253 N.E.2d 76 (Ill.App. 1 Dist. 1969), 53057, Keefe v. Organization For a Better Austin

Docket Nº:Gen. No. 53057.
Citation:253 N.E.2d 76, 115 Ill.App.2d 236
Party Name:Jerome M. KEEFE, Plaintiff-Appellee, v. ORGANIZATION FOR A BETTER AUSTIN, Justin M. McCarthy, William Holmes, andKathy Metropoulos, Defendants-Appellants.
Case Date:September 29, 1969
Court:Court of Appeals of Illinois
 
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253 N.E.2d 76 (Ill.App. 1 Dist. 1969)

115 Ill.App.2d 236

Jerome M. KEEFE, Plaintiff-Appellee,

v.

ORGANIZATION FOR A BETTER AUSTIN, Justin M. McCarthy,

William Holmes, andKathy Metropoulos, Defendants-Appellants.

Gen. No. 53057.

Court of Appeals of Illinois, First District, First Division.

September 29, 1969.

As Modified on Denial of Rehearing Oct. 30, 1969.

Page 77

David C. Long, William A. Pomerantz, Chicago, for defendants-appellants.

[115 Ill.App.2d 237] Thomas W. McNamara, Raymond, Mayer, Jenner & Block, Chicago, for plaintiff-appellee.

MURPHY, Justice.

Defendants appeal from an interlocutory order which found that their activities in Westchester, Illinois, a suburb of Chicago where plaintiff, a real estate broker, resided, 'invaded plaintiff's right of privacy.' The order temporarily restrained defendants from passing out literature and from picketing 'anywhere in the City of Westchester,' but denied injunctive relief as to plaintiff's place of business in the Austin neighborhood of Chicago. Defendants' direct appeal to the Illinois Supreme Court was transferred to this court on the ground that it had no jurisdiction on direct appeal in this case.

On appeal the determinative issue is whether the temporary injunction enjoining the picketing and distribution of leaflets in the area of the plaintiff's home denied defendants' freedom of speech and press under the First and Fourteenth Amendments to the United States Constitution and Article II, Section 4 of the Illinois Constitution, S.H.A.

Plaintiff is a real estate broker operating in the Austin area of the City of Chicago. From time to time he solicits listings from property owners by door-to-door distribution of his business card. The card contains the name 'Jerry's Real Estate' and gives his business address and telephone number. It bears the legend, 'We invite your listings. We have prospective buyers for income property and residential property in the Austin area.'

The Austin area is undergoing racial change, and the defendant Organization for a Better Austin (OBA), an integrated community organization, has been working to [115 Ill.App.2d 238] keep white residents in the community. In its efforts to stabilize the community and to deal rationally with integration, the OBA is attempting to stop 'panic peddling' by those brokers who exploit residents of racially changing areas by fomenting panic among them. Among its committees is the Real Estate Practices Committee, which deals with 'panic peddlers.' The OBA objects to any form of solicitation of real estate listings, and it has obtained written agreements from a number of local real estate brokers covering selling practices, which agreement plaintiff refused to sign.

In order to induce plaintiff to stop these solicitations of real estate listings, defendant OBS initiated a program of picketing and leaflet distribution in the areas of his home and his place of business. The purpose of these activities admittedly was to make plaintiff agree to stop soliciting business. The Westchester leaflets gave plaintiff's home address and telephone number and urged Westchester residents to call plaintiff and tell him to sign the agreement. The leaflet contained the statement: 'When he signs the Agreements we stop coming to Westchester.'

At the trial, defendant William A. Holmes, when corss-examined about the primary motive for passing out 'pluggers' in Westchester, said:

A. All right, I'll answer that by saying that my primary motive was to ask Mr. Keefe to make a public act of faith in the community where he is making his living, and because he

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failed to do this--in fact he said that we don't want a thing to do with you, and we don't care about your community--so we went out and decided to let his, let his neighbors know what he was doing to us.

[115 Ill.App.2d 239] Q. And, by doing this, you had hoped that he would finally sign this agreement that you submitted, is that right?

A. Yes, Sir.

Q. All right.

On October 4, 1967, plaintiff commenced the instant action for injunctive relief. In plaintiff's amended complaint it is alleged that the defendants were displeased with the manner in which plaintiff conducted his real estate business and accused him of being 'a blockbuster (selling real estate to one Negro family and then frightening the other property owners in the neighborhood whereby they became panicky and began to offer their property for sale through plaintiff's real estate office), which course of conduct on the part of defendants commenced on or about August 15, 1967 and continued through October 1, 1967, and still continues without any justifiable cause, reason or excuse.'

Plaintiff alleged that members of the OBA picketed his place of business and distributed literature through the community 'criticizing him and impugning his reputation as an honest and law-abiding operator of a real estate business,' and attacked the business tactics employed by the plaintiff. The relief prayed for was an injunction restraining defendants from picketing his place of business and his home and from distributing derogatory pamphlets.

Defendants answered and admitted picketing and the distribution of circulars, and stated 'that the activities that they engaged in were an exercise of the rights of freedom of speech and assembly guaranteed to them by the Constitution of the United States and of the State of Illinois.' Defendants denied that plaintiff was entitled to any injunctive relief against them.

[115 Ill.App.2d 240] After a hearing, in which both sides introduced the testimony of witnesses and exhibits, the trial court entered an order on December 20, 1967, which included the following findings:

  1. That on September 9, 16, and 30, 1967, and October 22, 1967, some members of the Organization went to Westchester, Illinois, a suburb of Chicago, where the plaintiff resides, and distributed leaflets consisting of mimeographed sheets containing critical descriptions of the manner in which plaintiff was conducting his real estate business in the Austin neighborhood;

  2. That said leaflets were distributed in several locations at various times on the said dates: to residents of some homes in the heighborhood of plaintiff's place of residence, to some people in a shopping center in Westchester, and to some parishioners on their way to or from Mass at the Divine Infant Church in Westchester;

  3. That the said distribution of leaflets was on all occasions conducted in a peaceful and orderly manner, did not cause any disruption of pedestrian or vehicular traffic, and did not precipitate any fights, disturbances or other breaches of the peace;

  4. That the defendants have a right to engage in a peaceful picketing of the plaintiff's place of business;

  5. That defendants have no right to distribute the said leaflets in Westchester, the suburb in which plaintiff resides;

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  6. That defendants' activities in Westchester have invaded plaintiff's right of privacy, causing irreparable harm, and that plaintiff has no adequate remedy at law.

    [115 Ill.App.2d 241] The order granted plaintiff injunctive relief as to his home and denied it as to his place of business. This is the order from which defendants appeal.

    As to the distribution of leaflets, defendants assert that a number of cases cited by the United States and Illinois Supreme Courts have clearly established that the distribution of non-commercial pamphlets, leaflets and literature is fully protected under the State and Federal constitutional free speech and press clauses against prior restraint. On this point defendants' authorities include: Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949 (1938), and Schneider v. Town of Irvington, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939).

    In Lovell v. Griffin, a State ordinance prohibited the distribution of literature of any kind within the limits of the City of Griffin without the permission of a city official. The Supreme Court found this provision to be an unconstitutional restraint on freedom of speech and the press and stated (p. 452, 58 S.Ct. p. 669):

    'The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. These indeed have been historic weapons in the defense of liberty, as the pamphlets of Thomas Paine and others in our own history abundantly attest. The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion. * * *

    'The ordinance cannot be saved because it relates to distribution and not to publication. 'Liberty of circulating is as essential to that freedom as liberty of publishing; indeed, without the circulation, the publication would be of little value.' Ex parte Jackson, 96 U.S. 727, 733, 24 L.Ed. 877.'

    In Schneider v. Town of Irvington, State ordinances prohibited the distribution of literature without a [115 Ill.App.2d 242] license from the chief of police. There the Supreme Court held the licensing made impossible the free and unhampered distribution of pamphlets and said (p. 164, 60 S.Ct. p. 152):

    'As said in Lovell v. City of Griffin, Supra, pamphlets have proved most effective instruments in the dissemination of opinion. And perhaps the most effective way of bringing them to the notice of individuals is their distribution at the homes of the people. On this method of communication the ordinance imposes censorship, abuse of which engendered the struggle in England which eventuated in the establishment of the doctrine of the freedom of the press embodied in our Constitution. To require a censorship through license which makes impossible the free and unhampered distribution of pamphlets strikes at the very heart of the constitutional guarantees.'

    ...

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