Collin v. Smith

Decision Date22 May 1978
Docket Number78-1385,Nos. 78-1381,s. 78-1381
Citation578 F.2d 1197
Parties3 Media L. Rep. 2490 Frank COLLIN and the National Socialist Party of America, Plaintiffs-Appellees, v. Albert SMITH, President of the Village of Skokie, Illinois, John N. Matzer, Jr., Village Manager of the Village of Skokie, Illinois, Harvey Schwartz, Corporation Counsel of the Village of Skokie, Illinois and the Village of Skokie, Illinois, a Municipal Corporation, Defendants-Appellants.
CourtU.S. Court of Appeals — Seventh Circuit

David Goldberger, Chicago, Ill., for plaintiffs-appellees.

Harvey Schwartz and Gilbert Gordon, Skokie, Ill., for defendants-appellants.

Before PELL, SPRECHER, and WOOD, Circuit Judges.

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, 1 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, 2 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, 97 S.Ct. 2205, 53 L.Ed.2d 96 (1977). The injunction was subsequently reversed first in part, Village of Skokie v. National Socialist Party of America, 51 Ill.App.3d 279, 366 N.E.2d 347 (1977), and then in its entirety, Id., 69 Ill.2d 605, 14 Ill.Dec. 890, 373 N.E.2d 21 (1978). On May 2, 1977, the Village enacted three ordinances to prohibit demonstrations such as the one Collin and NSPA had threatened. 3 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. 4 It requires permit applicants to obtain $300,000 in public liability insurance and $50,000 in property damage insurance. Id., §§ 27-54, 27-56(j). 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.

Id., § 27-56(c). Another is a finding that the permit activity will not be conducted "for an unlawful purpose," Id., § 27-56(i). None of this ordinance applies to activities of the Village itself or of a governmental agency, Id., § 27-51, and any provision of the ordinance may be waived by unanimous consent of the Board of Trustees of the Village, Id., § 27-64. To parade or assemble without a permit is a crime, punishable by fines from $5 to $500. Id., § 27-65.

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

Id., § 28-43.1. "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.

Id., § 28-43.2. Violation is a crime punishable by fine of up to $500, or imprisonment of up to six months. Id., § 28.43.4. Village Ordinance No. 77-5-N-996 (996) prohibits public demonstrations by members of political parties while wearing "military-style" uniforms, § 28.42.1, and violation is punishable as in 995.

Collin and NSPA applied for a permit to march on July 4, 1977, which was denied on the ground the application disclosed an intention to violate 996. The Village apparently applies 994 § 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. 5 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 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 §§ 27-56(c) & (i) (the latter when used to deny permits on the basis of anticipated violations of 995 or 996) were adjudged impermissible prior restraints. Ordinance 995 was determined to be fatally vague and overbroad, and 996 was invalidated as overbroad and patently unjustified.

On its appeal, the Village concedes the invalidity of the insurance requirements as applied to these plaintiffs and of the uniform prohibition of 996.

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. 6 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.

Before undertaking specific analysis of the clash between the Village ordinances and appellees' desires to demonstrate in Skokie, it will be helpful to establish some general principles of pertinence to the decision required of us. Putting to one side for the moment the question of whether the content of appellees' views and symbols makes a constitutional difference here, we find we are unable to deny that the activities in which the appellees wish to engage are within the ambit of the First Amendment.

These activities involve the "cognate rights" of free speech and free assembly. See Thomas v. Collins, 323 U.S. 516, 530, 65 S.Ct. 315, 89 L.Ed. 430 (1945). "(T)he wearing of an armband for the purpose of expressing certain views is the type of symbolic act that is within the Free Speech Clause of the First Amendment." Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 505, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969). Standing alone, at least, it is "closely akin to 'pure speech' which, we have repeatedly held, is entitled to comprehensive protection under the First Amendment." 7 Id. at 505-06, 89 S.Ct. at 736. The same thing can be said of NSPA's intended display of a party flag, See Stromberg v. California,283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931), and of the messages intended for the placards party members would carry. See, e. g., Cohen v. California, 403 U.S. 15, 18, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971). Likewise, although marching, parading, and picketing, because they involve conduct implicating...

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