# Reply Brief — Goldstein v. Collin > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1171%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief - **Published:** January 1, 1978 - **Citation:** 439 U.S. 910 ## Text No. 77-1788 Iu the q Supreme Court of the United States Srrinc 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. On Petition for Writ of Certiorari to the supreme Court ol Illinois PETITIONER’S REPLY BRIEF ON RESPONDENTS’ SUGGESTION OF MOOTNESS JEROME H. TORSHEN 11 South LaSalle Street Chicago, Illinois 60603 ELLIOT L. BIEN 208 South LaSalle Street Chicago, Illinois 60604 Counsel for Petitioner 7 UNITED STATES LAW PRINTING CO., CHICAGO, ILLINOIS 60618 (312) 525-6581 7 7 - 2 PAGE ID” ican hia acaahhonsc casas maiemmnniaeiatsceamienes 1 I na a ae 3 IES EEN E ENE an nar Her nn nanase arses Ioana 6 Appendix— Exhibit 1—Chicago Tribune, June 23, 1978 ........ App. 1 AUTHORITIES CITED Cases Buffalo Forge Co. v. United Steelworkers, 428 U.S, 397 SED cebaintaigsaaiescisshidensscevaaiail duals bins hlesnssainicinbusihtanisatieadienct 3,4 Bus Employees v. Missouri, 374 U.S. 74 (1963) ........... 3 Carroll v. President and Commissioners of Princess Anne, 393 U.S. 175 (1968) we. wiaiinadaede 3, 4, 5 Sosna v. lowa, 419 U.S. 393 (1975) eee 3 U.S. v. W.T. Grant Company, 345 U.S. 629 (1952) ....... 3 Walling v. Helmerich & Payne, Inc., 323 U.S. 37 (1944) 3 Weinstein v. Bradford, 423 U.S. 147 (1975) ............. 3,4 Other Authorities First Amendment to U. S. Constitution 0000000000000... 2, 5, 6 In the Supreme Court of the United States Sprinc ‘Term, 1978 No. 77-1788 SOL GOLDSTEIN, on his own behalf and on behalf of a class similarly situated, Petitioner, vs. FRANCIS JOSEPH COLLIN, 2/k a FRANK COLLIN, and all persons acting in concert with him under the name of The National Socialist Party of America, Respondents. On Petition for Writ of Certiorari to the Supreme Court of Illinois ee ee ee ee PETITIONER’S REPLY BRIEF ON RESPONDENTS’ SUGGESTION OF MOOTNESS Introduction This cause is not moot. Although respondents cancelled their proposed demonstration in Skokie after the instant petition was filed and after petitioner’s two emergency motions to Justices of this Court had been filed and denied. respondent Collin immediately stated to the press: 2 ‘‘'That] does not mean I forego any future demon- stration in Skokie,’’ he said. ‘‘It means only this one has been cancelled.’’ (Chicago Tribune, June 23, 1978, p. 1) (Exhibit 1, App. p. 1) Thus, respondents in their Brief in Opposition to the Petition herein, can accurately represent: At present, respondents have no plans to hold an as- sembly in Skokie, and no permit applications for such an assembly are pending at this time. (Brief in Opp., p. 7) (emphasis added). However, respondents have not abandoned the conduct of which petitioner complains. They have carefully main- tained their option to stage a Nazi-style demonstration in a community of holocaust survivors. Although respondents seek to foreclose review here of the summary dismissal without any semblance of established procedure, of the survivors’ complaint, that dismissal has a continuing im- pact upon the petitioner and the class he represents. The judgment below, if it remains extant, leaves the petitioner class with the overhanging threat of a rescheduling of a Nazi-style demonstration, at respondents’ sole discretion should ‘‘agitation’’* again suit their ends, and with a final state holding on record that the First Amendment absolute- ly bars legal recourse against even tortious aspects of the demonstration. Respondents’ qualified cancellation does not render this case moot under the decisions of this Court. *Elaborating on his eleventh hour cancellation respondent Collin stated: “The whole Skokie issue which began in March, 1977, was pure agitation on our part to force the system to restore our rights to free speech,” he said. (Exhibit 1, p. 18, App. 2) 3 Argument A voluntary discontinuance of challenged conduct does not ipso facto render the challenge moot and nonjusticiable. Walling v. Helmerich & Payne, Inc., 323 U.S. 37 (1944); US. v. W.T. Grant Company, 345 U.S. 629 (1952); Bus Employees v. Missouri, 374 U.S. 74 (1963); Buffalo Forge Co. v. United Steelworkers, 428 U.S. 397 (1976); and accord, Carroll vy. President and Commissioners of Princess Anmme, 393 U.S. 175 (1968). Where the complaining party has an interest which continues to be exposed to the type of harm complained of, unlike Sosna v. Iowa, 419 U.S. 393 (1975) and Weinstein vy. Bradford, 423 U.S. 147 (1975), the case or controversy continues in effect for jurisdictional purposes. ‘‘The defendant is free to return to his old ways.’’ U.S. v. W.T. Grant Co., supra, 345 U.S. at 632. Grant held a controversy justiciable despite a voluntary cessation and sworn disclaimer of intention to resume an interlock- ing directorate—something significantly stronger than respondents’ bare cancellation of one demonstration. Even a strong disclaimer of the Grant type ‘‘does not suffice to make a case moot... .’’ Jd. at 633 The suggestion of mootness in Walling, supra, was based on the voluntary relinquishment of a pay plan challenged as an evasion of federal overtime law. The Court stated: ‘*Despite respondent's voluntary cessation of the chal- lenged conduct, a controversy between the parties over the legality of the split-day plan still remains. Volun- tary discontinuance of an alleged illegal activity does not operate to remove a case from the ambit of judicial power. See Hecht Co, v. Bowles, 321 US 321, 327, 88 L ed 754, 759, 64 S Ct 587; Otis & Co. v. Securities & Exch. Commission (CCA 6th) 106 F (2d) 579, 583, 4 584. Respondent has consistently urged the validity of the split-day plan and would presumably be free to resume the use of this illegal plan were not some effective restraint made. There is thus ‘an actual controversy, and adverse interests,’... .’’ 323 U.S. at 43. On point with Walling is the respondents’ clear position in this case that they legally can and accordingly might re- schedule the complained of demonstration in Skokie. In Buffalo Forge, supra, the Court held a case involving an allegedly unlawful sympathy strike to present ‘‘a live controversy despite the J & M employees’ return to the job.”’ 428 U.S. 397 at 403, fn. 8. The disputed work stoppage, ‘‘though ended, might ‘be resumed at any time in the near future at the direction of the International Union, otherwise.’’’ Jd. at 403. Given the complaining employer’s continuing exposure to the kind of harm at issue, the voluntary cessation did not render the case moot even though at the time of Supreme Court adjudication there were no evident plans for a resumption. Contrary to Buffalo Forge and the instant case, the Weinstein prisoner had no continuing exposure to the harm he had complained of beyond that faced by any other citizen. (The remaining Sosna class members faced continuing preju- dice, not merely exposure, under challenged state resi- dency requirement.) Finally,* in Carroll, supra, the Court refused to dismiss us moot a First Amendment challenge to a ten-day restrain- * Respondents also argue, for the first time, that since peti- tioner’s complaint mentioned only the first date respondents scheduled for their demonstration petitioner has no basis for complaining as to later dates. Aside from the broad scope of equitable jurisdiction, respondents’ consistent treatment of this action as live despite the date issue estops them from asserting it now, after significant reliance on their original position by the petitioner. 5) ing order whose operation had long since terminated. The Court’s first citation was to Bus Employees, supra, a case involving the seizure of a business, stating its holding as follows : ‘**{A |lthough the seizure had been terminated, the case was not moot beeause the labor dispute [which gave rise to the seizure! remains unresolved. There thus exists ... not merely the speculative possibility of in- vocation of the |seizure law} in some future labor dis- pute, but the presence of an existing unresolved dis- pute which continues .. .”* Quoted at 393 U.S. 175 at 178. Although there was no mention in Carroll of any exist- ing plan or intention by the Princess Anne officials to seek another restraining order against the Carroll group, the group’s continuing activity and the officials’ continuing op- position kept the constitutional issue justiciable : ‘*The underlying question persists and is agitated by the continuing activities and program of petitioners: whether, by what processes, and to what extent the au- thorities of the local government may restrict peti- tioners in their rallies and public meetings.’’ 393 U.S. at 179. Lastly, because of the existence of the present under- lying decision of the Illinois Supreme Court and the short time frame which would exist if respondents once again decided to demonstrate in Skokie, the issues presented here would, in all likelihood, evade judicial review. Thus, very much alive in the instant case is the question, similar to that in Carroll, whether the First Amendment forecloses any and all consideration by a state court of equity of narrow injunctive relief against an admittedly 6 tortious and irreparable aspect* of a prospective demon- stration. The dispute between the neo-Nazis and the holo- caust survivors in Skokie has not abated because of re- spondents’ latest unilateral cancellation of a demonstration. Petitioner and his class should not be required to remain in a state of legal and psychological jeopardy subject to a rescheduling of a Nazi-style demonstration in their com- munity, with all the attendant trauma to be expected there- from. The decisions of this Court do not require such a result. CONCLUSION For the foregoing reasons, a writ of certiorari should issue to review ‘uc judgment and opinion of the Supreme Court of Illinois. Respectfully submitted, Sot Goipsrein, on his own behalf, and on behalf of a class similarly situated, Petitioner Jerome H, TorsHEN Exuror L. Bren Counsel for Petitioner * This case arises on a motion to dismiss. admitting the allega- tions of the complaint. Respondents have not challenged peti- tioner’s statement that the law of the case is that the admitted allegations, as the trial court held, state a cause of action in tort and for equitable jurisdiction. Respondents claim only that the First Amendment provides them an absolute defense to their proposed conduct. JeroME H. Torsnen JEFFREY CoLe 11 South LaSalle Street Chicago, Illinois 60603 372-9282 Exurot L. Bren 208 South LaSalle Street Chicago, Illinois 60604 346-8500 KituGeNe Weporr One IBM Plaza 44th floor Chicago, Illinois 60611 222-9350 Gerarp LEVAL 233 South Wacker Drive 8000 Sears Tower Chicago, Illinois 60606 876-8000 Counsel to Plaintiff —— i APPENDIX wii | 5StarFino. Bune « a lriday, June 23, 1978 aN 2 Este - os F3as Exhibit 1 Contvaucd [rom page ene July 9 in the park. “IF CALLA COME fer us, we will join them as we did ts Sema and in Wash ington,” Rabbi Pereimuter said. “if the communuy cails for support to oppeee the Nazis, we will be there,” said Maynard Wishner, anolher spokes- man for the group. lierman H. Moses, netiona: command- er of Use Jewish War Veicrans, cancelet lus organization's pians (lo (ake part in weeker| counter-denonstralions against the Nats in Skokie and Chicago. Gov. Thompson's office announcel thal plans were canceled to assembic unis of he National Guard in Skokie (ov prevent violence if the Nazis had marched. Sixty news reporters and camecrainen jammed the Nazi Party headquarters for Colin's 6 p.m. press conference. Uulside the front door were Rabbi Meir Kahone of the Canferenee of Jewish Ac- lvls and a hendfui of hu foliowers. “We expect lo see you in Skokie, Col- in,"" Rabbi Kahane shouted a few sec- Collin said the rally Saturday afier- noon “is definitely on despile what eise I say here today.” “THE WHOLE SKUKIE issue which restore our Bank He saxt the news media “nol once ever reported why we were demonsiral- _ Nazis Cai. © App. 2 omflorms Quad symbeis while Unere, were -t Skokie march ‘This case han more faceis than the : E | 3 E i | materials after be pulled his car behind the head- quarters. Lewis told police be had been rH gS | Hy --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1171%3A3. Public record. Not legal advice.