Frank
COLLIN and the National Socialist Party of America,
Plaintiffs‑Appellees,
v.
Village of
Skokie,
Illinois, a Municipal Corporation, Defendants‑Appellants.
578 F.2d 1197
United
States Court of Appeals,
Seventh
Circuit.
Decided May
22, 1978.
Plaintiff‑appellee,
the National Socialist Party of America (NSPA) is a political group
described
by its leader, plaintiff‑appellee Frank Collin, as a Nazi
party. Among NSPA's more controversial
and generally unacceptable beliefs are that black persons are
biologically
inferior to white persons, and should be expatriated to Africa as soon
as
possible; that American Jews have "inordinate . . .
political and financial power" in the
world and are "in the forefront of the international Communist
revolution." NSPA members affect a
uniform reminiscent of those worn by members of the German Nazi Party
during
the Third Reich, and display a swastika thereon and on a red, white,
and
black flag they frequently carry.
The
Village of Skokie, Illinois, a defendant‑appellant, is a suburb north
of
Chicago. It has a large Jewish
population, including as many as several thousand survivors of the Nazi
holocaust in Europe before and during World War II.
Other defendants‑appellants are Village officials.
When
Collin and NSPA announced plans to march in front of the Village Hall
in Skokie
on May 1, 1977, Village officials responded by obtaining in state court
a
preliminary injunction against the demonstration. After
state courts refused to stay the injunction pending appeal,
the United States Supreme Court ordered a stay, National Socialist
Party of
America v. Village of Skokie, 432 U.S. 43
(1977). On May 2, 1977, the Village
enacted three ordinances to prohibit
demonstrations such as the one Collin and NSPA had threatened. This lawsuit seeks declaratory and
injunctive relief against enforcement of the ordinances.
Village Ordinance No. 77‑5‑N‑994 (hereinafter designated, for convenience of reference, as 994) is a comprehensive permit system for all parades or public assemblies of more than 50 persons. It requires permit applicants to obtain $300,000 in public liability insurance and $50,000 in property damage insurance. One of the prerequisites for a permit is a finding by the appropriate official(s) that the assembly will not portray criminality, depravity or lack of virtue in, or incite violence, hatred, abuse or hostility toward a person or group of persons by reason of reference to religious, racial, ethnic, national or regional affiliation.
Another is a
finding that the permit
activity will not be conducted "for an unlawful purpose."). None of this ordinance applies to activities
of the Village itself or of a governmental agency, and any
provision of the ordinance may be waived by unanimous consent of the
Board of
Trustees of the Village.
To parade or assemble without a permit is a crime, punishable by
fines
from $5 to $500.
Village
Ordinance No. 77‑5‑N‑995 (995) prohibits (t)he dissemination of any
materials within the
Village of Skokie which promotes and incites hatred against persons by
reason
of their race, national origin, or religion, and is intended to do so. "Dissemination of materials"
includes publication or display or distribution of
posters, signs, handbills, or writings and public display of markings
and
clothing of symbolic significance.
Violation is a crime punishable by fine of
up to $500, or imprisonment of up to six months. Village
Ordinance No. 77‑5‑N‑996 (996) prohibits public
demonstrations by members of political parties while wearing
"military‑style"
uniforms, s 28.42.1, and violation is punishable as in 995.
Collin and
NSPA applied for a permit to march on July 4, 1977, whichwas denied on
the ground
the application disclosed an intention to violate 996. The Village
apparently
applies 994 s 27‑56(i) so that an intention to violate 995 or 996
establishes an "unlawful purpose" for the march or assembly. The permit application stated that the march
would last about a half hour, and would involve 30 to 50 demonstrators
wearing
uniforms including swastikas and carrying a party banner with a
swastika and
placards with statements thereon such as "White Free Speech,"
"Free Speech for the White Man," and "Free Speech for White
America." A single file sidewalk
march that would not disrupt traffic was proposed, without speeches or
the
distribution of handbills or literature.
Counsel for the Village advises us that the Village does not
maintain
that Collin and NSPA will behave other than as described in the permit
application(s)....
I.
The
conflict underlying this litigation has commanded substantial public
attention,
and engendered considerable and understandable emotion.
We would hopefully surprise no one by
confessing personal views that NSPA's beliefs and goals are repugnant
to the
core values held generally by residents of this country, and, indeed,
to much
of what we cherish in civilization. As
judges sworn to defend the Constitution, however, we cannot decide this
or any
case on that basis. Ideological
tyranny, no matter how worthy its motivation, is forbidden as much to
appointed
judges as to elected legislators.
The record
in this case contains the testimony of a survivor of the Nazi holocaust
in
Europe. Shortly before oral argument in
this case, a lengthy and highly publicized citizenship revocation trial
of an
alleged Nazi war criminal was held in a federal court in Chicago, and
in the
week immediately after argument here, a four‑part "docudrama"
on the holocaust was nationally televised and widely observed. We cannot then be unmindful of the horrors
associated with the Nazi regime of the Third Reich, with which to some
real and
apparently intentional degree appellees associate themselves. Nor does the record allow us to ignore the
certainty that appellees know full well that, in light of their views
and the
historical associations they would bring with them to Skokie, many
people would
find their demonstration extremely mentally and emotionally disturbing,
or the
suspicion that such a result may be relished by appellees.
But
our task here is to decide whether the First Amendment protects the
activity in
which appellees wish to engage, not to render moral judgment on their
views or
tactics. No authorities need be cited
to establish the proposition, which the Village does not dispute, that
First
Amendment rights are truly precious and fundamental to our national
life. Nor is this truth without relevance
to the
saddening historical images this case inevitably arouses.
It is, after all, in part the fact that our
constitutional system protects minorities unpopular at a particular
time or
place from governmental harassment and intimidation, that distinguishes
life in
this country from life under the Third Reich....
No
doubt, the Nazi demonstration could be subjected to reasonable
regulation of
its time, place, and manner. Although
much of the permit system of 994 is of that nature, the provisions
attacked
here are not. No objection is raised by
the Village, in ordinances or in their proofs and arguments in this
case, to
the suggested time, place, or manner of the demonstration, except the
general
assertion that in the place of Skokie, in these times, Given the
content of
appellees' views and symbols, the demonstration and its symbols
and
speech should be prohibited.
Because the ordinances turn on the content of the demonstration,
they
are necessarily not time, place, or manner regulations.
Thus
these are not appropriately narrow
ordinances, criminalizing, e. g., the invasion of residential
neighborhoods by
sound trucks blaring racial epithets or other messages,or the menacing
by uniformed
bullies of a survivor of the holocaust, or anyone else, on the street,
or at
his or her residence, and we decline to treat them viscerally as
if such were their scope. Logically, we
consider only whether these ordinances can prohibit the type of conduct
and
content this case involves.
Legislating against the content of First Amendment activity, however, launches the government on a slippery and precarious path:. Above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.... This is not to say, of course, that content legislation is per se invalid. [I]n very narrow circumstances, a government may proscribe content on the basis of imminent danger of a grave substantive evil. But analysis of content restrictions must begin with a healthy respect for the truth that they are the most direct threat to the vitality of First Amendment rights.
II.
We first
consider ordinance 995, prohibiting the dissemination of materials
which would
promote hatred towards persons on the basis of their heritage. The Village would apparently apply this
provision to NSPA's display of swastikas, their uniforms, and, perhaps,
to the
content of their placards.
The
ordinance cannot be sustained on the basis of some of the more obvious
exceptions to the rule against content control. While
some would no doubt be willing to label appellees' views
and symbols obscene, the constitutional rule that obscenity is
unprotected
applies only to material with erotic content. Furthermore,
although the Village introduced evidence in the district court tending
to
prove that some individuals, at least, might have difficulty
restraining their
reactions to the Nazi demonstration, the Village tells us that it does
not rely
on a fear of responsive violence to justify the ordinance, and does not
even
suggest that there will be any physical violence if the march is
held. This confession takes this
case out of the scope of Brandenburg v. Ohio and Feiner v. New York
(1951) (intentional
"incitement to riot" may be prohibited). The
Village does not argue otherwise.
The
concession also eliminates any argument based on the fighting words
doctrine of
Chaplinsky v. New Hampshire
(1942). The Court in Chaplinsky
affirmed a conviction under a statute that, as authoritatively
construed,
applied only to words with a direct tendency to cause violence by the
persons
to whom, individually, the words were addressed. A conviction for less than words that at least tend to
incite an
immediate breach of the peace cannot be justified under Chaplinsky....
Under the First Amendment there is no
such thing
as a false idea. However pernicious an
opinion may seem, we depend for its correction not on the conscience of
judges
and juries but on the competition of other ideas. The
asserted falseness of Nazi dogma, and,
indeed, its general repudiation, simply do not justify its suppression.
It may be
questioned after Brandenburg
v. Ohio, supra, whether the tendency to induce violence approach
sanctioned
implicitly in Beauharnais would pass constitutional muster today. Assuming that it would, however, it does not
support ordinance 995, because the Village, as we have indicated, does
not
assert appellees' possible violence, an audience's possible responsive
violence, or possible violence against third parties by those incited
by
appellees, as justifications for 995.
Ordinance 995 would apparently be applied in the absence of any
such
threat. The rationale of Beauharnais,
then, simply does not apply here....
The
Village [argues that] the Nazi march, involving as it does the
display of uniforms and swastikas, will create a substantive evil that
it has a
right to prohibit: the infliction of psychic trauma on resident
holocaust
survivors and other Jewish residents.
The Village points out that Illinois recognizes the "new
tort" of intentional infliction of severe emotional distress,
Assuming that specific individuals could
proceed in tort under this theory to recover damages provably
occasioned by the
proposed march, and that a First Amendment defense would not bar the
action, it is nonetheless quite a different matter to criminalize
protected First Amendment conduct in anticipation of such results.
It
would be grossly insensitive to deny, as we do not, that the proposed
demonstration would seriously disturb, emotionally and mentally, at
least some,
and probably many of the Village's residents.
The problem with engrafting an exception on the First Amendment
for such
situations is that they are indistinguishable in principle from speech
that
"invite(s) dispute . . .. induces a condition of unrest, creates
dissatisfaction with conditions as they are, or even stirs people to
anger." It is
perfectly clear that a
state many not "make criminal the peaceful expression of unpopular
views." Likewise, "mere public intolerance or animosity cannot be the
basis
for abridgement of these constitutional freedoms."
It is
said that the proposed march is not speech, or even "speech plus,"
but rather an invasion, intensely menacing no matter how peacefully
conducted. The Village's expert
psychiatric witness, in fact, testified that the effect of the march
would be
much the same regardless of whether uniforms and swastikas were
displayed, due
to the intrusion of self‑proclaimed Nazis into what he characterized as
predominately Jewish "turf."
There is room under the First Amendment for the government to
protect
targeted listeners from offensive speech, but only when the speaker
intrudes on
the privacy of the home, or a captive audience cannot practically avoid
exposure.
We
conclude that 995 may not be applied to criminalize the conduct of the
proposed
demonstration....
III.
Our
decision that 995 cannot constitutionally be applied to the proposed
march
necessarily means that a permit for the march may not be denied on the
basis of
anticipated violations thereof. We
turn
to the question of whether the similar provision built into 994, by s
27‑56(c),
can be the basis of a permit denial. The
answer really follows with even greater strength from our conclusion on
995. Because 994 s 27‑56(c) gives
to Village "officials the power to deny use of a forum in advance of
actual expression," it is a prior restraint,
which thus "comes to this Court with a 'heavy presumption' against its
constitutional validity."
...The requested parade permit
cannot be denied on the basis of s 27‑56(c).
IV.
As we
have indicated, the Village has conceded that 996 is unconstitutional. We agree, and affirm the district court in
this respect as well....
The
Village has also conceded that the insurance requirements of 994 cannot
be applied to appellees' proposed demonstration. The
district
court, however, found the requirements to be insuperable obstacles to
free
speech in Skokie, subject to discretionary waiver explicitly or by
Village
cosponsorship, and thus
unconstitutional on its face. Appellees
urge us to affirm the district court's conclusion, and not to accept
the more
limited concession offered by the Village.
We do not need to determine now that no insurance requirement could be imposed in any circumstances, which would be a close question, in our view. The present case does not require us to reach out to decide this issue on a broad basis....