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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).
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