Pell, Sprecher, and Wood, Circuit Judges. Wood, Circuit Judge, concurring. Sprecher, Circuit Judge, concurring in part and dissenting in part.
Plaintiff-appellee, the National Socialist Party of America (NSPA) is a political group described by its leader, plaintiff-appellee Frank Collin, as a Nazi party. Among NSPA's more controversial and generally unacceptable beliefs are that black persons are biologically inferior to white persons, and should be expatriated to Africa as soon as possible; that American Jews have "inordinate . . . political and financial power" in the world and are "in the forefront of the international Communist revolution." NSPA members affect a uniform reminiscent of those worn by members of the German Nazi Party during the Third Reich,*fn1 and display a swastika thereon and on a red, white, and black flag they frequently carry.
The Village of Skokie, Illinois, a defendant-appellant, is a suburb north of Chicago. It has a large Jewish population,*fn2 including as many as several thousand survivors of the Nazi holocaust in Europe before and during World War II. Other defendants-appellants are Village officials.
When Collin and NSPA announced plans to march in front of the Village Hall in Skokie on May 1, 1977, Village officials responded by obtaining in state court a preliminary injunction against the demonstration. After state courts refused to stay the injunction pending appeal, the United States Supreme Court ordered a stay, National Socialist Party of America v. Village of Skokie, 432 U.S. 43, 53 L. Ed. 2d 96, 97 S. Ct. 2205 (1977). The injunction was subsequently reversed first in part, Village of Skokie v. National Socialist Party of America, 51 Ill. App. 3d 279, 366 N.E.2d 347, 9 Ill. Dec. 90 (1977), and then in its entirety, id., 69 Ill. 2d 605, 373 N.E.2d 21, 14 Ill. Dec. 890, 3 Media L. Rep. 1704 (1978). On May 2, 1977, the Village enacted three ordinances to prohibit demonstrations such as the one Collin and NSPA had threatened.*fn3 This lawsuit seeks declaratory and injunctive relief against enforcement of the ordinances.
Village Ordinance No. 77-5-N-994 (hereinafter designated, for convenience of reference, as 994) is a comprehensive permit system for all parades or public assemblies of more than 50 persons.*fn4 It requires permit applicants to obtain $300,000 in public liability insurance and $50,000 in property damage insurance. Id., §§ 27-54, 27-56(j). One of the prerequisites for a permit is a finding by the appropriate (officials) that the assembly
will not portray criminality, depravity or lack of virtue in, or incite violence, hatred, abuse or hostility toward a person or group of persons by reason of reference to religious, racial, ethnic, national or regional affiliation.
Id., § 27-56(c). Another is a finding that the permit activity will not be conducted "for an unlawful purpose," id., § 27-56(i). None of this ordinance applies to activities of the Village itself or of a governmental agency, id., § 27-51, and any provision of the ordinance may be waived by unanimous consent of the Board of Trustees of the Village, id., § 27-64. To parade or assemble without a permit is a crime, punishable by fines from $5 to $500. Id., § 27-65.
Village Ordinance No. 77-5-N-995 (995) prohibits
the dissemination of any materials within the Village of Skokie which promotes and incites hatred against persons by reason of their race, national origin, or religion, and is intended to do so
Id., § 28-43.1. "Dissemination of materials" includes
publication or display or distribution of posters, signs, handbills, or writings and public display of markings and clothing of symbolic significance.
Id., § 28-43.2. Violation is a crime punishable by fine of up to $500, or imprisonment of up to six months. Id., § 28.43.4. Village Ordinance No. 77-5-N-996 (996) prohibits public demonstrations by members of political parties while wearing "military-style" uniforms, § 28.42.1, and violation is punishable as in 995.
Collin and NSPA applied for a permit to march on July 4, 1977, which was denied on the ground the application disclosed an intention to violate 996. The Village apparently applies 994 § 27-56(i) so that an intention to violate 995 or 996 establishes an "unlawful purpose" for the march or assembly. The permit application stated that the march would last about a half hour, and would involve 30 to 50 demonstrators wearing uniforms including swastikas and carrying a party banner with a swastika and placards with statements thereon such as "White Free Speech," "Free Speech for the White Man," and "Free Speech for White America." A single file sidewalk march that would not disrupt traffic was proposed, without speeches or the distribution of handbills or literature.*fn5 Counsel for the Village advises us that the Village does not maintain that Collin and NSPA will behave other than as described in the permit (applications).
The district court, after considering memoranda, exhibits, depositions, and live testimony, issued a comprehensive and thorough opinion granting relief to Collin and NSPA. The insurance requirements of 994 were invalidated as insuperable obstacles to free speech in Skokie, and §§ 27-56(c) & (i) (the latter when used to deny permits on the basis of anticipated violations of 995 or 996) were adjudged impermissible prior restraints. Ordinance 995 was determined to be fatally vague and overbroad, and 996 was invalidated as overbroad and patently unjustified.
On its appeal, the Village concedes the invalidity of the insurance requirements as applied to these plaintiffs and of the uniform prohibition of 996.
The conflict underlying this litigation has commanded substantial public attention, and engendered considerable and understandable emotion. We would hopefully surprise no one by confessing personal views that NSPA's beliefs and goals are repugnant to the core values held generally by residents of this country, and, indeed, to much of what we cherish in civilization. As judges sworn to defend the Constitution, however, we cannot decide this or any case on that basis. Ideological tyranny, no matter how worthy its motivation, is forbidden as much to appointed judges as to elected legislators.
The record in this case contains the testimony of a survivor of the Nazi holocaust in Europe. Shortly before oral argument in this case, a lengthy and highly publicized citizenship revocation trial of an alleged Nazi war criminal was held in a federal court in Chicago, and in the week immediately after argument here, a four-part "docudrama" on the holocaust was nationally televised and widely observed. We cannot then be unmindful of the horrors associated with the Nazi regime of the Third Reich, with which to some real and apparently intentional degree appellees associate themselves.*fn6 Nor does the record allow us to ignore the certainty that appellees know full well that, in light of their views and the historical associations they would bring with them to Skokie, many people would find their demonstration extremely mentally and emotionally disturbing, or the suspicion that such a result may be relished by appellees.
But our task here is to decide whether the First Amendment protects the activity in which appellees wish to engage, not to render moral judgment on their views or tactics. No authorities need be cited to establish the proposition, which the Village does not dispute, that First Amendment rights are truly precious and fundamental to our national life. Nor is this truth without relevance to the saddening historical images this case inevitably arouses. It is, after all, in part the fact that our constitutional system protects minorities unpopular at a particular time or place from governmental harassment and intimidation, that distinguishes life in this country from life under the Third Reich.
Before undertaking specific analysis of the clash between the Village ordinances and appellees' desires to demonstrate in Skokie, it will be helpful to establish some general principles of pertinence to the decision required of us. Putting to one side for the moment the question of whether the content of appellees' views and symbols makes a constitutional difference here, we find we are unable to deny that the activities in which the appellees wish to engage are within the ambit of the First Amendment.
These activities involve the "cognate rights" of free speech and free assembly. See Thomas v. Collins, 323 U.S. 516, 530, 89 L. Ed. 430, 65 S. Ct. 315 (1945). "The wearing of an armband for the purpose of expressing certain views is the type of symbolic act that is within the Free Speech Clause of the First Amendment." Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 505, 21 L. Ed. 2d 731, 89 S. Ct. 733 (1969). Standing alone, at least, it is "closely akin to 'pure speech' which, we have repeatedly held, is entitled to comprehensive protection under the First Amendment."*fn7 Id. at 505-06. The same thing can be said of NSPA's intended display of a party flag, see Stromberg v. California, 283 U.S. 359, 75 L. Ed. 1117, 51 S. Ct. 532 (1931), and of the messages intended for the placards party members would carry. See, e.g., Cohen v. California, 403 U.S. 15, 18, 29 L. Ed. 2d 284, 91 S. Ct. 1780 (1971). Likewise, although marching, parading, and picketing, because they involve conduct implicating significant interests in maintaining public order, are less protected than pure speech, Shuttlesworth v. Birmingham, 394 U.S. 147, 152, 22 L. Ed. 2d 162, 89 S. Ct. 935 (1969); Cox v. Louisiana, 379 U.S. 536, 554-55, 13 L. Ed. 2d 471, 85 S. Ct. 453 (1965), they are nonetheless subject to significant First Amendment protection. Grayned v. City of Rockford, 408 U.S. 104, 115, 33 L. Ed. 2d 222, 92 S. Ct. 2294 (1972); Shuttlesworth, supra, 394 U.S. at 152; Cox, supra, 379 U.S. at 545-46. Indeed, an orderly and peaceful demonstration, with placards, in the vicinity of a seat of government, is "an exercise of [the] basic constitutional rights of [speech, assembly, and petition] in their most pristine and classic form." Edwards v. South Carolina, 372 U.S. 229, 235, 9 L. Ed. 2d 697, 83 S. Ct. 680 (1963).
No doubt, the Nazi demonstration could be subjected to reasonable regulation of its time, place, and manner. Police Department of Chicago v. Mosley, 408 U.S. 92, 98, 33 L. Ed. 2d 212, 92 S. Ct. 2286 (1972); Grayned, supra, 408 U.S. at 115-16; Adderley v. Florida, 385 U.S. 39, 17 L. Ed. 2d 149, 87 S. Ct. 242 (1966); Cox, supra, 379 U.S. at 554-55. Although much of the permit system of 994 is of that nature, the provisions attacked here are not. No objection is raised by the Village, in ordinances or in their proofs and arguments in this case, to the suggested time, place, or manner of the demonstration, except the general assertion that in the place of Skokie, in these times, given the content of appellees' views and symbols, the demonstration and its symbols and speech should be prohibited.*fn8 Because the ordinances turn on the content of the demonstration, they are necessarily not time, place, or manner regulations. Mosley, supra 408 U.S. at 99; Konigsberg v. State Bar of California, 366 U.S. 36, 50-51, 6 L. Ed. 2d 105, 81 S. Ct. 997 (1961).
Legislating against the content of First Amendment activity, however, launches the government on a slippery and precarious path:
Above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. Cohen v. California, 403 U.S. 15, 24, [29 L. Ed. 2d 284, 91 S. Ct. 1780] (1971); Street v. New York, 394 U.S. 576, [22 L. Ed. 2d 572, 89 S. Ct. 1354] (1969); New York Times Co. v. Sullivan, 376 U.S. 254, 269-70, [11 L. Ed. 2d 686, 84 S. Ct. 710] (1964), and cases cited; NAACP v. Button, 371 U.S. 415, 445, [9 L. Ed. 2d 405, 83 S. Ct. 328] (1963); Wood v. Georgia, 370 U.S. 375, 388-389, [8 L. Ed. 2d 569, 82 S. Ct. 1364] (1962); Terminiello v. Chicago, 337 U.S. 1, 4, [93 L. Ed. 1131, 69 S. Ct. 894] (1949); De Jonge v. Oregon, 299 U.S. 353, 365, [81 L. Ed. 278, 57 S. Ct. 255] (1937). To permit the continued building of our politics and culture, and to assure self-fulfillment for each individual, our people are guaranteed the right to express any thought, free from government censorship. The essence of this forbidden censorship is content control. Any restriction on expressive activity because of its content would completely undercut the "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open." New York Times Co. v. Sullivan, supra, at 270.
Mosley, supra 408 at 95-96.
This is not to say, of course, that content legislation is per se invalid. Chief Justice Burger concurred in Mosley, at 102-03, just to point out the established exceptions to such a rule, namely obscenity, fighting words, and, as limited by constitutional requirements, libel. Likewise, in very narrow circumstances, a government may proscribe content on the basis of imminent danger of a grave substantive evil. Brandenburg v. Ohio, 395 U.S. 444, 447, 23 L. Ed. 2d 430, 89 S. Ct. 1827 (1969) (per curiam); Terminiello v. Chicago, 337 U.S. 1, 4, 93 L. Ed. 1131, 69 S. Ct. 894 (1949). But analysis of content restrictions must begin with a healthy respect for the truth that they are the most direct threat to the vitality of First Amendment rights.
We first consider ordinance 995, prohibiting the dissemination of materials which would promote hatred towards persons on the basis of their heritage. The Village would apparently apply this provision to NSPA's display of swastikas, their uniforms, and, perhaps, to the content of their placards.*fn9
The ordinance cannot be sustained on the basis of some of the more obvious exceptions to the rule against content control. While some would no doubt be willing to label appellees' views and symbols obscene, the constitutional rule that obscenity is unprotected applies only to material with erotic content. Cohen v. California, supra, 403 U.S. at 20. Furthermore, although the Village introduced evidence in the district court tending to prove that some individuals, at least, might have difficulty restraining their reactions to the Nazi demonstration, the Village tells us that it does not rely on a fear of responsive violence to justify the ordinance, and does not even suggest that there will be any physical violence if the march is held.*fn10 This concession takes this case out of the scope of Brandenburg v. Ohio, supra, and Feiner v. New York, 340 U.S. 315, 321, 95 L. Ed. 295, 71 S. Ct. 303 (1951) (intentional "incitement to riot" may be prohibited). The Village does not argue otherwise.
The concession also eliminates any argument based on the fighting words doctrine of Chaplinsky v. New Hampshire, 315 U.S. 568, 86 L. Ed. 1031, 62 S. Ct. 766 (1942). The Court in Chaplinsky affirmed a conviction under a statute that, as authoritatively construed, applied only to words with a direct tendency to cause violence by the persons to whom, individually, the words were addressed. Id. at 573. A conviction for less than words that at least tend to incite an immediate breach of the peace cannot be justified under Chaplinsky.*fn11 Gooding v. Wilson, 405 U.S. 518, 524-27, 31 L. Ed. 2d 408, 92 S. Ct. 1103 (1972). The Illinois Supreme Court, in Village of Skokie v. National Socialist Party of America, supra, has squarely ruled that responsive violence fears and the fighting words doctrine could not support the prohibition of appellees' demonstration. Although that decision was in a prior restraint context, and we are here considering only the post facto criminal aspects of 995, the decision does buttress our conclusion that Chaplinsky does not cover this case. Again, the Village does not seriously contest this point.
Four basic arguments are advanced by the Village to justify the content restrictions of 995. First, it is said that the content criminalized by 995 is "totally lacking in social content," and that it consists of "false statements of fact" in which there is "no constitutional value." Gertz v. Robert Welch, Inc., 418 U.S. 323, 340, 41 L. Ed. 2d 789, 94 S. Ct. 2997 (1974). We disagree that, if applied to the proposed demonstration, the ordinance can be said to be limited to "statements of fact," false or otherwise. No handbills are to be distributed; no speeches are planned. To the degree that the symbols in question can be said to assert anything specific, it must be the Nazi ideology, which cannot be treated as a mere false "fact."
We may agree with the district court that
if any philosophy should be regarded as completely unacceptable to civilized society, that of plaintiffs, who, while disavowing on the witness stand any advocacy of genocide, have nevertheless deliberately identified themselves with a regime whose record of brutality and barbarism is unmatched in modern history, would be a good place to start.
But there can be no legitimate start down such a road.
Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.
Gertz, supra at 339-40 (footnote omitted). In the words of Justice Jackson, "every person must be his own watchman for truth, because the forefathers did not trust any government to separate the true from the false for us." Thomas v. Collins, supra, 323 U.S. at 545 (concurring opinion). The asserted falseness of Nazi dogma, and, indeed, its general repudiation, simply do not justify its suppression.
The Village's second argument, and the one on which principal reliance is placed, centers on Beauharnais v. Illinois, 343 U.S. 250, 96 L. Ed. 919, 72 S. Ct. 725 (1952). There a conviction was upheld under a statute prohibiting, in language substantially (and perhaps not unintentionally) similar*fn12 to that used in the ordinance here, the dissemination of materials promoting racial or religious hatred. The closely-divided Court stated that the criminal punishment of libel of an individual raised no constitutional problems, relying on Chaplinsky v. New Hampshire, supra, 315 U.S. at 571-72:
There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words. . . . Such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any ...