Frank COLLIN and the National Socialist Party of America, Plaintiffs‑Appellees,
Village of Skokie, Illinois, a Municipal Corporation, Defendants‑Appellants.
578 F.2d 1197
United States Court of Appeals,
Decided May 22, 1978.PELL, Circuit Judge.
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)....
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.
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....
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).
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....