The Supreme Court yesterday declined to review a ruling that the predominantly Jewish Village of Skokie, Ill., violated the First Amendment by adopting ordinances intended to prevent Nazis from assembling there last July 4.
In a dissenting opinion, Justice Harry A. Blackmun wrote that the court should have taken the case in order to consider whether "there is no limit whatsoever to the exercise of free speech." Justice Byron R. White joined him.
As is customary, the court - here a seven-member majority - did not explain its action.
A key issue in the divisive case was whether the assembly would create "a clear and present danger" of violence and riot. If it would, it wuld be incitement unprotected by the Constitution.
In the court of U.S. District Judge Bernard N. Decker and in the 7th U.S. Circuit Court of Appeals. Skokie offiicials explicity disclaimed that the assembly would be incitement.
Without explanation, however, they adopted a contrary view in the Supreme Court First Amendment protection was unwarranted because of "a clear and present danger of a substantive evil" and of "an intentional incitemnet to riot," their petition contended.
This switch has "no support in the record," the American Civil Liberties Union said in a asking the court to let the appellate ruling stand. "Their admissions remain to the countrary," ACLU said.
One of the ordinances required a permit of public assemblies. Another prohibited dissemination of material that incited racial of religious hatred with intent so to incite. Decker invalidated the ordinances and was upheld by the 7th Circuit.
The ACLU represented Nazi leader Frank Collin and his National Socialist Party. "Though I detested their beliefs, I went into court to defend the First Amendment," ACLU lawyer David Goldberger, who is Jewish, said in a recent letter appealing ror memberships.
The assembly was to be in front of the Village Hall, which is on a commercial street in the community of 70,000. The hall is adjoined in three directions by residential areas and is visible from dwellings in those areas.
The participants - 30 to 50 Nazis wearing uniforms with armband swastikas - did not apply to march through the streets. Rather, they said they would gather silently for a half hour on a Sunday afternoon.
They also planned to carry placards but not to pass out literature. The placards were to proclaim free speech for whites as a way of blaming Jews for integeration and busing in the schools of nearby Chicago.
Blackmun termed the facts of the case "critical, disturbing and emotional," spoke of "the perading sensitivity of the litigation," and said that Skokie residents - many of them survivors of World War II Nazi concentration camps - had asserted "not casually, but with deep conviction," that the proposed demonstration would be "taunting and overwhelmingly offensive . . ."
In the end, Skokie denied the permit application, aan the Nazis abandoned their efforts to gather there. Instead, they met peacably in Chicago's Marquette Park.
The episode was an agony for the ACLU, Lawyer Goldberger, in his recent letter, wrote. "Thousands of members have resigned . . . For the first time in 58 years of serving as a watchdog and enforcer of the Bill of Rights, the ACLU is suffering a decline . . . is now on the edge of a precipice."
In the Jewish community, concern that it may have overreached was expressed last month by Reform Judaism, the official newspaper of the Union of American Hebrew Congregations. It said.:
"We made ourselves feel better, perhaps, at the cost of giving a small band of psychopaths a fortune in free publicity for a year, while we seriously undermined the ACLU, which has been our friend and ally on every major issue in American public life."
In the opinion for the appellate court, Circuit Judge Wilbur F. Pell said it would be "grossly insensitive to deny, as we do not, that the proposed demonstration would seriously disturb, emotionally and mentally, at least some, and probably many, of the releast some, and probably many of the village's residents." But, he wrote, the court cannot "criminalize protected First Amendment conduct in anticipation of such results."
The court's decision. he said, was "dictated by the fundamental proposition" that if the civil rights claimed by the Nazis "are to remain vital for all, they must protect not only those society deems acceptable, but also those whose ideas it quite justifiably rejects and despises."
In a separate opinion, Judge Harlington Wood Jr. said that the "ample warning" of the event distinguishes it from a "sudden and unfounded cry of 'fire' in a crowded and unsuspecting theater . . ." By contrast, Blackmun said that the Skokie demonstration "just might fall into the same category as one's 'right' to cry 'tire' in a crowded theater . . ."
The case was argued in the appeals court a few days before NBC began running its "Holocaust" television series. "Ironically," Judge Pell wrote, "the same trauma-producing possibilities" could flow from watching the series. The assembly, he noted, would "not involve intrusion into people's homes."