Village of Skokie v. National Socialist Party*

Skokie, Illinois, was the home of more than forty thousand Jews and five to seven thousand survivors of Nazi concentration camps.  When the National Socialist Party (the American Nazi Party) tried to march in Skokie, the village won an injunction preventing various forms of conduct.  An appeals court modified that injunction but allowed the ban on displaying the swastika to stand.  Here the Supreme Court of Illinois considers an appeal by the Nazi leader, Frank Collin, of the lower court's ban.  (The U.S. Supreme Court later refused to reconsider this decision of the Illinois Supreme Court.)

Per Curiam: [D[efendant Frank Collin, who testified that he was "party leader," stated that on or about March 20, 1977, he sent officials of the plaintiff village a letter stating that the party members and supporters would hold a peaceable, public assembly in the village on May 1, 1977, to protest the Skokie Park District's requirement that the party procure $350,000 of insurance prior to the party's use of the Skokie public parks for public assemblies.  The demonstration was to begin at 3 p.m., last 20 to 30 minutes, and consist of 30 to 50 demonstrators marching in single file, back and forth, in front of the village hall.  The marchers were to wear uniforms which include a swastika emblem or armband.  They were to carry a party banner containing a swastika emblem and signs containing such statements as "White Free Speech," "Free Speech for the White Man," and "Free Speech for White America." The demonstrators would not distribute handbills, make any derogatory statements directed to any ethnic or religious group, or obstruct traffic.  They would cooperate with any reasonable police instructions or requests.

At the hearing on plaintiff's motion for an "emergency injunction" a resident of Skokie testified that he was a survivor of the Nazi holocaust.  He further testified that the Jewish community in and around Skokie feels the purpose of the march in the "heart of the Jewish population" is to remind the two million survivors "that we are not through with you" and to show "that the Nazi threat is not over, it can happen again."  Another resident of Skokie testified that as the result of defendants' announced intention to march in Skokie, 15 to 18 Jewish organizations, within the village and surrounding area, were called and a counterdemonstration of an estimated 12,000 to 15,000 people was scheduled for the same day.  There was opinion evidence that defendants' planned demonstration in Skokie would result in violence...

In defining the constitutional rights of the parties who come before this court, we are, of course, bound by the pronouncements of the United States Supreme Court in its interpretation of the the United States Constitution.  The decisions of that court, particularly Cohen v. California...in our opinion compel us to permit the demonstration as proposed, including display of the swastika.

"It is firmly settled that under out Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers"...and it is entirely clear that the wearing of distinctive clothing can be symbolic expression of a thought or philosophy. The symbolic expression of thought falls within the free speech clause of the first amendment...and the plaintiff village has the heavy burden of justifying the imposition of a prior restraint upon defendants' right to freedom of speech....The village of Skokie seeks to meet this burden by application of the "fighting words" doctrine first enunciated in Chaplinsky v. New Hampshire (1942)....That doctrine was designed to permit punishment of extremely hostile personal communication likely to cause immediate physical response, "no words being 'forbidden except such as have a direct tendency to cause acts of violence by the persons to whom, individually, the remark is addressed'"...In Cohen the Supreme Court restated the description of fighting words as "those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction."...Plaintiff urges, and the appellate court has held, that the exhibition of the Nazi symbol, the swastika, addresses to ordinary citizens a message which is tantamount of fighting words.  Plaintiff further asks this court to extend Chaplinsky, which upheld a statute punishing the use of such words, and hold that the fighting-words doctrine permits a prior restrain on defendants' symbolic speech.  In our judgment we are precluded from doing so.

In Cohen defendant's conviction stemmed from wearing a jacket bearing the words "Fuck the Draft" in a Los Angeles county courthouse corridor.  The Supreme Court for reasons we believe applicable here refused to find that the jacket inscription constituted fighting words.  The court stated:

"The constitutional right of free expression is powerful medicine in a society as diverse and populous as ours.  It is designed and intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands of each or us, in the hope that use of such freedom will ultimately produce a more capable citizenry and more perfect polity and in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests....

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.  We cannot loose sight of the fact that, in what otherwise might seem a trifling and annoying instance of individual distasteful abuse of a privilege, these fundamental societal values are truly implicated....'so long as the means are peaceful, the communication need not meet standard of acceptability.'...

Against this perception of the constitutional policies involved, we discern certain more particularized considerations that peculiarly call for reversal of this conviction.  First, the principle contended for by the State seems inherently boundless.  How is one to distinguish this from any other offensive word [emblem]? Surely the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us.  Yet no readily ascertainable general principle exists for stopping short of that result were we to affirm the judgment below.  For, while the particular four-letter word [emblem] being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man's vulgarity is another's lyric.  Indeed, we think it is largely because government officials cannot make principled distinction in this area that the Constitution leaves matter of taste and style so largely to the individual....

Finally, and in the same vein, we cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process.  Indeed, governments might soon seize upon the censorship of particular words [emblems] as a convenient guise for banning the expression of unpopular views.  We have been able, as noted above, to discern little social benefit that might result from running the risk of opening the door to such grave results."...

The display of the swastika, as offensive to the principles of a free nation as the memories it recalls may be, is symbolic political speech intended to convey to the public the beliefs of those who display it.  It does not, in our opinion, fall within the definition of "fighting words," and that doctrine cannot be used here to overcome the heavy presumption against the constitutional validity of a prior restraint.

Nor can we find that the swastika, while not representing fighting words, is nevertheless so offensive and peace threatening to the public that the display can be enjoined.  We do not doubt that the sight of this symbol is abhorrent to the Jewish citizens of Skokie, and that the survivors of the Nazi persecutions, tormented by their recollections, may have strong feelings regarding its display.  Yet it is entirely clear that this factor does not justify enjoining defendants' speech.  The Cohen court spoke to this subject.

"Finally, in arguments before this Court much has been made of the claim that Cohen's distasteful mode of expression was thrust upon unwilling or unsuspecting viewers, and that the State might therefore legitimately act as it did in order to protect the sensitive from otherwise unavoidable exposure to appellant's crude form of pretest.  Of course, the mere presumed presence of unwitting listeners or viewers does not serve automatically to justify curtailing all speech capable of giving offense....While this Court has recognized that government may properly act in many situations to prohibit intrusion into the privacy of the home of unwelcome views and ideas which cannot be totally banned from the public dialogue we have at the same time consistently stressed that 'we are often "captives" outside the sanctuary of the home and subject to objectionable speech.' The ability of government, consonant with the Constitution, to shut off discourse solely to protect other from hearing it is, in other words, dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner.  Any broader view of this authority would effectively empower a majority to silence dissidents simply as a matter of personal predilections."

Rockwell v. Morris...also involved an American Nazi leader, George Lincoln Rockwell, who challenged a bar to his use of a New York City park to hold a public demonstration where anti-Semitic speeches would be made.  Although approximately 2 1/2 million Jewish New Yorkers were hostile to Rockwell's message, the court ordered that a permit to speak be granted, stating:

"A community need not wait to be subverted by street riots and storm troopers: but, also, it cannot, by its policemen or commissioners, suppress a speaker, in prior restraint, on the basis of news reports, hysteria, or inferences that what he did yesterday, he will do today.  Thus, too, if the speaker incites others to immediate unlawful action he may be punished--in a proper case, stopped when disorder actually impends; but this is not to be confused with unlawful action from others who seek unlawfully to suppress or punish the speaker.

So, the unpopularity of views, their shocking quality, their obnoxiousness, and even their alarming impact is not enough.  Otherwise, the preacher of any strange doctrine could be stopped; the anti-racist himself could be suppressed, if he undertakes to speak in 'restricted' areas; and one who asks that public schools be open indiscriminately to all ethnic groups could be lawfully suppressed, if only he choose to speak where persuasion is needed most."...

In summary, as we read the controlling Supreme Court opinions, use of the swastika is a symbolic form of free speech entitled to first amendment protections.  Its display on uniforms or banners by those engaged in peaceful demonstrations cannot be totally precluded solely because that display may provoke a violent reaction by those who view it.  Particularly is this true where, as here, there has been advance notice by the demonstrators of their plans so that they have become, as the complaint alleges, "common knowledge" and those to whom sight of the swastika banner of uniforms would be offense are forewarned and need not view them.  A speaker who give prior notice of his message has not compelled a confrontation with those who voluntarily listen.

As to those who happen to be in a position to be involuntarily confronted with the swastika, the following observations from Erznoznik v. City of Jacksonville...are appropriate:

"The plain, if at all times disquieting, truth is that in our pluralistic society, constantly proliferating new and ingenious forms of expression, 'we are inescapably captive audiences for many purposes,'...Much that we encounter offends our esthetic, if not our political and moral, sensibilities.  Nevertheless, the Constitution does not permit government to decide which types of otherwise protected speech are sufficiently offensive to require protection for the unwilling listener or viewer.  Rather, absent the narrow circumstances described above [home intrusion or captive audience], the burden normally falls upon the view to 'avoid further bombardment of [his] sensibilities simply by averting [his] eyes.'"..

* 363 N. E. 2d 21 (Ill.1978).