Village of Skokie v. National Socialist Party (1978)

Village of Skokie v. National Socialist Party (1978)

373 N.E. 2d 21

The National Socialist Party of America (the American Nazi Party) sought to conduct a demonstration in Skokie, Illinois, a predominantly Jewish suburb of Chicago in which over five thousand survivors of German concentration camps resided. Not surprisingly, the request generated a furor. After the Skokie Park District required the party to obtain a $350,000 bond before using a park for a public assembly, the party petitioned to conduct a half-hour demonstration protesting this action by marching in front of the village hall. Village officials denied the petition and obtained a court order enjoining party members from demonstrating in Skokie. After the Illinois courts refused to stay the court order, the United States Supreme Court reversed the decision and remanded the case. An Illinois appellate court then lifted the ban on the demonstration but prohibited the wearing or display of the swastika—a ruling the party appealed to the Illinois Supreme Court.

Opinion of the Court per curiam: Ward, Underwood, Goldenhersh, Ryan, Moran, Kluczynski.

Dissenting without opinion: Clark.

PER CURIAM…

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 United States Constitution … The decisions of that court, particularly Cohen v. California (1971), … in our opinion compel us to permit the demonstration as proposed, including display of the swastika.

“It is firmly settled that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers” (Bachellar v. Maryland (1970) … 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 to 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 restraint on defendants’ symbolic speech…

… 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 protest.… 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 others 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.” …

… 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 or uniforms would be offensive are forewarned and need not view them. A speaker who gives prior notice of his message has not compelled a confrontation with those who voluntarily listen.…

We accordingly, albeit reluctantly, conclude that the display of the swastika cannot be enjoined under the fighting-words exception to free speech, nor can anticipation of a hostile audience justify the prior restraint. Furthermore, Cohen and Erznoznik [v. City of Jacksonville (1975)] direct the citizens of Skokie that it is their burden to avoid the offensive symbol if they can do so without unreasonable inconvenience. Accordingly, we are constrained to reverse that part of the appellate court judgment enjoining the display of the swastika. That judgment is in all other respects affirmed.