May 14, 1990
MICHAEL HIRSH, ET AL., APPLICANTS
CITY OF ATLANTA, GEORGIA
Super. Ct. Ga., Fulton County.
Rehnquist, Brennan, White, Marshall, Blackmun, Stevens, O'Connor, Scalia, Kennedy. Justice Stevens, concurring. Justice Kennedy, with whom Justice Brennan, Justice Marshall, and Justice Scalia join, dissenting.
The application for stay presented to JUSTICE KENNEDY and by him referred to the Court is denied.
JUSTICE STEVENS, concurring.
It would be irresponsible to attempt to distinguish National Socialist Party of America v. Skokie, 432 U.S. 43 (1977), on the basis of any difference in the content of the speech involved in that case and the content of the speech involved in this. It is entirely proper, however, to draw a distinction between injunctive relief imposing time, place, and manner restrictions upon a class of persons who have persistently and repeatedly engaged in unlawful conduct, on the one hand, cf. National Society of Professional Engineers v. United States, 435 U.S. 679, 697-698 (1978); United States v. Paradise, 480 U.S. 149, 193 (1987) (STEVENS, J., concurring in judgment), and an injunction that constitutes a naked prior restraint against a proposed march by a group that did not have a similar history of illegal conduct in the jurisdiction where the march was scheduled. Cf. Organization for a Better Austin v. Keefe, 402 U.S. 415, 419-420 (1971); Shuttlesworth v. Birmingham, 394 U.S. 147, 162-163 (1969) (Harlan, J., concurring). I would not extend the holding in the Skokie case to this quite different situation. For that reason, I think the Court correctly exercises its discretion to deny the application for extraordinary relief in this case.
JUSTICE KENNEDY, with whom JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE SCALIA join, dissenting.
A Georgia trial court issued an injunction prohibiting at least one of the applicants from engaging in certain means of public protest. The Supreme Court of Georgia refused to stay the injunction pending appeal. National Socialist Party of America v. Skokie, 432 U.S. 43 (1977), does not distinguish among speakers based on the content of their speech. Its terms, in my view, require us to treat the stay application as a petition for certiorari, to grant certiorari, and to reverse the denial of a stay by the Supreme Court of Georgia. See id., at 44. I dissent from the denial of the stay.
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