(Cite as: 447 F.Supp. 676)
Frank
COLLIN et al., Plaintiffs,
v.
Albert
SMITH et al., Defendants.
No. 77 C
2982.
United
States District Court, N.D. Illinois, Eastern Division.
Feb. 23,
1978.
Members of
the National Socialist Party brought action seeking declaration of
unconstitutionality of three village ordinances. The District Court, Decker,
J., held that: (1) ordinance requiring that groups of 50 or more persons
seeking to parade or assemble in the village obtain liability insurance in the
amount of at least $300,000 and property damage insurance in the amount of at least
$50,000 was unconstitutional; (2) ordinance prohibiting the dissemination of
materials tending to promote or incite racial or religious hatred was
unconstitutionally vague and overbroad; (3) ordinance precluding the issuance
of a parade or assembly permit to any persons intending to disseminate such
material imposed an unconstitutional prior restraint, and (4) ordinance
prohibiting members of a political party from assembling while wearing military‑style
uniforms was unconstitutional.
Order
accordingly.
*680 David A. Goldberger, American Civil Liberties
Union, Chicago, Ill. for plaintiffs.
Harvey
Schwartz, Schwartz & Zaban, Chicago, Ill., for defendants.
MEMORANDUM OPINION AND ORDER
DECKER,
District Judge.
Plaintiffs, the National Socialist Party of America and its
leader, Frank Collin, bring this action challenging three ordinances of the
Village of Skokie, Illinois, on the grounds that the ordinances deprive them of
their rights to freedom of speech and assembly in violation of the First and
Fourteenth Amendments to the United States Constitution. Defendants are the
Village itself and its President, Village Manager and Corporation Counsel. On
October 21, 1977, the court denied plaintiffs' motion for a preliminary
injunction but ordered the cause set for trial on an expedited schedule in view
of the compelling national interest in prompt resolution of cases implicating
First Amendment freedoms. The case was tried to the bench on December 2, 1977,
and has now been submitted for judgment on the trial record and additional
documentary evidence admitted by stipulation of the parties. This Memorandum
Opinion constitutes the court's findings of fact and conclusions of law for
purposes of F.R.Civ.P. 52(a).
I. Factual
Background
Skokie is
a municipal corporation north of Chicago, which is generally regarded in the
Chicago area as a predominantly Jewish community. In fact, as of 1974, it had
40,500 Jewish residents out of a total population of approximately 70,000.
Under the Illinois Constitution, Skokie is a home rule unit and as such has
plenary legislative authority to enact ordinances for the protection of the
public welfare within its borders. Ill.Const. Art. VII, s 6(a).
Plaintiff
Collin testified that the National Socialist Party is "a Nazi
organization", and that in public appearances its members wear uniforms
reminiscent of those worn by members of the German Nazi Party during the rule
of the Third Reich. Specifically, plaintiffs employ the swastika as a party
symbol. Among their more controversial political views, plaintiffs believe that
black persons are "biologically inferior" to whites and should be
"repatriated" to Africa, and that American Jews have excessive
influence in government and close ties to international Communism. Collin
stated that this Jewish influence should be "exposed and documented and
presented to the American public", but denied that plaintiffs endorse the
Third Reich's "final solution" to the problem of Jewish influence
genocide.
In late
1976, plaintiffs planned a series of demonstrations in Jewish communities,
including Skokie. According to plaintiffs' publications, this campaign was
based on the belief that Jews are responsible for busing and racial integration
in the Chicago school system, which plaintiffs have been protesting in other
parts of the Chicago area. Plaintiffs were denied permission to demonstrate in
a Skokie park because of a Skokie Park District ordinance which required them
to obtain $350,000 in liability and property damage insurance.
*681
Plaintiffs then planned a demonstration in the Village to protest the Park
District ordinance. The demonstration was set for May 1, 1977. On March 20,
Collin notified Skokie Police Chief Kenneth Chamberlain of plaintiffs' plans
and assured him that the demonstration would be brief, peaceful and orderly.
News of the planned demonstration caused considerable consternation in Skokie.
The situation was exacerbated by the appearance of some of plaintiffs'
handbills within the Village and by a rash of offensive and threatening
telephone calls to Skokie residents with Jewish surnames. Although there is no
evidence that plaintiffs were responsible for these calls,[FN1] they
undoubtedly stirred public sentiment against the proposed demonstration. As a
result of this sentiment, the Village decided to attempt to prevent the
demonstration. It obtained a preliminary injunction against the demonstration
in state court, which has since been vacated, and on May 2, 1977, enacted the
three ordinances at issue in this action.
FN1. Defendants did not suggest that plaintiffs
were responsible for the calls, and the reporting officer on one of the police
reports admitted into evidence expressed the opinion that it was doubtful that
plaintiffs were responsible.
Ordinance
# 994 is a comprehensive permit system for all parades or public assemblies of
more than 50 persons anywhere within Skokie. It requires all permit applicants
to obtain $300,000 in liability insurance and $50,000 in property damage
insurance. Ordinances # 995 and # 996 are both criminal measures: # 995
prohibits the dissemination of material which incites racial or religious
hatred, with intent to incite such hatred; # 996 prohibits public
demonstrations by members of political parties while wearing military‑style
uniforms. These ordinances are also enforced through the permit mechanism of #
994. A specific provision of that ordinance, s 27‑56(c), requires that a
permit be denied to public assemblies which will engage in the activity
prohibited by # 995 [FN2] and a catch‑all provision relating to
assemblies organized for unlawful purposes, s 27‑56(i), serves the same
function for # 996.
FN2. This is an oversimplification of s 27‑56(c),
which is discussed in detail in Part IV(F) of this opinion.
On June
22, 1977, Collin applied for a permit under # 994. The application recited that
the proposed public assembly would take place on July 4, would consist of 30 to
50 people demonstrating in front of the Village Hall, would last about a half
hour, and would not disrupt traffic. It stated further that the participants
would wear uniforms including swastikas and carry placards carrying statements
such as "White Free Speech", "Free Speech for the White
Man", and "Free Speech for White Americans", but would not
distribute handbills or literature. The evidence shows that the location
selected for the parade was in a commercial, rather than residential area of
Skokie. Finally, the application stated that plaintiffs could not obtain the
required insurance, and requested that the Village either waive the requirement
or assist plaintiffs in finding an insurer. The application was denied by
defendant John Matzer, the Village Manager, on the grounds that plaintiffs
planned to wear military‑style uniforms in violation of # 996. Plaintiffs
responded by bringing this action.
II.
Preliminary Issues
[1] As in
all actions to invalidate state laws on constitutional grounds, the court must
begin by considering the various doctrines which limit the intrusion of the
federal courts into the operation of state government. All three ordinances
impose criminal penalties for their violation. Dombrowski v. Pfister, 380 U.S.
479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965), held that the federal district courts
have jurisdiction over actions for declaratory and injunctive relief against
state criminal statutes on the grounds that they violate the First Amendment
through vagueness and overbreadth.[FN3] Although Dombrowski has been restricted
as to injunctive relief by Younger v. Harris, *682 401 U.S. 37, 91 S.Ct. 746,
27 L.Ed.2d 669 (1971), Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39
L.Ed.2d 505 (1974), held that declaratory relief may still be granted when
there is an imminent threat of prosecution if the plaintiffs exercise their
First Amendment rights. Plaintiffs have requested both declaratory and
injunctive relief. Accordingly, if plaintiffs have satisfied the other
prerequisites for the exercise of federal jurisdiction, the prayer for
declaratory relief provides a basis for this action under Steffel. The question
of possible injunctive relief will be discussed later.
FN3. Jurisdiction is based on the Civil Rights
Act, 42 U.S.C. s 1983 and 28 U.S.C. s 1343(3).
[2][3][4]
The first questions are whether plaintiffs have standing to challenge these
ordinances, and, if so, whether their challenge is ripe for adjudication.
Standing requires that the ordinances pose a direct, immediate threat to
plaintiffs' rights. There can be no question of plaintiffs' standing to
challenge # 996: it is conceded that plaintiffs comprise a political party
whose members customarily wear military‑style uniforms, and if they carry
out their planned demonstration in Skokie they will be in clear violation of
the ordinance. As to # 995, the question is slightly less clear since
plaintiffs' application stated that they do not intend to distribute literature,
hate‑ inciting or otherwise, in Skokie. However, as discussed below, the
definition of "dissemination of materials" in # 995 is quite broad,
and specifically includes display of signs and wearing of clothing "of
symbolic significance". Moreover, the court finds that ordinance # 995 was
specifically intended to apply to the display of Nazi regalia and propaganda.
[FN4] The "clothing of symbolic significance" clause was clearly
directed at plaintiffs' Third Reich style uniforms and swastikas, and much of
defendants' evidence dealt with the significance of these symbols to Jewish
survivors of World War II. Accordingly, there is a substantial probability that
any demonstration by plaintiffs in Skokie would result in their arrest for
violation of # 995, and plaintiffs have standing to challenge the ordinance.
FN4. The wording of the ordinances and the context
in which they were enacted leave no doubt that they were intended to cover
demonstrations by Nazi organizations. However, this finding is merely one of
legislative intent to aid the court in interpreting the ordinances; plaintiffs
have not sought to prove that the
ordinances are so clearly directed against them alone as to constitute bills of
attainder. A law of general applicability is not unconstitutional merely
because its enactment was inspired by a specific example of the evil which it
seeks to suppress.
[5] The
only standing question with regard to # 994 is whether plaintiffs need a permit
at all, since their proposed assembly would consist only of 30 to 50 persons.
The ordinance actually requires a permit for any assembly in which the number
of participants "may reasonably be assumed to exceed 50", s 27‑51.
Thus, one who holds an assembly without a permit which more than 50 persons
attend would violate the ordinance if it were found that he should have
reasonably assumed more than 50 would attend. In light of the criminal
penalties the ordinance imposes for lack of foresight, the court feels that
plaintiffs are the best judge of their need for a permit and have standing to
challenge # 994.
[6][7] The
only thing currently keeping plaintiffs from demonstrating in Skokie and violating ordinances # 995 and #
996 is their inability to obtain a permit under # 994; accordingly, if their
challenge to # 994 is ripe for adjudication, the challenges to # 995 and # 996
are also ripe. This leaves a ripeness problem only as to # 994. Since defendant
Matzer denied the permit application solely on the basis of # 996, defendants
have never officially considered whether the application satisfied the
insurance requirement or the " no incitement of racial hatred"
requirement. However, ripeness is a practical doctrine, which should not be
employed to require the parties to satisfy empty formalities when the issues
between them are clearly defined. As discussed below, plaintiffs have proved
that they cannot obtain the required insurance, and it is virtually certain
that defendants would refuse to waive the requirement in light of their
implacable opposition to plaintiffs' presence in Skokie. Similarly, *683 the
court's finding that these ordinances were specifically intended to apply to
plaintiffs makes it equally certain that plaintiffs' application would be
denied under the incitement of hatred standard. Further, although plaintiffs
could force a decision on the insurance issue by agreeing not to wear uniforms,
there is no way they could avoid the insurance problem in order to force a
decision on the racial hatred issue. Accordingly, the court finds that the
issues between the parties are ripe for adjudication under each of the three
ordinances.
[8][9][10]
Thus, the court has jurisdiction over this case. Whether it may properly
exercise that jurisdiction depends on the doctrines of exhaustion of remedies
and abstention. Plaintiffs could have appealed the denial of their permit
application to the Village Board of Trustees, under s 27‑57, and then
filedan action for judicial review in state court under the Illinois
Administrative Review Act, Ill.Rev.Stat. ch. 110, ss 264, et seq. A plaintiff
is never required to exhaust administrative remedies when to do so would be
obviously futile. Porter County Chapter of the Izaak Walton League of America
v. Costle, 571 F.2d 359, at 264, Dkt. Nos. 76‑2098 and 77‑1262 (7th
Cir. Jan. 30, 1978), Slip Op. at 6. This is especially true in civil rights
cases, where the congressional policy of providing a federal forum for
vindication of constitutional rights is particularly strong. Monroe v. Pape,
365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); see Drexler v. Southwest
Dubois School Corp., 504 F.2d 836, 838‑39 (7th Cir. 1974). For the
reasons discussed above, the court finds that an appeal to the Board of
Trustees would be futile in this case. Moreover, there is no reason to require
plaintiffs to proceed under the Administrative Review Act when their claims are
based upon freedom of speech rather than administrative procedure. Exhaustion
is not required.
Although
abstention is generally not favored in civil rights cases, Drexler, supra, the question arises in this
case due to the ongoing state court litigation between the parties, the subject
of which to some degree overlaps this case. As noted above, defendants in this
case obtained a preliminary injunction from the Circuit Court of Cook County,
which prohibited plaintiffs from demonstrating at all in Skokie, from wearing
their uniforms and swastikas there, and from distributing materials which
incite racial hatred. The Illinois Appellate Court for the First District
modified the injunction to prohibit only display of the swastika, on the
grounds that as to the other issues the Village had not met its extraordinary
burden of showing an immediate harm which would justify preliminary injunctive
relief in a case raising First Amendment issues. Village of Skokie v. National
Socialist Party of America, 51 Ill.App.3d 279, 9 Ill.Dec. 90, 366 N.E.2d 347
(1st Dist.1977). On appeal, the Illinois Supreme Court held that the
preliminary injunction forbidding the display of the swastika was also improper
in light of the presumptive unconstitutionality of any prior restraint on
speech. Dkt. No. 49769, Ill., 14 Ill.Dec. 890, 373 N.E.2d 21, Jan. 27, 1978.
The Village did not cross‑appeal the Appellate Court's modification of
the injunction, apparently because the subject matter of the part of the
injunction vacated by the Appellate Court was by then covered by the ordinances
involved in this suit.
[11][12]
The federal courts must abstain from deciding a constitutional question when
there is an unresolved question of state law which could either moot the
constitutional question or substantially alter it. Railroad Commission of Texas
v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed.2d 971 (1941). Abstention
would be improper in a case merely because the same federal law questions
presented are also being litigated in another case. Colorado River Water Cons.
Dist. v. United States, 424 U.S. 800, 817‑19, 96 S.Ct. 1236, 47 L.Ed.2d
483 (1976). The court has examined the briefs and decisions in the state court
litigation between the parties, and there appears to be no substantial
unresolved issue of state law there involved which would affect this case.
Moreover, in the present posture of the state case, the overlap in issues
between *684 the two actions is actually quite small. The only question
actually decided by the Illinois Supreme Court, which the Village is now
seeking to take to the United States Supreme Court, is whether the use of a
specific symbol the swastika can be enjoined in a situation where it may be emotionally
damaging to a specific group of persons,[FN5] whereas this case is concerned
with the impact of a broad range of municipal ordinances on many kinds of
speech and speech‑related behavior. Accordingly, the court finds that it
is not required to abstain from deciding this case.
FN5. Immediately after vacating the Village's
injunction, the Illinois Supreme Court granted interlocutory review in Sol
Goldstein v. Franklin Collin, an action by a resident of Skokie seeking to
enjoin the planned demonstration on the grounds that it would harm him as a
survivor of the Nazi holocaust in World War II. The Court summarily ordered the
action dismissed without briefing or argument. A petition for rehearing is
pending. This case could potentially raise issues relevant to Part IV.D. of
this opinion, but in view of the treatment the Court has given the case, it
does not justify abstention. This court, of course, expresses no opinion as to the merits of plaintiffs' position in that
case.
This
court's opinion will now deal with the federal question whether the three
ordinances under review impermissibly limit and burden the exercise of free
speech and assembly in Skokie.
III. The
Insurance Ordinance
Section 27‑54
of Ordinance # 994 provides that:
"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). Prior to the
issuance of the permit, certificates of such insurance must be submitted to the
Village Manager for verification that the company issuing such insurance is
authorized to do business and write policies of insurance in the State of
Illinois."
In
addition, s 27‑56(j) specifically requires the Village Manager to deny a
permit to any person failing to comply with s 27‑54. The requirement may
be waived by a unanimous vote of the President and Board of Trustees, s 27‑64.
Staging a public assembly without a permit is punishable by a $5 to $500 fine,
s 27‑65.
In Collin
v. O'Malley, Dkt. No. 76 C 2024, in which the plaintiffs were the same as the
plaintiffs here, Judge Leighton of this court held that a virtually identical
ordinance of the Chicago Park District violated the First Amendment because its
effect was to completely preclude organizations such as the National Socialist
Party from staging public assemblies in the parks. The record in O'Malley has
been admitted into evidence in this case by stipulation, but defendants do not
stipulate to Judge Leighton's findings or conclusions and this court must make
its own review of the record.
The court
is in complete agreement with Judge Leighton's finding that insurance of the
type required by the Skokie and Park District ordinances is beyond the reach of
plaintiffs. Janet Jarosz, a licensed insurance broker, testified in O'Malley
that she had made a continuing effort for four or five months to obtain such
insurance for plaintiffs without success. She contacted 13 separate companies
and brokerage firms without success, including several that specialize in
unusual and hard to place lines of insurance. She gave as her professional
opinion the conclusion that plaintiffs could not obtain the insurance, because
insurance companies are simply not interested in writing the kind of policy
required due to the unknown risks involved, and consequently will write the
policies only as an accommodation to well‑established and respectable
organizations. In an affidavit executed for this action, Jarosz stated that she
had made additional efforts to obtain the insurance for plaintiffs as recently
as August, 1977, and she reaffirmed her original conclusions. Jarosz also
testified that if the insurance were available to plaintiffs, the premium would
be as much as $1,000 for each event. Neither the O'Malley defendants nor the
defendants in this case presented any evidence to contradict Jarosz's
testimony.
*685 [13]
The law regarding use of public streets for demonstrations was set down in the
plurality opinion of Mr. Justice Roberts in Hague v. C.I.O., 307 U.S. 496, 515‑16,
59 S.Ct. 954, 964, 83 L.Ed. 1423 (1939):
"Wherever the title of streets and parks may
rest, they have immemorially been held in trust for the use of the public and,
time out of mind, have been used for purposes of assembly, communicating
thoughts between citizens, and discussing public questions. Such use of the
streets and public places has, from ancient times, been a part of the
privileges, immunities, rights, and liberties of citizens. The privilege of a
citizen of the United States to use the streets and parks for communication of
views on national questions may be regulated in the interest of all; it is not
absolute, but relative, and must be exercised in subordination to the general
comfort and convenience, and in consonance with peace and good order; but it
must not, in the guise of regulation, be abridged or denied."
The
ordinance under review in effect bans all public assemblies above a certain
size within the Village unless the sponsoring organization either has the
wherewithal to obtain a rare and expensive form of insurance policy or receives
an exemption from the ordinance's coverage. The court concludes that this
drastic restriction of the right of freedom of speech and assembly is an
abridgement "in the guise of regulation." There are two bases for
this conclusion.
[14]
First, the burdensome effect of the insurance requirement itself has not been
shown to be necessary. The government may impose financial burdens on the
exercise of First Amendment rights, such as permit fees, only when the amount
involved is reasonable and directly related to the accomplishment of legitimate
governmental purposes. Cox v. New Hampshire, 312 U.S. 569, 576‑ 77, 61
S.Ct. 762, 85 L.Ed. 1049 (1941); United States Labor Party v. Codd, 527 F.2d
118 (2d Cir. 1975); see also Lubin v. Panish, 415 U.S. 709, 94 S.Ct. 1315, 39
L.Ed.2d 702 (1974); Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d
92 (1972). In this case, defendants have presented no evidence whatsoever of
the Village's need for such a burdensome insurance requirement. Nothing in the
record shows that Skokie or any comparable municipality has ever been
threatened with damage by a public assembly which would have been prevented or
alleviated by an insurance requirement of this type.
Second,
the ordinance is objectionable because some organizations may be exempted from
its requirements and there are no principled standards for determining which
organizations are exempt. In addition to the specific waiver provision of s 27‑56,
any activity sponsored by a governmental agency is exempt. The record shows
that the device of "co‑sponsorship" by the Village itself and
related entities such as the Skokie Park District has enabled groups such as
the Northeast Skokie Property Owners Association and the American Legion to
escape the insurance requirement. This device permits organizations that have
the approval of the Village government to avoid the restrictions imposed on all
other groups, with no indication that such exemptions have been or will be
granted on the basis of the threat of liability or property damage posed by
their activities.[FN6] It is well established that permit systems which are so
devoid of standards that they allow government officials to engage in covert
censorship in their administration are particularly vulnerable to First
Amendment challenge. Hague, supra, 307 U.S. at 516, 59 S.Ct. 954; see also
Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150‑51, 89 S.Ct. 935,
22 L.Ed.2d 162 (1969); Cox v. Louisiana, 379 U.S. 536, 555‑58, 85 S.Ct.
453, 13 L.Ed.2d 471 (1965).
FN6. Defendant Matzer conceded that there were no
written standards governing waiver or co‑sponsorship. In fact, the
ordinance contains no explicit provision for co‑sponsorship at all; the
adoption of this device by the Village government is a further indication of
the standardless manner in which the insurance requirement has been enforced.
In short,
the court finds that ss 27‑54 and 27‑56(j) of Ordinance # 994
impose a *686 virtually insuperable obstacle to the free exercise of First
Amendment rights in the Village of Skokie, which obstacle has not been proven
to be justified by the legitimate needs of the Village and which may be
disposed of at the uncontrolled and standardless discretion of the Village
government. These sections are, accordingly, unconstitutional on their face.
[FN7]
FN7. Plaintiffs have also introduced some evidence
indicating that the requirement that permits be filed 30 days before the
scheduled activities, s 27‑52, has been waived by the Village Manager in
an arbitrary manner. However, the evidence as a whole does not show a clearly
discriminatory pattern of granting waivers of this requirement, and the
requirement does not appear to be particularly burdensome. If plaintiffs were
trying to prove that this requirement unduly restricts free speech, they have
failed to do so.
IV. The
"Racial Slur" Ordinances
A.
Introduction
Ordinance
# 995 and s 27‑56(c) of # 994 are both directed at a type of speech that
the parties have characterized generally as "racial slurs". A more
precise definition can be formulated only in the context of a discussion of the
ordinances themselves. For the sake of convenience, the court will also use the
same term. Section 28‑43.1 of Ordinance # 995 provides that:
"The 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,
is hereby prohibited." [FN8]
FN8. The use of the verbs "promotes" and
"incites" would seem to indicate that the dependent clause modifies
the singular "dissemination" rather than the plural
"materials", but it appears from the remainder of the ordinance and
its use throughout the parties' briefs that the ordinance is understood to
prohibit materials which promote and incite as opposed to dissemination which
does so.
"Dissemination of materials" is defined by s 28‑43.2
to include:
"publication or display or distribution of
posters, signs, handbills, or writings and public display of markings and
clothing of symbolic significance."
Violation
of Ordinance # 995 is a misdemeanor punishable by a fine of up to $500 and/or imprisonment for up to six months,
s 29‑43.4. The Corporation Counsel is authorized to seek injunctive
relief against prospective violations, s 29‑43.5.
Section 27‑56(c)
covers the same subject, but is worded somewhat differently. It requires the
Village Manager to deny apermit for any assembly which will:
"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."
The different
issues raised by this ordinance will be discussed after the analysis of
Ordinance # 995.
It is
apparent that in enacting these ordinances, the Village government acted
primarily to shield its citizens and particularly its Jewish citizens from the
flaunting by plaintiffs of the symbols of a hated era and repugnant political
philosophy. The ordinances adopted, however, do more than simply ban display of
the swastika; they impose sweeping bans on the content of speech within Skokie
and include provisions for which there is almost no precedent in constitutional
law. The importance and novelty of the issues involved requires a close re‑examination
of the basic principles of the First Amendment against which these ordinances
must be measured.
B.
Fundamental Principles
[15] It
must be made clear from the outset that defendants have no power to prevent
plaintiffs from stating their political philosophy, including their opinions of
black and Jewish people, however noxious and reprehensible that philosophy may
be. The Supreme Court has held that "above all else, the First Amendment
means that government has no power to restrict expression because of its
message, its ideas, its *687 subject matter, or its content." Police
Department of the City of Chicago v. Mosely, 408 U.S. 92, 95, 92 S.Ct. 2286,
2290, 33 L.Ed.2d 212 (1972).
The
principle derives from the theory of the "marketplace of ideas". As
the Court has recently stated the theory: "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." Gertz v. Robert Welch, Inc., 418 U.S. 323, 339‑40, 94
S.Ct. 2997, 3007, 41 L.Ed.2d 789 (1974). This theory has recently been the
subject of considerable criticism, and the underlying basis of defendants'
position, as well as much of the commentary on this case, seems to be that
plaintiffs' philosophy is so thoroughly repugnant to any concept of civilized
society that it is not entitled to entry into the "marketplace". As
the late Prof. Alexander Bickel has argued, to permit an idea to be advocated
is to concede its legitimacy and impliedly accept the possibility that it may
be accepted and implemented as a social policy; and there are some policies
whose implementation would be so completely unacceptable in a democratic
society that their advocacy should not be permitted. A. Bickel, The Morality of
Consent, 70‑77 (1975).
This
interpretation of the marketplace of ideas principle gains support from Supreme
Court statements such as that of the Gertz Court that "there is no such
thing as a false idea", and from the opinions of Justice Oliver Wendell
Holmes, the judge most responsible for incorporation of the marketplace concept
into the First Amendment. See Gitlow v. New York, 268 U.S. 652, 673, 45 S.Ct.
625, 69 L.Ed. 1138 (1925) (Holmes, J., dissenting). And it is undoubtedly true
that if any philosophy should be regarded as completely unacceptable to
civilized society, that of plaintiffs, who, while disavowing on the witness
stand any advocacy of genocide, have nevertheless deliberately identified
themselves with a regime whose record of brutality and barbarism is unmatched
in modern history, would be a good place to start.
This
criticism of the marketplace of ideas theory is, however, based on an incorrect
interpretation of the theory's premises. Theearly English libertarian
philosophers who developed the concept did not believe that, in the Gertz
Court's somewhat unfortunate phrase, "there is no such thing as a false
idea." They believed that false ideas existed; and that the process of
free debate could be relied upon to identify false ideas, but that the
government could not. See J. Milton, Areopagitica A Speech for the Liberty of
Unlicensed Printing (1644); J. S. Mill, On Liberty, ch. II (1859). The words of
Mr. Justice Brandeis remain the classic exposition of this principle in the
context of American constitutional law:
"Those who won our independence believed . .
. that freedom to think as you will and to speak as you think are means
indispensable to the discovery and spread of political truth; that without free
speech and assembly discussion would be futile; that with them, discussion
affords ordinarily adequate protection against the dissemination of noxious
doctrine; that the greatest menace to freedom is an inert people; that public
discussion is a political duty; and that this should be a fundamental principle
of the American government. They recognized the risks to which all human
institutions are subject. But they knew that order cannot be secured merely
through fear of punishment for its infraction; that it is hazardous to
discourage thought, hope and imagination; that fear breeds repression; that
repression breeds hate; that hate menaces stable government; that the path of
safety lies in the opportunity to discuss freely supposed grievances and
proposed remedies; and that the fitting remedy for evil counsels is good ones.
Believing in the power of reason as applied through public discussion, they
eschewed silence coerced by law the argument of force in its worst form."
Whitney v. California, 274 U.S. 357, 375‑76, 47 S.Ct. 641, 648, 71 L.Ed.
1095 (1927) (Brandeis, J., concurring) (footnote omitted).
*688 The
question, then, is not whether there are some ideas that are completely
unacceptable in a civilized society. Rather the question is which danger is
greater: the danger that allowing the government to punish
"unacceptable" ideas will lead to suppression of ideas that are merely
uncomfortable to those in power; or the danger that permitting free debate on
such unacceptable ideas will encourage their acceptance rather than
discouraging them by revealing their pernicious quality. This question is one
of the fundamental dilemmas of free speech, and it is certainly open to public
debate, but for the purposes of this case, the question has been definitively
settled by the Supreme Court.
From the
beginning the Court has held that speech may be punished only when it actually
causes some social harm which the government can legitimately prevent. See
Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470 (1919). For
many years, however, the Court held that certain doctrines, such as the violent
overthrow of the government, were so inherently harmful to society that their
mere advocacy in any form could be prohibited. Abrams v. United States, 250
U.S. 616, 40 S.Ct. 17, 63 L.Ed. 1173 (1919); Gitlow, supra; Whitney, supra.
Justices Holmes and Brandeis consistently dissented from these opinions on the
grounds that allowing the prohibition of mere advocacy would inevitably lead to
untrammeled censorship. They took the position that advocacy even of violence
or lawlessness could be punished only when it occurred in a situation in which
the advocacy posed a "clear and present danger" of actually inciting
the lawless actions advocated.
The Holmes‑Brandeis
approach gained ascendancy through the 1940's and 1950's as the Court retreated
from the position that all advocacy of Communism could be prohibited. See
Dennis v. United States, 341 U.S. 494, 502‑11, 71 S.Ct. 857, 95 L.Ed.
1137 (1951), (plurality opinion). In Yates v. United States, 354 U.S. 298, 77
S.Ct. 1064, 1 L.Ed.2d 1356 (1957), the Court attempted to draw a distinction
between "abstract" advocacy, which is protected by the First Amendment,
and advocacy "directed to stirring people to action", id. at 326‑
27, 77 S.Ct. at 1081. This standard proved practically unworkable, and in
Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969), the
Court abandoned the attempt to define kinds of advocacy which are sufficiently
dangerous in themselves to warrant suppression. It adopted the Brandeis
position in Whitney, and held that advocacy of any idea can be prohibited only when
it is both intended to and likely to incite "imminent lawless
action".
Since the
Court has thus squarely rejected the theory that some ideas are too dangerous
to permit their advocacy, it follows that plaintiffs have the right to advocate
their political views within Skokie. The question remains, whether Ordinance #
995 unacceptably restricts their ability to do so.
C.
"Unprotected" Speech and Fighting Words
As
discussed above, the central issue in First Amendment cases is the constant
tension between the policy of permitting unrestricted exchange and discussion
of ideas and the government's legitimate interest in preventing the harms that
may be caused by speech. When the speech involved takes the form of the
advocacy of ideas, Brandenburg establishes that only harm serious enough to
justify its restriction is the imminent threat of lawless action. Defendants in
this case have disclaimed any reliance on Brandenburg, stating: "The
Village does not contend that the forbidden conduct (speech which intentionally
incites racial hatred) will create a clear and present danger of violence,
riot, breach of peace, or other disorders." Defendant's Brief in Response
to Plaintiffs' Memorandum of Law, at 2 (emphasis in original).
Thus, the
ordinances may not prohibit advocacy which falls short of incitement of
imminent lawless action. However, it has long been established that certain
kinds of language are of so little utility in the conveyance of ideas that they
can be prohibited *689 on the basis of harms less serious than the threat of
imminent lawlessness. Such speech is generally referred to as
"unprotected", and it includes "the lewd and obscene, the
profane, the libelous, and the insulting or 'fighting' words those which by
their very utterance inflict injury or incite an immediate breach of the
peace." Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 769,
86 L.Ed. 1031 (1942). Defendants' position is that language which intentionally
incites racial hatred is unprotected speech.
Before
examining the merits of this argument, the court notes that the term "unprotected speech" is something
of a misnomer, for in reality all speech derives considerable protection from
the First Amendment. The reason is that determination of whether speech is
valueless and therefore unprotected inevitably involves to some extent an
inquiry into its content, and thus raises the possibility that the speech will
be suppressed in part because of the offensiveness of the idea it conveys. See
Young v. American Mini Theatres, Inc., 427 U.S. 50, 65‑67, 96 S.Ct. 2440,
49 L.Ed.2d 310 (1976) (plurality opinion). In order to counteract this tendency
and insure the free flow of debate, the Court has developed the theory that
First Amendment values require "breathing space". In other words, the
government is not only prohibited from regulating protected speech directly, it
is also prohibited from impinging too closely upon it and thereby dampening the
vigor of debate. This principle requires all First Amendment cases to be
considered "against the background of a profound national commitment to
the principle that debate on public issues should be uninhibited, robust, and
wide‑open, and that it may well include vehement, caustic, and sometimes
unpleasantly sharp attacks on government and public officials." New York
Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 721, 11 L.Ed.2d 686
(1964). That such an approach will often protect speech which could be
prohibited if laws could be drafted and enforced with perfect clarity and
precision is regarded as the price which must be paid for the full preservation
of First Amendment values.
Thus,
there are actually two questions involved here: whether "racial
slurs" are unprotected speech; and, if so, whether the definition of
racial slurs employed by Ordinance # 995 is sufficiently precise to reach only
unprotected slurs and allow adequate breathing space for protected speech.
The
doctrine of unprotected speech was first developed in cases involving abusive
epithets and insults. In Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900,
84 L.Ed. 1213 (1940), and Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct.
766, 86 L.Ed. 1031 (1942), members of the Jehovah's Witnesses sect were
convicted of inciting breaches of the peace on the basis of their use of
language which the Court characterized as highly offensive. The Cantwell Court
began with the premise that "(r)esort to epithets or personal abuse is not
in any proper sense communication of information or opinion safeguarded by the
Constitution . . ." 310 U.S. at 309‑10, 60 S.Ct. at 906. The
Chaplinsky Court added that while such speech might have a "slight social
value as a step to truth", such a slight value is "clearly outweighed
by the social interest in order and morality." 315 U.S. at 572, 62 S.Ct.
at 769.
This
analysis would seem to suggest that the government may generally prohibit
speech which is not a communication of ideas or opinion. The Court, however,
avoided such a broad approach to the restriction of unprotected speech in favor
of an inquiry into the conduct of the speaker, the circumstances in which the
speech was employed, and the actual likelihood that it would provoke a breach
of the peace. Cantwell's speech had consisted of a phonograph record which he
played on a public street. He had asked permission to play the record, had
stopped when asked to do so, and had at no time been belligerent, offensive or
truculent. His conviction was reversed. Chaplinsky, on the other hand, had
called another a "damned racketeer" and "damned Fascist" to
his face in a belligerent manner; his conviction was affirmed.
*690 This
narrow approach to unprotected speech was emphasized by Terminiello v. City of Chicago, 337 U.S. 1,
69 S.Ct. 894, 93 L.Ed. 1131 (1949). Terminiello was convicted for disorderly
conduct on the basis of an inflammatory speech filled with offensive epithets.
The trial court charged the jury that the offense included conduct which
"stirs the public to anger, invites dispute, brings about a condition of
unrest, or creates a disturbance." The Illinois Supreme Court affirmed,
finding no constitutional problem since Terminiello's speech had been so
offensive and insulting that it was unprotected under Cantwell and Chaplinsky.
See 400 Ill. 23, 34‑35, 79 N.E.2d 39 (1948). The Supreme Court reversed
without even considering whether the speech was unprotected. Inviting dispute,
creating unrest and stirring anger are among the "high purposes" of
free debate, the Court said, and therefore no speech could be punished merely
because it accomplished those purposes.
[16] Thus,
Cantwell, Chaplinsky and Terminiello established a two‑part test for the
restriction of the "fighting words" class of unprotected speech. The
speech must, considered objectively, be abusive and insulting rather than a
communication of ideas, and it must actually be used in an abusive manner in a
situation which presents an actual danger that it will cause a breach of the
peace. The fighting words concept has continued to dominate later unprotected
speech cases, which have built upon these basic principles.
[17]
First, the Court has several times emphasized that care must be taken to insure
that what is restricted is insulting and offensive language, not the
communication of offensive ideas. "It is firmly settled that under our
Constitution the public expression of ideas may not be prohibited merely
because the ideas themselves are offensive to some of their hearers."
Street v. New York, 394 U.S. 576, 592, 89 S.Ct. 1354, 1366, 22 L.Ed.2d 572
(1969); see Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91
S.Ct. 1575, 29 L.Ed.2d 1 (1971); Bachellar v. Maryland, 397 U.S. 564, 90 S.Ct.
1312, 25 L.Ed.2d 570 (1970). Even where the audience is so offended by the
ideas being expressed that it becomes disorderly and attempts to silence the
speaker, it is the duty of the police to attempt to protect the speaker, not to
silence his speech if it does not consist of unprotected epithets. Gooding v.
Wilson, 405 U.S. 518, 527, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972); Gregory v.
City of Chicago, 394 U.S. 111, 89 S.Ct. 946, 22 L.Ed.2d 134 (1969); Cox v.
Louisiana, 379 U.S. 536, 546‑48, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965).
In Cohen
v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971), the Court
discussed in detail the rule that even unprotected speech may only be
suppressed when it threatens a harm. Cohen had worn a jacket inscribed with the
phrase "Fuck the Draft", and was convicted of "maliciously and
willfully disturb(ing) the peace or quiet of any neighborhood or person . . .
by . . . offensive conduct." The Court began by restating the objective
element of the test: fighting words, it said, are "those personally
abusive epithets, which, when addressed to the ordinary citizen, are, as a
matter of common knowledge, inherently likely to provoke violent
reaction." Cohen's choice of language, it said, would satisfy this test.
403 U.S. at 20, 91 S.Ct. at 1785.
Nevertheless, the Court reversed Cohen's conviction on the ground
that in Cohen's case there was no
showing that the speech had been used in a context which even made the occurrence
of breach of the peace a possibility: "No individual actually or likely to
be present could reasonably have regarded the words on appellant's jacket as a
direct personal insult . . . There is . . . no showing that anyone who saw
Cohen was in fact violently aroused or that appellant intended such a
result." Id.
Although
the government need not prove an actual threat of an imminent breach of the
peace in order to restrict unprotected speech, the Court said in Cohen the
state's position amounted to an assertion that it could ban certain offensive
epithets even without showing a possible breach, either *691 because such
epithets are inherently likely to cause violent reactions or in order to
maintain a "suitable level of discourse within the body politic."
Neither rationale, the Court said, was strong enough to justify establishing
the "inherently boundless" precedent that the government could ban
certain forms of language solely because of their offensiveness. To permit such
bans would place unacceptable restrictions on free and uninhibited debate. The
Court concluded:
"To many, the immediate consequence of this
freedom may often appear to be only verbal tumult, discord, and even offensive
utterance. These are, however, within established limits, in truth necessary
side effects of the broader enduring values which the process of open debate
permits us to achieve. That the air may at times seem filled with verbal
cacophony is, in this sense not a sign of weakness but of strength." 403
U.S. at 24‑25, 91 S.Ct. at 1788.
In light
of these principles, it is apparent that the line between protected and
unprotected speech in matters relating to race and religion is an
extraordinarily difficult one to draw. On the one hand, slurs and insults which
rely upon the victim's racial and religious heritage are among the most vicious
and abusive epithets known. As Mr. Justice Jackson has written:
"These terse epithets come down to our
generation weighted with hatreds accumulated through centuries of bloodshed . .
. They are not in that class of epithets whose literal sting will be drawn if
the speaker smiles when he uses them. They are always, and in every context,
insults which do not spring from reason and can be answered by none. Their
historical associations with violence are well understood, both by those who
hurl and those who are struck by these missiles . . . " Kunz v. New York,
340 U.S. 290, 299, 71 S.Ct. 312, 317, 95 L.Ed. 280 (1951) (Jackson, J.,
dissenting).[FN9]
FN9. Although Justice Jackson's opinion was
written in dissent, the passage cited dealt with a question not reached by the
Court.
On the
other hand, it is equally clear that discussion of race and religion will often
involve the exposition of ideas and positions that are inherently offensive to
many, but which are nevertheless protected by the First Amendment. We live in a
society that is very conscious of racial and religious differences, in which
open discussion of important public issues will often require reference to
racial and religious groups, often in terms which members of those groups, and
others, would consider insulting and degrading. To choose an obvious example,
discussion of the use of mandatory quotas in affirmative action programs cannot
help but touch upon characteristics perceived to be shared by members of
particular racial groups. The First Amendment does not permit the government to
restrict discussion of such sensitive and emotion charged public issues to the
sanitary prose of legal and social sciences technical jargon. Cf. Bond v.
Floyd, 385 U.S. 116, 127, 134‑45, 87 S.Ct. 339, 17 L.Ed.2d 235 (1966).
The
question remains whether the language of Ordinance # 995 is sufficiently
precise to focus exclusively on the personally abusive use of epithets in
situations where the possibility of breaches of the peace justifies the
epithets' suppression and still permit the intemperate and emotional debate
which may accompany any discussion of race and religion. Our courts have
employed the doctrines of vagueness and of overbreadth to make this
determination.
[18] A law
is unconstitutionally vague when it fails to give reasonable notice of the
conduct which is prohibited and gives law enforcement personnel the opportunity
to enforce it according to their personal prejudices. Smith v. Goguen, 415 U.S.
566, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974). In First Amendment cases the
doctrine has an added dimension, since a vague statute which covers speech‑related
activities may be enforced only against those who express unpopular opinions
and thus be used as a device for censorship. Grayned v. City of *692 Rockford,
408 U.S. 104, 108‑114, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972).
Statutes
which punish speech solely on the basis of the emotion it arouses in other
persons are vulnerable to findings of vagueness, see, e. g., Ashton v.
Kentucky, 384 U.S. 195, 199‑201, 86 S.Ct. 1407, 16 L.Ed.2d 469 (1966),
particularly where the emotion involved is subjective and difficult to define
with precision. Smith v. Goguen, supra, invalidated a law punishing
"contemptuous" treatment or display of the American flag, on the
grounds that in an era in which the flag is often treated casually, the precise
conduct which could be considered "contemptuous" and result in
criminal sanctions was impossible to define. Similarly, Coates v. City of
Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971), struck down an
ordinance which prohibited groups of people from conducting themselves in an
"annoying" manner on a public street. The Court held that the First
Amendment right of free assembly could not be conditioned upon compliance with
a purely subjective standard such as "annoyance".
[19] The
Skokie ordinance punishes language which intentionally incites hatred. This
standard is as subjective and impossible to clearly define as the standards
found impermissible in Smith and Coates. Terminiello and its progeny establish
that there is a constitutional right to incite unrest, dissatisfaction, and
even anger with social conditions. The distinction between inciting anger with
a social condition and hatred of the person or group perceived to be
responsible for that condition is impossible to draw with the requisite
clarity, and depends to a great extent upon the frame of mind of the listener.
For example, plaintiffs believe that busing school children in order to
accomplish integration is a threat to the integrity and quality of the public
school system, and they also believe that blacks and Jews are the instigators
of busing. They clearly have a constitutional right to say so, and to say so
vehemently and forcefully. But at what point does a vehement attempt to arouse
public anger at busing become an attempt to incite hatred of blacks and Jews? A
society which values "uninhibited, robust and wide‑open" debate
cannot permit criminal sanctions to turn upon so fine a distinction. Ordinance
# 995 is unconstitutionally vague.
[20][21]
Even assuming that the distinction can be defined with sufficient clarity,
however, the court also finds that the Ordinance is overbroad. A law is
overbroad for First Amendment purposes when, even though it is directed at
unprotected speech, it can also be applied to protected speech. Such a law is
considered completely unconstitutional on its face even though it is capable of
application in a constitutional manner, on the theory that the very existence
of laws which can be applied to protected speech exercises an unacceptable
inhibiting effect on free debate. In Gooding v. Wilson, 405 U.S. 518, 92 S.Ct.
1103, 31 L.Ed.2d 408 (1972), the Court struck down a Georgia statute punishing
the use of "opprobrious words or abusive language, tending to cause a
breach of the peace", language which would seem to conform with the
definition of fighting words. The Court found, however, that as construed by
the Georgia courts, the phrase "tending to cause a breach of the
peace" referred to the inherent character of the language rather than the
circumstances in which it was used. As discussed above, the punishment of even
abusive language inherently likely to cause breaches of the peace was found
unacceptable in Cohen. Therefore, the statute was "susceptible of
application to speech, although vulgar or offensive, that is protected by the
First . . . Amendment", and was unconstitutional on its face. For examples
of the stringency with which this test is applied, see Rosenfeld v. New Jersey,
408 U.S. 901, 92 S.Ct. 2479, 33 L.Ed.2d 321 (1972); Lewis v. City of New
Orleans, 408 U.S. 913, 92 S.Ct. 2499, 33 L.Ed.2d 321 (1972).[FN10]
FN10. Although the Court merely vacated Rosenfeld
and Lewis for reconsideration in light of Gooding and Cohen, the statutes
involved were quite narrowly phrased and construed by the state courts, and the
fact that the Court even felt it necessary to vacate for reconsideration is an
indication of the stringency of the overbreadth doctrine.
*693 The
Skokie ordinance punishes the mere "dissemination" of material which
incites hatred, with dissemination broadly defined to include such relatively
passive activities as distributing leaflets and wearing "symbolic"
clothing. It is clearly not aimed solely at personally abusive, insulting
behavior, as was required by Cohen and Gooding. The court cannot agree that the
requirement that the language intentionally incite hatred is an adequate
substitute for this limitation.
It may
very well be true that hatred tends to spawn violence and that, unlike the
unrest and dissatisfaction referred to in Terminiello, hatred serves no useful
social function in itself. Nevertheless, the incitement of hatred is often a
byproduct of vigorous debate on highly emotional subjects, and the basic
message of Cohen is that a great deal of useless, offensive and even
potentially harmful language must be tolerated as part of the "verbal
cacophony" that accompanies uninhibited debate, not for its own sake, but
because any attempt to excise it from the public discourse with the blunt
instrument of criminal sanctions must inevitably have a dampening effect on the
vigor of that discourse. The Court has repeatedly rejected attempts to ban
certain kinds of language on the basis of an "undifferentiated fear or
apprehension of disturbance . . . " Tinker v. Des Moines Independent
Community School District, 393 U.S. 503, 508, 89 S.Ct. 733, 737, 21 L.Ed.2d 731
(1969).
The
requirement that speech pose an imminent danger of violence before it may be
suppressed is relaxed to a great extent when the speech serves no useful social
purpose, but Ordinance # 995 seeks to dispense with the requirement entirely,
and this it may not do. The ordinance is unconstitutionally overbroad.
D.
Beauharnais v. Illinois
The
foregoing discussion has assumed that the only danger posed by racial slurs is
that of imminent breach of the peace. This is the ordinary fighting words
rationale for the suppression of offensive epithets, which under Chaplinsky
include those which either incite breaches of the peace or "by their very
utterance inflict injury." Defendants argue that racial slurs fall into this
second category of speech‑inflicted harms, and have presented psychiatric
evidence showing the mental and emotional trauma that can be caused by such
slurs.[FN11] Unlike epithets which cause breaches of the peace, those which
inflict emotional trauma have attracted comparatively little judicial
attention.
FN11. Prof. David Gutmann, Chief of the Psychology
Division at Northwestern University, testified in detail on the psychological
effect of racial slurs on members of groups, such as blacks and Jews, that have
been the victims of prejudice and oppression. Defendants also presented the
opinion testimony of leaders of several ethnic groups. Prof. Gutmann was also
of the opinion that the mere presence of plaintiffs in Skokie would have a
severe harmful effect on Jewish survivors of World War II, but it is apparent
that his views on this point are colored by his own interpretation of free
speech and by his strong opposition to plaintiffs' political views.
The
keystone of defendants' argument in this uncharted field is Beauharnais v.
Illinois, 343 U.S. 250, 72 S.Ct. 725, 96 L.Ed. 919 (1952), in which the Court
upheld an Illinois criminal libel statute which made it unlawful:
"for any person . . . to manufacture, sell,
or offer for sale, advertise, or publish, present or exhibit in any public
place in this state any lithograph, moving picture, play, drama or sketch,
which publication or exhibition portrays depravity, criminality, unchastity, or
lack of virtue of a class of citizens, of any race, color, creed or religion
which said publication or exhibition exposes the citizens of any race, color,
creed or religion to contempt, derision, or obloquy or which is productive of
breach of the peace or riots . . . "
Beauharnais was convicted of violating this statute on the basis
of leaflets printed and distributed by the White Circle League of *694 America,
of which he was president. The leaflets called on the Chicago government to
"halt the further encroachment, harassment and invasion of white people,
their property, neighborhoods and persons, by the Negro." It added that,
"If persuasion and the need to prevent the white race from becoming
mongrelized by the negro will not unite us, then the aggressions . . . rapes,
robberies, knives, guns and marijuana of the negro, surely will."
Mr.
Justice Frankfurter, writing for the Court, relied on two distinct grounds to
uphold the statute and did not make clear the relationship between them. First,
he noted that one traditional basis of criminal libel law was the punishment of
words likely to cause breaches of the peace, and that the Illinois Supreme
Court had characterized Beauharnais' words as "liable to cause violence
and disorder". It then detailed Illinois' long history of racial strife
and concluded that there was a rational basis for the state's attempt to
suppress language likely to further exacerbate racial tensions. This analysis
followed the fighting words rationale of Chaplinsky and Cantwell.
However,
the case cannot be viewed simply as an application of the fighting words rule.
There was no showing that the peaceful distribution of the leaflets had
immediately threatened a breach of the peace or that those who distributed them
had been belligerent or truculent. In fact, the indictment had charged simply
that the publication exposed black Illinoisians to "contempt, derision, or
obloquy"; there was no reference to the part of the statute which
prohibited words "productive of breach of the peace or riots." Thus,
considered as a fighting words case, Beauharnais would seem indistinguishable
from Cantwell, in which a conviction based on the peaceful playing of a highly
offensive phonograph record was reversed.
The Court
then turned to a second ground for upholding the statute, which had not been
relied upon by the Illinois Supreme Court. See 408 Ill. 512, 517‑ 18, 97
N.E.2d 343 (1951). The Court noted that a second traditional purpose of
criminal libel law was to protect the reputation of persons who were defamed by
the libel. There was no question, the Court said, that it would be defamatory
to call an individual a thief, rapist and drug user, and that such libel would
be unprotected speech. It saw no reason to apply a different rule when the
defamation was directed to an entire race, since "a man's job and his
educational opportunities and the dignity accorded him may depend as much on
the reputation of the racial and religious group to which he willy‑nilly
belongs, as on his own merits." 343 U.S. at 257‑58, 263, 72 S.Ct. at
734. Therefore, the Court concluded, libel of racial and religious groups
constituted a distinctive category of unprotected speech, and a showing of a
danger of violence resulting from it was unnecessary. Id. at 266, 72 S.Ct. 725.
Beauharnais requires particularly close scrutiny for two reasons:
first, because it is the sole Supreme Court case relied upon by defendants;
and, second, because it is widely believed by First Amendment scholars that the
case is no longer good law. The decision was originally accompanied by four
powerful dissents. The dissenters ranged from Mr. Justice Black, who considered
the statute unconstitutional on its face, to Mr. Justice Jackson, who objected
only to the conduct of the trial; but all agreed on two points: that the
government can constitutionally punish those who defame individual reputations
or who incite breaches of the peace, and that Beauharnais had been punished for
doing neither, but only for expressing his opinion. The case has since proven
remarkably sterile as a source of constitutional law. So far as this court's researches
have revealed it has never been relied on as controlling precedent in any
Supreme Court case, and at least two circuit courts have stated in dicta that
it is doubtful that the case is still good law. Tollett v. United States, 485
F.2d 1087, 1094 n. 14 (8th Cir. 1973); Anti‑Defamation League of B'nai
B'rith v. FCC, 131 U.S.App.D.C. 146, 403 F.2d 169, 174 n. 5 (D.C.Cir.1968),
cert. denied, 394 U.S. 930, 89 S.Ct. 1190, 22 L.Ed.2d 459 (1969) (Wright, J.,
concurring); see also T. Emerson, The System *695 of Freedom of Expression at
396 (1970).
[22]
Nevertheless, the case has never been expressly overruled, and this court must
make its own determination as to its continued validity. At the outset, there
is no doubt that the case's basic premises are still sound: the government may
punish speech which defames individual reputation, or which incites a breach of
the peace. However, as has been seen, a statute directed at unprotected speech
may still fall afoul of the First Amendment if it is so broad or vague that it
unacceptably inhibits free debate. The standards which the courts apply in
determining whether a particular statute has this inhibiting effect have
undergone considerable evolution since Beauharnais, and much of the analysis
the Court employed in that case is obsolete by modern standards. Thus, before
it can be found that Beauharnais establishes the constitutionality of a law
which, like the Skokie ordinances, employs similar language, it must be
determined whether the Beauharnais statute itself would pass muster if it were
brought before the Supreme Court today.
Beauharnais held that speech which defames racial groups may be
criminally punished even when it is not directed at any specific member of the
defamed group. There are two possible rationales for this holding. First, it
may be presumed that defamation directed at a group damages the reputation of
individual members of the group. Second, speech which defames a race or
religion may be considered so inherently productive of violence that it is
unnecessary to show that it is used in a personally provocative manner.
The first
rationale supports defendants' argument that the Skokie ordinance should be
upheld because speech which incites racial hatred inflicts psychological trauma
on individual members of the victim race. The court will assume for the sake of
this discussion that this psychological trauma is a harm sufficiently serious
to consider the speech which inflicts it to be unprotected.[FN12] Nevertheless,
the court finds that this interpretation of Beauharnais is no longer tenable.
FN12. As defendants have pointed out, the
development of actions for "mental outrage" and "intentional
infliction of emotional distress" reflect a growing concern in state tort
law for the serious character of purely mental and emotional injuries and the
right of the victims of such injuries to compensation. See Contrearas v. Crown
Zellerbach Corp., 88 Wash.2d 735, 565 P.2d 1173 (1977); cf. Knierim v. Izzo, 22
Ill.2d 73, 174 N.E.2d 157 (1961). The federal courts should be hesitant to
sweepingly invalidate state laws where narrower rulings will adequately protect
constitutional rights. See Cox Broadcasting Co. v. Cohn, 420 U.S. 469, 487‑89,
95 S.Ct. 1029, 43 L.Ed.2d 328 (1975).
Beginning
with New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686
(1964), the Court has systematically restricted the power of the states to
protect individual reputations through libel laws. In doing so, the Court has
abolished several of the old common law rules of libel law on the grounds that
the danger posed to free speech outweighs the states' need for such rules in
order to protect the reputation of their citizens. See Gertz v. Robert Welch,
Inc., 418 U.S. 323, 348‑50, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). The
Court has abolished the rule that truth is a defense only when published with
good motives and to a justifiable end. Truth is now an absolute defense to a
libel suit, even when published for malicious purposes.[FN13] The rule *696
that a publisher is absolutely liable for the defamatory content of the matter
published has also been abolished; a defamation plaintiff must now show that
the publisher was at least negligent in failing to discover that the
publication was false.[FN14] And finally, the Court has abolished the common
law rule that if a publication is found by the court to be defamatory per se,
the plaintiff need not prove that he had been damaged. The Court was held that
damages must always be proven, and further has banned the award of punitive
damages in civil actions.[FN15]
FN13. Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct.
209, 13 L.Ed.2d 125 (1964), required the defense of truth in libel suits
concerning public officials, and Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct.
534, 17 L.Ed.2d 456 (1967), extended the rule to a private plaintiff suing for
a publication that cast him in a "false light" but did not defame
him, when the subject matter of the publication was a matter of public
interest. In abandoning the public subject‑private subject distinction in
libel actions, see note 14 infra, Gertz seemed to assume that truth was always
a complete defense to a libel action. In Cox Broadcasting Co. v. Cohn, 420 U.S.
469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975), the Court left open the possibility
that damages could be recovered for a truthful publication concerning a matter
of no public interest on an invasion of privacy, rather than libel, theory. It
would appear, however, that the exception left open by Cox Broadcasting is a
narrow one.
FN14. The abolition of strict liability was a
prophylactic measure designed to prevent publishers from censoring themselves
through fear of large damage awards. In New York Times, the Court required
public official to show "actual malice", specially defined as knowledge
of falsity or reckless disregard for truth, before they could require damages
for libel. In the ensuing decade, the Court wrestled repeatedly with the problem of publications which concern
subjects of public interest but defame private individuals. See Rosenbloom v.
Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971). Finally,
in Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789
(1974), the Court compromised by returning to the New York Times rule for
public officials and requiring at least negligence in all other actions.
FN15. Gertz v. Robert Welch, Inc., 418 U.S. 323,
349, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). Gertz left open the possibility that
presumed and punitive damages could be awarded on a showing of "New York
Times " malice, see note 14 supra, but this form of "malice"
consists only of the intentional or highly reckless use of false and defamatory
material. Malice in the sense of a deliberate intent to injure is not an
acceptable basis for the punishment of libel. Garrison v. Louisiana, 379 U.S.
64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964).
Of course, Gertz dealt only with civil libel, and
the Court has never specifically held that actual damage must be proven in
criminal libel cases. However, the dominating theme of these cases has been the
Court's concern for limiting libel laws to cases in which they are actually
necessary for the protection of reputation, and it has consistently taken a
pragmatic approach to determining whether a particular type of law is actually necessary. See Garrison v.
Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964), discussed in text
infra. In fact, an argument could be made based on Gertz and Garrison that all
criminal libel laws designed only to protect reputation are unnecessary and
excessively restrictive of speech, and should be considered unconstitutional.
Such a position would strongly imply that any criminal law designed to punish
the infliction of psychological trauma through speech such as racial slurs is
unconstitutional, and that the victim should be limited to his tort law remedy.
Resolution of this question is not necessary in this case, and the court
expresses no opinion on it.
In the
opinion of this court, the Beauharnais statute would now be considered
unacceptable as a means of protecting reputations. The statute incorporated in
some form all of these now‑abolished common law libel principles. The
trial court rejected a defense of truth, found that the pamphlets distributed
constituted libel per se, and thus instructed the jury that the only question
for them to resolve was whether Beauharnais had published the pamphlets. There
was, of course, no finding of damage to any individual reputation. Moreover,
the central theme of all the Court's libel cases has been that the states may
protect reputations only with laws that are actually necessary to accomplish
that purpose without imposing too great a threat to the uninhibited flow of
public debate. Criminal libel laws, and particularly group criminal libel laws,
are virtually unknown in modern criminal codes, and can hardly be said to be
essential to the protection of reputations. See 53 C.J.S. Libel and Slander ss
11c, 290; Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125
(1964).
This
conclusion is strengthened by the treatment Beauharnais has received in
subsequent Supreme Court cases dealing with defamation.
In New
York Times, the Court referred briefly to the Beauharnais statute as one which
punished speech both defamatory and likely to cause violence. 376 U.S. at 268,
84 S.Ct. 710. Later in its opinion, the Court considered the problem of
seditious libel, a common subject of early criminal libel prosecutions which
consisted of speech inspiring disrespect for and hatred towards the government
and public officials in the conduct of their duties. The Court concluded *697
that seditious libel prosecutions are per se unconstitutional, and further that
the government may not presume that criticism of official government policies
will automatically reflect on the personal reputations of the responsible
public officials. Id. at 273‑77, 290‑92, 84 S.Ct. 710. There can be
no question that races and religions have been and are the subject of
legitimate debate, and the Court's reasoning casts considerable doubt on the
propriety of presuming damage to individual members of a group from criticism
of the group. All the Beauharnais dissenters noted the parallels between that
case and seditious libel prosecutions. See also Anti‑Defamation League v.
FCC, supra, 131 U.S.App.D.C. at 150‑151, 403 F.2d at 173‑74
(Wright, J., concurring).
The
following term, the Court extended New York Times to criminal laws punishing
libel of individuals in Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13
L.Ed.2d 125 (1964). It began by noting that the original functions of criminal
libel law preventing breaches of the peace and protecting reputations had been
supplanted by the victim's tort law remedy early in our legal history, leaving
the criminal law primarily as a weapon against seditious libel. The Court went
on to say that libel laws are almost unknown in modern criminal codes, and
their usefulness is highly questionable, except in controlling speech which
threatens to disturb peace and order. The Court gave the Beauharnais statute as
an example, describing it as "narrowly drawn" and "designed to
reach speech, such as group vilification, 'especially likely to lead to public
disorders.' " Thus, it appears that after New York Times and Garrison, the
Court views speech which defames racial and religious groups merely as a
special category of language likely to cause breaches of the peace.
Punishment
for racial slurs directed at large groups poses even greater threats to free
speech than punishment for group libel. Libel is a well understood legal
concept, with a carefully defined and limited meaning. It consists of false
speech which damages a person's reputation. Racial slurs are not so well
defined, at least at this stage of development of the law, and the
psychological trauma which they may cause is much more difficult to identify
and prove than damage to reputation. It is particularly difficult to
distinguish a person who suffers actually psychological trauma from one who is
only highly offended, and the Court has made it clear that speech may not be
punished merely because it offends.
[23] In
summary, the court concludes that insofar as Beauharnais held that speech which
defames racial and religious groups may be restricted in order to protect the
reputation of individual members of such groups, it has been overruled, or at
the very least has been so severely undermined that it should not be extended
to new kinds of speech‑inflicted damage to individuals, where such an
extension would pose a substantial danger of inhibiting free speech and debate.
Thus, the first interpretation of Beauharnais cannot save Ordinance # 995.
The
question remains whether the ordinance can be supported by the second possible
interpretation of Beauharnais : that fighting words need not be used in a
personally abusive manner when they consist of language which defames a race or
religion. The fact that New York Times and Garrison restated Beauharnais along
these lines instead of completely overruling it gives support to this
interpretation. However, neither of those cases squarely faced the question of
whether Beauharnais could still be supported on this ground, and, as discussed
above, all the modern authority rejects the theory that even unprotected speech
may be prohibited solely on the basis of its inherent tendency to cause
violence. Cohen, supra; Gooding, supra; Tinker, supra. If Beauharnais is still
good law, racial and religious defamation is the only exception to this rule.
It seems doubtful that such language is so extremely likely to cause violence
as to justify this exception, and it is noteworthy that the Court has many
times considered cases involving language which defamed races or religions
without giving any indication that such an *698 exception exists. See, e. g.,
Brandenburg v. Ohio, supra; Carroll v. President and Commissioners of Princess
Anne, 393 U.S. 175, 89 S.Ct. 347, 21 L.Ed.2d 325 (1968).
[24][25]
The actual holding of Beauharnais was that the prohibition of language which
defames races or religions bore a rational relation to the state's goal of
preventing violence and disorder. However, the Court has since abandoned the
rational relation to purpose approach to First Amendment cases, and now
requires that laws which restrict free speech and assembly be necessary to
achieve compelling state purposes.[FN16] See, e. g., NAACP v. Button, 371 U.S.
415, 438‑44, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963). Accordingly, the court
concludes that if the Supreme Court were faced today with the question of
whether a statute like that in Beauharnais is an acceptable means of preventing
breaches of the peace, it would apply ordinary fighting words analysis. See
Ashton v. Kentucky, 384 U.S. 195, 86 S.Ct. 1407, 16 L.Ed.2d 469 (1966). The
court has already concluded that Ordinance # 995 cannot survive such analysis.
Alternatively, if the court is wrong in concluding that Beauharnais has been
overruled, at the very least it has been undermined so severely that it should
be restricted to its facts. The statute in that case had been authoritatively
construed to require findings that the speech involved fall within the
technical definition of libel and that it be of a character likely to inspire a
breach of the peace. The Skokie ordinance is not so limited. [FN17]
FN16. The analysis in Beauharnais is also obsolete
in that the Court seemed to assume that its only options were to permit the
state to ban racial defamation completely or to require a showing of clear and
present danger of violence in every case. At the time of Beauharnais the
concept of clear and present danger was still developing, and it was unclear
whether it applied at all in unprotected speech cases. See the discussion in
Justice Jackson's Beauharnais dissent, 343 U.S. at 302‑04. Brandenburg
and Cohen have since made clear the distinction between speech that causes a
danger of imminent violence and that which is used in a personally abusive
manner.
FN17. Defendants have also argued that the
ordinance may be supported because advocacy of racial hatred within Skokie
would disrupt the Village's efforts to achieve racial integration, and in
particular would disrupt its public housing program. They rely on Chicago Real
Estate Board v. City of Chicago, 36 Ill.2d 530, 552‑53, 224 N.E.2d 793
(1967), in which the Illinois Supreme Court upheld Chicago's ban on "panic
peddling" and "block busting" real estate buying practices
against a First Amendment challenge. The court found that real estate dealers'
practice of inducing property owners to sell their homes through fear of reductions
in property value caused by racial minorities moving into a neighborhood was an
integral part of discriminatory and illegal conduct, and thus was not
"pure speech". The court's ruling was based on the principle, first
established in labor picketing cases, that speech which is inextricably
combined with some form of action, such as economic coercion, may be restricted
in the course of regulating the conduct. Unlike the real estate brokers
involved in Chicago Real Estate Board, plaintiffs are engaged in no conduct
which could affect Skokie's housing program other than their speech. The mere
fact that plaintiffs' speech may delay the implementation of one of Skokie's
policies does not justify restricting it. Opposition to government policy is a
primary purpose of free speech, and public housing programs, however beneficial
they may be, have no talismanic immunity from public criticism and debate.
E. The
Possibility of a Narrowing Construction
Finally,
the defendants argue that even if the ordinance is vague and overbroad, it is
susceptible to a narrowing construction readily available in the state court,
Young v. American Mini Theatres, Inc., 427 U.S. 50, 60‑61, 96 S.Ct. 2440,
49 L.Ed.2d 310 (1976), and thus should not be declared unconstitutional on its
face.
[26][27]
Whether a statute is susceptible to a narrowing construction is primarily a
question of state law and legislative intent, rather than constitutional law. A
federal court should not find a statute to be susceptible to a narrowing
construction merely because it believes that the state courts would also
consider the statute unconstitutionally broad as drafted. Where it appears that
a statute was actually intended to be as broad as it appears, and where it is
defended on such broad grounds, it should not be considered subject to a
narrowing *699 construction just because the court can think of an
interpretation which would save it. See Erznoznik v. City of Jacksonville, 422
U.S. 205, 215‑16, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975).
[28]
Defendants have not suggested any specific narrow interpretation which would
rescue this ordinance. The gist of the court's analysis is that the ordinance
is defective in that it is not limited to uses of racial slurs in a personally
abusive or inciting manner, in situations where they either threaten to cause a
breach of the peace or to inflict psychological harm on an identifiable victim.
The extreme breadth of the definition of dissemination of materials in the
ordinance convinces the court that it was not intended to be restricted to such
situations, and defendants have not suggested that there is any state law which
would require it to be so restricted.[FN18] The court concludes that Ordinance
# 995 is not readily susceptible to a narrowing construction, and is, for the
reasons discussed above, unconstitutional on its face.
FN18. The Illinois courts appear to have
interpreted Beauharnais to permit the state to ban racial
"propaganda", an interpretation which this court finds to be
unconstitutionally broad. See Chicago Real Estate Board v. City of Chicago, 36
Ill.2d 530, 552‑53, 224 N.E.2d 793 (1967); Village of Skokie v. National
Socialist Party, 51 Ill.App.3d 279, 293, 9 Ill.Dec. 90, 366 N.E.2d 347 (1st
Dist. 1977). The Illinois Supreme Court's decision vacating the injunction sustained
in the latter case did not discuss Beauharnais.
F.
Ordinance # 994
[29]
Insofar as s 27‑56(c) of Ordinance # 994 would deny a permit to a public
assembly merely because the participants will use speech likely to incite
hatred or hostility toward a race or religion, the ordinance's
unconstitutionality follows from the discussion of # 995 above. However, the
language of s 27‑56(c) is not as clearly vague and overbroad as the
comparable language of # 995. It refers specifically to words which "portray
criminality, depravity or lack of virtue", and also to the incitement of
violence. Despite this narrower definition of the prohibited speech, s 27‑56(c)
is also unconstitutional. Unlike Ordinance # 995, s 27‑56(c) does not
merely punish speech after it is spoken, but requires a person to obtain
permission before he may speak at all. It is, in other words, a prior restraint
on the content of speech.
Any
content‑based prior restraint bears a heavy presumption of
unconstitutionality. Organization for a Better Austin v. Keefe, 402 U.S. 415,
419‑20, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971); New York Times Co. v. United
States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971). The distinction
between prior restraints and criminal sanctions is based on:
"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. It is always difficult
to know in advance what an individual will say, and the line between legitimate
and illegitimate speech is often so finely drawn that the risks of freewheeling
censorship are formidable." Southeastern Promotions, Ltd. v. Conrad, 420
U.S. 546, 559, 95 S.Ct. 1239, 1246, 43 L.Ed.2d 448 (1975) (emphasis in
original).
This
particular prior restraint fails to overcome the presumption of
unconstitutionality for three reasons. First, the "risks of freewheeling
censorship" are particularly high. As discussed above, the distinction
between protected and unprotected speech in this area is very hard to draw, and
the evidence in this case shows clearly that plaintiffs' opinions are so
unpopular in Skokie that it is highly doubtful that Village officials would
issue a permit under any circumstances. Second, defendants' admission that
there is no clear and present danger that the kind of speech prohibited by this
ordinance would cause violence and disorders in the Village severely undercuts
the Village's need for a prior restraint.
[30] And
finally, the permit system lacks adequate procedural safeguards. The Supreme
Court has many times emphasized the necessity of providing a fair hearing and
prompt judicial review in any procedure *700 which imposes a prior restraint on
speech. See Carroll v. President and Commissioners of Princess Anne, 393 U.S.
175, 89 S.Ct. 347, 21 L.Ed.2d 325 (1968); cf. Freedman v. Maryland, 380 U.S.
51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965). Ordinance # 994 includes no guaranteed
hearing, and there is no assurance that an applicant will be given an adequate
opportunity to present his case. If a permit is denied, the only way for the
applicant to obtain judicial review is to bear the expense and risk of filing
suit to compel issuance of the permit. Accordingly, the court finds that, in
addition to being vague and overbroad, s 27‑56(c) is unconstitutional as
a prior restraint which unnecessarily restricts First Amendment rights.
V. The
Military Uniforms Ordinance
Section 28‑42.1
of Ordinance # 996 provides that:
"No person shall engage in any march, walk or
public demonstration as a member or on behalf of any political party while
wearing a military‑style uniform."
A
political party is defined to include any organization existing primarily to
influence government or politics, s 28‑42.2; military‑style uniform
is not defined. As with Ordinance # 995, violation is a misdemeanor punishable
by a $500 fine and/or six months imprisonment, s 28‑42.4, and the
Corporation Counsel is authorized to seek injunctive relief against potential
violations, s 28‑42.3.
It is
obvious that this ordinance is directed specifically at Nazi uniforms and
regalia. If Skokie really meant to enforce the ordinance as written, it would
prohibit, among other things, an appearance by members of the American Legion
in support of the candidates of the Democratic or Republic party. Nevertheless,
for the purposes of this case, the court must assume that the Village meant
what it said and analyze the ordinance as it is written.[FN19]
FN19. The court expresses no opinion on whether
Nazi uniforms could be banned by a properly drawn statute, but it is clear that
to the extent it is intended to accomplish this purpose, the present ordinance
is hopelessly overbroad.
[31][32]
The use of symbolic forms of expression, including the wearing of distinctive
clothing, is protected by the First Amendment. Spence v. Washington, 418 U.S.
405, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974); Tinker v. Des Moines Independent
Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969);
Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed.2d 1117 (1931). This ordinance therefore imposes a
restriction based on the content of "speech" and must be supported by
compelling governmental interests. The only reasons offered to support the
ordinance are stated in the preamble: the wearing of military‑style
uniforms is "repugnant" both to the "tradition of civilian
control of government" and to "standards of morality and decency of
the people of the Village of Skokie." Defendants have sought to offer no
other rationale for the ordinance.
Both
justifications are patently insufficient. As discussed at length above, the
First Amendment embraces the freedom to advocate even that the government ought
to be violently overthrown, let alone that it ought not to be controlled by
civilians. Thus the banning of a symbol which is repugnant to a
"tradition" which all Americans are free to reject and openly
criticize is clearly unconstitutional. The reference to Skokie's standards of
decency and morality is apparently an attempt to invoke the "community
standards" test applied in obscenity cases, Miller v. California, 413 U.S.
15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). However, to be obscene, speech must
in some way be erotically stimulating, Cohen, supra, 403 U.S. at 20, 91 S.Ct.
1780. Plaintiffs' wearing of uniforms is political speech, which, as the Court
has often emphasized, "need not meet standards of acceptability."
Organization for a Better Austin v. Keefe, supra, 402 U.S. at 419, 91 S.Ct. at
1578. The court finds Ordinance # 996 to be patently and flagrantly
unconstitutional on its face, and there is no need to consider the prior
restraint issue posed by its enforcement through Ordinance # 994.
*701 VI.
Injunctive Relief
Plaintiffs
have requested a declaratory judgment that the three ordinances are
unconstitutional, an injunction against their enforcement, and general
injunctive relief against further efforts by defendants to prevent plaintiffs
from exercising their First Amendment rights in Skokie. For the reasons discussed
above, plaintiffs are entitled to the declaratory relief under Steffel v.
Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974).
In Younger
v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), the Court held
that the federal courts may not enjoin an ongoing state criminal prosecution on
the grounds that the statute involved is unconstitutional, both in the
interests of federalism and comity and because the defendant ordinarily has an
adequate remedy in the presentation of his constitutional arguments to the
state court which is trying him. The only exceptions are where the criminal
prosecution is the result of bad faith harassment by local law enforcement
officials or the statute involved is in its entirety "patently and
flagrantly violative of express constitutional prohibitions."
Steffel
held that declaratory relief could still be sought where the federal action is
commenced before the state prosecution actually begins. It did not deal
expressly with the question of whether the federal courts may enjoin state
criminal prosecutions before they are begun, but it stressed heavily the
differences between declaratory and injunctive relief. The Court pointed out
that declaratory judgments have a less intrusive effect on the operation of the
state courts; that a showing of no adequate remedy at law has never been
required as a prerequisite to the granting of declaratory relief; and that a
declaratory judgment that a state law is vague or overbroad leaves open the
possibility that prosecutors may make a good faith effort to obtain a narrowing
construction in state court without risking contempt sanctions. 415 U.S. at 468‑73,
94 S.Ct. 1209. Since Steffel, it appears that a plaintiff who wishes to enjoin
a threatened state criminal proceeding must make an extraordinary showing of
need, but the requirement is not quite as strict as that required by Younger
when the state proceeding has actually begun. See Wooley v. Maynard, 430 U.S.
705, 711‑12, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977).
[33][34]
Applying these principles, the court finds that plaintiffs are entitled to an
injunction against enforcement of # 996, which is clearly and patently
unconstitutional in its entirety. The same cannot be said of # 995, which has
been found unconstitutional on vagueness and overbreadth grounds. Moreover,
there is no evidence in this case of bad faith harassment on the part of
defendants, with the possible exception of their enactment of Ordinance # 996.
Although it is apparent that Skokie and its officials are strongly opposed to
plaintiffs' presence in the Village, it appears to the court that defendants
believe in good faith that plaintiffs' activities are not protected by the
First Amendment. In seeking to block the proposed demonstration, defendants
have acted entirely through proper legal channels, and the court takes notice
that they have been commendably prompt and cooperative in submitting the issues
involved in this case for judicial resolution. Accordingly, the court finds no
grounds for enjoining # 995 which would satisfy Younger. The court also finds
that plaintiffs have shown no need for an injunction against
"interference" with their rights in general.
[35]
Different considerations apply in the case of Ordinance # 994. Younger applies
only to judicial or quasi‑judicial proceedings, not to the decisions of
municipal officers whether to grant permits. As to # 994, therefore, plaintiffs
must only meet the ordinary prerequisites for injunctive relief. If this court
denies an injunction and defendants deny plaintiffs a permit, plaintiffs must
either demonstrate without one and risk criminal sanctions or bring an entirely
new action to compel issuance of a permit. Neither of these options is an
adequate remedy at law. Furthermore, there would inevitably be a considerable
delay, and the Seventh Circuit has recently held *702 that "even the
temporary deprivation of First Amendment rights constitutes irreparable harm in
the context of a suit for an injunction." Citizens for a Better
Environment v. City of Park Ridge, 567 F.2d 689 at 691 (1975). Plaintiffs have
made an adequate showing of need forinjunctive relief as to the
unconstitutional provisions of Ordinance # 994.
In
resolving this case in favor of the plaintiffs, the court is acutely aware of
the very grave dangers posed by public dissemination of doctrines of racial and
religious hatred.
In this
case, a small group of zealots, openly professing to be followers of Nazism,
have succeeded in exacerbating the emotions of a large segment of the citizens
of the Village of Skokie who are bitterly opposed to their views and revolted
by the prospect of their public appearance.
When
feelings and tensions are at their highest peak, it is a temptation to reach
for the exception to the rule announced by Mr. Justice Holmes, "if there
is any principle of the Constitution that more imperatively calls for
attachment than any other it is the principle of free thought not free thought
for those who agree with us but freedom for the thought that we hate."
[FN20]
FN20. United States v. Schwimmer, 279 U.S. 644,
654‑55, 49 S.Ct. 448, 451, 73 L.Ed. 889 (1929) (Holmes, J., dissenting).
Freedom of
thought carries with it the freedom to speak freely and to publicly assemble to
express one's thoughts.
The long
list of cases reviewed in this opinion agrees that when a choice must be made,
it is better to allow those who preach racial hate to expend their venom in
rhetoric rather than to be panicked into embarking on the dangerous course of
permitting the government to decide what its citizens may say and hear. As Mr.
Justice Harlan reminded us in Cohen, where a similar choice was made,
"That the air may at times seem filled with verbal cacophony is . . . not
a sign of weakness but of strength." The ability of American society to
tolerate the advocacy even of the hateful doctrines espoused by the plaintiffs
without abandoning its commitment to freedom of speech and assembly is perhaps
the best protection we have against the establishment of any Nazi‑type
regime in this country.
IT IS
HEREBY ORDERED that final judgment enter in this cause as follows:
(1)
Section 27‑54, 27‑56(c), 27‑56(j), 28‑42 through 28‑42.5,
both inclusive, and 28‑43 through 28‑43.5, both inclusive, of the
Code of Ordinances of the Village of Skokie, Illinois, as amended by Village
Ordinances # 77‑5‑N‑994, # 77‑5‑N‑995 and #
77‑5‑N‑996, and each of said sections, are hereby found and
declared to be inconsistent with the First and Fourteenth Amendments to the
United States Constitution, and therefore unenforceable and void; and
(2)
Defendants, and each of them, together with their officers, agents, employees,
successors in office, and all persons acting in concert with them or under
their direction, are hereby permanently enjoined from:
(a) Enforcing against plaintiffs any of Sections
27‑54, 27‑56(c), 27‑56(j), or 28‑42 through 28‑42.5,
both inclusive, of said Code of Ordinances; or
(b) Denying to plaintiffs any permit necessary to
hold a public assembly within the Village of Skokie solely on the grounds of
expected violations of any ordinance declared to be unconstitutional in this
Order.