# Opposition — Goldstein v. Collin > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1171%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition - **Published:** January 1, 1978 - **Citation:** 439 U.S. 910 ## Text 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 ee COT deninieretatietuticcciicatasicithinnntninacincmpsctnmeien 2 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 Bg 15 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1171%3A2. Public record. Not legal advice.