe scrutiny” before upholding a law which on first glance looks like a classic, textbook example of prohibited viewpoint discrimination and unbridled police discretion.
D.C.Code § 22-1115 suffers from numerous constitutional infirmities. Section I sets out the standards that are used in analyzing content-based speech restrictions and establishes that the majority’s reliance on the Law of Nations does not alter those standards in any significant way. Section II reviews the interests that the government relies on to justify the statute, and concludes that the only “compelling” interests involved in this case are those related to security; protecting the “dignity” of embassies, unless it can be directly tied into a security interest, cannot justify a content-based distinction. Section III tests the statute against the D.C. government’s asserted security interest, and demonstrates that the statute is both fatally overinclusive and underinclusive. Moreover, even if its fit with those security interests were tighter, its viewpoint discrimination would still be constitutionally unjustifiable since a viewpoint-neutral regulation is readily available that would advance legitimate security interests in a manner far less restrictive of free speech values. Finally, Section IV turns to the second clause of the statute and concludes that its vesting in police officers of standardless discretion to disperse a congregating group is facially unconstitutional.
I. The Appropriate Standard op Scrutiny
A. Content-Based Distinctions
“[A]bove 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.” Police Department v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 2289, 33 L.Ed.2d 212 (1972). Unlike content-neutral time, place, or manner restrictions where the government has a relatively light burden to carry in justifying regulation, the government has an exceptionally heavy burden to bear when it seeks to justify a content-based restriction on speech. See Regan v. Time, Inc., 468 U.S. 641, 104 S.Ct. 3262, 82 L.Ed.2d 487 (1984); Widmar v. Vincent, 454 U.S. 263, 270, 102 S.Ct. 269, 274, 70 L.Ed.2d 440 (1981); Police Department v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972). The government must demonstrate that the statute “is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.” Perry Education Association v. Perry Local Educators’ Association, 460 U.S. 37, 45, 103 S.Ct. 948, 954, 74 L.Ed.2d 794 (1983). As part of the “necessary” and “narrowly drawn” inquiries, the govern.ment must show that “no adequate alternative” exists that would be less restrictive of speech.2 Carey v. Brown, 447 U.S. 455, *1480465, 100 S.Ct. 2286, 2292, 65 L.Ed.2d 263 (1980). See also Gay Student Services v. Texas A & M University, 737 F.2d 1317, 1331 (5th Cir.1984), cert. denied, — U.S. —, 105 S.Ct. 1860, 85 L.Ed.2d 155 (1985); Frumer v. Cheltenham Township, 709 F.2d 874, 877 (3d Cir.1983). In short, whenever the government has regulated speech on the basis of content, the Court has applied the “most exacting scrutiny,” Widmar, 454 U.S. at 276, 102 S.Ct. at 277 “to determine whether there is any method of achieving the state’s ... purposes ... which has a lesser effect on protected expression.” Tacynec v. City of Philadelphia, 687 F.2d 793, 798 (3d Cir.1982), cert. denied, 459 U.S. 1172, 103 S.Ct. 819, 74 L.Ed.2d 1016 (1983).
There is no doubt that D.C.Code § 22-1115 is a content-based statute.3 It prohibits only demonstrations involving signs4 that hold the foreign government up to public odium or disrepute, while allowing signs that do not. In their briefs and arguments before this court, “[n]either appellees nor amicus disputefd] the fact that § 22-1115 is a content based act.” Brief for Amicus Curiae United States of America at 16. The majority recognizes this.5 See maj. op. at 1475.
*1481B. The Law of Nations
Before proceeding to analyze the “compelling” interests advanced by the D.C. government in support of the statute, I will address the linchpin in the majority’s rationale for upholding the statute: that the United States has a special duty under the customary Law of. Nations and Article 22 of the Vienna Convention on Diplomatic Relations “to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.” 23 U.S.T. 3227, 3237, T.I.A.S. No. 7502; see maj. op. at 1457. The opinion cites Senator Pittman, the sponsor of § 22-1115, as relying on the Law of Nations for the obligation of a host country to protect a foreign embassy against not only physical invasion but “an offensive demonstration ... not only against insult, but against any character of annoyance or interference that will bring the hatred of the people of his country against our people.” See maj. op. at 1457.
Senator Pittman’s rhetorical protectorate is a tall order indeed and, if taken literally, would include a ban against offensive editorials in the local newspapers as well as critical citizens parading in front of the embassy. The Vienna Convention is, after all, not limited to the “premises” of the embassy but prohibits any “impairment of its dignity,” see supra at 1481, presumably referring to the dignity of a nation or its officials, not a building. Yet it is quite clear that the Law of Nations embodies no such requirement. The United States government has often cited the constitutional limitations on its ability to curtail freedom of expression in response to complaints by foreign embassies of insult or annoyance by American citizens. In the 1930s, the Constitution was invoked to fend off requests by the German government to stop the showing of an anti-Hitler film in Chicago and to prevent a mock trial of Hitler from taking place in Madison Square Garden. In 1941, the Egyptian prime minister complained to the United States about an article in Foreign Affairs calling the King of Egypt a “quisling,” but was mollified by our government’s explanation that it could do nothing but apologize since its Constitution contains guarantees of freedom of the press. M. Whiteman, 5 Digest of International Law 160-62, 168 (1965).
Our government has similarly invoked the first amendment in response to complaints of insult stemming from protected activities in the vicinity of foreign missions and consulates. When, in 1958, the Soviet delegation to the United Nations complained about a demonstration in front of its building, the United States declined to take action, explaining that it could not “associate itself with any attempts to abrogate the constitutional rights of residents of the United States to gather in peaceful assembly and to express their beliefs and convictions.” M. Whiteman, supra, Vol. 7 at 385 (1970). Several years later, the United States again rebuffed a Soviet complaint, contending that no principles of international law were violated when a synagogue across the street from the Soviet mission erected a plaque pointedly referring to “the cry of the oppressed ... Jewish Community in the Soviet Union.” Id. at 384. More recently, in 1979, the United States refused to act when the Soviets complained about demonstrations near their San Francisco consulate, noting that the protest was peaceful and legal under 18 U.S.C. § 112. M. Nash, Digest of United States Practice in International Law 674 (1979).
Under the majority’s broad brush analysis of the relationship between the Law of Nations and the first amendment, the United States probably could and indeed should have taken all of the requested actions. Its refusal to do so suggests that its offi*1482ciáis entertain, as I do, serious doubts about “the framers[’] understanding] that the protection of foreign embassies from insult was one of the central obligations of the law of nations.” Maj. op. at 1457.6 At a minimum, these tolerated insults and annoyances visited upon foreign diplomats by United States citizens clearly illustrate that our government’s obligations under the Law of Nations are not as rigidly circumscribed as Senator Pittman and the majority would have us believe. The mere fact that the United States’ obligation is flexible does not, of course, mean that it is not compelling, cf. maj. op. at 1465, but does indicate that first amendment interests can be accommodated under the Law of Nations without imposing the constitutionally dubious strictures of § 22-1115.
The reasonableness and flexibility of the Law of Nations is further illustrated by the quite temperate language of Article 22 of the Vienna Convention, the obligations of which are purportedly fulfilled in part by § 22-1115. Article 22 provides only that governments have a “special duty” to take “appropriate” steps to protect the peace and dignity of the mission. 23 U.S.T. 3227, 3237, T.I.A.S. No. 7502. The commentary on the draft of this Article states that “in order to fulfill this obligation [a government must] take special measures — over and above those it takes to discharge its general duty of ensuring order.” M. Whiteman, supra, Vol. 7 at 373 (1970). There is nothing in this language to indicate that consideration of what is “appropriate” should not encompass consideration of what is constitutional. See infra at 1485 & n. 10.
Article I, § 8 of the Constitution enumerates the areas within which Congress is generally authorized to act. As part of an extensive list, clause 10 provides that Congress has the power “[t]o define and punish ... Offences against the Law of Nations.” Congress certainly may draw on Article I’s Law of Nations clause for its general authority to enact D.C.Code § 22-1115. But that being said, the Law of Nations does not answer the question of whether Congress, in enacting some of the provisions of § 22-1115, has violated the first amendment’s provision that “Congress shall make no law ... abridging the freedom of speech.” The Law of Nations clause, like the commerce clause or any other source of congressional authority, can be exercised only subject to express limitations found elsewhere in the Constitution.
Indeed, the majority opinion, after a nine-page discourse on the Law of Nations, finally recognizes this ultimate legal truth and concedes that “[t]he presence of a first amendment claim requires that the court examine the balance struck by the political branches,” maj. op. at 1460, although only after admonishing that the examination must be conducted with superdeference to the conclusions of the political branches. The majority’s attempt to lean so heavily and for so long on the Law of Nations to justify a statute that it implies might otherwise violate the first amendment is constitutionally troublesome, to say the least. See maj. op. at 1462 (the issue in this case is fundamentally “a question of living up to our obligations under international law and a treaty”).
The Supreme Court has made clear that principles of international law and treaties cannot supersede our Constitution. In Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957), the Court explained that “[i]f our foreign commitments become of such nature that the Government can no longer satisfactorily operate within the bounds laid down by the Constitution, that instrument can be amended by the method which it prescribes.” Id. at 14, 77 S.Ct. at 1229. The Court found it “obvious” that “no agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution.” *1483Id. at 16, 77 S.Ct. at 1230. See also Geofroy v. Riggs, 133 U.S. 258, 267, 10 S.Ct. 295, 297, 33 L.Ed. 642 (1890), (“It would not be contended that [the treaty power] extends so far as to authorize what the Constitution forbids.”). Similarly, the most recent Restatement of Foreign Relations Law explains that “rules of international law and provisions of international agreements of the United States are subject to the Bill of Rights and other prohibitions, restrictions or requirements of the Constitution and cannot be given effect in violation of them.” Restatement of Foreign Relations Law § 131 comment a (Tent. Final Draft, July 15, 1985); see also L. Henkin, Foreign Affairs and the Constitution 251-54 (1972).
While invocation of congressional authority to punish offenses against the Law of Nations cannot override the first amendment, the concerns embodied in the Law of Nations can be evaluated to determine whether they rise to the level of “compelling interests” which warrant narrowly tailored restrictions on free speech. Just as “the nature and extent of first amendment rights may vary with the location at which their exercise is sought,” maj. op. at 1462, the nature of an embassy and our responsibilities as international hosts weigh in the balance as to what is permissible regulation of free speech in that particular place. See L. Henkin, supra, at 254 (“One may expect that the national interest in war and peace and even lesser concerns of foreign relations would have important weight in any balance.”). Contrary to the majority’s suggestion, I do not “overlook]] that other law sometimes expresses values and concerns that are of legitimate constitutional dimension.” Maj. op. at 1464. I examine both the dignity and security interests protected by the Law of Nations. See infra at 1484-87.
The Law of Nations, standing alone, does not, however, constitute an automatic “compelling interest” which justifies any limitation on free speech in the vicinity of embassies. Because I do not believe there is a compelling interest to weigh here, I fail to see how my analysis can be characterized as an “all-or-nothing” approach to first amendment balancing of “competing constitutional values.” Cf maj. op. at 1465. Simply because an interest is recognized in the compendious Law of Nations does not confer upon it the status of a compelling interest that must override any other constitutional guarantee. To say that it does would be to recognize de facto the Law of Nations as superior to the Constitution — a result which has been soundly rejected by the Supreme Court. We would agree, I presume, that no law could forbid black persons from demonstrating in front of embassies of countries that officially practice segregation on the grounds that it would “insult” them or be offensive to their dignity-
A treaty, like any other statute, represents Congress’ assessment of the national interest. In reviewing both treaties and statutes against first amendment challenges, the court may not simply defer to that congressional judgment. To the contrary, the Supreme Court has instructed that the defender of any such law or regulation restricting free speech, be it of congressional or state origin, has the affirmative burden of proving its constitutionality. See Philadelphia Newspapers, Inc. v. Hepps, — U.S.—, 106 S.Ct. 1558, 1564, 89 L.Ed.2d 783 (1986). Legislative enactments of content-based speech restrictions have always been subjected to more severe scrutiny than other laws. In these super-sensitive first amendment areas, the mere fact that Congress passed the act in the first place simply does not weigh in so heavily as it does in other kinds of constitutional inquiries. Resort to the Law of Nations cannot short-cut the arduous process of constitutional adjudication that requires a careful assessment of the particularized justification for any law that impinges free speech as severely as this one does. We must ask whether the abridgement is truly “necessary” to attain a compelling interest, and even if it is, whether it has been crafted in a way to restrict as few fundamental rights as possible. On this record, both *1484questions must be answered with a resounding “No.”
II. The Asserted Interests
The D.C. government asserts that D.C. Code § 22-1115 serves two separate compelling interests: first, it directly protects the security of foreign embassies and thereby it indirectly protects the security of our own embassies in foreign countries. Second, it helps preserve foreign embassies’ dignity by shielding them from the insult of demonstrations that hold their governments up to public odium or disrepute. Our task is to decide whether these asserted interests are sufficiently compelling to justify overriding the free speech interests of citizen demonstrators.
A. Security Interest
Our government has a unique and compelling interest in maintaining security for foreign embassies in Washington and in making efforts to increase the security of United States embassies abroad. Accordingly, statutory prohibitions must be upheld if they can be shown to be directly tied to these security interests7 and properly crafted to advance these interests with minimal restrictions on free speech. Such security interests have been held to be important enough to justify content-neutral restrictions on speech in the vicinity of embassies and missions. CISPES v. FBI, 770 F.2d 468, 472-75 (5th Cir.1985); Concerned Jewish Youth v. McGuire, 621 F.2d 471, 474-76 (2d Cir.1980), cert. denied, 450 U.S. 913, 101 S.Ct. 1352, 67 L.Ed.2d 337 (1981). But the majority and I agree that the security interest cannot justify much of the content-based statute before us. See infra at 1487-90. Hence, we must look to some other interest which may serve to explain the statute’s prohibitions. The government asserts that its interest in preserving the “dignity” of the embassies so qualifies.
B. “Dignity” Interest
It is not at all apparent that the D.C. government’s asserted interest in preserving foreign embassies’ “dignity” is a compelling interest capable of overriding the constitutional guarantee of free speech. The courts in CISPES and Concerned Jewish Youth relied solely on security interests to affirm content-neutral speech prohibitions in the vicinity of consulates and missions, making no reference to the dignity interest asserted here. The majority nonetheless accepts, without question or analysis, the government’s assertion that the statute is valid because it protects foreign embassies from the “insult” of being exposed to signs that oppose their governments’ policies. The majority’s calculus is that (a) since preservation of the dignity of embassies is required by the Law of Nations and (b) since the sign restriction is somehow related to the preservation of the dignity of the embassies, then (c) the sign restriction passes constitutional muster.8
*1485The majority’s reasoning grossly misstates the relevance of the Law of Nations to this case. While , the Law of Nations does impose some obligation to protect the dignity of foreign embassies, that obligation is flexible and does not require protection from all insult, especially at the expense of constitutional guarantees. See supra at 1481-82. In enacting protection for foreign emissaries outside the District of Columbia, for example, Congress has managed to fulfill its obligations to protect the dignity and security of foreign officials through the use of criminal penalties punishing harassment and through other content-neutral restrictions.9 See 18 U.S.C. § 112 (1982). Certainly the Law of Nations does not have a special District of Columbia provision imposing extra duties on host governments here.10
I cannot accept the majority’s conclusion that the preservation of an embassy’s dignity is such a compelling interest that it can justify the content-based restriction on speech embodied in this statute. Settled first amendment principles establish that shielding listeners from hearing things they find offensive or politically distasteful is not an interest capable of supporting suppression of protected speech. Even crude, vile, or sexually explicit speech may not generally be forbidden because of its communicative impact. See Bethel School District No. 403 v. Fraser, — U.S.—, 106 S.Ct. 3159, 3164, 92 L.Ed.2d 549 (1986) (“use of an offensive form of expression may not be prohibited to adults making what the speaker considers a political point”); Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 71-72, 103 S.Ct. 2875, 2882-83, 77 L.Ed.2d 469 (1983) (rejecting “offensiveness” interest even where less protected, commercial speech is involved); *1486Cohen v. California, 403 U.S. 15, 21, 91 S.Ct. 1780, 1786, 29 L.Ed.2d 284 (1971) (“The ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is ... dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner.”); Coates v. City of Cincinnati, 402 U.S. 611, 615, 91 S.Ct 1686, 1689, 29 L.Ed.2d 214 (1971) (“Our decisions establish that mere public intolerance or animosity cannot be the basis for abridgment of these constitutional freedoms.”).
How much stronger the impediment when the offensiveness of the speech is based on the fact that the audience disagrees with the political message of the speaker. See Street v. New York, 394 U.S. 576, 592, 89 S.Ct. 1354, 1365, 22 L.Ed.2d 572 (1969). As the Supreme Court has recognized,
a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute ..., is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.
Terminiello v. Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 895, 93 L.Ed. 1131 (1949). So precious is our freedom of speech that courts have felt compelled to protect politically oriented exercises of free speech as offensive, and potentially inflammatory, as Nazi marches and Ku Klux Klan rallies. See Collin v. Smith, 578 F.2d 1197 (7th Cir.) (Nazi rally in Skokie, Illinois), cert. denied, 439 U.S. 916, 99 S.Ct. 291, 58 L.Ed.2d 264 (1978); Knights of Ku Klux Klan v. East Baton Rouge Parish School Board, 578 F.2d 1122 (5th Cir.1978) (Ku Klux Klan rally). The Supreme Court has held that the first amendment even requires states to tolerate advocacy of the use of force or of law violations except “where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S.Ct. 1827, 1829, 23 L.Ed.2d 430 (1969) (emphasis added); see also Hess v. Indiana, 414 U.S. 105, 108, 94 S.Ct. 326, 328, 38 L.Ed.2d 303 (1973) (per curiam).
The government nonetheless asks us to break new doctrinal ground here and to recognize a compelling interest in shielding foreign emissaries from speech which they find offensive because of its political content.11 The majority asserts that because foreign officials have no obligation to be accessible to public protest or to participate in the clash of ideas central to our democratic process, the general ban against censoring unpopular speech is inapposite here. Maj. op. at 1462, 1467. I disagree. This key first amendment principle is based on the need to protect the rights of the speaker and so its application does not generally turn on the type of listener involved.12 *1487Furthermore, there can be no clear-cut division between foreign and domestic political debate — limiting speech addressed to foreign embassies will inevitably affect the competition of ideas in the United States. Current anti-apartheid protests in front of the South African embassy are very much a part of the domestic political debate about appropriate United States responses to the South African regime.
The notion that the Law of Nations permits or requires silencing of Americans in their views on foreign governments’ policies to avoid assault on the dignity of the embassy is too radical a departure from recognized first amendment principles to be accepted on the D.C. government’s or the majority’s say-so. If the protection of a foreign emissary’s dignity is as compelling an interest as the majority believes, how can the ban on criticism be limited to an area within 500 feet of an embassy? Surely if the dignity interest is so compelling, and its compelling nature is evaluated under the majority’s superdeferential standards, there is nothing to prevent suppression of insulting speech in many other forms and locations. These worrisome implications of the majority’s dignity rationale make this truly a case about “the general suppression of entire categories of speech rather than merely preventing the offering of political insult within the immediate vicinity of a foreign embassy.” Maj. op. at 1476.
Only if the District can show some interest that transcends the foreign government’s sensitivity to insult in response to peaceful picketing would the first amendment allow suppression of political expression by American citizens. That interest could logically only be threats to the security of the embassy and its personnel or a threat of retaliation to our citizens and embassies abroad.
III. Custom Tailoring
In addition to showing that any content-based restriction on speech is supported by a compelling governmental interest, the government must also demonstrate that the restriction is not only narrowly tailored to achieve that interest, but is the least restrictive alternative available. See supra at 1479-80. The statute “in issue here is fatally overinclusive in some respects and fatally underinclusive in others.” Erznoznik v. City of Jacksonville, 422 U.S. 205, 218, 95 S.Ct. 2268, 2277, 45 L.Ed.2d 125 (1975) (Douglas, J., concurring). The statute is overinclusive because no compelling interest in maintaining security has been shown to justify a prohibition on signs; it is underinclusive because a prohibition directed solely to anti-embassy speech cannot be justified when pro-embassy speech is likely to pose many of the same security risks. Moreover, even if the statute’s viewpoint-discriminatory restriction were demonstrably related to the proffered security interests, the only constitutionally acceptable solution would be to create a viewpoint-neutral time, place, or manner restriction, i.e., relegating both pro- and anti-foreign government viewpoints to a forum outside of the 500 foot zone.
A. Overinclusiveness
As discussed in Section II, the only compelling interest that could justify the free speech restriction of this statute is security. However, while the second clause of the statute — the congregating prohibition — is readily recognizable as a security measure, there is no evidence whatsoever in the record to support on security grounds the restriction of the first clause, which allows demonstrators within 500 feet of the embassy provided that they do not hold signs that hold the embassy’s government or officers up to “public odium” or “public disrepute.”
The State Department affidavits assure us that “not all demonstrations are prohibited under section 22-1115. Vigils or protests which do not involve the. use of placards or banners, and leafletting when the handout is not facially ‘odious’ are allowed so long as the demonstrators do not congregate within the ‘500 foot’ pe*1488rimeter.” See Affidavit of Deputy Chief John C. Connor, J.A. at 51 (discussing candlelight vigil that was deemed permissible); Defendants’ Statement of Material Facts as to Which There is No Genuine Issue, point 7. Nothing in the record explains how or why this restriction on certain kinds of signs is related to the government’s interest in maintaining embassy security. There is, for example, no claim, as there certainly was in White House Vigil for ERA Committee v. Clark, 746 F.2d 1518 (D.C.Cir.1984), that the sign restrictions are necessary to preserve visibility for security reasons or to prevent their use as weapons. Id. at 1532-34. The majority admits that “a law prohibiting a lone protester carrying a sign of any sort bears no relation to safeguarding the physical security of the building and its occupants. The only conceivable interest that would support such a restriction of speech is that of dignity and peace.” Maj. op. at 1467.13
Since I do not believe that this statute can be upheld merely because it protects embassies from insult, the only constitutionally acceptable justification for upholding the controversial sign provisions of the statute is that countries offended by hostile demonstrators might turn face and refuse to protect our embassies or citizens abroad.14 Indeed, the majority repeatedly hammers home this appalling spectre. Yet it is worth noting that none of the affidavits provided by the State Department and Secret Service representatives ever assert a direct link between our protecting foreign embassies from insult and the security of our foreign citizens abroad.15 See, e.g., Affidavit of James E. Nolan, Jr., Director of the Office of Foreign Missions, Department of State, J.A. at 47 (“what happens in terms of security provided to foreign diplomatic personnel and premises here has a direct impact on the protection afforded U.S. missions and personnel abroad”) (emphasis added).
Thus, while the record before us supports to some degree the proposition that lessening the security of foreign embassies in this country might have adverse repercussions on our embassies abroad, there is not one word of evidence regarding what might happen if we allow marchers in front of the embassy to carry signs that hold the foreign government up to “public odium.” Speculation could as easily run either way: that any reduction in the level of tranquility or good will around the embassy might lead to repercussions on our embassies abroad; or that given the government’s contention that foreign governments closely scrutinize our policies regarding their embassies, and respond in an “eye for an eye” fashion, the only consequence that might ensue is that our own embassies would be subjected to “insult” signs by other countries’ citizens.16 The point is, of *1489course, that mere speculation is not sufficient at least where there is no obvious relationship between the insult suffered from unsympathetic signs held in front of an embassy here and foreign governments’ significant retaliation against our citizens abroad. If any disagreeable gesture to a foreign government is sure to turn into such retaliation, we are already endangering our nonresident citizens’ lives by permitting embassy demonstrators at all, regardless of the presence or absence of signs. The silence of the record on this point belies any contention that there is a nexus between exposure to signs that disagree with a foreign government’s policy and enhanced risk to Americans in that foreign country. Some affirmative evidence must surely be required to justify an explicitly content-based restriction on free speech.
The majority scrupulously fails to scrutinize the evidence actually submitted to the trial court to see whether it supports the D.C. government’s claim that the sign provision is narrowly enough tailored to serve the compelling interests of national security. According to the majority, “[t]he four uncontradicted declarations submitted by defendants below indicate some of the special concerns justifying” D.C.Code § 22-1115. Maj. op. at 1460. Far from “indicating” “some” of the concerns, the affidavits constituted the entire evidentiary record which the District Court had before it in deciding whether summary judgment was appropriate, and not one word in any of them documents or even predicts adverse effects if we were to allow insulting signs in front of embassies. Elementary rules of civil procedure dictate that summary judgment should not have been granted in the absence of any evidence indicating that the ban on signs was necessary to protect embassy security at home or abroad.
We cannot uphold the statute simply because the government has sent its lawyers into court to defend it. It is our job to demand facts and evidence to show that the asserted justification really exists. As the Supreme Court has explained, a reviewing court’s duty in first amendment cases is “to make its own inquiry into the imminence and magnitude of the danger said to flow from the particular utterance and then to balance the character of the evil, as well as its likelihood, against the need for free and unfettered expression.” Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 843, 98 S.Ct. 1535, 1543, 56 L.Ed.2d 1 (1978). Virtually all first amendment cases involve “delicate” issues, and many implicate foreign relations. See, e.g., *1490New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971) (per curiam) (rejecting government’s attempt to restrain publication of Pentagoñ Papers on national security grounds). Yet, none of these landmark first amendment cases suggests the hands-off approach that the majority now uses to justify virtual abdication of judicial responsibility to closely scrutinize first amendment abridgements of pure political speech. See supra at 1484 n. 8.
B. Underinclusiveness
When the government makes a distinction based on the content of speech, it must demonstrate that this distinction is a close fit to its asserted interests. It is true that the Supreme Court
frequently has upheld underinclusive classifications on the sound theory that a legislature may deal with one part of a problem without addressing all of it. See, e.g., Williamson v. Lee Optical Co., 348 U.S. 483, 488-89, 75 S.Ct 461, 464-65, 99 L.Ed. 563 (1955). This presumption of statutory validity, however, has less force when a classification turns on the subject matter of expression. “[Ajbove 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.” Police Dept. of Chicago v. Mosley, 408 U.S., at 95, 92 S.Ct. at 2289. Thus, “under the Equal Protection Clause, not to mention the First Amendment itself,” id., at 96, even a traffic regulation cannot discriminate unless there are clear reasons for the distinctions.
Erznoznik v. City of Jacksonville, 422 U.S. 205, 215, 95 S.Ct. 2268, 2275, 45 L.Ed.2d 125 (1975).
The Court’s treatment of content-based distinctions, which in many ways resembles its treatment of disfavored classifications such as race under the equal protection clause, is based on the proposition that such classifications are inherently suspicious and even dangerous, in and of themselves. Thus, content-based distinctions require a far stronger showing of narrow tailoring than more neutral classifications. Even a cursory analysis of the nature and effect of content distinctions reveals why.
First, “when regulation is based on the content of speech, governmental action must be scrutinized more carefully to ensure that communication has not been prohibited ‘merely because public officials disapprove the speaker’s views.’ ” Consolidated Edison Co. v. Public Service Commission, 447 U.S. 530, 536, 100 S.Ct. 2326, 2332, 65 L.Ed.2d 319 (1980) (quoting Niemotko v. Maryland, 340 U.S. 268, 282, 71 S.Ct. 325, 333, 95 L.Ed. 267 (1951) (Frankfurter, J., concurring)). Especially when the “purported concern [is] to avoid controversy excited by particular groups,” distinctions “may conceal a bias against the viewpoint advanced by the excluded speakers.” Cornelius v. NAACP Legal Defense and Educational Fund, Inc., — U.S. —, 105 S.Ct. 3439, 3455, 87 L.Ed.2d 567 (1985).
Moreover, content-based restrictions and, to an even greater extent, viewpoint-based restrictions distort the marketplace of ideas by allowing only one side of the debate to speak at the chosen forum. “[B]ecause by effectively excising a specific message from public debate, they mutilate ‘the thinking process of the community’ and are thus incompatible with the central precepts of the First Amendment,” such statutes are not tolerated save in the most exceptional circumstances. Stone, Content Regulation and the First Amendment, 25 Wm. & Mary L.Rev. 189, 198 (1983) (quoting A. Meiklejohn, Political Freedom 27 (1960)).
Given these special concerns, underinclusiveness is not so readily acceptable in laws embodying content-based distinctions. The fact that the law fails to address the entire problem “undercut[s] the asserted importance of the government interest said to support the restriction.” Id. at 206; see Carey v. Brown, 447 U.S. 455, 465 & n. 9, 100 S.Ct 2286, 2292 n. 9, 65 L.Ed.2d 263 (1980) (“overinclusiveness and underinclusiveness of the statute’s restriction ... un*1491dermine [state’s] claim that the prohibition ... can be justified' by reference to the State’s interest in maintaining domestic tranquility”). See generally Karst, Equality As a Central Principle in the First Amendment, 43 U.Chi.L.Rev. 20 (1975).
Examination of D.C.Code § 22-1115 and its purported security justifications reveals that it is indeed severely underinclusive. The statute prohibits demonstrations with signs that disapprove of the embassy government’s position, but allows demonstrations with signs that support it. Yet, the government’s own affidavit lends support to the view that violence can as easily erupt from an “initially peaceful” demonstration as from an openly hostile one. Affidavit of Thomas D. Quinn, Special Agent in Charge in the Office of Protective Operations of the United States Secret Service, J.A. at 42. No affidavit suggests that demonstrations including signs of one viewpoint are more prone to outbreaks of violence with the police or other members of the public. Thus, there is no ground in this record for the majority’s conclusion that demonstrations expressing support for an embassy’s position “simply do not threaten” the interests of the foreign government in avoiding violence and maintaining its dignity. Maj. op. at 1474-75. Imagine demonstrators carrying signs in front of the South African Embassy announcing, “We Support Apartheid.” Surely they would engender as much potential for violence and indignity as signs reading, “We Condemn Apartheid.” Would a 1939 Nazi demonstration in front of the German Embassy with signs praising the Third Reich threaten the peace less than demonstrators decrying that regime? 17
Moreover, even if documented, the argument that pro-embassy views are less dangerous than anti-embassy ones has no constitutional acceptability. It was soundly rejected in Mosley, where the city argued that “although it permits peaceful labor picketing, it may prohibit all nonlabor picketing because, as a class, nonlabor picketing is more prone to produce violence than labor picketing.” 408 U.S. at 100, 92 S.Ct. at 2292. The Supreme Court disagreed, and instead laid down the rule that:
Predictions about imminent disruption from picketing involve judgments appropriately made on an individualized basis, not by means of broad classifications, especially those based on subject matter. 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. “[I]n our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.” Tinker v. Des Moines School District, 393 U.S. 503 at 508, 89 S.Ct. 733 at 737, 21 L.Ed.3d 731.
Mosley, 408 U.S. at 100-01, 92 S.Ct. at 2292-93. Similarly here, the mere prediction that anti-government demonstrations are likely to create more of a security threat than pro-government demonstrations is simply too broad a proposition to justify a classification on the basis of viewpoint like the one enshrined in § 22-1115.
C. Neutrality As the Least Restrictive Alternative
Finally, and most fundamentally, the statute could not pass constitutional scrutiny even if the fit between the content-based classification and the government’s asserted compelling interest in security were neat or even if one accepted the majority’s tenuous “dignity” justification. The Supreme Court’s first amendment decisions instruct that the government has a duty, when it adopts a content-based restriction on speech, to show that it is the least restrictive means possible to accomplish a compelling interest. See supra at 1479-80. That showing cannot be made *1492here where a valid content-neutral time, place, or manner restriction is an available alternative to the viewpoint-based restriction.
The majority concludes that the content distinction is justified anyway because the alternative of prohibiting both viewpoints within 500 feet of the embassy will restrict even more speech. This conclusion wholly ignores the “equality principle” that the Supreme Court has recognized in first amendment jurisprudence. The Court has on several occasions subordinated the first amendment interest in total aggregate speech to the first amendment interest in maintaining equality among speakers and, more importantly, viewpoints.
1. The “Greater" Power Does Not Necessarily Include the Lesser
There is more to the constitutional guarantee of free speech than quantitative measuring, i.e., simply ensuring that the most people are allowed to say the most words possible. The Supreme Court has indicated that the Constitution tolerates, and may even require, some broader restrictions on speech in order to avoid the evil of narrower content-based classifications. For example, in Schacht v. United States, 398 U.S. 58, 90 S.Ct. 1555, 26 L.Ed.2d 44 (1970), the Court struck down a provision of a federal statute that authorized an actor to wear a military uniform while portraying a serviceman in a theatre or motion picture so long as “the portrayal does not tend to discredit that armed force.” Id. 398 U.S. at 59-60, 90 S.Ct. at 1557. Acknowledging that a broad prohibition on wearing “our military uniforms without authority is, standing alone, a valid statute,” id. at 61, the Court nonetheless held that the narrower prohibition violated the first amendment, because it discriminated in favor of and against particular viewpoints.
Similarly, in Police Department v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972), and in Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972), the Court struck down statutes incorporating content distinctions even though broader, content-neutral restrictions on picketing would apparently have passed muster. Again, in Carey v. Brown, 447 U.S. 455, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980), the Court struck down an Illinois statute that barred all picketing of residences except for “the peaceful picketing of a place of employment involved in a labor dispute.” Id. 447 U.S. at 457, 100 S.Ct. at 2288. The Court stressed that it should not be
understood to imply, however, that residential picketing is beyond the reach of uniform and nondiscriminatory regulation— “‘The crucial question, however, is whether [the Illinois statute] advances that objective in a manner consistent with the command of the Equal Protection Clause.’ Reed v. Reed, 404 U.S. [71], 76, [, 92 S.Ct. 251, 254, 30 L.Ed.2d 225] [(1971)].” Police Department of Chicago v. Mosley, 408 U.S., at 99, 92 S.Ct. at 2292. And because the statute discriminates among pickets based on the subject matter of their expression, the answer must be “No.”
Id. 447 U.S. at 470-71,100 S.Ct. at 2295-96. See also Erznoznik v. City of Jacksonville, 422 U.S. 205, 215 n. 13, 95 S.Ct. 2268, 2276 n. 13, 45 L.Ed.2d 125 (1975) (indicating that “narrowly drawn nondiscriminatory traffic regulation” would be upheld even though more narrowly drawn discriminatory regulation was invalid).
This theme is consistent with the principle that the “constitutional guarantee of free speech ‘serves significant societal interests’ wholly apart from the speaker’s interest in self-expression.” Pacific Gas & Electric Company v. Public Utilities Commission, — U.S.—, 106 S.Ct. 903, 907, 89 L.Ed.2d 1 (1986). As Justice Brennan has explained, “[t]he First Amendment embodies more than a commitment to free expression and communicative interchange for their own sakes; it has a structural role to play in securing and fostering our republican system of self-government.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 587, 100 S.Ct. 2814, 2833, 65 L.Ed.2d 973 (1980) (Brennan, J., concur*1493ring). It thus borders on the frivolous to suggest that the first amendment, or its “narrowly tailored” component, can ■ be meaningfully applied by comparing the number of syllables that are uttered regardless of their content or the extent to which the government is providing an optimal forum to one side only of a political debate. In the words of a leading commentator, “the first amendment is concerned, not only with the extent to which a law reduces the total quantity of communication, but also — and perhaps even more fundamentally — with the extent to which the law distorts the public debate.” Stone, supra p. 29, at 198. Once these core values are taken into account, it is not at all “odd to describe an alternative that restricts” more words, but preserves equality, as less restrictive of first amendment freedoms. See maj. op. at 1465.
2. Viewpoint Discrimination and the Available Alternatives
The dangers of content discriminatory speech limitations are at their zenith when the discrimination is based not on the type of subject matter in general but on the particular viewpoint of the speaker. See Stephan, The First Amendment and Content Discrimination, 68 Va.L.Rev. 203, 233 (1982). Contrary to the majority’s suggestion,18 the Supreme Court has
never held that government may allow discussion of a subject and then discriminate among viewpoints on that particular topic, even if the government may entirely exclude discussion of the subject from the forum. In this context, the greater power does not include the lesser because for First Amendment purposes exercise of the lesser power is more threatening to core values. Viewpoint discrimination is censorship in its purest form and government regulation that discriminates among viewpoints threatens the continued vitality of “free speech.”
Perry Education Association v. Perry Local Educators’ Association, 460 U.S. 37, 61-62, 103 S.Ct. 948, 963-64, 74 L.Ed.2d 794 (1983) (Brennan, J., dissenting) (emphasis added). Indeed, in Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976), the plurality, while suggesting the legitimacy of some content-based distinctions, was careful to point out that viewpoint discrimination was not involved in the case. Id. 427 U.S. at 67-68, 96 S.Ct. at 2450-51.
The driving concept of the first amendment to promote a marketplace of ideas is twisted out of shape when, through governmental action, only one side of the debate is permitted access to the premium selling booth. While the Constitution does not guarantee speakers the best possible media exposure, see Heffron v. International Society for Krishna Consciousness, 452 U.S. 640, 647, 101 S.Ct. 2559, 2563, 69 L.Ed.2d 298 (1981), it does guarantee competitors equal access to such exposure. Above all else, the first amendment “forbids government to interfere with the competition of ideas.” Georges v. Carney, 691 F.2d 297, 300 (7th Cir.1982). The viewpoint distinction in D.C.Code § 22-1115 violates this core principle with a vengeance.
D.C.Code § 22-1115 is obviously a viewpoint-based regulation. A picketer’s access to the 500 foot zone turns exclusively on whether his signs applaud or condemn the government of the embassy. Yet the majority suggests that because the statute applies equally to those who wish to protest against the East German and the West German embassies, it does not illegitimate*1494ly discriminate among viewpoints. Maj. op. at 1475. The majority’s argument is silly. Issues and controversies do not divide themselves neatly along national lines like paired legislative votes. The statute does engage in viewpoint discrimination when anyone who wishes to disagree with any country’s policy is banned from picketing at that country’s embassy, while those supporting it are welcomed. Indeed, the legislative history reveals no small amount of intolerance for groups who choose to demonstrate against other countries’ policies.19
It is still not clear whether the heightened special fears associated with viewpoint-based regulation mean that our Constitution will never tolerate regulation based on the speaker’s viewpoint.20 In Carey v. Brown, 447 U.S. 455, 465, 100 S.Ct. 2286, 2292, 65 L.Ed.2d 263 (1980), however, the Court did explain that it “might agree that certain state interests may be so compelling that where no adequate alternatives exist a content-based distinction — if narrowly drawn — would be a permissible way of furthering those objectives” (emphasis added). We need not resolve the ultimate issue in this case.21 It is enough that an obvious and constitutionally acceptable alternative is available here, i.e., a viewpoint-neutral restriction on all demonstrating in the vicinity of an embassy. The existence of this obvious alternative serves to further condemn the viewpoint discriminatory § 22-1115.
I can think of few scenarios more antithetical to first amendment values than one involving two groups — one pro-foreign government, one anti-government — simultaneously approaching an embassy with *1495signs. The policemen’s task under § 22-1115 is to discern the viewpoint of each speaker and allow one group to pass the 500 foot barrier while forcing the other group to stay behind it. Those barred from the forum are not only deprived of access, but are also forced to watch their competitors take over the forum for their exclusive use. How much less odious to first amendment freedoms and values if all embassy demonstrators were forced to respect the 500 foot limit? 22
Thus, I do not believe that D.C.Code § 22-1115 is the least restrictive method of dealing with the interests that the government has proffered, even if these interests are legitimate and compelling ones. A viewpoint-neutral regulation prohibiting all embassy-related sign holding in the 500 foot zone around the embassy would provide greater protection from the dangers to both dignity and security than the current regulation does,23 would remove the problem of viewpoint discrimination, and would *1496provide an equally accessible forum for all speakers outside of the 500 foot zone.24
Everyone agrees that embassies deserve to be protected against genuine dangers to their security, even if that means total prohibitions against demonstrations within close range. What we do not agree on is whether dignity interests can rise to a level compelling enough to justify protecting embassies by using a ban on free speech that discriminates in an arbitrary and unnecessary way between those who may demonstrate in front of embassies and those who may not. Certainly a fair and rational law which embodies no such discrimination could not be perceived in any foreign quarter as a lesser protection for foreign representatives, warranting retaliatory action against Americans living in their country.
IV. Standardless Discretion
The second clause of § 22-1115 makes it unlawful “to congregate within 500 feet of any such building or premises, and refuse to disperse after having been ordered so to do by the police authorities of the said District.” D.C.Code § 22-1115. In short, congregation (provided that there are no signs) anywhere within 500 feet of the embassy — up to the very gates — is permissible, unless the police decide it is not, and order the crowd to disperse.
Undoubtedly the District may grant authority to its police to disperse crowds and preserve the public peace under certain circumstances. See Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965). But in describing that authority, the Supreme Court has been careful to point out that it must be “appropriate, limited discretion, under properly drawn statutes or ordinances.” Id. at 558, 85 S.Ct. at 466. For example, in the area of licensing, the Court has declared that “a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objective, and definite standards to guide the licensing authority, is unconstitutional.” Shuttlesworth v. *1497City of Birmingham, 394 U.S. 147, 150-51, 89 S.Ct. 935, 938-39, 22 L.Ed.2d 162 (1969). Similarly, the Supreme Court has insisted that the “legislature establish minimal guidelines to govern law enforcement” officials in the exercise of their discretion. Kolender v. Lawson, 461 U.S. 352, 358, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983) (quoting Smith v. Goguen, 415 U.S. 566, 574, 94 S.Ct. 1242, 1247, 39 L.Ed.2d 605 (1974)). Standards are, ironically, deemed essential in other cases to avoid the very possibility, ensconced in the statute here, of public officials’ taking the speaker’s content and viewpoint into account in determining whether to license, or in this case, disperse, a gathering. See generally Secretary of State v. Joseph H. Munson Co., 467 U.S. 947, 964 n. 12, 104 S.Ct. 2839, 2851 n. 12, 81 L.Ed.2d 786 (1984); Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 628-32, 100 S.Ct. 826, 831-34, 63 L.Ed.2d 73 (1980); Hynes v. Mayor of Oradell, 425 U.S. 610, 620, 96 S.Ct. 1755, 1760, 48 L.Ed.2d 243 (1976); Staub v. City of Baxley, 355 U.S. 313, 321-25, 78 S.Ct. 277, 281-84, 2 L.Ed.2d 302 (1958); Lovell v. City of Griffin, 303 U.S. 444, 451-53, 58 S.Ct. 666, 668-69, 82 L.Ed. 949 (1938).
But § 22-1115 provides no guidance at all as to when the police should and should not disperse a “congregating” group. In Zaimi v. United States, 476 F.2d 511, 515 (D.C.Cir.1973), this court explained that the second section of the statute, i.e., the congregating provision, is “functionally” separate from the first part, dealing with signs. This court clearly held that the portion of the ordinance prohibiting congregating was not qualified by the first portion of the ordinance. Id. at 527. Thus the majority cannot, consistent with circuit precedent, save this portion of the ordinance from facial invalidity by interpreting the ordinance to allow the police to order dispersal only when they “reasonably believe that a threat to the security or peace of the embassy is present.” Maj. op. at 1472.25 While the majority by judicial fiat reads into the second part of the ordinance an overriding purpose of protecting the dignity of the embassy, maj. op. at 1472 & n. 17, that purpose is nowhere to be found in the language of that part of the ordinance. In addition, only a narrowing interpretation by a state court or legislature can be relied upon to qualify a potentially standardless restriction on speech so as to overcome a constitutional challenge. Gooding v. Wilson, 405 U.S. 518, 520, 92 S.Ct. 1103, 1105, 31 L.Ed.2d 408 (1972); Hill v. City of Houston, Texas, 764 F.2d 1156, 1164-65 (5th Cir.1985).
This statute is thus very different from the majority’s example, D.C.Code § 22-1121(2), which this court upheld in Washington Mobilization Committee v. Cullinane, 566 F.2d 107 (D.C.Cir.1977). See maj. op. at 1471. On its face, § 22-1121(2) penalizes one who “with intent to provoke a breach of the peace, or under circumstances such that a breach of the peace may be occasioned thereby — (2) congregates with others on a public street and refuses to move on when ordered by the police.” The *1498ordinance had, however, been interpreted by this court earlier, acting as a local court (before the present D.C. local court system was created), to apply only to conduct which constitutes a nuisance or creates a substantial risk of provoking violence. Id. at 116. Relying on this narrowing construction of the phrase “breach of the peace,” we found that the ordinance was constitutional. Id. at 116-17.26 But, as I have explained, Mobilization Committee’s limiting technique is not available with respect to § 22-1115. See supra at 1471-72.
Our disposition of this issue is controlled by this court’s decision in United States v. Abney, 534 F.2d 984 (D.C.Cir.1976) (per curiam), where we struck down the conviction of a protestor who, while protesting in Lafayette Park, violated a regulation which provided that “[sleeping, loitering or camping with intent to remain for a period of more than four hours in any park area, is prohibited, except upon proper authorization of the Superintendent.” Id. at 985 (emphasis added). The court held that
[t]he regulation gives the Superintendent authority to grant permission to sleep in the park beyond the time limit specified, but it contains no “narrow, objective, and definite standards to guide the licensing authority” [citing Shuttlesworth ] to guard against the danger of arbitrary action or de facto censorship of certain points of view. If the Shuttlesworth standard of “public welfare, peace, safety, health, decency, good order, morals, or convenience” is facially unconstitutional, the totally unfettered discretion granted to the Superintendent here cannot survive constitutional challenge.
Id. at 985-86. These principles apply equally to the totally unfettered discretion given to the police in § 22-1115. See Cox v. Louisiana, 379 U.S. 559, 573, 85 S.Ct. 476, 485, 13 L.Ed.2d 487 (1965); Association of Community Organizations for Reform Now v. Municipality of Golden, Colorado, 744 F.2d 739, 747 (10th Cir.1984).
Some sense of the amazing breadth of discretion accorded police to disperse congregations by § 22-1115 can be gleaned by comparing it to other statutes recently declared invalid by the courts. In Beckerman v. City of Tupelo, Mississippi, 664 F.2d 502 (5th Cir.1981), for example, the court invalidated a parade ordinance which authorized the chief of police to deny a permit upon finding that “the conduct of the parade will probably cause injury to persons or property or provoke disorderly conduct or create a disturbance.” Id. at 507. The court held that the term “provoke disorderly conduct” was susceptible of a broad interpretation, which would allow the chief of police “to deny permits to those seeking to engage in protected activity,” id. at 508, and explained that:
No narrowing construction has been offered by the Tupelo City Council or the Mississippi courts. Because we do not sit as a “súper” state legislature, we may not impose our own narrowing construction onto the ordinance____ We fully recognize the fact that Tupelo enacted the ordinance in good faith and intends to apply it in a fair manner. We cannot, however, overlook the substantial potential for overbroad application of the ordinance.
Id. at 509. See also Association of Community Organizations for Reform Now v. Municipality of Golden, Colorado, 744 F.2d 739 (10th Cir.1984); Cinevision Corp. v. City of Burbank, 745 F.2d 560, 571 (9th Cir.1984), cert. denied, — U.S.—, 105 S.Ct. 2115, 85 L.Ed.2d 480 (1985).
The majority tries to avoid the confrontation with these recent precedents27, first *1499by feebly attempting to distinguish Shuttlesworth and Abney. See Maj. op. at 1470- 71. Even if these were the only cases on point, the distinction that the majority draws between permits in general and “sensitive areas,” maj. op. at 1471, would be illogical. There is nothing about “sensitive areas” that makes it impossible to carefully draft a statute delineating the standards by which the police are to exercise their authority to disperse congregating groups.
The majority also suggests that “a court would [not] sustain a conviction under this statute for refusal to disperse upon a policeman’s order if the policeman had acted out of personal malice [or] to prevent the sidewalk sale of neckties.” Maj. op. at 1471- 72. That answer, however, ignores the longstanding first amendment doctrine that “[p]roof of an abuse of power in the particular case has never been deemed a requisite for attack on the constitutionality of a statute purporting to license the dissemination of ideas.” Thornhill v. Alabama, 310 U.S. 88, 97, 60 S.Ct. 736, 741, 84 L.Ed. 1093 (1940); see also Hynes v. Mayor of Oradell, 425 U.S. 610, 96 S.Ct. 1755, 48 L.Ed.2d 243 (1976); Staub v. City of Baxley, 355 U.S. 313, 78 S.Ct. 277, 2 L.Ed.2d 302 (1958); Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949 (1938).
But the fact is that this is not even a case where a speaker is attempting to challenge a licensing scheme without having asked for and been denied a license. The plaintiffs here alleged that on multiple occasions the police used this standardless statute to prevent them, on penalty of arrest, from peacefully congregating. That is clearly enough for a facial attack on the statute, and I simply do not understand how the court can principledly avoid it. The dispersion portion of the law is patently void for lack of any governing criteria.
V. Conclusion
The majority opinion, by blindly deferring to the political branches and unquestioningly accepting their assertion of an ill-defined interest in protecting foreign emissaries from annoyance and insult, effectively gouges out an enormously important category of political speech from first amendment protection. The fact that some regulation of speech is needed to serve a compelling interest in preserving security, and the fact that some deference is due to coordinate branches, does not, however, mean that the court has no role in assuring that the regulatory scheme is fine-tuned in accordance with constitutional principles. If the court were to accept its mandate and invalidate this statute, Congress could easily draft an alternative that would be just as protective of security, but far less abhorrent to the first amendment.
The majority attempts to ignore well-settled constitutional principles by emphasizing what it perceives to be the trivial nature of the restrictions at issue here. See, e.g., maj. op. at 1476-77. But what may seem trivial to the majority is obviously not so trivial to those who brought this suit, nor to those anti-apartheid protestors whose arrests in front of the South African embassy we followed on the front pages and on the evening news for over a year; they have risked and suffered arrest in *1500order to gain access to what they perceive to be the most effective forum in which to express their convictions.28 There is, so far, no constitutional principle setting out hybrid rules of scrutiny for “trivial” viewpoint regulation of free speech.
Given the passage of a half century since § 22-1115 was enacted, and the dramatic developments in our first amendment jurisprudence during these five decades, I hope that Congress will revisit this statute and show it has the constitutional sense to do what this court will not.
I respectfully dissent.
. The majority speaks often and fondly of the need to defer to Congress’ balancing of free speech interests and the dictates of the Law of Nations, but acknowledges that the balance reached in 1937, before any of the relevant Supreme Court decisions on content-discrimination issued, must be reassessed in light of those dramatic changes in first amendment jurisprudence. See maj.op. at 1454.
Recent congressional action in the area casts doubts on whether today’s Congress agrees that D.C.Code § 22-1115 reflects the right constitutional balance. From 1972 to 1976, the statute that governs embassies in the fifty states penalized anyone who
(1) parades, pickets, displays any flag, banner, sign, placard, or device, or utters any word, phrase, sound or noise, for the purpose of intimidating, coercing, threatening, or harassing any foreign official or obstructing him in the performance of his duties, or
(2) congregates with two or more persons with the intent to perform any of the aforesaid acts.
18 U.S.C. § 112. In 1976, however, Congress amended § 112 to eliminate the prohibition on banners, signs, placards, or devices. The amendment was explained on the ground that the old statute "raises serious Constitutional questions because it appears to include within its purview conduct and speech protected by the First Amendment.” H.R.Rep. No. 1614, 94th Cong., 2d Sess. 6 n. 9, reprinted in 1976 U.S. Code Cong. & Ad.News 4480, 4484 n. 9; S.Rep. No. 1273, 94th Cong., 2d Sess. 8 n. 9 (1976). Thus, even though the pre-amendment § 112 was far less restrictive of speech than D.C.Code § 22-1115 is, Congress thought it necessary to amend it to conform with the dictates of the first amendment.
This post-enactment history is not, of course, evidence of how Congress feels about the D.C. Code provision’s constitutionality. It is evidence, however, that Congress has re-evaluated the proper balance between embassy security and first amendment interests and that the 1937 statute, now part of the local District of Columbia Code, may no longer reflect Congress’ current views as to where that balance lies. See infra at 1465 n. 10.
. "The term 'narrowly tailored,’ so frequently used in our cases, has acquired a secondary meaning. More specifically, as commentators have indicated, the term may be used to require consideration whether lawful alternative and less restrictive means could have been used.” Wygant v. Jackson Board of Education, — U.S. —, 106 S.Ct. 1842, 1850 n. 6, 90 L.Ed.2d 260 (1986) (Powell, J., plurality opinion).
By contrast, the Supreme Court has instructed that “less-restrictive-alternative analysis ... has never been a part of the inquiry into the validity *1480of a [content-neutral] time, place, and manner regulation. It is enough that the ... restriction substantially serves the Government’s legitimate ends.” Regan v. Time, Inc., 468 U.S. 641, 657, 104 S.Ct. 3262, 3272, 82 L.Ed.2d 487 (1984) (emphasis added); see also White House Vigil for ERA Committee v. Clark, 746 F.2d 1518, 1528-29 (D.C.Cir.1984) (refusing to apply least-restrictive-alternative analysis to content-neutral time, place, and manner restriction).
. Indeed, even more threatening to our constitutional values; it is a viewpoint-based statute. See infra at 1492-96.
. The first clause of the statute encompasses “any flag, banner, placard, or device.” For convenience sake, I shall refer to this entire class as signs.
. The majority suggests, however, that under City of Renton v. Playtime Theatres, Inc., — U.S.—, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986), "§ 22-1115 may not in fact qualify as a content-based statute." Maj.op. at 1469, n. 15. In that case, the Supreme Court held that zoning of adult theatres designed to "protect the city’s retail trade, maintain property values, and generally ’protec[t] and preserv[e] the quality of [the city's] neighborhoods, commercial districts, and the quality of urban life,' not to suppress the expression of unpopular views," did not trigger the scrutiny reserved for typical content-based regulations. 106 S.Ct. at 929. The Court found the "resolution of [the] case largely dictated by [the] decision in Young v. American Mini Theatres, Inc., [427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976) ].’’ Renton and Young, however, are obviously and dramatically different from the case at bar.
In upholding the Renton ordinance, the Court stressed that the "ordinance does not contravene the fundamental principle that underlies our concern about ‘content-based’ speech regulations: that ‘government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views.’” Id. 106 S.Ct. at 929 (quoting Mosley, 408 U.S. at 95-96, 92 S.Ct. at 2289-90; see also Young, 427 U.S. at 67-68, 96 S.Ct. at 2450-51 (opinion of Stevens, J.). In this case, the government has done just that. Unlike the Renton ordinance, D.C.Code § 22-1115 turns on the viewpoint of the speaker, and there can be no denying that one of the predominant reasons for the restriction is to prohibit the airing of views that are disfavored by those occupying foreign embassies. See infra at 1493.
The fact that the statute was indeed enacted in order to shield foreign emissaries from the content of speech eliminates any analogy to Renton where the Court held that the ordinance was only aimed at "secondary effects.” 106 S.Ct. at 929. Here, a major part of the perceived evil is the content of the speech itself, and the emotive impact of it. If listeners’ reaction to the content of speech is deemed to be a "secondary” effect, then there is nothing left at all of the content-based distinction doctrine. Yet, on the day it decided Renton, the Court also issued its decision in Pacific Gas & Electric Co. v. Public Utilities Commission, — U.S.—, 106 S.Ct. 903, 89 L.Ed.2d 1 (1986), in which it reaffirmed the content doctrine. Id. 106 S.Ct. at 914 ("For a time, place, or manner regulation to be valid, it must be neutral as to the content of the speech to be regulated.”).
Finally, it is important to keep in mind that Renton was dealing with the issue of adult theatres. For good or for bad, the Supreme Court has adopted the view that not all speech is privy to the same protection. As Justice Stevens explained in Young, "[wjhether political oratory or philosophical discussion moves us to applaud or to despise what is said, every schoolchild can understand why our duty to defend the right to speak remains the same. But few of us would march our sons and daughters off to war to preserve the citizen's right to see ‘Specified Sexual Activities’ exhibited in the theaters of our *1481choice." 427 U.S. at 70, 96 S.Ct. at 2452. Along the continuum, there can be no doubt that political speech, such as that abridged in this case, is entitled to the utmost protection. See Brown v. Hartlage, 456 U.S. 45, 52, 102 S.Ct. 1523, 1528, 71 L.Ed.2d 732 (1982); In re Primus, 436 U.S. 412, 437-38, 98 S.Ct. 1893, 1907-08, 56 L.Ed.2d 417. See generally Bork, Neutral Principles and Some First Amendment Problems, 47 Ind.L.J. 1, 20 (1971).
. Many of the majority’s examples — protections against .acts of violence such as the tearing down of flags or tumultuous riots — are readily recognized as involving our government’s obligations to protect the embassy’s security rather than its dignity. See maj.op. at 1455-57.
. Because I find no demonstrated connection between the hostile sign prohibition and the fear of foreign retaliation in this case, I need not decide whether fear of a foreign government’s actions in response to peaceful criticism may ever justify infringement of an American citizen’s constitutional rights. I admit to grave concerns about the degree or circumstances under which a foreign government’s threats, through a grand-scale heckler’s veto, can justify abridgement of constitutional rights. An admittedly extreme example makes the point: if some foreign country threatened to attack Americans abroad unless we rescind voting rights for blacks in the United States, that could hardly justify such discrimination.
. At another point the majority argues that the "dignity” interest must be accepted as compelling because "a court cannot lightly dispute a determination by the political branches ... that the interests at stake are compelling.” Maj.op. at 1459. The majority never explains, however, which political branch made this determination, and when they made it. Was Congress so omniscient that in 1937 it could anticipate future developments in first amendment law and carry out analyses that had not yet been developed? The fact is that recent congressional action casts doubt about whether Congress still thinks that the statute reaches a correct constitutional balance. See supra note 1. Thus, even if this notion of super-deference had a role to play in compelling interest scrutiny, there is no support for it in this case.
More generally, where the Supreme Court has desired lower courts to modify their usual methods of review in first amendment cases, it has *1485clearly told us so. See Goldman v. Weinberger, — U.S.-, 106 S.Ct. 1310, 1313, 89 L.Ed.2d 478 (1986) ("Our review of military regulations challenged on First Amendment grounds is far more deferential than constitutional review of similar laws or regulations designed for civilian society.”). Deference to the political branches is not otherwise as broad in the first amendment context as in some other areas, even when issues of foreign affairs are involved. See supra at 1483; New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971) (per curiam).
. The statute punishes whoever congregates with two or more other persons within one hundred feet of a listed diplomatic building with intent to “intimidate! ], coerce! I threaten! ], or harass! ] a foreign official or an official guest or obstruct! ] a foreign official in the performance of his duties.” Relying on the complete content-neutrality of the statute, and only on the government’s asserted security interest, the Fifth Circuit held in CISPES that the statute was constitutionally permissible. 770 F.2d at 472-75.
. Despite the majority’s attempts to vest the "dignity” interest with a congressional imprimatur, Congress’ post-Vienna Convention enactments dealing with consulates and missions outside the District of Columbia have been far less concerned with protecting foreign emissaries against insult and far more sensitive to first amendment values than § 22-1115. Despite the long-standing nature of the Law of Nations’ alleged concern with protecting embassies from annoyance and insult, until 1972 the only statutory protection afforded foreign diplomats outside D.C. was against violent acts. See 18 U.S.C.A. § 112 (1969). In 1972 the statute was amended to restrict harassing demonstrations near embassies in order “to protect the peace, dignity and security of foreign officials.” S.Rep. No. 1105, 92d Cong., 2d Sess., reprinted in 1972 U.S.Code Cong. & Ad.News 4316, 4328; see supra at 1478 n. 1. The Senate was concerned about the first amendment implications of this prohibition, however, and added a provision to the final bill, still codified at 18 U.S.C. § 112(d) (1982), explaining that “[njothing contained in this section shall be construed or applied so as to abridge the exercise of rights guaranteed under the first amendment to the Constitution of the United States.” Id., reprinted in 1972 U.S. Code Cong. & Ad.News at 4330. Congress remained concerned about the free speech implications of its actions, however, and when it revisited § 112 four years later it repealed the picketing provisions, citing constitutional concerns. See supra at 1478 n. 1. Congress is presumably satisfied that 18 U.S.C. § 112 fulfills its duties under the Vienna Convention, even though it no longer contains anything remotely like the restrictions embodied in § 22-1115 and expressly directs that it be interpreted so as not to abridge first amendment rights. This congressional pronouncement is far more persuasive on the requirements of the Law of Nations and the Vienna Convention and their relation to the first amendment than the decades-old provisions of § 22-1115, enacted before the Vienna Convention and many of the important developments in first amendment law.
. This is not a case, like those cited by the majority, maj. op. at 1462, where the nature of the demonstration site is functionally incompatible with free speech. We are dealing here with public sidewalks. First, no aesthetic or traffic rationale has been set forth for the sign ban. If one had, then presumably signs in support of the embassy's government would be equally forbidden. See Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966) (upholding content-neutral regulation of speech on jail premises). Nor is this a case like Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965), where the explicit constitutional value of preserving fair trials justified a viewpoint-neutral restriction that prohibited expression designed to influence judicial proceedings in the vicinity of a courthouse.
. The Court has created an exception when the audience is schoolchildren. Bethel School District, — U.S. at —, 106 S.Ct. at 3164. Foreign emissaries are not, like America’s youth, in need of civic training or special protection from sexually explicit speech. Neither does the Law of Nations constitute them as a class apart, entitled *1487to exercise a heckler’s veto in violation of constitutional principles. Cf. supra at 1484 n. 7.
. The majority explains that
the first part of the statute — requiring a permit for the display of a sign tending to bring a foreign government into disrepute — is primarily intended to avoid affronts to the dignity of foreign governments and their diplomatic personnel. The second feature — prohibiting "congregating" — is concerned more with threats to the security of the foreign government’s representatives and property.
Maj. op. at 1452 (emphasis added).
. Even this justification raises serious constitutional questions. See supra at 1484 n. 7.
. The majority attempts to overcome this evidentiary gap by pointing out that the affidavits mention the Vienna Convention, which codifies this country's obligation to protect both the security and dignity of embassies. Maj. op. at 1460. That treaty does not, however, provide evidence of a nexus between protecting embassíes from insult and avoiding retaliation abroad any more than it provides evidence of a link between security interests and retaliation. "Expert judgment" is equally necessary in both cases.
. The major sponsor of the Senate Joint Resolution culminating in D.C.Code § 22-1115, did proffer at one point the explanation that the sign provision was designed to prevent the communication of ideas that threaten to
bring the hatred of people upon us whose embassy is thus besmirched____ [Ajll the armies that can be furnished will not protect our men and women in China and Japan if we arouse and incur the hatred not of those governments but of their people by speaking unkindly or in a manner to bring into odium their Governments and their people.
81 Cong.Rec. 8589 (comments of Sen. Pittman, Aug. 10, 1937). Thus, it is evident that part of *1489the statute’s purpose, at least in its major sponsor's mind, was to protect the security of American citizens living abroad by diminishing the risk of incurring a foreign people’s anger. See also id. at 8485 (comments of Senator Pittman, Aug. 7, 1937).
The opinion of a senator in 1937 that protecting foreign embassies from exposure to adverse signs was necessary to protect American nationals in foreign countries cannot, of course, be viewed as dispositive then, much less 50 years later. See Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 843, 98 S.Ct. 1535, 1543, 56 L.Ed.2d 1 (1978) ("Deference to a legislative finding cannot limit judicial inquiry when First Amendment rights are at stake”). Unlike most duly-enacted laws which are presumed constitutional, the government bears the burden of proving the constitutionality of laws infringing on first amendment rights. See generally Philadelphia Newspapers, Inc. v. Hepps, — U.S.—, 106 S.Ct. 1558, 1564, 89 L.Ed.2d 783 (1986).
The fact is, however, that even Senator Pittman rejected the hypothesis that an affront to the dignity of the. embassy might have official repercussions. In response to a question as to whether the efforts of foreign governments to protect American nationals are dependent on the passage of the resolution, he responded that the foreign governments "no matter whether or not we protect them against insults and annoyance and possibly riot and physical injury, will do what they can to protect our citizens in their countries; but there is danger of physical injury when great and angry crowds meet in the way that has been referred to.” 81 Cong.Rec. 8485 (remarks of Sen. Pittman, Aug. 7, 1937). It is thus apparent that the years have brought a shift in the governmental interest that is asserted to support the statute.
This shift in the interests that the statute serves is not, in and of itself, problematic. See Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 71, 103 S.Ct. 2875, 2882, 77 L.Ed.2d 469 (1983) ("insufficiency of the original motivation does not diminish other interests that the restriction may now serve”). Such a change of interests served does, however, highlight the need for clear articulation and support for the current interests.
. Although these examples are clear-cut, the kind of ideological line-drawing by government officials that may be necessary in some cases to decide which signs are supportive and which are critical of foreign governments is an additional constitutional problem in implementing the statute.
. The majority suggests that, in one case, the Supreme Court has tolerated viewpoint-based regulation of speech. See maj. op. at 1469 (citing Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974)). Nothing in Parker supports this proposition. First, although the statute was arguably viewpoint-based, Parker did not challenge that aspect of it before the Court. Moreover, even if we attribute relevance to the Court’s silence on that issue, we cannot ignore the Court's repeated admonitions that its ruling in Parker was unique to the military context. The Court stressed that " ‘[i]n the armed forces some restrictions exist for reasons that have no counterpart in the civilian community____ Speech that is protected in the civilian population may nonetheless undermine the effectiveness of response to command. If it does, it is constitutionally unprotected.’ ” Id. at 758-59, 94 S.Ct. at 2562-63 (quoting United States v. Priest, 45 C.F.R. 338, 344 (1972)).
. Discussing the protests that he received about the statute, Senator Pittman stated:
Whence come these protests against the joint resolution? Have we heard the American Legion appealing to us ...? Have we heard the Veterans’of Foreign Wars appealing to us ...? Have we heard the Daughters of the American Revolution protesting that by the enactment of this resolution we are destroying constitutional rights?
No! Telegrams are coming to us, but who are they from? Some day before our committee we will find out who is sending them____
81 Cong.Rec. 8590 (remarks of Sen. Pittman, August 10, 1937).
. Schacht v. United States is one of the only modern Supreme Court decisions dealing with a viewpoint-discriminatory statute. After wearing an army uniform in a street skit protesting American involvement in the Vietnam war, Schacht had been convicted of violating 18 U.S.C. § 702, which forbids unauthorized wearing of the uniform of the armed forces of the United States. Schacht defended himself on the basis of 10 U.S.C. § 772(f), which provided that "[w]hile portraying a member of the Army, Navy, Air Force, or Marine Corps, an actor in a theatrical or motion-picture production may wear the uniform of that armed force if the portrayal does not tend to discredit that armed force." (emphasis added). After explaining that a blanket prohibition on unauthorized wearing of a uniform would be valid, 398 U.S. at 61, 90 S.Ct. at 1558, the Court nonetheless struck down the conviction, holding that:
In the present case Schacht was free to participate in any skit at the demonstration that praised the Army, but ... he could be convicted of a federal offense if his portrayal attacked the Army instead of praising it____ Clearly punishment for this reason would be an unconstitutional abridgment of freedom of speech. The final clause of § 772(f), which leaves Americans free to praise the war in Vietnam but can send persons like Schacht to prison for opposing it, cannot survive in a country which has the First Amendment. To preserve the constitutionality of § 772(f) that final clause must be stricken from the section.
Id. at 63, 90 S.Ct. at 1559. Significantly, the Court never looked to any potential justifications or compelling interests that might lie behind the distinction. On the other hand, language in Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), might be read to support the theory that some viewpoint discriminatory statutes could pass muster, at least in the school setting. See id. 393 U.S. at 511, 89 S.Ct. at 739 ("the prohibition of expression of one particular opinion, at least without evidence that it is necessary to avoid material and substantial interference with schoolwork or discipline, is not constitutionally permissible”). But see Bethel School District No. 403 v. Fraser, — U.S.—, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986) (different first amendment standards apply in the school setting).
. Because of the existence of an alternative to viewpoint discrimination in this case, I need not decide this issue. What the majority terms as ambivalence, maj. op. at 1469 n. 14, I prefer to think of as adherence to the long-standing principle of deciding constitutional issues as narrowly as the case allows.
. The majority argues that my approach is inconsistent with the Supreme Court’s decision in Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965), and this court’s unpublished order in Jackalone v. Andrus, No. 79-2359 (D.C. Cir. Nov. 19, 1979). Maj. op. at 1466. The majority misconstrues the import of those decisions, and exaggerates the scope of my approach. Cox was decided in 1965, well before the Supreme Court developed its special rules for dealing with content-based restrictions. In any event, the statute there, while arguably content-based, was clearly not viewpoint-based and thus did not implicate the same concerns as the one here.
As for Jackalone, I find it troublesome that the majority ignores the Circuit Rule which, as the majority concedes, provides that unpublished orders are not citable as precedents. Maj. op. at 1466. See also Western Union Telegraph Co. v. FCC, 773 F.2d 375, 377 n. 1 (D.C.Cir. 1985) (admonishing counsel not to cite unpublished orders) (per Scalia, J., with Mikva, J., and Bork, J., concurring). While the majority seems to assume that a case is not cited "as precedent" unless it controls the decision, traditionally a case is used as precedent whenever it is "considered as furnishing an example or authority for an identical or similar case after-wards arising.” Black’s Law Dictionary 1059 (5th ed. 1979) (emphasis added). The majority clearly relies on Jackalone for its quality as precedent, and Rule 8(f) itself indicates that unpublished cases are only to be cited for purposes such as res judicata "which turn on the binding effect of the judgment, and not on its quality as precedent.” Under the dictionary definition of precedent and the history of circuit practice under Rule 8(f) there is no support whatsoever for the majority’s use of Jackalone in its decision.
In any case, the fact that the order in Jackalone was all of three sentences and set out no background facts renders it useless even as an instructive guide. If, as the briefs tend to indicate, Jackalone merely held that the government rightfully denied a permit since, in view of the hostage crisis, there was "a clear and present danger to the public safety, good order, or health,” see 36 C.F.R. § 50.19(d)(2), there is no inconsistency. Such a regulation would be clearly content-neutral. Although the majority asserts that the regulation in Jackalone was actually applied based on the content and viewpoint of the speech, maj. op. at 1466 n. 12, the government’s brief in Jackalone denies this. Brief for Federal Appellants at 11. If the Park Service had promulgated a permanent regulation banning all anti-Iranian demonstrations in the park, I certainly would argue that a viewpoint-neutral regulation should have been substituted. We, of course, have no idea from the order if the court in Jackalone even considered the "content” issue, which makes it even more farfetched to suggest that Jackalone represents the judgment of a panel of this court on any issue before us.
The majority’s failure to recognize the differing impacts of content-based and viewpoint-based regulation is again evidenced by its own hypothetical which asks whether "a locality that wished to prohibit the shouting of ‘Fire!’ in a crowded theatre” should not "be constitutionally required to outlaw the shouting of ‘Encore’ as well.” Maj. op. at 1475. The majority misses the point that the fire/encore distinction is a content-based one, while § 22-1115 is viewpoint-based. Building on the analogy, § 22-1115 is equivalent to telling the audience they may yell encore, but may not boo at the end of a performance that they dislike.
. Such a ban might be upheld solely on the basis of the important governmental interest in protecting embassy security. Cf. CISPES v. FBI, 770 F.2d at 468, 472-75 (5th Cir.1985); Concerned Jewish Youth v. McGuire, 621 F.2d 471 (2d Cir. 1980), cert. denied, 450 U.S. 913, 101 S.Ct. 1352, 67 L.Ed.2d 337 (1981). The fit between a total ban and the security interest would be tighter than that between § 22-1115 and the security interst, which is not narrowly served by a content- and viewpoint-based restriction. Such a statute would still provide more protection than the general embassy statute, 18 U.S.C. § 112, discussed supra at 1485. This extra protection might, depending on the *1496factual showings made, be reasonable in light of the peculiar security concerns in the District of Columbia, such as those the government discussed in its affidavits.
It is also possible that a content-neutral ban could be upheld, at least in part, based on the government’s asserted “dignity” interest. Although I have concluded that dignity does not rise to the level of a compelling interest so as to justify the content-based restrictions of § 22-1115, it might qualify as a “significant” enough interest to justify a content-neutral ban. Contrary to the majority's suggestion, maj. op. at 1466-67, there is no inconsistency in this position unless one sees fit to ignore two decades of Supreme Court precedent establishing dramatically different levels of scrutiny for content-based and content-neutral regulation of speech. See supra at 1479.
. This is not to say that this balance would be the same in each and every case involving content-based distinctions. For example, where the goal of neutrality would require broad, outright prohibitions on otherwise protected speech, that might not be considered an acceptable alternative. See Redish, The Content Distinction in First Amendment Analysis, 34 Stan.L.Rev. 113, 136-37 (1981); Comment, Equal But Inadequate Protection: A Look at Mosley and Grayned, 8 Harv.C.R.-C.L.L.Rev. 469, 476 (1973). Similarly, even if one assumes that the Court treated the statute in Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976), as a traditional content-based distinction, but see supra note 5, any content-neutral statute there would have required forcing all theatres to move to the outskirts of the city. This is far different from establishing a 500 foot neutral zone. Moreover, since the objective in Young was to segregate the adult theatres, requiring all theatres to be in a single area would hardly have accomplished the goal. Finally, as the court in Young stressed, that statute did not involve viewpoint discrimination. See Young, 427 U.S. at 67-68, 96 S.Ct. at 2450-51.
In this case, by contrast, a blanket bar against protests in the 500 foot zone would leave opportunities for expression elsewhere, as required of a content-neutral time, place, and manner regulation. See Heffron v. International Society for Krishna Consciousness, 452 U.S. 640, 654, 101 S.Ct. 2559, 2567, 69 L.Ed.2d 298 (1981) (discussing requirement of adequate alternative forum). As the majority repeatedly points out, closing off a 500-foot zone around embassies is a limited impingement on speech, if applied across-the-board. The majority’s analysis is, of course, totally inapposite to the statute at hand, which involves a content-based restriction. The availability of a forum 500 feet away is only relevant when a content-neutral statute is involved, since the Court has "consistently rejected the suggestion that a government may justify a content-based prohibition by showing that speakers have alternative means of expression.” Consolidated Edison Company, 447 U.S. at 541 n. 10, 100 S.Ct. at 2335 n. 10.
. In Frend v. United States, 100 F.2d 691 (D.C. Cir.1938), cert. denied, 306 U.S. 640, 59 S.Ct. 488, 83 L.Ed. 1040 (1939), the court interpreted the permit provision of the statute’s first clause in a manner that avoids this difficulty. The clause makes it unlawful to display the listed items within 500 feet of the listed buildings "except by, and in accordance with, a permit issued by the Chief of Police of the said District.” Nonetheless, the court amazingly concluded that the statute
[b]y its terms ... makes it a misdemeanor to do the prohibited things, and the provision authorizing the Superintendent of Police to issue a permit must be read as authorizing its issuance subject to the prohibitions of the resolution. That is to say, that only in those cases in which its use will not harass or bring into public odium the representatives of foreign governments, does power to issue exist.
Id. at 694. This reading of the statute, is, of course, nonsensical. Only those who wish to engage in what is enumerated in the statute need to seek permits, yet, according to Frend permits may not be issued to anyone who intends to do that which is enumerated. Nonetheless, that portion of Frend does represent the law of the circuit until overruled by the full circuit or by the Supreme Court. Undoubtedly taking this into account, plaintiffs have not challenged the licensing scheme of the statute’s first clause.
. The D.C. police line regulation, also cited by the majority and upheld by this court, specified five emergency situations in which police could set up an exclusionary zone and order people away. Because the regulation specified which specific situations triggered its use, and did so without "rely[ing] on subjective terms to define proscribed conduct,” 566 F.2d at 117-18, it was also found to be constitutional.
. The local District of Columbia courts have recognized the applicability of this doctrine in dealing with similar D.C. statutes in "sensitive” areas. In United States v. Nicholson, Nos. 20210-69A, et al. (D.C.Ct. of Gen.Sess. June 19, *14991969), aff’d, 263 A.2d 56 (D.C.1970), Chief Judge, now District Court Judge, Harold H. Greene held that policemen in the United States Capital could not constitutionally use a standardless unlawful entry on property statute to order the defendants to leave the Capitol. See Dellums v. Powell, 566 F.2d 167, 178-79 (D.C.Cir.1977) (discussing Nicholson). The Nicholson court then turned to D.C.Code § 9-113 which forbids anyone to "parade, stand, or move in processions or assemblages in said United States Capitol Grounds, or to display therein any flag, banner, or device designed or adapted to bring into public notice any party, organization, or movement” except with the permission of the Speaker of the House and the President of the Senate, or in their absence from Washington, the Capitol Police Board. See D.C.Code §§ 9-124, 9-125. The court held that this vesting of standardless discretion violated the principle that "in a government of laws, the regulation of conduct— particularly conduct in the sensitive area covered by the First Amendment — must be predicated on a set of definite rules, not on the opinions of police officers." See Dellums, 566 F.2d at 200 (reproduction of Nicholson decision) (emphasis added).
. Under the majority’s "trivial question doctrine” many of the Supreme Court’s important first amendment decisions might never have been delivered since there were undoubtedly alternative forums for communication and the thinking processes of the community were not noticeably mutilated. See, e.g., United States v. Grace, 461 U.S. 171, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983) (invalidating restrictions within vicinity of Supreme Court building); Police Department v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972) (invalidating content-based restriction within 150 feet of school).