Opposition — Goldstein v. Collin

No. 77-1788 MICHAR

In TH

Supreme Court of the United States

()h oboe | ] ~s

SOL GOLDSTEIN, on his own behalf and on behalf of a class

similarly situated,

Petit

FRANCIS JOSEPH COLLIN, a/k/a FRANK COLLIN, and al

persons acting in concert with him under the name of the

National Socialist Party of America,

}?,

RESPONDENTS’ BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF ILLINOIS

TABLE OF CONTENTS

PAGE

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REASONS FOR DENYING CERTIORART ........... 2

STATEMENT OF THE CASE nncccccccccccceccccceecsecssssseccscces 3

REASONS FOR DENYING CERTIORARI 000... 8

Re ee i I ieliprcntdeteiesinecsnniininninicnmnisinnnen 8

II. The Illinois Supreme Court Was Correct In

Holding That Plaintiff Sought A Prior Re-

straint In Violation Of The First Amendment 10

III. Petitioner’s Claim That He Was Denied A

IE I MPMI, aecsitensiiiesssencnnndngenniemnsnorminsties 12

SAITO TINE ietssshdcienssssiehihthipueniiieipiiaicniaciarsesiseseneninctciiantssentiniamelinaiiven 14

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TABLE OF AUTHORITIES CITED

Cases

Allen v. Allegheny Co., 196 U.S. 458 (1905) 0000002... 13

Black v. Village of Skokie, 78 L 12287 (Circuit Court

ee I ar ia eine tidainetieieneninniiemmeinns 7

Collin v. Smith, 447 F. Supp. 676 (N.D. Ill. 1978), af-

firmed ...... F. 2d ...... (7th Cireuit, #78-1385, May 22,

UTED. eiteiaibtenttsiasabielenpinmaiaaiaeenieiala tata iiaad lacus beasts 6, 7, 10

Golden v. Zwickler, 394 U.S. 103 (1969) 00002 .. 9, 10

Goldstein v. Collin, #50176, Illinois Supreme Court,

SII Sits, SHITIIEIN -nenictseiaiethstdenientendashaceumibaiiiniaiahineaneteemieneienents 6

71

Kentucky Union Co. v. Kentucky, 219 U.S. 140 (1911)... 13

National Socialist Party of America v. Village of

ee: ne Ta I neiintadenmnals 3

Near v. Minnesota, 283 U.S. 697 (1931) 00000. 11,12

Nebraska Press Association v. Stuart, 427 U.S. 539

EE LS el ents Cen ey en RE RA OO 10, 11

Organization for a Better Austin v. Keefe, 402 U.S.

oh) ) i cieeeanidicaianiatiadiaiiiteletedaaiadieta te tiles 11

Rizzo v. Goode, 423 U.S. 362 (1976) ..00 Samad 13

Sosna v. Iowa, 419 U.S. 393 (1975) -222.0.2.......e eee eeeee eee 9

United Public Workers of America v. Mitchell, 330 U.S.

PREETI ORE SUR ONCO BREE ee 10

Village of Skokie v. National Socialist Party of Amer-

8) 8 fF FF a 4, 5, 10

Weinstein v. Bradford, 423 U.S. 147 (1975) 000000. 9

Yazoo & Mississippi Valley Railway Company v.

Adams, 180 U.S. 1 (1901) 2.0.22... eee 13

In Tur

Supreme Court of the United States

Ocroger Term, 1978

SOL GOLDSTEIN, on his own behalf and on behalf of a class

similarly situated,

Petitioner,

VS.

FRANCIS JOSEPH COLLIN, a/k/a FRANK COLLIN, and all

persons acting in concert with him under the name of the

National Socialist Party of America,

Respondents.

RESPONDENTS’ BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF ILLINOIS

To the Honorable Chief Justice and the Associate Justices

of the Supreme Court of the United States:

Respondents pray that the requested Writ of Certiorari

not issue to review the judgment of the Supreme Court ot

Illinois entered on January 27, 1978.

~~

OPINION BELOW

The Petition for Writ of Certiorari is filed from the

order and opinion of the Supreme Court of Illinois, set

forth in the Petition at pp. 1-2.

RE‘ SONS FOR DENYING CERTIORARI

I. The Case Is Moot.

II. The Illinois Supreme Court Was Correct in Holding

That Plaintiff Sought a Prior Restraint in Violation

of the First Amendment.

III. Petitioner’s Claim That He Was Denied a Hearing

Is Frivolous.

—3—

STATEMENT OF THE CASE

This ease arises out of the scheduling of a now-cancelled

public assembly in Skokie, Illinois, by respondents Frank

Collin and the National Socialist Party of America. The

assembly was to have occurred on May 1, 1977, and was

to have consisted of 30 to 50 members of the party wear-

ing military-style uniforms and would have included the

swastika emblem. Party members had planned to picket

silently on the sidewalk in front of the Village Hall car-

rying signs stating ‘‘Free Speech for White People,’’ and

the like.

Four separate lawsuits arose out of the scheduling of

that assembly. The first complaint was filed on April 27,

1977, in the Cireuit Court of Cook County, by the Village

of Skokie on behalf of its residents. The suit sought to

prevent the demonstration on grounds that it would pro-

voke disorder and would inflict psychic trauma on large

numbers of the residents. (Village of Skokie v. National

Socialist Party of America, #77 Ch 2702, Complaint,

7 10-11.) The Village procured an injunction which barred

respondents from appearing anywhere in Skokie in uni-

form, from wearing the swastika emblem, and from dis-

seminating party literature. The petitioner here was Sko-

kie’s chief witness in that case, end the Illinois courts

relied explicitly on his testimony in his capacity as a Holo-

caust survivor in first authorizing and then vacating the

injunction. That case came to this Court on a procedural

issue which was decided and remanded on June 14, 1977.

National Socialist Party of America v. Village of Skokte,

432 U.S. 43 (1977). On January 27, 1978, the Tlinois Su-

~~

preme Court vacated the injunction. Village of Skokie v.

National Socialist Party of America, 69 Ill. 2d 605 (1978).

When the Cireuit Court of Cook County entered the

injunction against the May 1 assembly in Skokie, re-

spondents rescheduled it for July 4, 1977. After this Court

ordered the Illinois courts to grant expedited review of

the injunction in the Skokie case, and while that injunc-

tion was still in force, petitioner Goldstein filed the pres-

ent case. Petitioner’s complaint sought relief against the

July 4 assembly substantially identical to that which had

already been obtained in the Skokie case and in which

Goldstein had already testified. The injunction in the

Skokie case was still in effect, pending appellate review;

therefore, petitioner sovght no preliminary relief in the

present case. (See Petition for Certiorari, p. 5, fn.)

On July 28, 1977, respondents filed a motion to dismiss

the Goldstein case arguing, inter alia, that the Illinois

courts were being asked to impose a prior restraint against

speech, and since prior restraints are held to be uncon-

stitutional, the case should be dismissed. Petitioner re-

sponded to the motion with a detailed $0-page legal memo-

randum of which all but the last six pages were devoted

to the facts and law in support of the constitutionality

of a prior restraint against respondents’ assembly. (The

last six pages addressed procedural questions such as stand-

ing and whether the action previously filed by Skokie

barred petitioner’s case.) On August 1, 1977, the Circuit

Court of Cook County denied the respondents’ motion to

dismiss, simultaneously certifying the prior-restraint ques-

tion for interlocutory appeal. (Rule 308, Rules of the IIli-

nois Supreme Court.)

—

As provided for by Illinois law, respondents petitioned

the Illinois Appellate Court for leave to appeal. That peti-

tion was denied on November 12, 1977. Thereupon, re-

spondents filed a ‘Petition for Leave to Appeal Ques-

tion Certified Below or a Supervisory Order’’ in the Illi-

nois Supreme Court. In support of that petition, respond-

ents attached all briefs submitted by the parties in the

trial court.

During the same time period, respondents were granted

leave to appeal to the Illinois Supreme Court from the

injunction against the assembly obtained in the Skokie

case. That case was argued on September 20, 1977.

On January 27, 1978, the Illinois Supreme Court decided

both the Skokie and the Goldstein cases. In the Skokie case,

it held that the injunction obtained by the Village, and

sought by petitioner Goldstein, was an unconstitutional

prior restraint on speech. Thus the Court stated:

In summary, as we read the controlling Supreme Court

opinions, the use of the swastika is a symbolic form

of free speech entitled to First Amendment protec-

tions. Its display on uniforms or banners by those en-

gaged in peaceful demonstrations cannot be totally

precluded solely because that display would provoke

a violent reaction by those who view it. Particularly

is this true where, as here, there has been advance

notice by the demonstrators of their plans so that they

have become, as the complaint alleges, ‘‘common knowl-

edge’’ and those to whom the sight of the swastika, ban-

ner or uniforms would be offensive are forewarned and

need not view them. A speaker who gives prior notice

of his message has not compelled a confrontation with

those who voluntarily listen. Village of Skokie v. Na-

tional Socialist Party of America, supra., at 618.

—_t—

In the Goldstein case, the Court held that the decision in

the Skokie case was controlling:

The Cireuit Court of Cook County denied a motion to

dismiss a complaint for injunction seeking to restrain

defendants from marching and demonstrating in the

Village of Skokie while wearing or displaying Nazi

insignia. The Appellate Court denied a petition for

leave to appeal under Rule 308 and defendants have

petitioned this @ourt for leave to appeal. In Village

of Skokie v. National Socialist Party of America, No.

49769, adopted this term, we held that the proposed

march or demonstration and the display of Nazi in-

signia could not be enjoined. The petition for leave to

appeal is allowed and, in the exercise of this Court’s

supervisory jurisdiction, it is ordered that the Circuit

Court of Cook County dismiss the injunction com-

plaint. Clark, J. took no part. Goldstein vy. Collin,

#50176, Illinois Supreme Court, January 27, 1978.

The Village did not seek a writ of certiorari from this

Court in the Skokie case. Petitioner Goldstein filed his

petition for certiorari in this case on June 16, 1978. He

also unsuccessfully sought stays on June 20 and 23, 1978.

(A-1064)

The third suit was filed on August 13, 1977, in the

United States District Court by respondents to challenge

the constitutionality of certain ordinances passed by the

Village of Skokie to bar respondents’ public assembly.

Again, petitioner Goldstein testified at length on behalf

of the Village as to his Holocaust experiences. The Village

also presented other testimony concerning allegations of

psychic trauma which it contended would result from re-

spondents’ activities in Skokie. On February 23, 1978, the

District Court held that relevant portions of the ordinances

were unconstitutional, Collin v. Smith, 447 F. Supp. 676

(1978); and on May 22, 1978, the United States Court of

~~ =

Appeals for the Seventh Circuit affirmed that decision,

—— ~ vane (7th Cir., 78-1385, May 22, 1978). On June

12, this Court denied a motion for a stay pending a ruling

on a Petition for Certiorari. (Smith v. Collin, A-1037).

The Village filed its Petition for Writ of Certiorari with

this Court on June 16, 1978. (Smith v. Collin, 77-1736.)

Thereafter, the Village granted a permit for respondents

to hold a public assembly in Skokie on June 25, 1978.

On June 22, 1978, another lawsuit was filed in the Cir-

cuit Court of Cook County seeking to enjoin respondents’

assembly. Louis Black, a private citizen, filed the suit

charging that the Village’s permit was wrongfully issued.

Black vy. Village of Skokie, No. 78 L 12287. Preliminary

relief to enjoin the June 25th assembly was denied by the

Cireuit Court of Cook County.

By June 22, 1978, all legal barriers to respondents’

planned assembly had been removed. However, respond-

ents cancelled the June 25th assembly in Skokie and held

assemblies at two separate locations in Chicago instead.

In reliance on respondents’ announcement of cancellation

of the assembly, the Village of Skokie revoked the permit

on June 23, 1978. (Ex. 1) At present, respondents have no

plans to hold an assembly in Skokie, and no permit appli-

cations for such an assembly are pending at this time.

nilifien

REASONS FOR DENYING CERTIORARI

The Petition for Writ of Certiorari should be denied in

this case because the case has become moot and bevause

petitioner presents no substantial federal questions.

I THE CASE IS MOOT.

The petitioner’s case is moot. His prayer asked for an

order restraining an assembly on June 4, 1977. That date

has long since passed and the assembly in question has

been cancelled. (Ex. 1) Specifically, the prayer states:

Wherefore, plaintiff, on his own behalf and on be-

half of all those similarly situated, prays this Court

for issuance of a preliminary and permanent injune-

tive relief restraining Frank Collin, his agents, em-

ployees, successors, and all those acting in concert

with him, including those acting in the name of the

National Socialist Party of America, from engaging

in any demonstration, rally, parade, or march of any

kind or description, in or through the Village of Skokie,

Illinois, at which the uniform of the Nazi party (in-

cluding brown shirts or swastika armbands) is worn

by the participants, or the insignia of the Nazi party

are displayed, and from engaging in any said dem-

onstration, rally, parade or march in or through the

Village of Skokie on July 4, 1977. (Complaint, p. 7)

(Emphasis added.)

In light of the cancellation of respondents’ assembly and

the limitation of the relief prayed for to any demonstra-

tion on July 4, 1977, a decision by this Court to review the °

petitioner’s case would resurrect a dispute which has be-

come purely academic. Moreover, issuance of a ruling on

the constitutional questions raised by petitioner would

~

amount to an advisory opinion. This Court has repeatedly

held that it does not issue advisory opinions. In Golden

v. Zwickler, 394 U.S. 103 (1969), this Court reaffirmed this

position :

[T]he federal! courts established pursuant to Article

III of the Constitution do not render advisory opin-

ions. For adjudication of Constitutional issues, con-

crete legal issues, presented in actual cases, not ab-

stractions are requisite. This is as true of declaratory

judgments as in any other field. (Quoted from, United

Public Workers of America v. Mitchell, 330°U.S. 75,

89 (1947).)

The application of this principle is particularly impor-

tant here because the petitioner seeks injunctive relief only

on a single date for an event that has been cancelled. His

complaint does not even seek declaratory relief.

The cancellation of the event in question also renders

this case moot under Sosna v. lowa, 419 U.S. 393 (1975),

and Weinstein v. Bradford, 423 U.S. 147 (1975). Those cases

defined the reach of the mootness doctrine under circum-

stances ‘‘capable of repetition yet evading review’’ because

the challenged action was too short in duration to permit

the litigation to be completed. In such cases, the Court

said:

Sosna decided that in the absence of a class action,

the ‘‘capable of repetition, yet evading review’’ doc-

trine was limited to the situation where two elements

combined: (1) the challenged action was in its dura-

tion too short to be fully litigated prior to its cessa-

tion or expiration, and (2) there was a reasonable

expectation that the same complaining party would

be subjected to the same action again. Weinstein v.

Bradford, 423 U.S., at 149.

—10—

The present case—not an action in which a class was

ever certified or in which a motion to certify was made—

does not meet either of the requirements articulated in

Weinstein, First, the right of respondents to assemble

and speak in Skokie has been fully litigated in the Illinois

and federal courts, each court ruling for respondents.

Village of Skokie v. National Socialist Party of America,

69 Tl. 2d 605 (1978); Collin v. Smith, 447 F. Supp. 676

(N.D. Ill. 1978), affirmed ...... i (7th Cireuit, #78-

1385, May 22, 1978). Second, there are no permit applica-

tions pending and no plans for any assembly in Skokie

by respondents. Thus, the likelihood of repetition—par-

ticularly where, as here, there has never been any public

appearance in Skokie by respondents—does not exist.

The likelihood of repetition is only a hypothetical pos-

sibility. Yet, as this Court has emphatically stated: ‘‘A

hypothetical threat is not enough.’’ United Public Workers

of America v. Mitchell, 330 U.S., at 90. ‘‘The constitutional

question, First Amendment or otherwise, must be presented

in the context of a specific live grievance.’’ Golden v.

Zwickler, 394 U.S., at 110.

Il. THE ILLINOIS SUPREME COURT WAS CORRECT IN

HOLDING THAT PLAINTIFF SOUGHT A PRIOR RE-

STRAINT IN VIOLATION OF THE FIRST AMENDMENT.

A prior restraint against a public assembly, the wear-

ing of military-style uniforms, and displaying of a sym-

bol is forbidden by the First Amendment. That the Con-

stitution prohibits prior restraints on speech is beyond

dispute. The Umted States Supreme Court has repeated-

ly held so in innumerable cases. Most recently in Ne-

braska Press Association v. Stuart, 427 U.S. 539 (1976),

Chief Justice Burger, speaking for the Court observed:

—w .

ents

The thread running through all of these cases is

that prior restraints on speech and publication are the

most serious and the least tolerable infringement on

First Amendment rights. 427 U.S., at 359. (Emphasis

added. )

In Organization for a Better Austin v. Keefe, 402 U.S.

415 (1971), this Court explicitly ordered the Illinois courts

to vacate an injunction against leafletting anywhere in a

specified municipality on grounds that such an injunction

is presumptively illegal:

Any prior restraint on expression comes to this

court with a ‘‘heavy presumption’’ against its consti-

tutional validity. Organization for a Better Austin v.

Keefe, 402 U.S., at 419.

The presumption of unconstitutionality of an injunction

serving as a prior restraint issued by state court judges

was articulated long ago in Near v. Minnesota, 283 U.S.

697 (1931), and remains black letter law today. In Near,

the United States Supreme Court invalidated an injunc-

tion, barring publication of allegedly libelous material,

granted by a state court at the instance of the county at-

torney of Hennepin County, Minnesota. The injunction

forbade publication of a local newspaper as a ‘‘public

nuisance’’ on the ground that it had engaged in a ‘‘mali-

cious, scandalous and defamatory’’ libel by accusing the

mayor and the chief of police of being under the control

of a ‘‘Jewish gangster.’’ In rejecting the injunction be-

cause it was a prior restraint, the Supreme Court cited

Blackstone :

The liberty of the press is indeed essential to the

nature of a free state; but this consists in laying no

previous restraints upon publications and not in free-

dom from censure for criminal matter when published.

Every free man has an undoubted right to lay what

—_—|, =

sentiments he pleases before the public; to forbid this

is to destroy the freedom of the press; but if he pub-

lishes what is improper, mischievous or illegal, he must

take the consequences of his own temerity. 283 U.S.,

at 714, citing 4 Bl.Comm. 151, 152.

There is no ease cited by petitioner which upholds an

injunction against political communication based upon its

content. Thus, the Illinois Supreme Court order dismissing

the complaint seeking an injunction against speech and

assembly is consistent with all previous authority of this

Court and does not warrant review of the decision of the

Supreme Court of Illinois by this Court.

III. PETITIONER’S CLAIM THAT HE WAS DENIED A

HEARING IS FRIVOLOUS.

Finally, petitioner contends that he was denied due proc-

ess because the Illinois Supreme Court relied on the plead-

ings and detailed briefs submitted to the Cireuit Court of

Cook County, as well as the ruling in the Village’s own

case, in ordering the complaint dismissed.

The implication in petitioner’s Statement of Facts that

the illinois Supreme Court considered no briefs on the

merits is misleading, as is his contention that he did not

participate in the Skokie litigation. (Petition, pp. 6-7.) The

record before the Illinois Supreme Court consisted of re-

spondents’ petition for interlocutory appeal of denial of

their motion to dismiss, petitioner’s response, and all

briefs filed in the trial court, including petitioner’s 60-page

brief detailing his contentions. Furthermore, the Illinois

Supreme Court had the entire record in the Village of

Skokie v. National Socialist Party of America before it,

including the full testimony of petitioner Goldstein who

had served as the chief witness in that case.

‘

=

That the Illinois Supreme Court could choose to con-

sider pleadings and lengthy briefs (not to mention peti-

tioner’s testimony in the Skokie case) in determining the

sufficiency of the complaint under state appeals procedures

is a matter within the discretion of the court. It is well

established that matters of state practice are left to the

state courts and are not appropriate for review in the

United States Supreme Court. Allen vy. Allegheny Co.,

196 U.S, 458, 465-466 (1905); Yazoo & Mississippi Valley

Railway Company v. Adams, 180 U.S. 1, 8-9 (1901). Prin-

ciples of federalism require such deference by this Court.

See Rizzo v. Goode, 423 U.S. 362 (1976).

The sole exception to this rule is made when state prac-

tice is so extremely arbitrary as to deny due process.

Kentucky Union Co. v. Kentucky, 219 U.S. 140, 158-161

(1911). Petitioner can complain of no such arbitrariness.

The Illinois Supreme Court decided only a question of

law determining whether or not the respondents’ motion

to dismiss the complaint seeking injunctive relief should

be granted. The Court had before it not only the extensive

briefs filed in this case, but also the record in the Skokie

ease including petitioner Goldstein’s own testimony, which

the Illinois courts referred to in their opinions.*

In light of the record before the Illinois Supreme Court,

petitioner’s claim that he was denied a hearing in that

Court is without any support legally or factually. It is,

thus, frivolous and cannot serve as a basis for the grant-

ing of a petition for a writ of certiorari.

* Petitioner lists four points which he claims he could not ade-

quately make. (Petition, pp. 14-16). In fact, each of petitioner's

points is made at great length in the brief and reply to plain-

tiff’s petition submitted by him in the Illinois courts.

=

CONCLUSION

————

For the foregoing reasons, the respondents respectfully

submit that the Petition for a Writ of Certiorari should be

denied.

Respectfully submitted,

Davip GoLDBERGER

Barsara O’TooLe

ROGER BALDWIN FOUNDATION

OF THE ACLU, INC.

5 South Wabash Avenue, Suite 1516

Chicago, Illinois 60603

(312) 726-6180

ATTORNEYS FOR RESPONDENTS

—15—

APPENDIX

Exhibit 1

2

, x. VILLAGE or SKOKIE

473.0500

8127 CAKTON S&T. SKOKIE. 11. 60076

0x 6 §8UsOS

OFFrice OF THE VULAGE MANAGER

June 23, 1978

Mr. Frank Collin

National Socialist Party of America

Rockwell Hall

2519 W. 7Iist Street

Chicago, Illinois 60629

Dear Mr. Collin:

This is. to formally advise you of the action taken by the President

and Board of Trustees of Skokie on June 22, 1978. In view of your

public statement of intention to cancel your demonstration assembly

in Skokie on June 25, 1978, the permit heretofore issued in conjunc-

tion with that assembly has been revoked.

Very truly yours,

John Matzer, Jr.

Village Manager

JM:re J

cc: Mr. David Goldberger

American Civil Liberties Union

Harvey Schwartz

Corporation Counsel