Frank Collin v. Chicago Park District

аcquittal, F.R.Crim. directed verdict ap- not rule out fact does P. where new trial propriateness aof the in- requested one has justice

defendant there- served are best

terests by. Cir., Musquiz, States v. United Bryan 963; United F.2d States, 1950, yet Although it has 94 L.Ed. 335. entirely possible so, done it is present might able to Government the defendant’s evidence

sufficient sup- jury question sanity to create a finding.

port jury the circum- Under justice”, stances, 28 U. “interests re- for reversal and call S.C.A. § supra. Bryan,

mand for new trial. remanded.

Reversed Plaintiff-Appellant, COLLIN,

Frank al., et PARK DISTRICT

CHICAGO Defendants-Appellees.

No. 71-1377. Appeals,

United States Court Circuit.

Seventh

Argued Oct. 1971. April

Decided 1972. May

Rehearings Denied 18 and June Goldberger, O’Toole, David Barbara P. Chicago, Ill., plaintiff-appellant; Ed

gar Ill., Chicago, Bernhard, counsel. Hartigan, Ward, ently, M. Neil F. William of his to administrative re- Chicago, Ill., defendants-appellees. appealed view and his denial. After a hearing, upheld denial let- DUFFY, Judge, Before Senior Circuit September 1,1970. ter dated Judges.* and PELL, KILEY Circuit letter denial referred to the sought fact that the area to be used was Judge. PELL, Circuit normally Sundays used on in warm appeal judgment is from a This family weather picnic aas аrea and was denying plaintiff Collin’s district court vicinity in the of recreational facilities. injunction preliminary motion for a The letter then referred the fact dismissing his action. public assembly a by Gage held Collin in The below of Collin’s case arose out 27, September 1969, Park pub- “led to a a unsuccessful efforts to secure required lic police commotion which Park, holding rally Marquette for presence action, was, and which Chicago. Specifically, complaint could to, have led a riot or breach of the sought Chicago compel the defendant peace.” Park District to issue such The letter then adverted to the fact 25, April Sunday, well as as seek- that Collin had pro- stated he that would ing declaratory injunctive relief. by duce for review the Park District all Collin, leader the National Socialist of pamphlets, posters literature and Party America, also known as the he intended to рroposed public use at his Party, pursuant Nazi filed his action to meeting he but had refused to do so at 28 U.S.C. 1343 and 2201 and 42 §§ 1983. the review. The writer of the letter Designated U.S.C. as defend- § stated light his conclusion in the of this Chicago ants were the Park District and refusal light and in the of literature thereof, various functionaries herein previously by distributed on Collin Park collectively referred to as “Park Dis- property District that Collin intended to trict.” violate the Criminal Code of the State of complaint The taken evidence at Illinois. hearings fairly below establish the fol- The completed letter was then as fol- lowing general background. lows: appli- May filed an In Collin particularly dis- “Such conclusion is demonstra- to hold cation for a turbing light of the fact that this purposes of Marquette Park for tion in speech excoriating material abrasive and is to making The on 1970. June normally be disseminated in an area indicated as was estimated attendance going pic- used families and others for high persons. Under as 500 as purposes, nics and and has recreational May from the a letter date previously public resulted in a commo- denied Park permission recreation director District required police tion which action and any stating reasons. protection. again applied July In late Collin permission to hold demonstration “4. connection with denial making speeches purpose pending may application, for the of the I September again Marquette point 1970. No out free forum the four response may applicant was received from the Park areas where conduct a public meeting until Collin contact District made with on Park August 25, 1970, property permit, officials thereof on without a application informed had defined in of the Section 17-8.2 learned, independ- been He denied. then District ordinances.” * Judge original placed panel by Kiley. Judge Kerner was a member on the case; panel hearing argument panel constituted, oral on the as then briefs however, participate original argument, he did not and the recorded oral having unnecessary. adoption opinion, reargument this been re- deemed program party. again ap- of the January 15, was the 1970 Collin On history page rally from the permission to Reminiscent of plied to hold a organ- Reich, Marquette Park, of the Third the list speak this time on subjects nothing included from ization’s anathematic April He heard tax, communists, federal income followed District and the suit “cheap quality products” (whatever they eventually appeal. resulted in this Negroes, be), Reserve the Federal May 17, 1971, filed in this Collin On System, Jews, Nations, in- United Emergency Application for court an competent bureaucrats, disloyal teachers Pending Appeal Temporаry Injunction “Aryan race,” ped- pornography compelling seeking the issuance an order permit dlers and small If list is families. speak already illustrative of the fact that Park. was denied hatred mates, collects it is diverse noted held two to one vote this court which program points that one of the was the inappropriate it “is for this court prosecution immediate of all “who have endeavor a matter of to resolve as proven polluting guilty our natu- emergency impression first on an basis Although ral resources.” two of the complex questions going factual points shooting sight were “the of all relief, any, might form of if which be Black and anarchist rioters and looters” appropriate here.” “liquidation Communists, of all assumes, as us now before The matter pro-Communists, Zionists and other a classic it, proportions of the seewe organizations,” treasonous point thirty there in which case Amеndment First was Program “installment of the above governmental by a a denial has been through legal, Constitutional means.” speech and as- body of of freedoms the substantially matter distaste- No how sembly which the because views program ful been most of the have expressed were body would be assumed dealing ap- to with ‍‌‌‌​​‌‌‌‌‌​​‌‌‌‌​​‌​‌​​​‌‌‌​​‌‌​‌​‌‌​‌​​‌‌​​​​​‌‍Collin’s those loathsomely, unacceptably, if not indeed plications, the fundamental nevertheless thought. prevailing Such a alien to essentiality speech freedom appears us to to prior resultant restraint assembly freedom of tenets is as viable interdiction. We unconstitutional litigation. dispute in in this though even therefore must reverse denying personal point Thus, view share from we the Park District while community repugnance permit stated, toward con- must under “We expected law, to which Collin could stitutional concede full and views [Collin] right publicize speak he adheres to the utter аnd if free to and assemble without presumably expressive censorship of his beliefs restraint somewhere opinions property.” time. on Park at an earlier deny- Thus, also,

The record in this case contains sever- the district court in setting ing judicial and accom- al leaflets forth aims relief stated: plishments of the National Socialist speech “Freedom of the most is Party People’s in Collin White of our It is the cherished liberties. organization, appar- was active in this symbol healthy free and test of a soci- ently predecessor of his 1970 National ety. Constitution is a framework The Party Socialist of America. protection minority rights, unpopular right The animus of the 1969 literature or not. The free principally peaceful seemed to have been directed of a mi- people nority especially important black and communists. is in considerably increasing apparently day horizon this Federаl was reserve following year broadened reflect- towards interference State action by increasing rights ed emphasis an exhibit the record entitled on the “Thirty Program society rights Point for the National over of the indi- Party,” Socialist which Collin testified vidual.” parks exclusively case falls located in used almost whether To determine Washing- being sweeping blacks, Garfield ambit broad necessary ton, third, Burnham, although guaranty, it “at constitutional predominantly Negro, material one time . . to look additional at certain gone fairly record. situa- has now to about established facts 50/50 recognized tion.” district court sought The site at which Collin require speak any Collin to Park, rally Marquette hold his was these free forum areas would substan- receptive If he were have ^Chicago. tially increase the threat of violence audience, Marquette appeared to be which the Park District had itself used likely cеntrally place it his most as was deny plaintiff’s permit as its reason to located in the in which the area bulk speak Marquette Park. The fourth supporters Marquette resided. suggested Park, area was Lincoln primarily family was and used for was plaintiff’s at least nine from miles picnic However, area. it not a headquarters sup- and the bulk of his small, exclusively picnic area. There porters. was no flat ban on demonstrations. ’ park. Other regard rallies had held in Turning the fac- next with appears to be the to what tual situation Further, appears clear cases oth- underlying denial for the real basis er requested than Collin’s that when a possibility permit, of violence area in Park had not been held, rally the follow- we note appropriate, suggestions deemed had ing significant in the district statements been made the Park District which judgment: court’s gathering would in another part park. of the same evidence, all of the “I reviewed have The district court noted this fact and including pamphlets pre- and handbills stated, they “If afford this service to viously by plaintiff the distributed some, reasonable, it seems under the organization. than and his Rather Fourteenth Amendment of the Constitu- peaceful, the of the or- entire thrust tion of the ought United they States ganization to the seems to be devoted afford this service to all.” activity race-baiting. loathsome of prior meetings The attend- have Collin’s applications several for the by fail, ed almost without violence permit always specified Area No. of3 organization the of the activities seem Marquette Park particular because the be dedicated violent acts of one site formed a natural forum with a hill sort or another. Under such circum- from which speak. he could addition, stances, wholly it seems unreasonable there nearby sanitary It facilities. any plaintiff’s ap- to have allowed of seems abundantly clear, however, plications.” Collin would have settled for some other Marquette area in Park. However, upon examination, prin- the appears It also clear the Park cipal evidence of violence was contained reject any District intended to Mar- Report in the 1969 Annual of the Mid- quette application by Park made Collin. west Division of the National Socialist suggesting Rather than another area People’s Party, predecessor White the Marquette Park, superintendent organization the of plaintiff’s party. First the pointed Park District all, out four free report, while it detailed acts forum might areas where Collin conduct by plaintiff’s supporters, violence re- public meeting assembly on Park year to the calendar 1969 well jlerred property District year as lover a to the date which defined in 17-8.2 of the § Park plaintiff District the desired to hоld his demon- Ordinance. The four areas Secondly, analysis were Wash- an of the stration. ington, Garfield, Lincoln and Burnham part incidents reflects that for most the Parks. Two of the free forum areas by the violence report claimed the arose assembling pro- ideology out of on someone else’s demon- of the attacks background posing stration. of vi- is no to assemble. There Marquette olence insofar reflected Turning first to the second Park was area concerned. prong of the Park District’s basis for pertinent portions The of the ordi- denial, the statement of the factual situ nance which the Park District ation hereinbefore set out seem would based its denial of this read as dispel sufficient proposed the claim that follows: was use inconsistent with the purpose facility “No made for which the has been designated. pursuant chapter appears to this shall be de- In fact it that thе except deny nied Park one or more of the fol- would District Collin or lowing .(c) any person right reasons: . other . The use to roam through facility by question appli- intended distribut ing present cant would danger denial, unreasonable literature. thrust of therefore, safety to the health or was a denial applicant, assembly of other users but this turn constitutes a public; (e) communication, denial of effective use facility applicant speech. intended essence of free purpose just part inconsistent with was not city of a block or a facility tiny neighborhood picnic has been established or area but 'covers ” designated. some . . . blocks in the south side of Chicago.2 Code 17-8.4 apparently § While it ex tensively family used for picnics, it is purpose will served add- Little manifest that it exclusively was not so survey extended dissertative another used. legal pertaining to free- to the literature We do not nеed question to reach the assembly. speech dom and freedom of whether an area of this size dedicated Indeed, sweep broad of the First public use could picnic held privilege Amendment stated was well use to the exclusion pre- of other uses part district court in that its cluding free free opinion Despite quoted. hereinbefore picnicking.3 other than dissenting opinions par- then in now and contexts, recognition pillar ticular The fact here was that it was staunchly noted, has remained to and, already resistant not as oth exclusive emanating chipping groups permitted large efforts from a dis- er to hold spoken taste for the or desired non-family-picnic words to Dis rallies. spoken purpose or be Marquette because of the or trict cannot declare 1. also park There was reference in the briefs to could assemble in a small “in an extremely congestеd a third subsection of the ordinance read- area.” downtown (4th Durham, as follows: Blasecki v. F.2d 87 456 “ (h). 1972). . . . On occasions Cir. applicant or has committed serious privilege 3. United “The of a citizen of the part regula- chronic violations of district parks States to the streets and use illegal activity engaged tions has in or may of views . . be communication . property.” on district Park Dis- regulated all; it in the interest of is not § trict Code 17-8.4 absolute, relative, be exer but and must appears particu- There no have been general cised in com subordination justifica- lar reliance this subsection as convenience, fort in consonance and and upon the tion for the denial and good order; peace with it and must but disposition First basis of our Amendment not, guise regulation, abridged be appeal, of this reliance have been would Hague C.I.O., v. 307 U.S. denied.” misplaced. 496, 964, 515-516, 954, L.Ed. 59 83 S.Ct. recently upheld (1939) (Opinion Mr. The Fourth Circuit 1423 Justice constitutionality Roberts). of an ordinance which people limited the total number of who 752 Jersey (Town speakers at and In Schneider v. closed to assemblies New all Irvington), 147, 146, speakers 60 308 S.Ct. then let such continue U.S. some municipal Maryland, (1939), 84 L.Ed. 155 several v. use it. Niemotko restricting 268, 272-273, 325, 328, ordinances the distribution 95 L.Ed. 71 S.Ct.

267, handbills to be (1951), were held unconstitu- Rhode Is- 280 and Fowler v. land, 67, The Court tional. stated: 345 73 S.Ct. 97 L.Ed. U.S. (1953).

828 Ange- suggested the Los “It is valid ordinances and Worcester les every be inquiry in case must “The limited operation is their because Hughes in by Chief Justice that stated persons alleys leaves and streets and 569 Hampshire, U.S. 312 v. Cox New printed matter to distribute free L.Ed. 1049] 85 S.Ct. [61 —whether But, have places. we public as other of the streets control use said, prop- natural and the streets are was, fact, parade ‘exert- procession in- places dissemination for the er unwarrantedly deny or ed so as not to opinion; and one formation abridge right assembly liberty of of his have exercise opportunities communication for the appropriate places expression thought public and the discussion may plea abridged on the questions immemorially with associated place.” 308 other in some exercised public places.’ resort to Id. at 574 [61 at 151. 60 S.Ct. U.S. City S.Ct. at v. Shuttlesworth 765].” Birmingham, 147, 155, Here, Park is admit U.S. (1969). place tedly appropriate L.Ed.2d 162 an hold meeting cannot and this outdoor Supreme Court mandates a case-. plaintiff purely denied because by-ease analysis of a may use “free forum” areas. also given legislation piece of which on its forums, not as an The use of the free ap impartial face be fair alternative, but as the sole available pearance: “yet, applied if it is and ad speech placed an places for by public authority ministered with an unduly heavy on Collin’s exercise burden eye unequal prac hand, evil аnd an so rights. of First Amendment tically unjust illegal to make dis persons criminations in similar between case, is, in turn now to what We rights, material their circumstances, constitutionally only permis possibly the j equal the denial of ustiee still within denial, ground for the sible prohibition of the Constitution.” probability Col of imminent violence Hopkins, Yick Wo 373- Many supporters. lin of the cases 30 L.Ed. ably discussed in this area have been Judge (1886). opinion in Rockwell Breitel’s Morris, 211 N.Y.S.2d A.D.2d While the Park District establishment (1961), mem., 721, 219 aff’d 10 N.Y.2d “speaker’s of the forums or cor- free 268, (1961), N.E.2d N.Y.S.2d 176 836 city in ners” four areas of the is com- amended, 749, 10 N.Y.2d 219 N.Y.S.2d mendable, no it is answer to the restric- 605, 48, denied, 177 N.E.2d cert. U.S. 368 tion that has here exercised. 913, 194, (1961). L.Ed.2d 82 S.Ct. 7 131 rights speech While “the of free as- sembly ... do not mean ev- recent on the that One of most cases eryone opinions prior with ex- First beliefs to issue of restraints press rights group any public a Times address Amendment is New York at place any time,” States, 713, and at Cox v. v. United 403 U.S. 91 S. Louisiana Co. (I), 464, 2140, (1971). 453, 379 85 While Ct. 29 L.Ed.2d 822 U.S. S.Ct. expressed 12 (1965), L.Ed.2d views in the var 471 this does diverse rights opinions emanating mean that re- from these can so ious meaning- case, may fairly virtually stricted that as to become in that it said j'ustices less. one matter all which

753 agreed continuing vitality ‍‌‌‌​​‌‌‌‌‌​​‌‌‌‌​​‌​‌​​​‌‌‌​​‌‌​‌​‌‌​‌​​‌‌​​​​​‌‍(1931).” 294-295, of the 340 U.S. at 1357] prior expression cases on restraint on 71 S.Ct. 315.

follows: Brandenburg recently Ohio, More in v. “ 444, 1827, 395 U.S. 89 23 ‘Any system prior restraints S.Ct. L.Ed.2d (1969), 430 the Court Court bear- struck down a to this expression comes against its conviction of heavy several Ku Klux Klan presumption Syn validity.’ under Bantam members the Ohio Criminal constitutional 58, discussing Sullivan, 70 dicalism statute. After Den Books, U.S. 372 v. Inc. (1963); States, 494, nis v. 631, United 341 U.S. 71 S. 584] 9 L.Ed.2d S.Ct. [83 Minnesota, 857, Ct. U.S. 95 L.Ed. 1137 (1951), 283 and its v. see also Near progeny, 625, L.Ed. the Court cited Noto 1357] 75 v. United S.Ct. 697 [51 States, 290, car- 367 (1931). 297-298, ‘thus U.S. 81 S.Ct. Government 1517, showing justi- (1961), stating 6 heavy L.Ed.2d 836 ries burden “ imposition teaching ‘the mere of such a abstract for the fication propriety of the cessity Organization moral for a Better or even moral ne restraint.’ Keefe, violence, resort to [91 402 U.S. force and Austin v. (1971).” preparing is not the same as 29 L.Ed.2d 1] S.Ct. steeling violent аction at 2141 at 91 S.Ct. to such ac U.S. ” Brandenburg (1971). tion.’ Ohio, v. 395 U.S. at The Court held say equally fair to that It seems constitutionally that to be valid a statute extremely heavy District has an distinguish must between “mere advoca justifying prior in restraint .burden cy” and “incitement to imminent lawless right. on Collin’sFirst Amendment action,” only punishing the latter. In Kunz New York, beginning point development A (1951), L.Ed. 280 S.Ct. subject present law s on the nar Court’s reversal wa based oft-quoted found in the “clear and ground provided row no the statute danger” present test of Mr. Justice standards for administrative discretion States, Holmes. Schenck United 52, granting denying L.Ed. 470 thereby violated First Amendment. (1919). posi But the Court went on to state tive terms that the defendant's unbri Since it clear from Branden religious dled invective had in burg only “incitement to imminent past caused serious he disorders when ,as lawless action” to “mere contrasted congested spoke portions of mid-Man teaching” punished abstract after can be permissible hattan was not basis for fact, it is obvious that order to permit: denial of a sustain restraint on heavy Park District had to sustain the mistakenly “The court below has de burden that “incitement to imminent support rived for its from conclusion place lawless action” take would fact produced the evidence the trial high probability and that there existed a appellant’s religious meetings had, in that this effective. incitement would be past, caused disorder. There some As one commentator has noted: appropriate public remedies to

protect peace “Legitimating and order the consideration of community appellant’s speeches prior-restraint stage intent at the will should result in disorder or violence. in all likelihood lead to serious abuses present case, ‘In judges; the we no occa have officials and such a dan- inquire gerous permissible principle only sion to scope as the is advocated be- subsequent punishment.’ very planned cause violence- so Minnesota, Near 283 [State of] v. U. harmful to individuals and to innocent 697, society whole, very S. 715 L.Ed. [51 S.Ct. 75 as is so a denied because should be politi- mit never contemporary the prevalent in applicant.” V. past the conduct of the safe- is clear that It climate. cal supra, 1518- Blasi, 68 Mich.L.Rev. against be guards abuse should such (1970). specific Only /carefully a constructed. violence, directed to to cause intent However, not find it we do mani- specific demonstration the per necessary whether a to determine plans, suffice by specific should fested past cannot ever conduct can or' son’s injunction; permit refusal or an speaker’s justify a denial of a extrapolated from general intent a factual situation here the because exploits previous should rhetoric predicate previously a noted is not as enough. evidence Concrete not belief that violence for well-founded a Blasi, required.” Prior V. should if the had would occur Demonstrations, on Restraints granted. plaintiff that The fact and/or (1970). 1481, 1509 Mich. L.Rev. apparently taken relish his followers had origi- omitted; emphasis (Footnote breaking “peace up rallies” downtown nal.) they would act indicative of how is not evidentiary attempting meet its sym In neighborhood rally more in a at a obligations relied basi- District the Park pathetic the bulk of to them which involving cally past the incidents on possi supporters to the their resided. As plaintiff. bility being audience of there hostile causing violence, the members law controlling the basis On quite considerations are clear that such only precedent that such we can conclude determining impermissible in whether all, past violence, relevant at must be if grant permits. closely extremеly in time and related Starting with Terminiello the to the for which character plaintiff applies. City Chicago, 337 U.S. 69 S.Ct. per law does (1949), L.Ed. 1131 and continu person has re infer mit us to because ing Gregory City Chicago, past some occasions sorted to violence on 946, 22 L.Ed. 134 necessarily fu do so he will (1969), patent a hos it has become ture. That is what the Park restrain tile audience is not basis for However, attempted it could has to do. legal ac otherwise First Amendment only of violence cite scattered instances many tivity. cases cited As with year prior period one from a more than herein, is not suf if actual behavior present application. to sustain a conviction under ficient York, supra, 340 U.S. In Kunz v. New certainly anticipation statute, then Supreme Court S.Ct. sustain the burden such events cannot “appro- language pointed referred justify necessary restraint. priate public in that remedies” and marching Gregоry the demonstrators distinguished prior restraints sense mayor’s admittedly were on the home punishments. subsequent peaceful. Only un were the onlookers ruly. resulting pros lengthy arrests convic After review of the disorderly demonstrators for question of the use of tions of the and cons of the disperse conduct, past failure to Blasi concludes: conduct summarily Professor Although re “Moreover, even if this circumscribed reversed. past to show on the failure conduct at versal was based consideration part disorderly prior-restraint stage conduct on such actual did not have demonstrators, drawbacks, state preferable did serious there is march, clearly “petitioners’ to demonstrate alternative: If orderly, peaceful falls well within past is to basis of con- be limited protected duct, sphere this should sentenc- conduct be done at the ing stage part punishment Amendment.” First per- at 947. the initial conduct. A ...

755 tеrm, reversing might prior in in Park that restraints find the same Later flag-burning, justification Supreme the Court some under the conviction Peabody, Moyer necessary comment on Court’s decisions in v. found it 78, 235, be 212 53 possibility that the conviction should U.S. 29 S.Ct. L.Ed. 410 tendency (1909), Wagon etc., possible Drivers’, “the Milk on sustained provoke Inc., appellant’s Dairies, re violent Local 753 v. words to Meadowmoor York, 287, 552, 394 U. 312 61 85 L.Ed. v. New U.S. S.Ct. 836 taliation.” Street (1941), 576, 592, 1354, 22 L. 89 both which involved restraints S. S.Ct. rights (1969). political on The Court found and civil in a context Ed.2d 572 very did not fit into the of extensive the actions labor violence. Some might “fighting acceptable exception narrow to the law restrictions be words” Chaplinsky Hamp present enunciated in v. New case there had been ex shire, vicinity 574, tensive disorder in the of Mar 315 U.S. (1942), quette Park, 86 and then but there is L.Ed. 1031 no intimation firmly of such in went on to state settled a situation or “[i]t condition public that under Constitution the Even our record. such restrictions are to be severely expression prohibit be limited ideas as noted Carroll v. merely President Anne, ed because the ideas are them & Commissioners of Princess selves offensive to some of the hearers.” 393 89 21 U.S. S.Ct. L. (1968), Ed.2d 394 at 89 1366. 325 which found U.S. S.Ct. at This an ex parte restraining language quoted approval in was with order void when there clearly give Maryland, 564, was v. sufficient time to Bachellar (1970), hearing 90 L.Ed. 570 demonstrators notice of the 25 present a chance a unanimous reversed a their case. ground conviction it could sum, under none of the constitu- finding have been on a based tionally permissible prior tests for re- “ petitioners engaged doing had ‘the straints based on can violence the denial saying offends, or both of that which permit plaintiff upheld. of a disturbs, incites or tends to incite Since, above, as set forth there nowas people gathered in number of the same ground valid for denial based ” judge’s jury [quoting area.’ trial meeting inappropriateness of such a Maryland, v. Bachellar 397 instruction] Marquette Park, brought we are 90 S.Ct. at conclusion that the unconsti- was tutionally denied. lower court decisions have rec- Recent ognized impermis- the doctrine that it is add, however, We must that none of sible even to consider the threat of a prevents what we have prosecu- said ruling hostile audience when on a plaintiff tion of or his followers if in injunc- request they the course of his incite or against Stacy tion Williams, a demonstration. contrary, start violence. On the the eas- (N.D. F.Supp. 963, approving procedure es such numer- are court); Miss.1969) (three-judge Hur- ous and are summarized in Rockwell v. City Oakland, F.Supp. witt v. supra, Morris, 34. It N.Y.S.2d at (N.D.Cal.1965); Wallace, Williams v. restraint which is condemned. (M.D.Ala.1965); F.Supp. 100, challenges Collin also facial consti- Morris, supra, and Rockwell a case tutionality of the Park District certainly high presented whose facts ordinance. probability dо not of violence. Here we showing go even have to that far for the 17-8.2(b) of the ordinance es- Section potential violence from hostile audi- procedures permit ap- tablishes Marquette nominal, ences at public speeches plications for and assem- most. public. open in Park blies areas background gatherings Applications Nor was there such to hold of 75 writing persons vicinity violence in the or more initially filed with the Park District director based an “inaction” are be to denial. Director of Recreation. procedure forth then set The district court in its mem- is observed

Further opinion orandum the follows: order that the as ordinance adequate providing lack of notice the on the Director of Recreation “. . . part of the Park District would have designated (or representative) his seemed to the fatal it for court not days, excluding Satur- shall have five what cоurt found to over- the be the legal holidays, days, Sundays and whelming that evidence for the application receipt said with- from of plaintiff representa- the which the grant deny permit. said to or which provided danger tive such a and threat In of inaction denial the event enjoyment the to health and (or des- the Recreation his Director of public the that the Park District ignated representative) within said anything deny could not do but the exe- excluding Saturdays, day period, five cution. holidays, Sundays legal appli- the The a of court further cant shall be entitled to review district observed Super- application by process the that “due of law in its funda- General filing by upon appli- requirements mental intendent the the of notice and fair hearing request contemplates a written therefor cant of reliable notice of Superintendent. applica- with the General the decision with to an relation ”4 agree. is- tion. . shall be deemed to . . We expressly sued unless denied with a contends, however, Collin further that statement of reasons therefor is ordinance unconstitutional its Superintendent General days, excluding within five require face because it does not Sundays Saturdays, proce- to initiate District review legal holidays, receipt from dures on its own when an is request said for review.” refused. proce- that the note At outset we impose We are to on munici- hesitant lacking ele- dure is cumbersome necessity palities resorting to process. due constitute ments which injunctive every ‍‌‌‌​​‌‌‌‌‌​​‌‌‌‌​​‌​‌​​​‌‌‌​​‌‌​‌​‌‌​‌​​‌‌​​​​​‌‍procedure court time written allows as The ordinance pub- is decided a use of for action to take no decide Park District to property properly lic denied. should give applicant of its no notice Nevertheless, in the sensitive area of does the ordinance While decision. prior expressiоn of freedom restraint af- to review provide seek for the necessary process proce- this is a due days decision final ter five dure. concerning this director, information in Freedman Supreme procedure communicated is not Maryland, 380 U.S. ap- prior of Collin’s applicant and in one a mov- (1965), struck down L.Ed.2d finally discovered the plications he pro- did censorship statute ie only telephoning after director’s denial litigation : initiate censor to vide No reasons officials. Park District that, teaching be- attempt is Any re- our cases provided. “The denial are judicial knowledge only determination cause taken without view is pro- adversary ensures proceeding refusal an necessary rationale sensitivity ex- necessary ap- freedom for an posed permit. It is requiring hearing only procedure request plicant pression, review im- judicial suffices ignorance which the determination matters argument, apparently is matter counsel for tlie Park oral This court. practice not aware District court that certain we informed the accordingly changes has been itself had in Park the ordinance been made procedures re- to the notice conform amended. quirements by the district discussed 147, 163, 89 pose Birmingham, S. [Cita- final restraint. a valid (1969), Ct. end, ex- L.Ed.2d To this tions omitted.] assured, by statute must be hibitor timing “. . . the essence in construction, judicial authoritative impossible politics. almost It will, specified within a the censor future; predict political and when necessary a license or period, issue either brief go occurs, an it is often event showing to to restrain court promptly, to have one’s voice heard 58-59, at film.’’ 739. it is to be considered at all. To re- added.) (Emphasis quire pa- to Shuttlesworth submit his Robinson, permit application rade 434 F.2d 933 in LeFlore months ad- In 1970), place (5th other vance would burdеn vacated on severe Cir. 1971), (5th grounds, of the exercise constitution- 446 F.2d Cir. his ally protected rights.” require- applied this Fifth Circuit parade permit ment statute. to example verity pro- An of of this distinguish in The to nouncement is found the case us Park District seeks before ground Collin, judi-. which had that the “free who to initiate Freedman on the review, cial system provides an was forum” alternative unsuccessful the dis- process trict the concern court level “to obviate ex- further unsuc- attempted propi- cessful pressed when these courts that the he to secure temporary injunction opportunity assembly an from tious for this court pending pass appeal. demonstration will before a granted.” above, argu- is As this noted We hold therefore the ordinance ment is Park based on the District’s as- to inbe of violation the First Amend sumption that the “free forums” are provide ment insofar as fails it to obligation grant alternative tо their to adequate prompt judi notice and a final is, record, on Collin what this his clear cial prior decision where im restraint is right speak constitutional to in Mar- posed upon the exercise of the freedom quette Park. His First Amendment assembly speech. and freedom of rights easily negated. cannot be so If For the reasons hereinbefore set out right speak Marquette he has a judgment we reverse the district found, Park, which we have then that court and this remand cause to the dis- right expeditiously is pro- what must be proceedings trict court for further tected as noted in Freedman. opinion. inconsistent with this expression “In the area of freedom of Reversed and remanded it is well established that one has stand- challenge ground a statute on the Judge. DUFFY, Circuit Senior delegates overly licensing broad respectfully I dissent. office, discretion to an administrative whether or not his conduct could be principal The issue before us is proscribed by properly statute, drawn “Whether the denial applied and whether or not he li- family speak picnic in a and assemble Maryland, cense.” supra, Freedman v. Chicago, Marquette Park Il- area in [in 380 U.S. at 85 S.Ct. at an offer of an alternative linois] and Court found in type Freedman that any this speak site to assemble one of procedural challenge to the Park Dis- four ‘free forum’ areas within the Chi- equivalent trict ordinance was cago District, is an abuse of dis- Park challenge usual improper delegation constitutionally per- cretion within the judicial since the immediate obligation review is duty of the Park missible necessary to avoid the vice of unconsti- regulate time, place District to delegation. tutional manner majority pointed property” claims to out As Mr. Justice Harlan concurring Amendment opinion be a violation First Shuttlesworth his ordinance, rights of the Under if a dе- the Constitution under nied, denial the reasons for the sent United States. applicant to the right he is advised must District concedes “We Park appeal. law, concede his under constitutional speak and free full [Collin’s] A entitled “1969 Re- document Annual censorship or and assemble port of the Midwest Division Na- on Park Dis- restraint somewhere Party” People’s tional White Socialist conceding right, property. trict was read into The document evidence. in four we have made locations available signed by Frank Collin as “Midwest centrally largest located and most Coordinator.” document This related Chicago, viz., Washington parks in Park several accounts violence as: such (South Side); (West Garfield April 5, holding 1959: “Two of our men Side); (near North Lincoln side signs which read final ‘Gas—The Solu- adjacent Michigan and Lake and the tion for Red Scum’ and ‘Gas Trai- Jew ” drive) (near Park outer and Burnham tors and Rubin Hoffman’ and then adjacent South side and gan to Lake Michi- procession the stated “As of traitors drive).” and the outer neared the corner of State and Lake Streets, Marquette Area is six No. 3 in National Socialists used attacked family picnic baptism a the march. This our and recreation was area of spring, only fire. the After summer and fall. It cus- few minutes of tomarily bloody by fighting, lay enemy the used dozens of is children often accom- ” panied by parents relatives, broken in the their or street. . and . . permit never before has there been August 9, report under also listed The granted anyone speak in Area No. pub- “Again national we received 1969: by It 3. was estimated the Park Dis- licity the summer’s we demolished when people trict that between 200-500 would largest parade ‘peace’ fists with using the facilities of Area No. on3 of thousands the crowd fireworks before plaintiff date the assembly.1 desired hold his spectators.” of State Street apparent Collin and It is 1970, 1, September of In letter adopted af- doctrine of have plaintiff, from the Park They apparently, violence. firmative pointed which out the material was attacking proud of their record by plaintiff in an distributed would be beating up women with men and normally picnics and rec- used for area agree. they Neither whom do purposes similar was reation hearing Dis- nor administrative previously and which distributed kind any their denial of was there trict Court public commotion had resulted program violence. protection. required police action and letter did not District’s The Park “Rather found The District any deny right of or other Collin thrust peaceful, the entire than through parks person distrib- organization roam be devoted seems to uting fact, race-baiting. the District activity literature. loathsome by needed if meetings no was had ruled that attended have been Prior planned persons fail, no contеmplated. was ac- almost violence organization have tivities fail almost without under which violence The attended ordinance organization July plaintiff 1970. was new in activities acted ap in Mar- site The total area of an alternative indicated quette Park, proximately grassy insisting Area 3 No. 322.6 acres with occupying at times areas about 25 acres. Area each normally portion fam- is used No. 3 tiie area which is when tiie plaintiff picnics and recrea- is about children for seeks as forum ilies and acre in size. Plaintiff never has listed tion.

759 State, seem to violent v. 146, to be dedicated acts 308 147 U.S. [60 S.Ct. 155]; 84 Alabama, one sort or another. ...” L.Ed. Thornhill v. 736, 310 U.S. 88 S.Ct. 84 [60 L.Ed. quote Annual Another from Collin’s 1093]; Connecticut, Cantwell v. 310 Report “It no accident was 900, U.S. 296 S.Ct. 84 [60 L.Ed. flag first in Ameri- Hammer and Sickle 1213]; Hampshire, Cox v. New 312 ca torn down National Social- 762, U.S. 569 [61 S.Ct. 85 L.Ed. age, ist, fighter only years 16 1049]; Largent Texas, v. 318 U.S. ” that. . . . 667, 418 873]; [63 S.Ct. 87 L.Ed. York, paragraph Saia v. Another ended with New 334 U.S. 558 [68 suppоrt 1148, need, 1574]; S.Ct. “. . . us the we 92 L.Ed. Give Kovacs v. your Cooper, give you free, 448, and we will back 336 U.S. 77 S.Ct. [69 93 513]; L.Ed. Men Maryland, White America. and women Niemotko v. support Home U.S. 268 FIGHTING S.Ct. [71 L.Ed. Front — 267]; York, FRONT.” Kunz v. New 340 U.S. [71 280]; S.Ct. 95 L.Ed. Birming City of In Shuttlesworth Poulos Hampshire, v. New 345 U.S. Supreme (1969) ham, 1105], [73 S.Ct. 97 L.Ed. Court, page From these decisions certain clear Hague C.I. quoted from L.Ed.2d 162 principles emerge. rights of free 515-516, 59 O., assembly, while fundamen- (1938): “. . . 83 L.Ed. 1423 tal in our society, democratic still do of the United privilege citizen of a everyone not mean opinions that with parks com for and use streets to States or express may to beliefs address a ques on national views munication of any public place any and at regulated of may in the interest tions be time. guarantee The constitutional of relative, absolute, and all; but not is liberty implies the existence of an or- to in subordination must be exercised ganized society maintaining public or- convenience, general comfort the der, liberty without which itself would good peace and in with consonance be lost in anarchy.” the of excesses not, guise order; of in the it must but abridged regulation, or denied.” discussing case, In a somewhat similar Supreme the Louisiana, Court of Illinois stated ‍‌‌‌​​‌‌‌‌‌​​‌‌‌‌​​‌​‌​​​‌‌‌​​‌‌​‌​‌‌​‌​​‌‌​​​​​‌‍that In Cox v. “ us, . . 453, 464, to how .It seems manifest 13 L.Ed.2d 85 S.Ct. ever, Goldberg, that our own constitution (1965), ma- neither in his Justice Mr. guarantees regulatory nor the first amendment jority opinion, the discussed gives respect municipality [sic] to the Federal constitution powers with of a right rights unqualified speak speech individuals the to of free First Amendment any writings or man assembly: distribute their by any place ner and at time or chosen on the here contention facts “This regard consequences them without presented raises an issue with which Chicago to others.” Park v. District many deci- this has dealt Court Lyons, 39 Ill.2d 237 N.E.2d right is, or sions, the a State that (1969), cert. den. 393 U.S. regulate municipality to the use agree. 21 L.Ed.2d 276. I city facilities to as- streets and other safety the Superintendent sure and convenience of the The General people grant duty and the in their use concomi- Park to District had the right people speech deny application tant free an for a to as- Griffin, assembly. family Lovell speak, picnic See semble and in a neighborhood park. S.Ct. L.Ed. [58 area It his 949]; CIO, Hague duty application U.S. 496 [59 consider whether 1423]; 954, 83 L.Ed. Schneider was such it would result in real that safety danger order entered other users this Court case, park. Seese the Park with directions to provide area in District to hearing, suitable Gener- On the date assembly Marquette Park for Collin’s Superintendent al delivered Collin’s sug- No. date other than Area 3 on a application denying a letter counsel gested by Collin. suggesting, permit and as an alter- rally, place for the one of the native if it can “That this Court holds that It is clear this four forum areas. restraint freedom Superintendent letter from does speech assembly Dis- the Park for person deny any Collin or other application refuse an for trict through parks roam distrib- assembly any specific uting his stated hereto- literature. As offering park area in another fore, no needed there no park such even purposes, for Furthermore, contemplated. though forum are available free areas majority opinion, as indicated in the District, parks other within the applied nor Collin has neither has it require the Park to initiate District alternative forum in judicial only cases review in those been denied to him or followers. where an my view, an of- the decisions of the within a is denied without Superintendent fer an alterna- and of the Park District of predicated upon park.” tive site within that valid consid- public safety erations of and conven- denying ience in access of Picnic Area necessity, opinion Of 3, Marquette Park, No. to Collin aat posture fac court dealt with occupied time when that area would be presented. con tual situation do'not We family groups. Furthermore, I feel ceive it to be function of the review the Park District ordinance give advisory hereinbefore opinions in court to discussed I guidelines is constitutional. would af- the nature of administrative firm. the determination of what legitimate grounds for denial not be permit. aof The effect of the court’s Rehearing

On Petition for and opinion not be that could Rehearing En Banc particular denied situation in the factual before us. PELL, Judge. Circuit This matter is the court before Nevertheless, way by of clarifi suggestion petition rehearing for and for purport opinion, not cation our it does rehearing en banc. large say specified in a to park, areas park, an entire small or indeed rehearing, petition its for exclusively designated for ac cannot be alternative, prayed if in the family picnicking or ath tivities such as judgment of the district court was provided ex that such letic endeavors affirmed, as follows: not designation that and is in fact clusive speak if finds on and "That this Court anot some device group purposes have dis issue that Collin and his for other to assemble criminatorily to assemble some- constitutional screen out others. Marquette Park, that it re- where park, Likewise, or a an entire where below, judgment verse the legitimately park, specified has area in or- to enter its direct the Court below bona fide action provably and the National So- der Collin par- particular time booked Party similar to of America cialist organization phys- as group so or ticular paragraphs accommodating ically incapable organization, group subse- or another UNITED STATES America quent a second organization obviously could not LATHROP, Appellant. Robert Mulson grantеd. No. 71-2107. Appeals, United States Court Further, opinion not does Third Circuit. a re preclude for denial of April Submitted 1972 under 3rd park particular quested where area in a 12(6) Cir. Rule simultaneously made available there is park equal site in the same May 23, alternate Decided assembly potentiality made. application was for which as areas free forum The four so-called meet opinion did

demonstrated requirement. opinion Also, does not inter regulation explicit prior the time

dict available facilities will be consistently and non assemblies, ap discriminatorily as to all observed narrowly drawn and if not so

plicants, chilling of prohibitory in effect

to be

expression at reasonable times duration.

reasonable opinion compels

Nothing in our judicial procedures in

needless resort to set situations such as those hereinbefore however, say, there forth. We do buttressing judicial decision be a must imposed upon restraint

where of the freedom the exercise speech in the ab freedom of grounds uncontestably valid

sence of

denial, im which have no constitutional

plications. rehearing petition is denied. having judges majority

A of the active banc, rehearing en

not voted rehearing

suggestion en banc is also

denied. Judge (dis- Senior Circuit

DUFFY,

senting). grant petition for rehear-

I would advanced the reasons heretofore ‍‌‌‌​​‌‌‌‌‌​​‌‌‌‌​​‌​‌​​​‌‌‌​​‌‌​‌​‌‌​‌​​‌‌​​​​​‌‍original ma- my dissent to the me

jority opinion.

Case Details

Case Name: Frank Collin v. Chicago Park District

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Jun 19, 1972

Citation: 460 F.2d 746

Docket Number: 71-1377

Court Abbreviation: 7th Cir.