Appeal from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County,
the Hon. Joseph M. Wosik, Judge, presiding.
Plaintiff, the village of Skokie, filed a complaint in the circuit court of Cook County seeking to enjoin defendants, the National Socialist Party of America (the American Nazi Party) and 10 individuals as "officers and members" of the party, from engaging in certain activities while conducting a demonstration within the village. The circuit court issued an order enjoining certain conduct during the planned demonstration. The appellate court modified the injunction order, and, as modified, defendants are enjoined from "[i]ntentionally displaying the swastika on or off their persons, in the course of a demonstration, march, or parade." (51 Ill. App.3d 279, 295.) We allowed defendants' petition for leave to appeal.
The pleadings and the facts adduced at the hearing are fully set forth in the appellate court opinion, and only those matters necessary to the discussion of the issues will be repeated here. The facts are not disputed.
It is alleged in plaintiff's complaint 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"; that the plaintiff village has a population of about 70,000 persons of which approximately 40,500 persons are of "Jewish religion or Jewish ancestry" and of this latter number 5,000 to 7,000 are survivors of German concentration camps; that the defendant organization is "dedicated to the incitation of racial and religious hatred directed principally against individuals of Jewish faith or ancestry and non-Caucasians"; and that its members "have patterned their conduct, their uniform, their slogan and their tactics along the pattern of the German Nazi Party * * *."
Defendants moved to dismiss the complaint. In an affidavit attached to defendants' motion to dismiss, defendant 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.
The circuit court entered an order enjoining defendants from "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" within the village of Skokie. The appellate court, as earlier noted, modified the order so that defendants were enjoined only from intentional display of the swastika during the Skokie demonstration.
The appellate court opinion adequately discussed and properly decided those issues arising from the portions of the injunction order which enjoined defendants from marching, walking, or parading, from distributing pamphlets or displaying materials, and from wearing the uniform of the National Socialist Party of America. The only issue remaining before this court is whether the circuit court order enjoining defendants from displaying the swastika violates the first amendment rights of those defendants.
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. (Ableman v. Booth (1859), 62 U.S. (21 How.) 506, 16 L.Ed. 169; Cooper v. Aaron (1958), 358 U.S. 1, 3 L.Ed.2d 1, 78 S.Ct. 1401.) The decisions of that court, particularly Cohen v. California (1971), 403 U.S. 15, 29 L.Ed.2d 284, 91 S.Ct. 1780, 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), 397 U.S. 564, 567, 25 L.Ed.2d 570, 574, 90 S.Ct. 1312, 1315), 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 (Tinker v. Des Moines Independent Community School District (1969), 393 U.S. 503, 21 L.Ed.2d 731, 89 S.Ct. 733), and the plaintiff village has the heavy burden of justifying the imposition of a prior restraint upon defendants' right to freedom of speech (Carroll v. President of Princess Anne County (1968), 393 U.S. 175, 21 L.Ed.2d 325, 89 S.Ct. 347; Organization for a Better Austin v. Keefe (1971), 402 U.S. 415, 29 L.Ed.2d 1, 91 S.Ct. 1575).
The village of Skokie seeks to meet this burden by application of the "fighting words" doctrine first enunciated in Chaplinsky v. New Hampshire (1942), 315 U.S. 568, 86 L.Ed. 1031, 62 S.Ct. 766. 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.'" (315 U.S. 568, 573, 86 L.Ed. 1031, 1036, 62 S.Ct. 766, 770.) 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." (403 U.S. 15, 20, 29 L.Ed.2d 284, 291, 91 S.Ct. 1780, 1785.) 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. 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. That 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 of 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 ...