a. Yes. The 7th Cir. App. Ct. first dealt with the ordinance (“995”) preventing “the dissemination of any materials within the Village…which is intended to promote and incite hatred against persons by reason of their race, national origin, or religion.” This is a content-based ordinance.
The rule that the First Am. does not protect obscenity only applies
to material with “erotic content,” as Cohen held. Obviously, the
materials here were not erotic, and thus fall under the First Am.
Furthermore, D argues that it does not rely on a fear of responsive
violence to justify 995, and does not even suggest that there will be
any physical violence if the march were held. Because of this confession, this case is outside the scope of Brandenburg and any argument based on the fighting words doctrine of Chaplinsky.
1. If you ask me, I think the lawyers really screwed this one
up. They should have argued that there would be physical violence in
response to P’s march. Dave says it is hard to distinguish Collin
from Brandenburg, but one could argue that they are distinguishable
because Brandenburg applies to a citizen’s speech against the
government (political speech), while the situation in Collin involves
speech against other citizens (Jews) and not the government, and thus
the non-political speech should be protected less under the First Am.
D makes essentially five arguments to justify the content restriction
of 995. First, D argues 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.” D
relies on Gertz as authority. But we disagree that the ordinance can
be said to be limited to “statements of fact,” false or otherwise,
since no handbills were distributed and no speeches planned at this
parade. Furthermore, the symbols in question assert the Nazi
ideology, which cannot be treated as a mere false “fact.” Gertz and
previous cases made clear that under the First Am., “there is not
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 ideas.”
D’s second arg. relies on Beauharnais. In that case, a conviction
was upheld under a statute substantially similar to that used in 995.
The U.S. Sup. Ct. held that certain limited classes of speech—such
as the lewd and obscene, the profane, the libelous, and “fighting
words”—were not protected by the First Am. In our opinion
Beauharnais does not support 995, for two independent reasons.
First, the rationale of the Beauharnais holding is that certain
limited classes of speech have a strong tendency to cause violence
and disorder. Here, D admits that it does not rely on a fear of
responsive violence to justify 995, and does not even suggest that
there will be any physical violence if the march were held. Thus,
Beauharnais does not apply here.
2. Dave thinks one of the strange things about the “fighting words”
doctrine is that focuses on whether or not the speech has a tendency
to cause violence and disorder in the addressee. Isn’t it weird to
base a decision on the non-violence of targets of speech? This is a
criticism of the “fighting words” doctrine—it protects the strong who
will not tend to act violent, yet it does not protect the weakest.
Secondly, assuming arguendo that there is group libel even withoyt
D’s reference to fears of violence, cases subsequent to Beauharnais,
such as New York Times v. Sullivan, Gertz, and Dun & Bradsteet, have
gotten rid of the Beauharnais principle that the First Am. does not
protect libel. Thus, even though there is group libel here,
Beauharnais does not necessarily cause it to be unprotected by the
3. Dave says one can argue that the Jews in Skokie are private
citizens and that the speech deals with an issue of “private
concern,” thus allowing the Dun & Bradstreet standard (see above) to
apply. But this would not prevent P’s from speaking, but it would
just allow for an easier recovery than NY Times and Gertz.
D’s third argument is that there is a policy of fair housing in
Skokie, and that P’s dissemination of racially discriminatory
material would undercut this policy. “We reject this discussion
without extended discussion,” because the whole purpose of the First
Am. is protect speech against such policies.
D’s fourth argument is that the Nazi march, involving as it does the
display of uniforms and swastikas, will inflict psychic trauma on the
Jewish residents. Even if there is a good chance that speech will
inflict such trauma, it cannot be prohibited until this trauma (IIMD)
actually occurs (otherwise, this would be a prior restraint).
Furthermore, there is no principled way of distinguishing between the
situation in Skokie from speech that stirs listener to unrest or
anger (speech that was explicitly protected in cases like
4. Dave says to not, if an IIMD suit is brought after the speech,
then Hustler “actual malice” standard for recovery (see above) would
kick in, assuming it is shown that the Jews were public officials or
D’s fifth and final argument to justify the content restriction of
995 is that the proposed march would be an invasion of the Skokie
residents’ homes and would be intensely menacing no matter how
peacefully conducted. In Cohen, the Court held that speech is not
protected if it results in a “captive audience,” which occurs when
“substantial privacy interests are being invaded [by the speech] in
an essentially intolerable manner.” There is no captive audience
here because there is no intrusion into people’s homes (“no sound
trucks outside the homes” was the example in Cohen) and the Village
residents may, if they wish, simply avoid the Village Hall for thirty
minutes on a Sunday afternoon, which no doubt would be their normal
course of conduct on a day when the Village Hall was not open in the
regular course of business.
5. Dave says one can distinguish Cohen from Collin. In Cohen, the
issue was whether a protest against government action (“fuck the
draft” jacket) resulted in a captive audience, while here the protest
is against a racial minority particularly susceptible to being a
“captive audience.” This assumes, though, that Jews lived along the
protest route, but the reality was that the parade route was not very
close to the Jews’ homes.
Based on the above reasons, 995 is struck down as violative of the
First Am. and thus cannot be used to deny P’s parade permit.
b. 994 gives the Village “officials the power to deny use of a
forum in advance of actual expression,” and is a prior restraint. D
did not overcome the heavy burden of showing that this prior
restraint was constitutional, and thus cannot use 994 to deny P’s
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