Full opinion text
MEMORANDUM OPINION AND ORDER DECKER, District Judge. Plaintiffs, the National Socialist Party of America and its leader, Frank Collin, bring this action challenging three ordinances of the Village of Skokie, Illinois, on the grounds that the ordinances deprive them of their rights to freedom of speech and assembly in violation of the First and Fourteenth Amendments to the United States Constitution. Defendants are the Village itself and its President, Village Manager and Corporation Counsel. On October 21, 1977, the court denied plaintiffs’ motion for a preliminary injunction but ordered the cause set for trial on an expedited schedule in view of the compelling national interest in prompt resolution of cases implicating First Amendment freedoms. The case was tried to the bench on December 2,1977, and has now been submitted for judgment on the trial record and additional documentary evidence admitted by stipulation of the parties. This Memorandum Opinion constitutes the court’s findings of fact and conclusions of law for purposes of F.R.Civ.P. 52(a). I. Factual Background Skokie is a municipal corporation north of Chicago, which is generally regarded in the Chicago area as a predominantly Jewish community. In fact, as of 1974, it had 40,500 Jewish residents out of a total population of approximately 70,000. Under the Illinois Constitution, Skokie is a home rule unit and as such has plenary legislative authority to enact ordinances for the protection of the public welfare within its borders. Ill.Const. Art. VII, § 6(a). Plaintiff Collin testified that the National Socialist Party is “a Nazi organization”, and that in public appearances its members wear uniforms reminiscent of those worn by members of the German Nazi Party during the rule of the Third Reich. Specifically, plaintiffs employ the swastika as a party symbol. Among their more controversial political views, plaintiffs believe that black persons are “biologically inferior” to whites and should be “repatriated” to Africa, and that American Jews have excessive influence in government and close ties to international Communism. Collin stated that this Jewish influence should be “exposed and documented and presented to the American public”, but denied that plaintiffs endorse the Third Reich’s “final solution” to the problem of Jewish influence — genocide. In late 1976, plaintiffs planned a series of demonstrations in Jewish communities, including Skokie. According to plaintiffs’ publications, this campaign was based on the belief that Jews are responsible for busing and racial integration in the Chicago school system, which plaintiffs have been protesting in other parts of the Chicago area. Plaintiffs were denied permission to demonstrate in a Skokie park because of a Skokie Park District ordinance which required them to obtain $350,000 in liability and property damage insurance. Plaintiffs then planned a demonstration in the Village to protest the Park District ordinance. The demonstration was set for May 1, 1977. On March 20, Collin notified Skokie Police Chief Kenneth Chamberlain of plaintiffs’ plans and assured him that the demonstration would be brief, peaceful and orderly. News of the planned demonstration caused considerable consternation in Skokie. The situation was exacerbated by the appearance of some of plaintiffs’ handbills within the Village and by a rash of offensive and threatening telephone calls to Skokie residents with Jewish surnames. Although there is no evidence that plaintiffs were responsible for these calls, they undoubtedly stirred public sentiment against the proposed demonstration. As a result of this sentiment, the Village decided to attempt to prevent the demonstration. It obtained a preliminary injunction against the demonstration in state court, which has since been vacated, and on May 2, 1977, enacted the three ordinances at issue in this action. Ordinance # 994 is a comprehensive permit system for all parades or public assemblies of more than 50 persons anywhere within Skokie. It requires all permit applicants to obtain $300,000 in liability insurance and $50,000 in property damage insurance. Ordinances # 995 and # 996 are both criminal measures: # 995 prohibits the dissemination of material which incites racial or religious hatred, with intent to incite such hatred; # 996 prohibits public demonstrations by members of political parties while wearing military-style uniforms. These ordinances are also enforced through the permit mechanism of # 994. A specific provision of that ordinance, § 27-56(c), requires that a permit be denied to public assemblies which will engage in the activity prohibited by # 995 and a catch-all provision relating to assemblies organized for unlawful purposes, § 27 — 56(i), serves the same function for # 996. On June 22, 1977, Collin applied for a permit under # 994. The application recited that the proposed public assembly would take place on July 4, would consist of 30 to 50 people demonstrating in front of the Village Hall, woüld last about a half hour, and would not disrupt traffic. It stated further that the participants would wear uniforms including swastikas and carry placards carrying statements such as “White Free Speech”, “Free Speech for the White Man”, and “Free Speech for White Americans”, but would not distribute handbills or literature. The evidence shows that the location selected for the parade was in a commercial, rather than residential area of Skokie. Finally, the application stated that plaintiffs could not obtain the required insurance, and requested that the Village either waive the requirement or assist plaintiffs in finding an insurer. The application was denied by defendant John Matzer, the Village Manager, on the grounds that plaintiffs planned to wear military-style uniforms in violation of # 996. Plaintiffs responded by bringing this action. II. Preliminary Issues As in all actions to invalidate state laws on constitutional grounds, the court must begin by considering the various doctrines which limit the intrusion of the federal courts into the operation of state government. All three ordinances impose criminal penalties for their violation. Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965), held that the federal district courts have jurisdiction over actions for declaratory and injunctive relief against state criminal statutes on the grounds that they violate the First Amendment through vagueness and overbreadth. Although Dombrowski has been restricted as to injunctive relief by Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974), held that declaratory relief may still be granted when there is an imminent threat of prosecution if the plaintiffs exercise their First Amendment rights. Plaintiffs have requested both declaratory and injunctive relief. Accordingly, if plaintiffs have satisfied the other prerequisites for the exercise of federal jurisdiction, the prayer for declaratory relief provides a basis for this action under Steffel. The question of possible injunctive relief will be discussed later. The first questions are whether plaintiffs have standing to challenge these ordinances, and, if so, whether their challenge is ripe for adjudication. Standing requires that the ordinances pose a direct, immediate threat to plaintiffs’ rights. There can be no question of plaintiffs’ standing to challenge # 996: it is conceded that plaintiffs comprise a political party whose members customarily wear military-style uniforms, and if they carry out their planned demonstration in Skokie they will be in clear violation of the ordinance. As to # 995, the question is slightly less clear since plaintiffs’ application stated that they do not intend to distribute literature, hate-inciting or otherwise, in Skokie. However, as discussed below, the definition of “dissemination of materials” in # 995 is quite broad, and specifically includes display of signs and wearing of clothing “of symbolic significance”. Moreover, the court finds that ordinance # 995 was specifically intended to apply to the display of Nazi regalia and propaganda. The “clothing of symbolic significance” clause was clearly directed at plaintiffs’ Third Reich style uniforms and swastikas, and much of defendants’ evidence dealt with the significance of these symbols to Jewish survivors of World War II. Accordingly, there is a substantial probability that any demonstration by plaintiffs in Skokie would result in their arrest for violation of # 995, and plaintiffs have standing to challenge the ordinance. The only standing question with regard to # 994 is whether plaintiffs need a permit at all, since their proposed assembly would consist only of 30 to 50 persons. The ordinance actually requires a permit for any assembly in which the number of participants “may reasonably be assumed to exceed 50”, § 27-51. Thus, one who holds an assembly without a permit which more than 50 persons attend would violate the ordinance if it were found that he should have reasonably assumed more than 50 would attend. In light of the criminal penalties the ordinance imposes for lack of foresight, the court feels that plaintiffs are the best judge of their need for a permit and have standing to challenge # 994. The only thing currently keeping plaintiffs from demonstrating in Skokie and violating ordinances # 995 and # 996 is their inability to obtain a permit under # 994; accordingly, if their challenge to # 994 is ripe for adjudication, the challenges to # 995 and # 996 are also ripe. This leaves a ripeness problem only as to # 994. Since defendant Matzer denied the permit application solely on the basis of # 996, defendants have never officially considered whether the application satisfied the insurance requirement or the “no incitement of racial hatred” requirement. However, ripeness is a practical doctrine, which should not be employed to require the parties to satisfy empty formalities when the issues between them are clearly defined. As discussed below, plaintiffs have proved that they cannot obtain the required insurance, and it is virtually certain that defendants would refuse to waive the requirement in light of their implacable opposition to plaintiffs’ presence in Skokie. Similarly, the court’s finding that these ordinances were specifically intended to apply to plaintiffs makes it equally certain that plaintiffs’ application would be denied under the incitement of hatred standard. Further, although plaintiffs could force a decision on the insurance issue by agreeing not to wear, uniforms, there is no way they could avoid the insurance problem in order to force a decision on the racial hatred issue. Accordingly, the court finds that the issues between the parties are ripe for adjudication under each of the three ordinances. Thus, the court has jurisdiction over this case. Whether it may properly exercise that jurisdiction depends on the doctrines of exhaustion of remedies and abstention. Plaintiffs could have appealed the denial of their permit application to the Village Board of Trustees, under § 27-57, and then filed an action for judicial review in state court under the Illinois Administrative Review Act, Ill.Rev.Stat. ch. 110, §§ 264, et seq. A plaintiff is never required to exhaust administrative remedies when to do so would be obviously futile. Porter County Chapter of the Izaak Walton League of America v. Costle, 571 F.2d 359, at 264, Dkt. Nos. 76-2098 and 77-1262 (7th Cir. Jan. 30, 1978), Slip Op. at 6. This is especially true in civil rights cases, where the congressional policy of providing a federal forum for vindication of constitutional rights is particularly strong. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); see Drexler v. Southwest Dubois School Corp., 504 F.2d 836, 838-39 (7th Cir. 1974). For the reasons discussed above, the court finds that an appeal to the Board of Trustees would be futile in this case. Moreover, there is no reason to require plaintiffs to proceed under the Administrative Review Act when their claims are based upon freedom of speech rather than administrative procedure. Exhaustion is not required. Although abstention is generally not favored in civil rights cases, Drexler, supra, the question arises in this case due to the ongoing state court litigation between the parties, the subject of which to some degree overlaps this case. As noted above, defendants in this case obtained a preliminary injunction from the Circuit Court of Cook County, which prohibited plaintiffs from demonstrating at all in Skokie, from wear-' ing their uniforms and swastikas there, and from distributing materials which incite racial hatred. The Illinois Appellate Court for the First District modified the injunction to prohibit only display of the swastika, on the grounds that as to the other issues the Village had not met its extraordinary burden of showing an immediate harm which would justify preliminary injunctive relief in a case raising First Amendment issues. Village of Skokie v. National Socialist Party of America, 51 Ill.App.3d 279, 9 Ill.Dec. 90, 366 N.E.2d 347 (1st Dist.1977). On appeal, the Illinois Supreme Court held that the preliminary injunction forbidding the display of the swastika was also improper in light of the presumptive unconstitutionality of any prior restraint on speech. Dkt. No. 49769, Ill., 14 Ill.Dec. 890, 373 N.E.2d 21, Jan. 27, 1978. The Village did not cross-appeal the Appellate Court’s modification of the injunction, apparently because the subject matter of the part of the injunction vacated by the Appellate Court was by then covered by the ordinances involved in this suit. The federal courts must abstain from deciding a constitutional question when there is an unresolved question of state law which could either moot the constitutional question or substantially alter it. Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed.2d 971 (1941). Abstention would be improper in a ease merely because the same federal law questions presented are also being litigated in another case. Colorado River Water Cons. Dist. v. United States, 424 U.S. 800, 817-19, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). The court has examined the briefs and decisions in the state court litigation between the parties, and there appears to be no substantial unresolved issue of state law there involved which would affect this case. Moreover, in the present posture of the state case, the overlap in issues between the two actions is actually quite small. The only question actually decided by the Illinois Supreme Court, which the Village is now seeking to take to the United States Supreme Court, is whether the use of a specific symbol — the swastika — can be enjoined in a situation where it may be emotionally damaging to a specific group of persons, whereas this case is concerned with the impact of a broad range of municipal ordinances on many kinds of speech and speech-related behavior. Accordingly, the court finds that it is not required to abstain from deciding this case. This court’s opinion will now deal with the federal question whether the three ordinances under review impermissibly limit and burden the exercise of free speech and assembly in Skokie. III. The Insurance Ordinance Section 27-54 of Ordinance # 994 provides that: “No permit shall be issued to any applicant until such applicant procures Public Liability Insurance in an amount of not less than Three Hundred Thousand Dollars ($300,000.00) and Property Damage Insurance.of not less than Fifty Thousand Dollars ($50,000.00). Prior to the issuance of the permit, certificates of such insurance must be submitted to the Village Manager for verification that the company issuing such insurance is authorized to do business and write policies of insurance in the State of Illinois.” In addition, § 27 — 56(j) specifically requires the Village Manager to deny a permit to any person failing to comply with § 27-54. The requirement may be waived by a unanimous vote of the President and Board of Trustees, § 27-64. Staging a public assembly without a permit is punishable by a $5 to $500 fine, § 27-65. In Collin v. O’Malley, Dkt. No. 76 C 2024, in which the plaintiffs were the same as the plaintiffs here, Judge Leighton of this court held that a virtually identical ordinance of the Chicago Park District violated the First Amendment because its effect was to completely preclude organizations such as the National Socialist Party from staging public assemblies in the parks. The record in O’Malley has been admitted into evidence in this case by stipulation, but defendants do not stipulate to Judge Leighton’s findings or conclusions and this court must make its own review of the record. The court is in complete agreement with Judge Leighton’s finding that insurance of the type required by the Skokie and Park District ordinances is beyond the reach of plaintiffs. Janet Jarosz, a licensed insurance broker, testified in O’Malley that she had made a continuing effort for four or five months to obtain such insurance for plaintiffs without success. She contacted 13 separate companies and brokerage firms without success, including several that specialize in unusual and hard to place lines of insurance. She gave as her professional opinion the conclusion that plaintiffs could not obtain the insurance, because insurance companies are simply not interested in writing the kind of policy required due to the unknown risks involved, and consequently will write the policies only as an accommodation to well-established and respectable organizations. In an affidavit executed for this action, Jarosz stated that she had made additional efforts to obtain the insurance for plaintiffs as recently as August, 1977, and she reaffirmed her original conclusions. Jarosz also testified that if the insurance were available to plaintiffs, the premium would be as much as $1,000 for each event. Neither the O’Malley defendants nor the defendants in this case presented any evidence to contradict Jarosz’s testimony. The law regarding use of public streets for demonstrations was set down in the plurality opinion of Mr. Justice Roberts in Hague v. C.I.O., 307 U.S. 496, 515-16, 59 5. Ct. 954, 964, 83 L.Ed. 1423 (1939): “Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.” The ordinance under review in effect bans all public assemblies above a certain size within the Village unless the sponsoring organization either has the wherewithal to obtain a rare and expensive form of insurance policy or receives an exemption from the ordinance’s coverage. The court concludes that this drastic restriction of the right of freedom of speech and assembly is an abridgement “in the guise of regulation.” There are two bases for this conclusion. First, the burdensome effect of the insurance requirement itself has not been shown to be necessary. The government may impose financial burdens on the exercise of First Amendment rights, such as permit fees, only when the amount involved is reasonable and directly related to the accomplishment of legitimate governmental purposes. Cox v. New Hampshire, 312 U.S. 569, 576-77, 61 S.Ct. 762, 85 L.Ed. 1049 (1941); United States Labor Party v. Codd, 527 F.2d 118 (2d Cir. 1975); see also Lubin v. Panish, 415 U.S. 709, 94 S.Ct. 1315, 39 L.Ed.2d 702 (1974); Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972). In this case, defendants have presented no evidence whatsoever of the Village’s need for such a burdensome insurance requirement. Nothing in the record shows that Skokie or any comparable municipality has ever been threatened with damage by a public assembly which would have been prevented or alleviated by an insurance requirement of this type. Second, the ordinance is objectionable because some organizations may be exempted from its requirements and there are no principled standards for determining which organizations are exempt. In addition to the specific waiver provision of § 27-56, any activity sponsored by a governmental agency is exempt. The record shows that the device of “co-sponsorship” by the Village itself and related entities such as the Skokie Park District has enabled groups such as the Northeast Skokie Property Owners Association and the American Legion to escape the insurance requirement. This device permits organizations that have the approval of the Village government to avoid the restrictions imposed on all other groups, with no indication that such exemptions have been or will be granted on the basis of the threat of liability or property damage posed by their activities. It is well established that permit systems which are so devoid of standards that they allow government officials to engage in covert censorship in their administration are particularly vulnerable to First Amendment challenge. Hague, supra, 307 U.S. at 516, 59 S.Ct. 954; see also Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150-51, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969); Cox v. Louisiana, 379 U.S. 536, 555-58, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965). In short, the court finds that §§ 27-54 and 27 — 56(j) of Ordinance # 994 impose a virtually insuperable obstacle to the free exercise of First Amendment rights in the Village of Skokie, which obstacle has not been proven to be justified by the legitimate needs of the Village and which may be disposed of at the uncontrolled and standardless discretion of the Village government. These sections are, accordingly, unconstitutional on théir face. IV. The “Racial Slur” Ordinances A. Introduction Ordinance # 995 and § 27-56(c) of # 994 are both directed at a type of speech that the parties have characterized generally as “racial slurs”. A more precise definition can be formulated only in the context of a discussion of the ordinances themselves. For the sake of convenience, the court will also use the same term. Section 28-43.1 of Ordinance # 995 provides that: “The dissemination of any materials within the Village of Skokie which promotes and incites hatred against persons by reason of their race, national origin, or religion, and is intended to do so, is hereby prohibited.” “Dissemination of materials” is defined by § 28-43.2 to include: “publication or display or distribution of posters, signs, handbills, or writings and public display of markings and clothing of symbolic significance.” Violation of Ordinance # 995 is a misdemeanor punishable by a fine of up to $500 and/or imprisonment for up to six months, § 29-43.4. The Corporation Counsel is authorized to seek injunctive relief against prospective violations, § 29-43.5. Section 27-56(c) covers the same subject, but is worded somewhat differently. It requires the Village Manager to deny a permit for any assembly which will: “portray criminality, depravity or lack of virtue in, or incite violence, hatred, abuse or hostility toward a person or group of persons by reason of reference to religious, racial, ethnic, national or regional affiliation.” The different issues raised by this ordinance will be discussed after the analysis of Ordinance # 995. It is apparent that in enacting these ordinances, the Village government acted primarily to shield its citizens — and particularly its Jewish citizens — from the flaunting by plaintiffs of the symbols of a hated era and repugnant political philosophy. The ordinances adopted, however, do more than simply ban display of the swastika; they impose sweeping bans on the content of speech within Skokie and include provisions for which there is almost no precedent in constitutional law. The importance and novelty of the issues involved requires a close re-examination of the basic principles of the First Amendment against which these ordinances must be measured. B. Fundamental Principles It must be made clear from the outset that defendants have no power to prevent plaintiffs from stating their political philosophy, including their opinions of black and Jewish people, however noxious and reprehensible that philosophy may be. The Supreme Court has held that “above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Police Department of the City of Chicago v. Mosely, 408 U.S. 92, 95, 92 S.Ct. 2286, 2290, 33 L.Ed.2d 212 (1972). The principle derives from the theory of the “marketplape of ideas”. As the Court has recently stated the theory: “there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40, 94 S.Ct. 2997, 3007, 41 L.Ed.2d 789 (1974). This theory has recently been the subject of considerable criticism, and the underlying basis of defendants’ position, as well as much of the commentary on this case, seems to be that plaintiffs’ philosophy is so thoroughly repugnant to any concept of civilized society that it is not entitled to entry into the “marketplace”. As the late Prof. Alexander Bickel has argued, to permit an idea to be advocated is to concede its legitimacy and impliedly accept the possibility that it may be accepted and implemented as a social policy; and there are some policies whose implementation would be so completely unacceptable in a democratic society that their advocacy should not be permitted. A. Bickel, The Morality of Consent, 70-77 (1975). This interpretation of the marketplace of ideas principle gains support from Supreme Court statements such as that of the Gertz Court that “there is no such thing as a false idea”, and from the opinions of Justice Oliver Wendell Holmes, the judge most responsible for incorporation of the marketplace concept into the First Amendment. See Gitlow v. New York, 268 U.S. 652, 673, 45 S.Ct. 625, 69 L.Ed. 1138 (1925) (Holmes, J., dissenting). And it is undoubtedly true that if any philosophy should be regarded as completely unacceptable to civilized society, that of plaintiffs, who, while disavowing on the witness stand any advocacy of genocide, have nevertheless deliberately identified themselves with a regime whose record of brutality and barbarism is unmatched in modern history, would be a good place to start. This criticism of the marketplace of ideas theory is, however, based on an incorrect interpretation of the theory’s premises. The early English libertarian philosophers who developed the concept did not believe that, in the Gertz Court’s somewhat unfortunate phrase, “there is no such thing as a false idea.” They believed that false ideas existed; and that the process of free debate could be relied upon to identify false ideas, but that the government could not. See J. Milton, Areopagitica — A Speech for the Liberty of Unlicensed Printing (1644); J. S. Mill, On Liberty, ch. II (1859). The words of Mr. Justice Brandéis remain the classic exposition of this principle in the context of American constitutional law: “Those who won our independence believed . . . that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law — the argument of force in its worst form.” Whitney v. California, 274 U.S. 357, 375-76, 47 S.Ct. 641, 648, 71 L.Ed. 1095 (1927) (Brandéis, J., concurring) (footnote omitted). The question, then, is not whether there are some ideas that are completely unacceptable in a civilized society. Rather the question is which danger is greater: the danger that allowing the government to punish “unacceptable” ideas will lead to suppression of ideas that are merely uncomfortable to those in power; or the danger that permitting free debate on such unacceptable ideas will encourage their acceptance rather than discouraging them by revealing their pernicious quality. This question is one of the fundamental dilemmas of free speech, and it is certainly open to public debate, but for the purposes of this case, the question has been definitively settled by the Supreme Court. From the beginning the Court has held that speech may be punished only when it actually causes some social harm which the government can legitimately prevent. See Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470 (1919). For many years, however, the Court held that certain doctrines, such as the violent overthrow of the government, were so inherently harmful to society that their mere advocacy in any form could be prohibited. Abrams v. United States, 250 U.S. 616, 40 S.Ct. 17, 63 L.Ed. 1173 (1919); Gitlow, supra; Whitney, supra. Justices Holmes and Brandéis consistently dissented from these opinions on the grounds that allowing the prohibition of mere advocacy would inevitably lead to untrammeled censorship. They took the position that advocacy even of violence or lawlessness could be punished only when it occurred in a situation in which the advocacy posed a “clear and present danger” of actually inciting the lawless actions advocated. The Holmes-Brandeis approach gained ascendancy through the 1940’s and 1950’s as the Court retreated from the position that all advocacy of Communism could be prohibited. See Dennis v. United States, 341 U.S. 494, 502-11, 71 S.Ct. 857, 95 L.Ed. 1137 (1951), (plurality opinion). In Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957), the Court attempted to draw a distinction between “abstract” advocacy, which is protected by the First Amendment, and advocacy “directed to stirring people to. action”, id. at 326-27, 77 S.Ct. at 1081. This standard proved practically unworkable, and in Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969), the Court abandoned the attempt to define kinds of advocacy which are sufficiently dangerous in themselves to warrant suppression. It adopted the Brandéis position in Whitney, and held that advocacy of any idea can be prohibited only when it is both intended to and likely to incite “imminent lawless action”. Since the Court has thus squarely rejected the theory that some ideas are too dangerous to permit their advocacy, it follows that plaintiffs have the right to advocate their political views within Skokie. The question remains, whether Ordinance # 995 unacceptably restricts their ability to do so. C. “Unprotected” Speech and Fighting Words As discussed above, the central issue in First Amendment cases is the constant tension between the policy of permitting unrestricted exchange and discussion of ideas and the government’s legitimate interest in preventing the harms that may be caused by speech. When the speech involved takes the form of the advocacy of ideas, Brandenburg establishes that only harm serious enough to justify its restriction is the imminent threat of lawless action. Defendants in this case have disclaimed any reliance on Brandenburg, stating: “The Village does not contend that the forbidden conduct [speech which intentionally incites racial hatred] will create a clear and present danger of violence, riot, breach of peace, or other disorders.” Defendant’s Brief in Response to Plaintiffs’ Memorandum of Law, at 2 (emphasis in original). Thus, the ordinances may not prohibit advocacy which falls short of incitement of imminent lawless action. However, it has long been established that certain kinds of language are of so little utility in the conveyance of ideas that they can be prohibited on the basis of harms less serious than the threat of imminent lawlessness. Such speech is generally referred to as “unprotected”, and it includes “the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words — those which by their very utterance inflict injury or incite an immediate breach of the peace.” Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942). Defendants’ position is that language which intentionally incites racial hatred is unprotected speech. Before examining the merits of this argument, the court notes that the term “unprotected speech” is something of a misnomer, for in reality all speech derives considerable protection from the First Amendment. The reason is that determination of whether speech is valueless and therefore unprotected inevitably involves to some extent an inquiry into its content, and thus raises the possibility that the speech will be suppressed in part because of the offensiveness of the idea it conveys. See Young v. American Mini Theatres, Inc., 427 U.S. 50, 65-67, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976) (plurality opinion). In order to counteract this tendency and insure the free flow of debate, the Court has developed the theory that First Amendment values require “breathing space”. In other words, the government is not only prohibited from regulating protected speech directly, it is also prohibited from impinging too closely upon it and thereby dampening the vigor of debate. This principle requires all First Amendment cases to be considered “against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 721, 11 L.Ed.2d 686 (1964). That such an approach will often protect speech which could be prohibited if laws could be drafted and enforced with perfect clarity and precision is regarded as the price which must be paid for the full preservation of First Amendment values. Thus, there are actually two questions involved here: whether “racial slurs” are unprotected speech; and, if so, whether the definition of racial slurs employed by Ordinance # 995 is sufficiently precise to reach only unprotected slurs and allow adequate breathing space for protected speech. The doctrine of unprotected speech was first developed in cases involving abusive epithets and insults. In Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940), and Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942), members of the Jehovah’s Witnesses sect were convicted of inciting breaches of the peace on the basis of their use of language which the Court characterized as highly offensive. The Cantwell Court began with the premise that “[rjesort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution. . . 310 U.S. at 309-10, 60 S.Ct. at 908. The Chaplinsky Court added that while such speech might have a “slight social value as a step to truth”, such a slight value is “clearly outweighed by the social interest in order and morality.” 315 U.S. at 572, 62 S.Ct. at 769. This analysis would seem to suggest that the government may generally prohibit speech which is not a communication of ideas or opinion. The Court, however, avoided such a broad approach to the restriction of unprotected speech in favor of an inquiry into the conduct of the speaker, the circumstances in which the speech was employed, and the actual likelihood that it would provoke a breach of the peace. Cantwell’s speech had consisted of a phonograph record which he played on a public street. He had asked permission to play the record, had stopped when asked to do so, and had at no time been belligerent, offensive or truculent. His conviction was reversed. Chaplinsky, on the other hand, had called another a “damned racketeer” and “damned Fascist” to his face in a belligerent manner; his conviction was affirmed. This narrow approach to unprotected speech was emphasized by Terminiello v. City of Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1949). Terminiello was convicted for disorderly conduct on the basis of an inflammatory speech filled with offensive epithets. The trial court charged the jury that the offense included conduct which “stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance.” The Illinois Supreme Court affirmed, finding no constitutional problem since Terminiello’s speech had been so offensive and insulting that it was unprotected under Cantwell and Chaplinsky. See 400 Ill. 23, 34-35, 79 N.E.2d 39 (1948). The Supreme Court reversed without even considering whether the speech was unprotected. Inviting dispute, creating unrest and stirring anger are among the “high purposes” of free debate, the Court said, and therefore no speech could be punished merely because it accomplished those purposes. Thus, Cantwell, Chaplinsky and Terminiello established a two-part test for the restriction of the “fighting words” class of unprotected speech. The speech must, considered objectively, be abusive and insulting rather than a communication of ideas, and it must actually be used in an abusive manner in a situation which presents an actual danger that it will cause a breach of the peace. The fighting words concept has continued to dominate later unprotected speech cases, which have built upon these basic principles. First, the Court has several times emphasized that care must be taken to insure that what is restricted is insulting and offensive language, not the communication of offensive ideas. “It is firmly settled that under our Constitution the public expression of ideas may not be prohibited merely because .the ideas themselves are offensive to some of their hearers.” Street v. New York, 394 U.S. 576, 592, 89 S.Ct. 1354, 1366, 22 L.Ed.2d 572 (1969); see Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971); Bachellar v. Maryland, 397 U.S. 564, 90 S.Ct. 1312, 25 L.Ed.2d 570 (1970). Even where the audience is so offended by the ideas being expressed that it becomes disorderly and attempts to silence the speaker, it is the duty of the police to attempt to protect the speaker, not to silence his speech if it does not consist of unprotected epithets. Gooding v. Wilson, 405 U.S. 518, 527, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972); Gregory v. City of Chicago, 394 U.S. 111, 89 S.Ct. 946, 22 L.Ed.2d 134 (1969); Cox v. Louisiana, 379 U.S. 536, 546-48, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965). In Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971), the Court discussed in detail the rule that even unprotected speech may only be suppressed when it threatens a harm. Cohen had worn a jacket inscribed with the phrase “Fuck the Draft”, and was convicted of “maliciously and willfully disturbing] the peace or quiet of any neighborhood or person by offensive conduct.” The Court began by restating the objective element of the test: fighting words, it said, are “those personally abusive epithets, which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction.” Cohen’s choice of language, it said, would satisfy this test. 403 U.S. at 20, 91 S.Ct. at 1785. Nevertheless, the Court reversed Cohen’s conviction on the ground that in Cohen’s case there was no showing that the speech had been used in a context which even made the occurrence of breach of the peace a possibility: “No individual actually or likely to be present could reasonably have regarded the words on appellant’s jacket as a direct personal insult . . . There is . no showing that anyone who saw Cohen was in fact violently aroused or that appellant intended such a result.” Id. Although the government need not prove an actual threat of an imminent breach of the peace in order to restrict unprotected speech, the Court said in Cohen the state’s position amounted to an assertion that it could ban certain offensive epithets even without showing a possible breach, either because'such epithets are inherently likely to cause violent reactions or in order to maintain a “suitable level of discourse within the body politic.” Neither rationale, the Court said, was strong enough to justify establishing the “inherently boundless” precedent that the government could ban certain forms of language solely because of their offensiveness. To permit such bans would place unacceptable restrictions on free and uninhibited debate. The Court concluded: “To many, the immediate consequence of this freedom may often appear to be only verbal tumult, discord, and even offensive utterance. These are, however, within established limits, in truth necessary side effects of the broader enduring values which the process of open debate permits us to achieve. That the air may at times seem filled with verbal cacophony is, in this sense not a sign of weakness but of strength.” 403 U.S. at 24-25, 91 S.Ct. at 1788. In light of these principles, it is apparent that the line between protected and unprotected speech in matters relating to race and religion is an ■ extraordinarily difficult one to draw. On the one hand, slurs and insults which rely upon the victim’s racial and religious heritage are among the most vicious and abusive epithets known. As Mr. Justice Jackson has written: “These terse epithets come down to our generation weighted with hatreds accumulated through centuries of bloodshed They are not in that class of epithets whose literal sting will be drawn if the speaker smiles when he uses them. They are always, and in every context, insults which do not spring from reason and can be answered by none. Their historical associations with violence are well understood, both by those who hurl and those who are struck by these missiles . . . ” Kunz v. New York, 340 U.S. 290, 299, 71 S.Ct. 312, 317, 95 L.Ed. 280 (1951) (Jackson, J., dissenting). On the other hand, it is equally clear that discussion of race and religion will often involve the exposition of ideas and positions that are inherently offensive to many, but which are nevertheless protected by the First Amendment. We live in a society that is very conscious of -racial and religious differences, in which open discussion of important public issues will often require reference to racial and religious groups, often in terms which members of those groups, and others, would consider insulting and degrading. To choose an-obvious example, discussion of the use of mandatory quotas in affirmative action programs cannot help but touch upon characteristics perceived to be shared by members of particular racial groups. The First Amendment does not permit the government to restrict discussion of such sensitive and emotion charged public issues to the sanitary prose of legal and social sciences technical jargon. Cf. Bond v. Floyd, 385 U.S. 116, 127, 134-45, 87 S.Ct. 339, 17 L.Ed.2d 235 (1966). The question remains whether the language of Ordinance # 995 is sufficiently precise to focus exclusively on the personally abusive use of epithets in situations where the possibility of breaches of the peace justifies the epithets’ suppression and still permit the intemperate and emotional debate which may accompany any discussion of race and religion. Our courts have employed the doctrines of vagueness and of overbreadth to make this determination. A law is unconstitutionally vague when it fails to give reasonable notice of the conduct which is prohibited and gives law enforcement personnel the opportunity to enforce it according to their personal prejudices. Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974). In First Amendment cases the doctrine has an added dimension, since a vague statute which covers speech-related activities may be enforced only against those who express unpopular opinions and thus be used as a device for censorship. Grayned v. City of Rockford, 408 U.S. 104, 108-114, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). Statutes which punish speech solely on the basis of the emotion it arouses in other persons are vulnerable to findings of vagueness, see, e. g., Ashton v. Kentucky, 384 U.S. 195, 199-201, 86 S.Ct. 1407, 16 L.Ed.2d 469 (1966), particularly where the emotion involved is subjective and difficult to define with precision. Smith v. Goguen, supra, invalidated a law punishing “contemptuous” treatment or display of the American flag, on the grounds that in an era in which the flag is often treated casually, the precise conduct which could be considered “contemptuous” and result in criminal sanctions was impossible to define. Similarly, Coates v. City of Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971), struck down an ordinance which prohibited groups of people from conducting themselves in an “annoying” manner on a public street. The Court held that the First Amendment right of free assembly could not be conditioned upon compliance with a purely subjective standard such as “annoyance”. The Skokie ordinance punishes language which intentionally incites hatred. This standard is as subjective and impossible to clearly define as the standards found impermissible in Smith and Coates. Terminiello and its progeny establish that there is a constitutional right to incite unrest, dissatisfaction, and even anger with social conditions. The distinction between inciting anger with a social condition and hatred of the person or group perceived to be responsible for that condition is impossible to draw with the requisite clarity, and depends to a great extent upon the frame of mind of the listener. For example, plaintiffs believe that busing school children in order to accomplish integration is a threat to the integrity and quality of the public school system, and they also believe that blacks and Jews are the instigators of busing. They clearly have a constitutional right to say so, and to say so vehemently and forcefully. But at what point does a vehement attempt to arouse public anger at busing become an attempt to incite hatred of blacks and Jews? A society which values “uninhibited, robust and wide-open” debate cannot permit criminal sanctions to turn upon so fine a distinction. Ordinance # 995 is unconstitutionally vague. Even assuming that the distinction can be defined with sufficient clarity, however, the court also finds that the Ordinance is overbroad. A law is overbroad for First Amendment purposes when, even though it is directed at unprotected speech, it can also be applied to protected speech. Such a law is considered completely unconstitutional on its face even though it is capable of application in a constitutional manner, on the theory that the very existence of laws which can be applied to protected speech exercises an unacceptable inhibiting effect on free debate. In Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972), the Court struck down a Georgia statute punishing the use of “opprobrious words or abusive language, tending to cause a breach of the peace”, language which would seem to 'conform with the definition of fighting words. The Court found, however, that as construed by the Georgia courts, the phrase “tending to cause a breach of the peace” referred to the inherent character of the language rather than the circumstances in which it was used. As discussed above, the punishment of even abusive language inherently likely to cause breaches of the peace was found unacceptable in Cohen. Therefore, the statute was “susceptible of application to speech, although vulgar or offensive, that is protected by the First . . . Amendment”, and was unconstitutional on its face. For examples of the stringency with which this test is applied, see Rosenfeld v. New Jersey, 408 U.S. 901, 92 S.Ct. 2479, 33 L.Ed.2d 321 (1972); Lewis v. City of New Orleans, 408 U.S. 913, 92 S.Ct. 2499, 33 L.Ed.2d 321 (1972). The Skokie ordinance punishes the mere “dissemination” of material which incites hatred, with dissemination broadly defined to include such relatively passive activities as distributing leaflets and wearing “symbolic” clothing. It is clearly not aimed solely at personally abusive, insulting behavior, as was required by Cohen and Gooding. The court cannot agree that the requirement that the language intentionally incite hatred is an adequate substitute for this limitation. It may very well be true that hatred tends to spawn violence and that, unlike the unrest and dissatisfaction referred to in Terminiello, hatred serves no useful social function in itself. Nevertheless, the incitement of hatred is often a byproduct of vigorous debate on highly emotional subjects, and the basic message of Cohen is that a great deal of useless, offensive and even potentially harmful language must be tolerated as part of the “verbal cacophony” that accompanies uninhibited debate, not for its own sake, but because any attempt to excise it from the public discourse with the blunt instrument of criminal sanctions must inevitably have a dampening effect on the vigor of that discourse. The Court has repeatedly rejected attempts to ban certain kinds of language on the basis of an “undifferentiated fear or apprehension of disturbance . . ” Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 508, 89 S.Ct. 733, 737, 21 L.Ed.2d 731 (1969). The requirement that speech pose an imminent danger of violence before it may be suppressed is relaxed to a great extent when the speech serves no useful social purpose, but Ordinance # 995 seeks to dispense with the requirement entirely, and this it may not do. The ordinance is unconstitutionally' overbroad. D. Beauharnais v. Illinois The foregoing discussion has assumed that the only danger posed by racial slurs is that of imminent breach of the peace. This is the ordinary fighting words rationale for the suppression of offensive epithets, which under Chaplinsky include those which either incite breaches of the peace or “by their very utterance inflict injury.” Defendants argue that racial slurs fall into this second category of speech-inflicted harms, and have presented psychiatric evidence showing the mental and emotional trauma that can be caused by such slurs. Unlike epithets which cause breaches of the peace, those which inflict emotional trauma have attracted comparatively little judicial attention. The keystone of defendants’ argument in this uncharted field is Beauharnais v. Illinois, 343 U.S. 250, 72 S.Ct. 725, 96 L.Ed. 919 (1952), in which the Court upheld an Illinois criminal libel statute which made it unlawful: “for any person ... to manufacture, sell, or offer for sale, advertise, or publish, present or exhibit in any public place in this state any lithograph, moving picture, play, drama or sketch, which publication or exhibition portrays depravity, criminality, unchastity, or lack of virtue of a class of citizens, of any race, color, creed or religion which said publication or exhibition exposes the citizens of any race, color, creed or religion to contempt, derision, or obloquy or which is productive of breach of the peace or riots . . ” Beauharnais was convicted of violating this statute on the basis of leaflets printed and distributed by the White Circle League of America, of which he was president. The leaflets called on the Chicago government to “halt the further encroachment, harassment and invasion of white people, their property, neighborhoods and persons, by the Negro.” It added that, “If persuasion and the need to prevent the white race from becoming mongrelized by the negro will not unite us, then the aggressions rapes, robberies, knives, guns and marijuana of the negro, surely will.” Mr. Justice Frankfurter, writing for the Court, relied on two distinct grounds to uphold the statute and did not make clear the relationship between them. First, he noted that one traditional basis of criminal lib.el law was the punishment of words likely to cause breaches of the peace, and that the Illinois Supreme Court had characterized Beauharnais’ words as “liable to cause violence and disorder”. It then detailed Illinois’ long history of racial strife and concluded that there was a rational basis for the state’s attempt to suppress language likely to further exacerbate racial tensions. This analysis followed the fighting words rationale of Chaplinsky and Cantwell. However, the case cannot be viewed simply as an application of the fighting words rule. There was no showing that the peaceful distribution of the leaflets had immediately threatened a breach of the peace or that those who distributed them had been belligerent or truculent. In fact, the indictment had charged simply that the publication exposed black Illinoisians to “contempt, derision, or obloquy”; there was no reference to the part of the statute which prohibited words “productive of breach of the peace or riots.” Thus, considered as a fighting words case, Beauharnais would seem indistinguishable from Cantwell, in which a conviction based on the peaceful playing of a highly offensive phonograph record was reversed. The Court then turned to a second ground for upholding the statute, which had not been relied upon by the Illinois Supreme Court. See 408 Ill. 512, 517-18, 97 N.E.2d 343 (1951). The Court noted that a second traditional purpose of criminal libel law was to protect the reputation of persons who were defamed by the libel. There was no question, the Court said, that it would be defamatory to call an individual a thief, rapist and drug user, and that such libel would be unprotected speech. It saw no reason to apply a different rule when the defamation was directed to an entire race, since “a man’s job and his educational opportunities and the dignity accorded him may depend as much on the reputation of the racial and religious group to which he willy-nilly belongs, as on his own merits.” 343 U.S. at 257-58, 263, 72 S.Ct. at 734. Therefore, the Court concluded, libel of racial and religious groups constituted a distinctive category of unprotected speech, and a showing of a danger of violence resulting from it was unnecessary. Id. at 266, 72 S.Ct. 725. Beauharnais requires particularly close scrutiny for two reasons: first, because it is the sole Supreme Court case relied upon by defendants; and, second, because it is widely believed by First Amendment scholars that the case is no longer good law. The decision was originally accompanied by four powerful dissents. The dissenters ranged from Mr. Justice Black, who considered the statute unconstitutional on its face, to Mr. Justice Jackson, who objected only to the conduct of the trial; but all agreed on two points: that the government can constitutionally punish those who defame individual reputations or who incite breaches of the peace, and that Beauharnais had been punished for doing neither, but only for expressing his opinion. Thé case has since proven remarkably sterile as a source of constitutional law. So far as this court’s researches have revealed it has never been relied on as controlling precedent in any Supreme Court case, and at least two circuit courts havé stated in dicta that it is doubtful that the case is still good law. Tollett v. United States, 485 F.2d 1087, 1094 n. 14 (8th Cir. 1973); Anti-Defamation League of B’nai B’rith v. FCC, 131 U.S.App. D.C. 146, 403 F.2d 169, 174 n. 5 (D.C.Cir. 1968), cert, denied, 394 U.S. 930, 89 S.Ct. 1190, 22 L.Ed.2d 459 (1969) (Wright, J., concurring); see also T. Emerson, The Sys tem of Freedom of Expression at 396 (1970). Nevertheless, the case has never been expressly overruled, and this court must make its own determination as to its continued validity. At the outset, there is no doubt that the case’s basic premises are still sound: the government may punish speech which defames individual reputation, or which incites a breach of the peace. However, as has been seen, a statute directed at unprotected speech may still fall afoul of the First Amendment if it is so broad or vague that it unacceptably inhibits free debate. The standards which the courts apply in determining whether a particular statute has this inhibiting effect have undergone considerable evolution since Beauharnais, and much of the analysis the Court employed in that case is obsolete by modern standards. Thus, before it can be found that Beauharnais establishes the constitutionality of a law which, like the Skokie ordinances, employs similar language, it must be determined whether the Beauharnais statute itself would pass muster if it were brought before the Supreme Court today. Beauharnais held that speech which defames racial groups may be criminally punished even when it is not directed at any specific member of the defamed group. There are two possible rationales for this holding. First, it may be presumed that defamation directed at a group damages the reputation of individual members of the group. Second, speech which defames a race or religion may be considered so inherently productive of violence that it is unnecessary to show that it is used in a personally provocative manner. The first rationale supports defendants’ argument that the Skokie ordinance should be upheld because speech which incites racial hatred inflicts psychological trauma on individual members of the victim race. The court will assume for the sake of this discussion that this psychological trauma is a harm sufficiently serious to consider the speech which inflicts it to be unprotected. Nevertheless, the court finds that this interpretation of Beauharnais is no longer tenable. Beginning with New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), the Court has systematically restricted the power of the states to protect individual reputations through libel laws. In doing so, the Court has abolished several of the old common law rules of libel law on the grounds that the danger posed to free speech outweighs the states’ need for such rules in order to protect the reputation of their citizens. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 348-50, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). The Court has abolished the rule that truth is a defense only when published with good motives and to a justifiable end. Truth is now an absolute defense to a libel suit, even when published for malicious purposes. The rule that a publisher is absolutely liable