Freedom of Association and Assembly / Protests
Nemtsov v. Russia
Closed Expands Expression
Global Freedom of Expression is an academic initiative and therefore, we encourage you to share and republish excerpts of our content so long as they are not used for commercial purposes and you respect the following policy:
Attribution, copyright, and license information for media used by Global Freedom of Expression is available on our Credits page.
The U.S. Supreme Court held that where a lower court intends to grant a prohibition on speech, strict procedural safeguards need to be in place. The U.S. Supreme Court reviewed the refusal of the Illinois Supreme Court to temporarily suspend a prohibition on a political demonstration pending an appeal of the prohibition. The political demonstration was to be aligned to Nazi ideology, including the displaying of the swastika, and it was scheduled to take place in Skokie, Chicago. The U.S. Supreme Court held that since the Illinois Supreme Court denied immediate appellate review of the prohibition, it should have allowed for its temporary suspension pending its appeal.
This case arises out of a 1977 controversy concerning the National Socialist Party of America (NSPA) in Skokie, Chicago. Skokie was, at that time, a village with a 57% Jewish population and a number of its residents were survivors of Nazi concentration camps. The party leader of the NSPA, Frank Collin, who described the party as being a “Nazi organization”, proposed to hold a peaceable, public demonstration to protest against regulations on the use of the village’s public parks for political assemblies. The proposed demonstration would last about 30 minutes, and consist of 30 to 50 demonstrators marching in front of the village hall. The demonstrators were to wear the uniform of the party, which included a swastika, and they were to hold banners, which also included the swastika and variations on the statement “Free Speech for the White Man”. Counter-demonstrations were planned for the same day as the NSPA demonstration and witness testimony stated that, should the NSPA appear that day, counter-demonstrators might not be controllable.
Subsequently, the Cook County Circuit Court entered an injunction prohibiting, “[m]arching, walking or parading in the uniform of the [NSPA]; [m]arching, walking or parading or otherwise displaying the swastika on or off their person; [d]istributing pamphlets or displaying any materials which incite or promote hatred against persons of Jewish faith or ancestry or hatred against persons of any faith or ancestry, race or religion” within the village of Skokie. [p. 43] The Circuit Court also denied the temporary suspension of the order pending its appeal. The appellate court and the Illinois Supreme Court upheld the denial of temporary suspension, with the latter also denying a request for direct expedited appeal of the prohibition.
The issue regarding the refusal of temporary suspension was then brought before the U.S. Supreme Court on a writ of certiorari (i.e. a writ by which a higher court reviews the decision of a lower court).
Per Curiam Opinion:
The U.S. Supreme Court found that the Illinois Supreme Court had erred in denying the NSPA’s request for a temporary suspension of the prohibition pending its appeal. The U.S. Supreme Court found that it had jurisdiction to review the judgment of the Illinois Supreme Court as it finally determined the merits of the NSPA’s claim. The NSPA argued that the outstanding prohibition would deprive them of their constitutional rights during the period of appellate review, which could take more than a year to complete. The U.S. Supreme Court held that where a State seeks to impose restraints of this kind, it must provide “strict procedural safeguards”. [p. 44] Such procedural safeguards could include immediate appellate review. The U.S. Supreme Court reasoned that since the Illinois Supreme Court denied immediate appellate review to the NSPA in this case, it should have allowed a temporary suspension of the prohibition pending appeal.
The U.S. Supreme Court reversed the denial of temporary suspension, and remanded the matter for immediate appellate review or temporary suspension of the prohibition pending appeal.
Justice Rehnquist, with Justice Stewart and Chief Justice Burger, dissenting:
The dissent wrote separately to argue that the U.S. Supreme Court could not review the decision of the Illinois Supreme Court in this case because it was not a “final judgment”, and therefore the issue was not yet within the U.S. Supreme Court’s jurisdiction. The dissenters noted that the merits of the claim on the constitutional validity of the prohibition had not yet come before an appellate court in Illinois. Nevertheless, the dissenters did agree that the prohibition was “extremely broad” and was likely to be substantially modified on appeal. [p. 45]
Events subsequent to the decision:
Following the judgment of the U.S. Supreme Court, and upon an order of the Illinois Supreme Court to either commence immediately an appellate review or to temporarily suspend the prohibition pending its appeal, the Appellate Court of Illinois acted immediately to commence the appeal of the prohibition. The prohibition was eventually modified and then reversed on appeal before the Appellate Court and the Illinois Supreme Court respectively.
In its judgment, the Appellate Court reiterated that there is a heavy burden that needs to be met to overcome the presumed constitutional invalidity of prior restraint on speech. The Appellate Court went on to reason that the prohibition, in so far as it pertained to the distribution of pamphlets and displaying of materials that incite or promote hatred, was unnecessary since the NSPA did not intend to engage in such communications. The Appellate Court also reasoned that the uniform of the NSPA without the swastika was protected symbolic speech since it could not be deemed to be “fighting words”. “Fighting words” is a class of unprotected speech which is defined as “personally abusive epithets which, when addressed to an ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction.”
Nevertheless, the Appellate Court did find that an ordinary citizen would be ready to react violently at the displaying of the swastika. Furthermore, it found that it is a matter of common knowledge that a swastika is inherently likely to provoke a violent reaction among the Jewish community where it is intentionally brought in close proximity to their homes and places of worship. As a result, the Appellate Court found that swastikas are not protected speech in this case and it upheld the prohibition to the extent that it applied to the intentional displaying of the swastika in the course of a demonstration in Skokie.
The Illinois Supreme Court subsequently reversed the reformulated prohibition of the Appellate Court. The Illinois Supreme Court concluded that the displaying of the swastika could not be precluded solely because it might provoke a violent reaction from those who view it; particularly in cases where there has been forewarning that such symbols will be displayed. The Supreme Court of Illinois reluctantly decided that the displaying of the swastika could not fall within the “fighting words” exception to free speech, nor could anticipation of a hostile audience justify the prior restraint of such speech. Instead, the burden was on the citizens of Skokie to avoid the offensive symbol, if they could do so without unreasonable inconvenience.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case expands expression by determining that where a court grants an injunction that could impact first amendment rights during the course of its appellate review, the court must enact strict procedural safeguards such as a temporary suspension of the prohibition pending appeal or an expedited appeal of the prohibition. This ensures that should the order be overturned on appeal on the basis that it restricts protected speech, the affect on the rights of the appellant will have been minimized for the duration of the appeal.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
As a decision of the Supreme Court of the United States, this decision binds all lower courts.
Let us know if you notice errors or if the case analysis needs revision.