578 F.2d 1197
and the National Socialist Party of America, Plaintiffs‑Appellees,
United States Court of Appeals, Seventh Circuit.
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....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." 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.....
Collin and NSPA applied for a permit to march on July 4, 1977, which was denied.... 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)....
A renewed permit application for June 25, 1978, was sent to the Village on April 11, 1978, and contains similar recitations.
The district court, after considering memoranda, exhibits, depositions, and live testimony, issued a comprehensive and thorough opinion granting relief to Collin and NSPA. The insurance requirements of 994 were invalidated as insuperable obstacles to free speech in Skokie, and were adjudged impermissible prior restraints....
We turn to the question of whether the provision built into 994, by s 27‑56(c), can be the basis of a permit denial.
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 presumption against prior restraints is heavier and the degree of protection broader than that against limits on expression imposed by criminal penalties. Behind the distinction is a theory deeply etched in our law: a free society prefers to punish the few who abuse rights of speech After they break the law than to throttle them and all others beforehand....
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,[FN20] 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.
Appellees proved in the district court that they could not obtain the requisite insurance, and also that, in the opinion of their expert, insurance would typically be unavailable to those very controversial groups as to which the Village's interest in having insurance would presumably be the greatest. This expert testimony comports with the teachings of common sense, and, when combined with the discretionary waiver feature in 994, might well justify our reaching the broader conclusion appellees urge on us.
On the other hand, 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. Appellees will receive all the relief they have requested and to which they are entitled on either ground. Accordingly, we accept the Village's concession that the insurance requirement cannot be applied here, which is plainly mandated by the record and the pertinent case law.
The dissent's implication that we ought to wait to see exactly how and whether the Village would apply the requirements to appellees is unacceptably academic. The history of this litigation gives no reason at all to assume that the Village would gratuitously waive the requirements for these plaintiffs, and if the Village knew of some way to aid plaintiffs' search for commercial insurance, one might have expected it at some point in this litigation to say so. It has not, and plaintiffs' evidence that insurance is unavailable to them stands entirely uncontradicted. The suggestion that insurance maintained by the Village might be made available to plaintiffs is incredible: if a policy exists that would cover public liability for the proposed demonstration, what conceivable justification can there be for ss 27‑54 and 27‑56(j)? If any existing policy would not now cover the demonstration, surely the Village will not be able even if it were willing unilaterally to extend coverage. The consent of the insurer would be required, and the evidence adduced herein gives us every reason to doubt it would be forthcoming. Not worthy of comment is the possibility that the Village might generously decide that plaintiffs could purchase their First Amendment rights with a bond of some $300,000 of their own money in lieu of insurance. We have, because of the dissent's position on the matter of the insurance ordinance, revised the original draft of this opinion to advert to what appear to us to be some of the more patent frailties of this non‑ controverted judicially revived issue. We have not because of our belief in the lack of real substance to the issue pursued other rather obvious difficulties presented by the particular ordinance such as its vagueness. Who is the insured? Is the Village to be an additional insured? If the insured parties are to be the plaintiffs how under established insurance law could the plaintiffs assert any claims for injuries they might receive?
Relying on United States v. O'Brien, Judge Sprecher would uphold the "facially neutral" insurance requirement. It is true that the requirement does not turn on the content of a proposed demonstration, except in the sense that controversial groups will likely be unable to obtain insurance, as here. (That several less controversial groups were able to do so, of course, proves nothing.) But it is most assuredly not facially neutral towards First Amendment activity, which is what O'Brien requires. O'Brien was convicted of destroying his draft card. The pertinent statute, which the Court found important to the efficient operation of the Selective Service System, criminalized nothing more, and in no way restricted the right to speak or demonstrate against the draft or the Vietnam War. The Court emphasized that the statute "on its face deals with conduct having no connection with speech. . . ." The O'Brien test, then, deals only with situations where such nonspeech conduct is entwined with speech elements and a restriction on that conduct creates merely "incidental limitations" on protected activity. The limitations here totally and directly prohibit the First Amendment activity; calling them "incidental" manner restrictions does not make them so. Moreover, O'Brien did not involve a prior restraint, nor does the dissent's analysis give more than cursory recognition to the increased burden of justifying such restraints.
Even if O'Brien's test could somehow be applied here, the use of the insurance requirement to prohibit the proposed demonstration would fail it. First, it is difficult, following even a casual examination of the chronological exegesis of the ordinances, particularly in light of the religious complexion of the Village, to think other than that the governmental interest here was directly related to the suppression of these plaintiffs' First Amendment rights. Second, the governmental interest advanced by the dissent could more narrowly be served by criminalizing, as has no doubt already been done, the conduct (by appellees or others) directly producing any feared injury to persons or property and by marshalling local, county, and state police to prevent violations. Instead, the Village has flatly prohibited First Amendment activity, not itself directly productive of the feared injury, by those too controversial to obtain commercial insurance.
Cox v. New Hampshire, 312 U.S. 569 (1941), is also inapposite, both because it involved permit fees carefully designed only to help the town in question defray actual costs incurred in parades, and because there was, in the circumstances of that case, no basis to assume the statute "would be applied so to prevent peaceful picketing . . . ."
The preparation and issuance of this opinion has not been an easy task, or one which we have relished. Recognizing the implication that often seems to follow over‑protestation, we nevertheless feel compelled once again to express our repugnance at the doctrines which the appellees desire to profess publicly. Indeed, it is a source of extreme regret that after several thousand years of attempting to strengthen the often thin coating of civilization with which humankind has attempted to hide brutal animal‑like instincts, there would still be those who would resort to hatred and vilification of fellow human beings because of their racial background or their religious beliefs, or for that matter, because of any reason at all.
Retaining meaning in civil rights, particularly those many of the founding fathers believed sufficiently important as to delay the approval of the Constitution until they could be included in the Bill of Rights, seldom seems to be accomplished by the easy cases, however, and it was not so here.
Although we would have thought it unnecessary to say so, it apparently deserves emphasis in the light of the dissent's reference to this court apologizing as to the result, that our regret at the use appellees plan to make of their rights is not in any sense an apology for upholding the First Amendment. The result we have reached is dictated by the fundamental proposition that if these civil rights are to remain vital for all, they must protect not only those society deems acceptable, but also those whose ideas it quite justifiably rejects and despises.
The judgment of the district court is AFFIRMED.
FN20. The court also found that the co‑sponsorship device had in fact been used to allow parades by "acceptable" organizations which did not satisfy the insurance requirement. That the parades in question were of the type traditionally found acceptable by municipalities, including Skokie, does not change the fact that the Village has created and used a device to exempt parades it has regarded as acceptable from the burdens of the insurance requirement, in its discretion.
SPRECHER, Circuit Judge, concurring in part and dissenting in part.
The basic situation in this case, involving the efforts of avowed and uniformed Hitlerian Nazis to demonstrate without municipal regulations in the streets of a predominantly Jewish village housing some 7,000 Jewish survivors of World War II and their families conjures up a unique amalgam of complex First Amendment concepts such as prior restraint, group libel, fighting words and hostile audiences, incitement to riot, and shouting "fire" in a crowded theater. Seldom before has a federal court been faced with a situation raising such powerful cross‑pressures as have been created in this case. For instance, the fact that it now seems to be instilled in Jewish culture to confront threatened oppression with active resistance and aggressive retaliation differentiates this case factually from Terminiello v. Chicago, 337 U.S. 1 (1949). With a situation that is so unique, it is important to keep in mind Mr. Justice Stevens's admonition from one of the most recent First Amendment cases that "(e)ven within the area of protected speech, a difference in content may require a different governmental response." There may very well be a necessity for a new balancing of values in these circumstances as opposed to the immediate governmental paralysis which is supposed to occur when the rubric of "prior restraint" is sounded....
A prerequisite to obtaining a permit under Ordinance # 994 for a public assembly of greater than 50 persons is provided in section 27‑54: No permit shall be issued to any applicant until such applicant procures Public Liability Insurance in an amount of not less than Three Hundred Thousand Dollars ($300,000.00) and Property Damage Insurance of not less than Fifty Thousand Dollars ($50,000.00). This requirement is enforced through section 27‑56(j) and may be waived by a unanimous vote of the President and Board of Trustees of the Village under section 27‑64.
The district court held this provision to be unconstitutional and the majority here affirms that conclusion. I disagree and respectfully dissent from that part of the majority opinion.
An analysis of the insurance requirement begins with the assumption that plaintiffs' proposed activities are protected under the First Amendment. First Amendment activities, however, do not escape all restraint or regulation. "Reasonable regulations of the time, place, and manner of protected speech, where those regulations are necessary to further significant governmental interests, are permitted by the First Amendment."
There is no dispute with plaintiffs' claim that the insurance requirement of the permit ordinance is a "prior restraint" on their freedom to assemble and march. It must be emphasized, however, that this label is merely an aid to categorization of First Amendment restraints and not a conclusion that those restraints are Per se invalid. Indeed, all permit or licensing systems regulating First Amendment activities are "prior restraints" in this sense.
The insurance ordinance in question here is a restriction on the manner in which public assemblies may take place in the Village of Skokie without regard to their content. The test for an ordinance which incidentally affects First Amendment rights was succinctly stated in United States v. O'Brien: (A) government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. While plaintiffs do not claim that the first of the requirements is unfulfilled, the others raise some questions.
The district court used as one basis for voiding the ordinance the conclusion that the insurance requirement was not "directly related to the accomplishment of legitimate governmental purposes," which is a paraphrase of the second requirement of the O'Brien test. The protection of the safety and the property rights of its citizens, however, is not only a proper subject for the exercise of a municipality's authority, but a local government would be remiss if it did not provide these fundamental protections. In Cox v. New Hampshire (1941), the Supreme Court upheld an assembly permit ordinance which provided for a graduated fee schedule up to a maximum of $300, depending on the costs of administering and policing an assembly. The Court stated: Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses. The authority of a municipality to impose regulations in order to assure the safety and convenience of the people in the use of public highways has never been regarded as inconsistent with civil liberties but rather as one of the means of safeguarding the good order upon which they ultimately depend. . . . (R)egulation of the use of the streets for parades and processions is a traditional exercise of control by local government . . . . It thus seems evident that the insurance regulation involved here furthers an important governmental interest, namely, protecting the property in the Village and assuring that any loss will be covered, as well as guarding the safety of both the marchers and the citizens of Skokie.
The third aspect of the O'Brien test is the requirement that the "governmental interest is unrelated to the suppression of free expression." This test is clearly met since an interest in the protection of property and the safety of citizens is not related to the expression of opinions. Indeed, this governmental interest exists at all times and merely becomes more difficult to attain during demonstrations and parades. This difficulty, however, is unrelated to the Village's agreement with the ideology being expressed.
Nor can the ordinance be invalidated on the basis of a claim that it was enacted by the Village with the motive to suppress the plaintiffs' freedom of speech. The same argument was made in O'Brien and the Court responded: It is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive. . . . I therefore would conclude that the insurance ordinance is designed to further a governmental interest of protecting persons and property which is unrelated to the suppression of free expression.
The final and most challenging part of the O'Brien test requires the incidental restrictions on First Amendment rights to be no greater than is essential to further the governmental interest involved. Initially, it must be noted that the amount of insurance required is not extremely large, especially considering that the requirement is only imposed when the demonstrating or assembling group exceeds 50 persons or vehicles. Indeed, the amount required here is less than what many individuals carry in personal automobile insurance. Thus, this facially neutral insurance requirement seems to impose no greater burden than is necessary to achieve the result desired.
Plaintiffs contend, however, that insurance will be difficult or expensive for them to procure and that this fact should somehow invalidate a facially neutral ordinance. They argue that this is an unreasonable burden on their constitutional rights. The district court and the majority here agree, and thus hold that the insurance requirement is unconstitutional. This result seems to follow from no reasonable constitutional analysis.
We begin with a facially neutral insurance requirement properly within the Village's police powers and designed to protect against loss to the citizens of Skokie. The private insurance market then tells the plaintiffs, in effect, that personal and property damage is so likely to occur when they march that the insurance will be difficult or expensive to obtain. This does not prove that the ordinance is irrational or burdensome; on the contrary, it shows that the insurance requirement furthers a compelling interest of the Village, namely, the protection of its citizens and the avoidance of having its citizens as a whole absorb the cost of damage done by a few. Put another way, the difficulty encountered by the plaintiffs in obtaining insurance coverage fortifies the conclusion that there is justifiable reason to be concerned about damage to property and injury to individuals. Indeed, the gist of the plaintiffs' anomalous argument is that they are such a bad insurance risk that they should be allowed to cause or provoke almost certain damage and to shift the risk to the Village while peaceful groups unlikely to create any problems must furnish the insurance and pay the necessary premiums. Such a conclusion is poor economics and poorer constitutional reasoning.
In Cox v. New Hampshire, the Supreme Court upheld a permit fee ordinance where the fee could vary from a nominal amount up to $300, depending on the public expense of policing the spectacle. There the amount of the fee was to be determined by the municipality, whereas here it is fixed by the competitive market. Even so, the Court found the flexible fee system valid and stated: There is nothing contrary to the Constitution in the charge of a fee limited to the purpose stated. The suggestion that a flat fee should have been charged fails to take account of the difficulty of framing a fair schedule to meet all circumstances, and we perceive no constitutional ground for denying to local governments that flexibility of adjustment of fees which in the light of varying conditions would tend to conserve rather than impair the liberty sought. That reasoning applies with equal force in the instant case.
I thus would uphold this facially neutral insurance requirement as a clearly constitutional "manner" restriction on First Amendment activities. The Village has a right and a duty to protect its citizens and property in this reasonable manner.
Unfortunately, we did not have an opportunity to observe the ordinance at work in this case. Plaintiffs' application was rejected because they planned to wear military‑style uniforms, so that the question of the insurance requirement was not passed on by the Village. Plaintiffs asked the Village in their application either to help them procure insurance or to waive that requirement. In their rush to invalidate this ordinance, however, the district court and the majority did not give the Village an opportunity to determine how the insurance requirements apply, much less to apply them unconstitutionally.
No individual group has as yet been denied the right to march because of the insurance ordinance involved here and several other groups have met the requirement and have paraded in Skokie. The ordinance is reasonable and neutral on its face, is designed to further a compelling governmental interest and has not been applied discriminatorily. This exercise of municipal authority is in no sense an abridgement of First Amendment rights "in the guise of regulation."
Plaintiffs (and both the district court and the majority) also make much of alleged "co‑sponsoring" of activities by the Village which allegedly is a subterfuge for allowing some organizations to avoid the insurance requirements. The two instances of alleged discriminatory "co‑sponsorship" were the Memorial Day and Fourth of July parades, which are traditionally sponsored by municipalities and have been so sponsored by the Village of Skokie for years. Apparently none of the participants in these parades were required to fulfill the insurance requirements, presumably since the Village itself has a public liability policy which would cover any mishaps. Moreover, there is no claim that plaintiffs' group would have been required to obtain insurance in order to participate in these parades. Thus, this "co‑sponsorship" discrimination argument seems specious at best and at worst, as here, may lead to the invalidation of an otherwise proper local ordinance. In rushing to protect First Amendment freedoms, we must be cautious so as not to outrun the facts before us. The ordinance should not be struck down on this basis....
For the reasons discussed above, I would reverse the decision of the district court declaring the insurance requirement of the ordinance unconstitutional.