On Saturday, RedState’s Nick Arama penned an article regarding Bill Maher’s mocking of the meltdown many seem to be having over Elon Musk’s purchase of Twitter. In it, Nick noted: “We’ve come a long way from Skokie….”
I first learned about “the Skokie case” in law school (roughly 30 years ago now – Sigh.). Because the result pushed against our notions of good and bad, right and wrong and good and evil, it was one of those cases which leaves an impression. The case challenges the notion of free speech. It reminds us to defend speech no matter how offensive. What I remember about this case is that the ACLU represented Nazis on First Amendment grounds. They won their right to march.
It is more complicated than that. “The Skokie case” (National Socialist Party of America v. Village of Skokie, 432 U.S. 43 (1977)) involved a group of Nazis who, in the spring of 1977, planned a demonstration in Skokie, Illinois, a village in the northern suburbs of Chicago with a heavily Jewish population. The community tried to prevent the event. Several lawsuits ensued. The Supreme Court of the United States concluded that any restriction placed on the First Amendment rights exercise must be accompanied by strict procedural safeguards.
Accordingly, the Supreme Court sent the case to the Illinois Appellate Court. The Appellate court ruled that NSPA can march, but cannot display the swastika since it is not protected by First Amendment. That was appealed to the Illinois Supreme Court which then ruled that the swastika is a symbolic form of free speech and did not constitute “fighting words,” thus allowing the NSPA to proceed with its demonstration. (In the end, however, NSPA marched in Chicago itself, and not in Skokie.
It is worth noting that David Goldberger, an ACLU lawyer for the NSPA, was also the ACLU lead counsel. In March 2020, Goldberger wrote a compelling article that I came across while researching for this post. These are just a few key points from the article (I highly recommend that you read it all)
The village’s determination to block the Nazi demonstration was so intense that it had the effect of turning the Skokie case into a landmark example of the vitality of the First Amendment, as well as the ACLU’s fierce commitment to the principle that freedom of speech is a universal right no matter how offensive the message or the speaker.
Everything that the village did in opposition to the assembly boiled down to the same thing: Skokie wanted what is known to lawyers as a “prior restraint” against any Nazi speech in Skokie. This meant Skokie sought to prevent the Nazis speaking in Skokie before they could communicate their message.
Prior restraints fall under the First Amendment. Any attempt to censor a speech by penalizing it after the fact will likely violate the First Amendment. However, the First Amendment principles that apply to prior restraints are clear. Preventing speech before time can be even worse. Central to the ACLU’s mission is the understanding that if the government can prevent lawful speech because it is offensive and hateful, then it can prevent any speech that it dislikes. In other words, the power to censor Nazis includes the power to censor protesters of all stripes and to prevent the press from publishing embarrassing facts and criticism that government officials label as “fake news.” Ironically, Skokie’s efforts to enjoin the Nazi demonstration replicated the efforts of Southern segregationist communities to enjoin civil rights marches led by Martin Luther King during the 1960s.
Goldberger pointed out, however that there was fierce opposition from the communities to the Nazis being represented.
In my initial thoughts, I thought that Supreme Court’s ruling would be a catalyst for understanding the value of First Amendment rights. This would also help to reduce the criticism. This was not the case. As days passed following the issuance of the injunction, the crescendo of criticism of our defense of the Nazis’ rights kept growing. Our efforts were criticized by many calls to the Chicago office. Many ACLU members across the nation resigned. Some estimates put the number at 50,000.
To this day, the case still brings up difficult feelings about representing a client whose constitutional rights were being violated but who represented the hatred and bigotry that continues to erupt into America’s consciousness. As a Jew traitor, I recall being repeatedly attacked. I also remember my fear of being attacked physically. One time, I requested an off-duty Chicago officer who was a friend to go with me on a speaking engagement. It was in civilian clothing. Another occasion I requested a Vietnam War vet of great physical strength to join me. I believed that an aggressive member of the audience might be less likely to behave aggressively if the friend was nearby. Local police were called to two occasions where hostile attendees of the audience had been escorted out.
Goldberger cites support for the cause, and points out that it was important to stand up for freedom of speech.
Other instances of unanticipated support are also a part of my memory. Holocaust survivors were brave enough to stand up for the Nazis during my speeches on the Skokie case. Another survivor wrote me the exact same letter several years later. They said they didn’t want Nazis to be driven underground through speech-repressive laws and court injunctions. These survivors stated that they wanted their enemies to be visible in plain sight, so they could see them clearly.
They spoke like light in the dark of anger and misunderstanding. To this day, I have no doubt that the ACLU’s commitment to equal rights for all is a backbone of our democracy — no matter how offensive our clients are. This commitment can be eroded as an effective bulwark against tyranny by simply ignoring it.
Even 30 years later, this is the thing that stuck with me regarding this case. The true embodiment of the sentiment (often attributed to Voltaire): “I may not agree with what you have to say, but I will defend to the death your right to say it.”
At one time, (I thought) that was what the ACLU stood for — the defense of civil liberties for all — even the most hated/least popular causes. Thus, for instance, the organization represented the Ku Klux Klan in its bid to participate in Missouri’s Adopt-A-Highway program back in the mid-late 1990s. The program allowed for individuals and organizations to “adopt” stretches of roadway for clean-up. In exchange, signs with adopters’ names are placed on either end of the adopted stretches. The KKK was granted the application. Understandably there were many questions. This case, too, had a rather involved procedural history, but ultimately, in 2000, the 8th Circuit Court of Appeals held that the denial of Klan’s application was unconstitutional. The Court stated in the final paragraph that:
There are better ways of countering the Klan’s repellent philosophy than by the State’s engaging in viewpoint-based discrimination. In a myriad of constitutionally sound ways, state officials and private citizens alike may oppose the Klan’s racially divisive views and express disapproval of those views in the strongest terms. But viewpoint-based exclusion of any individual or organization from a government program is not a constitutionally permitted means of expressing disapproval of ideas—even very poor ideas—that the government disfavors.
In March 2001, the Supreme Court declined to hear Missouri’s appeal of the 8th Circuit ruling. The LA Times reports:
Robert Herman is an attorney who works with the ACLU St. Louis and defended Klan. “We think we secured an important right. The government cannot punish people for holding unpopular political opinions,” he said.
There’s an interesting postscript to both of these cases. Following the court rulings in the Adopt-A-Highway case, the Missouri legislature passed a bill naming the stretch of highway adopted by the Klan “Rosa Parks Highway,” in honor of the civil rights icon.
Multiple anti-Nazi protests took place in Skokie, Chicago, and other areas in 1977. The Illinois Holocaust Museum was established by residents following the NSPA rulings. From the museum’s website:
The Holocaust Memorial Foundation of Illinois was formed by Chicagoland Holocaust Survivors in the aftermath of the attempted marches. The group purchased a Skokie shopfront, and opened it up to the public. They aimed to combat hate through education. The 65,000-square-foot Illinois Holocaust Museum & Education Center that opened in 2009 is a culmination of 30 years of hard work by the Survivor community.
There’s a recurring theme here. It is related to the observation that I made here.
Healthy public discourse requires discernment and not censorship. As Justice Brandeis wrote nearly a century ago: “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the process of education, The remedy is to speak more, and not force silence.”
Given recent developments — notably, the buzz surrounding Musk’s purchase of Twitter followed quickly by the Biden Administration’s recent announcement that it was creating a “Disinformation Governance Board” — and discussions surrounding the concepts of free speech and First Amendment protections, these lessons are particularly pertinent.
The ACLU had the following to say regarding Musk’s purchase:
“While Elon Musk is an ACLU card-carrying member and one of our most significant supporters, there’s a lot of danger having so much power in the hands of any one individual. In today’s world, a small handful of private tech companies — including Twitter — play a profound and unique role in enabling our right to express ourselves online. Social media has become a crucial tool for sharing ideas and opinions as well as consuming information which can have real-life consequences in offline discourse. We should be worried about any powerful central actor, whether it’s a government or any wealthy individual — even if it’s an ACLU member — having so much control over the boundaries of our political speech online.”
I’ve yet to see a statement from the organization regarding the Disinformation Governance Board.
It’s a long distance from Skokie!