United States

The USSC has – similarly to speech protection of heckling – not explicitly stated the constitutional right of counterdemonstration. Nonetheless, under any principled assessment of American jurisprudence, counterdemonstration should be as protected as the primary demonstration or event. All the rationales of protection apply equally to counter-demonstrators, just as the principle of content neutrality, the duty of the police to protect the unpopular speaker, the doctrines of vagueness and overbreadth etc. are equally valid.⁵⁶¹

As to the anticipation of violence, the Skokie controversy could have offered the most famous example of constitutional risk-taking in situations of clashing groups;

560 Eg Kevin Francis O'Neill & Raymond Vasvari, ‘Counter-Demonstration as Protected Speech: Finding the Right to Confrontation in Existing First Amendment Law’, 23 Hastings Const. L.Q. 77, 80 (1995).

561 For a detailed description see O’Neill & Vasvari, Counterdemonstration, above n 560 at 100-113.

195 nonetheless, the courts for procedural reasons avoided (probably had to avoid) exactly this issue. In a sequence of denied permit applications, $350.000 permit fees, and court proceedings the Village of Skokie tried to prevent the National Socialist Party of America from rallying in full Nazi paraphernalia wearing swastika in a mostly Jewish neighborhood of a Chicago suburb, where also Holocaust-survivors lived. There was ample evidence that various Jewish and other anti-Nazi organisations had planned a twelve- to fifteen-thousand strong counter-demonstration. People testified that they would be extremely hurt by the Nazi march, one witness claiming that though he did not intend to use violence, he was not sure if he could control himself. Opinion of the mayor – formed after discussion with leaders of community and religious group – that bloodshed would occur if the march took place had also been introduced.⁵⁶² Thus, the Village of Skokie sought to enjoin the Nazi marchers from wearing and displaying the Nazi symbols, and other material which ‘incites or promotes hatred’ against religious or ethnic groups, clearly a European sort of argument which would already restrict incitement to hatred, not first to violence. An injunction was granted, and the appellate courts were unwilling to stay the injunction pending appeal on the merits. This refusal of a stay was reversed by a divided USSC.⁵⁶³ On remand, the Illinois appellate court modified the injunction so as only to enjoin displaying the swastika.⁵⁶⁴ The appellate court held that a march cannot be prevented though ‘there was and is a virtual certainty that thousands of irate Jewish citizens would physically attack the defendants.’⁵⁶⁵ Underlying precedents were hostile audience cases discussed above from Terminiello to

562 See Village of Skokie v. National Socialist Party of America 51 Ill.App.3d 279, 284, 366 N.E.2d 347, 351 (1977).

563 National Socialist Party of America v. Village of Skokie, 432 U.S. 43 (1977).

564 Village of Skokie v. National Socialist Party of America, 51 Ill.App.3d 279, 366 N.E.2d 347 (1977).

565 51 Ill.App.3d 279, 287, 366 N.E.2d 347, 353.

196 Edwards and Gregory. As there was no suit against or initiated by the organisations wishing to protest the Nazi march, there is no decision on the issue whether the ‘virtual certainty of violence’ arising from their (the counterdemonstrators’) presence would deprive them of right to assembly. Further in the Nazi suit, the Illinois Supreme Court held also the rest of the injunction invalid under symbolic conduct doctrine.⁵⁶⁶

Meanwhile, a parallel suit was launched as the Village had enacted ordinances requiring an extraordinary permit fee, banning military uniforms and incitement to hatred against religious and ethnic groups on public assembly. The 7^th Circuit⁵⁶⁷ struck down the ordinances, and the USSC denied certiorari.⁵⁶⁸ Circuit Judge Pell found that the case was not governed by Brandenburg v. Ohio because the Village – despite that it ‘introduced evidence in the district court tending to prove that some individuals, at least, might have difficulty restraining their reactions to the Nazi demonstration’⁵⁶⁹ —, before the Circuit did not rely on a possibility of responsive violence.⁵⁷⁰ Compare this with the ‘virtual certainty’ evidence in the injunction proceedings. Thus, the 7^th Circuit did not reach the question of protection of counter-speech either.

The Supreme Court mentioned ‘counter-demonstration’ in one single decision, and even there it is just an example.⁵⁷¹

Lower courts have dealt with the protection granted to counter-demonstration, and some accept that counter-demonstration can be segregated from the demonstration, as

‘time, manner and place’ restriction.⁵⁷²

566 Village of Skokie v. National Socialist Party of America, 69 Ill.2d 605, 373 N.E.2d 21 (1978).

567 Collin v. Smith, 578 F.2d 1197 (1978).

568 Smith v. Collin , 439 U.S. 916 (1978).

569 Collin v. Smith, 578 F.2d 1197, 1203.

570 The rest of the reasoning relies on symbolic speech and captive audience doctrines which will be discussed below in Chapter 8.

571 Carey v. Brown, 447 U.S. 455, 469 (1980).

197 In one case, though, the Ohio Supreme Court very clearly upheld the right to simultaneous counter-demonstration as applied to a Jewish organisation and Ku Klux Klan demonstrating in front of John Demjanjuk’s house.⁵⁷³ The limits of the right to counter-demonstration are not clarified by this holding though as there was clearly no probability of violence either on the present enjoined demonstrations or in the past on the part of the particular Ohio branch of the KKK. Both sides of the would-be demonstrators testified that they could contain themselves if the other side does not incite violence.⁵⁷⁴ This testimony was fully accepted by the Ohio Supreme Court. That court thus relied on the principle that Brandenburg applied without alteration to simultaneous demonstrations of diametrically opposed groups, ie without intent, imminence and likelihood proven, restrictions were deemed unjustified. I think this is quite a consistent application of the general principles of First Amendment jurisprudence of the federal Supreme Court.