APPEAL from the Circuit Court of Cook County; the Hon. JOSEPH
M. WOSIK, Judge, presiding.
PER CURIAM (GOLDBERG, P.J., MCGLOON AND O'CONNOR, JJ.):
Plaintiff, village of Skokie, filed a complaint in the circuit court of Cook County on April 28, 1977, praying for the issuance of an injunction prohibiting defendants, the National Socialist Party of America and certain individual officers and members of the Party, from engaging in various activities in the village on May 1. After a hearing on the matter, the injunction was entered on April 29, and on the same day, this court denied defendants' motion for a stay of the injunction order. On April 30, at an ex parte proceeding, another judge of the circuit court amended the injunction to be effective from April 30 until further order of the court. On May 6, the judge who entered the original order of the court denied defendants' motions for either vacation of the April 30 order or a stay, and the court then adopted the April 30 order by modifying the April 29 order. Meanwhile, the Illinois Supreme Court had denied defendants' motion for a stay of the order and a direct appeal. On the afternoon of June 14, the United States Supreme Court granted certiorari, reversed the Illinois Supreme Court's denial of the stay, and remanded the matter for immediate appellate review or a stay. (National Socialist Party of America v. Village of Skokie (1977), ___ U.S. ___, 53 L.Ed.2d 96, 97 S.Ct. 2205.) On June 22, the Illinois Supreme Court ordered this court to either "commence immediately an expedited appellate review or, in the alternative, grant an appropriate stay of the injunction of the circuit court of Cook County." Upon receipt of this order on June 24, we acted immediately. All briefs were ordered filed by July 7, 13 days later, and oral arguments were heard on the morning of July 8. The issue in this appeal is generally, whether plaintiff met its burden of proof for the issuance of a prior restraint on defendants' first amendment rights, and specifically whether the swastika is protected speech under the circumstances of this case.
The injunction order is affirmed in part as modified, reversed in part, and the cause remanded with directions.
The complaint alleged the following pertinent facts. The village of Skokie contains a population of approximately 70,000 persons, of whom approximately 40,500 are of the Jewish religion, Jewish ancestry, or both. Included within the Jewish population are hundreds of persons who are survivors of Nazi concentration camps and many thousands whose families and close relatives were murdered by the Nazis. A large percentage of the Jewish population of Skokie is organized into groups and organizations. At the hearing, the above allegations were stipulated to by both parties. The complaint further alleged the nature of defendant Party's purpose, and stated that the "uniform of the National Socialist Party of America consists of the storm trooper uniform of the German Nazi Party embellished with the Nazi swastika." It is alleged that on March 20, the village police chief was informed by defendant Collin of defendants' intention to march on the village's sidewalks on May 1. As a result of publicity from the news media and early morning phone calls purportedly made by members of the defendant Party to Skokie residents whose names indicated the probability of their Jewish faith or ancestry (e.g., In re Greenfield, (1970), 66 Misc.2d 733, 322 N.Y.S.2d 276), it was common knowledge in the village, particularly among the Jewish population, that the defendant Party intended to march in Skokie on May Day. The complaint further alleged:
"* * * The threatened march of the defendants on May 1st has aroused the passions of thousands of individuals of Jewish faith or ancestry within the Village and more particularly has aroused the passions of the survivors of the Nazi concentration camps who are taking measures unknown to the plaintiff to thwart the threatened march.
10. The march of the defendants on May 1, 1977 is a deliberate and wilful attempt to exacerbate the sensitivities of the Jewish population in Skokie and to incite racial and religious hatred. Such march, if not restrained by Order of this Court, constitutes a grave and serious threat to the peace of the citizens of the Village of Skokie.
11. By reason of the ethnic and religious composition of the Village of Skokie and the circumstances alleged above, the public display of the swastika in connection with the proposed activities of the defendant, National Socialist Party of America, constitutes a symbolic assault against large numbers of the residents of the Plaintiff village and an incitation to violence and retaliation."
The complaint prayed for the issuance of an injunction enjoining defendants from various activities in the village of Skokie on May 1.
Defendants filed a motion to dismiss stating that the complaint fails to state a cause of action upon which relief can be granted; seeks relief barred by the first and fourteenth amendments to the United States Constitution and alleges facts which are untrue. The motion to dismiss referred to an affidavit of one of the individual defendants appended thereto.
The affidavit stated that the affiant has been a leader of the defendant Party for seven years and has propounded the Party's platform by peaceable public assemblies, parades and speechmaking in the Chicago area. About March 20, 1977, the affiant wrote to Skokie officials stating his intention to hold a peaceable public assembly of the defendant Party and its supporters in Skokie on May 1. The purpose of the assembly was to protest a Skokie Park District requirement for the posting of a $350,000 policy of insurance prior to the use of Skokie parks. The letter also stated that the assembly would take place in early afternoon without obstruction of traffic and that demonstrators would obey all laws and would march on the sidewalk in single file.
The affidavit also stated that the assembly would consist of 30 to 50 demonstrators who would conduct a picket line, marching in single file in front of the Skokie Village Hall and that demonstrators would wear their uniforms including a swastika armband. Demonstrators would carry placards and banners containing slogans such as "Free Speech For The White Man." The affiant had no plans to distribute handbills at this assembly.
The affidavit also stated that affiant and members of the Nazi Party would not make derogatory public statements directed to any ethnic or religious group, they all intend to cooperate with reasonable police instructions and that affiant knows of no member of the defendant Party who has made telephone calls to or conducted a telephone campaign to persons of Jewish faith. At the hearing, the affidavit was admitted into evidence by stipulation of the parties.
The circuit court of Cook County conducted a hearing on a motion by plaintiff for a preliminary injunction. (Ill. Rev. Stat. 1975, ch. 69, par. 3.) The court considered the above-mentioned affidavit and the testimony of a number of witnesses. A resident of Skokie, an officer in several Jewish organizations, testified that he learned of the planned demonstration from the newspapers. As a result, meetings of some 15 to 18 Jewish organizations, within Skokie and surrounding areas, were called, and a counterdemonstration was scheduled for the same day as the demonstration planned by defendants. The witness estimated that some 12,000 to 15,000 people were expected to participate. In the opinion of the witness, this counterdemonstration would be peaceful if defendants did not appear. However, if they did appear, the outrage of the participants might not be controllable. The witness testified that other counterdemonstrations were planned by other groups.
Skokie introduced other opinion evidence that bloodshed would occur if the defendants demonstrated as planned. The mayor of the village of Skokie testified regarding his opinion, formed after discussion with leaders of community and religious groups, that if the march or demonstration by defendants took place, an uncontrollably violent situation would develop.
Plaintiff also called as a witness a Jewish resident who was a survivor of Nazi concentration camps. He testified as to the effect the swastika has on him and other survivors. According to his testimony, the swastika is a symbol that his closest family was killed by the Nazis, and that the lives of him and his children are not presently safe. He further stated that he does not presently intend to use violence against defendants should they appear in Skokie, but that when he sees the swastika, he does not know if he can control himself. He further testified that between 5000 and 7000 survivors of the Nazi holocaust reside in the village of Skokie.
Defendants' case consisted of the testimony of defendant Frank Collin, the leader of the defendant Party, and his affidavit previously described as having been admitted into evidence. He testified, inter alia, that the purpose of the demonstration was to peacefully protest the Skokie Park District's ordinance which required a bond of $350,000 to be posted prior to the issuance of a park permit. If enjoined from marching on May 1, he planned a demonstration on May 22, three weeks hence, or on a future date yet undecided.
After hearing arguments of counsel, the trial court entered an order enjoining defendants
"from engaging in any of the following acts on May 1, 1977, within the Village of Skokie: Marching, walking or parading in the uniform of the National Socialist Party of America; Marching, walking or parading or otherwise displaying the swastika on or off their person; Distributing pamphlets or displaying any materials which incite or promote hatred against persons of Jewish faith or ancestry or hatred against persons of any faith or ancestry, race or religion."
As above-mentioned, defendants immediately filed their notice of appeal in the trial court and a motion for a stay in ...