On Saturday at RedState, Nick Arama penned an article about Bill Maher mocking the rumblings that many appear to be experiencing over Elon Musk's acquisition of Twitter. In the article, Nick noted: “We've been a long way since Skokie….”
I first came across “the Skokie case” in law school (roughly 30 years ago – I'm not sure if that's a good thing!). It's an instance that left an impression, since the decision is a challenge to our perception of right and wrong and good and bad. It challenges the limits of freedom of speech and emphasizes the necessity of protecting speech when it is most offensive. In essence, what I remember from the court case is that the ACLU was the one to represent Nazis with respect to First Amendment grounds and ultimately won the right to march.
The real story is more complicated. “The Skokie case” (National Socialist Party of America v. Village of Skokie, 432 U.S. 43 (1977)) was a case involving an assemblage of Nazis who, during the beginning of spring 1977, were planning to hold a protest within Skokie, Illinois, a town in the northwestern suburbs of Chicago with a significant Jewish population. The town wanted to prevent the protest. Several lawsuits ensued. The final decision was made by the Supreme Court of the United States who determined that any previous restriction on the exercise of First Amendment rights must employ strict procedural safeguards. This includes the right to make an immediate appeal.
The Supreme Court thus sent the case back to the Illinois Appellate Court for review. The Appellate Court decided that the NSPA was allowed to march, but not display the swastika since it was not covered by the First Amendment. The appeal was made by the Illinois Supreme Court which then decided that the swastika was an expression of freedom of speech that does not qualify as “fighting words,” thus permitting the NSPA to proceed with their protest. (Ultimately they decided to hold the NSPA march in Chicago as a whole, and not just the city of Skokie.)
It is worth noting that the principal ACLU attorney for NSPA was David Goldberger. As I was doing the research I did for this piece, I came across an intriguing article by Goldberger from month March, 2020. Here are a few key passages from the article (though I strongly recommend reading the entire article):
The community's resolve to stop this Nazi demonstrators was so strong that it resulted in making the Skokie incident into a shining illustration of the power in the First Amendment, as well as the ACLU's fervent determination to defend the fundamental principle free speech as a fundamental right regardless of the offensive message or the person speaking.
The entire action of the village against the meeting came down to the same point: Skokie wanted what is called a “prior restraint” against any Nazi speech made in Skokie. In non-technical terms this means that Skokie was looking for an avenue to block the Nazis from speaking prior to having the opportunity to express their ideas.
It is important to note that the First Amendment principles that apply to prior restraints are simple. Any attempt to restrict speech by shaming a speaker after the fact could be in violation of constitutional rights under the First Amendment; preventing the speech prior to the date is even more likely to be in violation of the Constitution regardless of whether the speech planned is off-putting or offensive. The ACLU's primary goal is the idea that if the government has the power to restrict speech that is legal because it is offensive, it is able to block any speech it does not like. That is, the power to deter Nazis also includes the power to disarm protesters of every kind and also to stop the media from publishing embarrassing news or criticism that officials call “fake news.” The irony is that Skokie's efforts join the Nazi protests mirrored the tactics of Southern communities to join civil rights marches which were led by Martin Luther King during the 1960s.
As Goldberger observes, the decision to be a representative of the Nazis was met with fierce community opposition:
“I was initially hoping that this Supreme Court ruling would help all people understand what is important to safeguard First Amendment rights and that the growing criticism would eventually diminish. This was not the case. After the issue of the injunction, the level of criticisms of our defense of Nazis rights continued to grow. The Chicago office was swamped with calls expressing displeasure at our actions. In the United States hundreds of ACLU members quit. (Some estimates suggested as many as 500.000.)”
Today the case brings the ugliest feelings of representing an individual whose constitutional rights were infringed, but who also represented the prejudice and hatred that continues to be a part of America. I was a victim of being constantly criticized for being an untrue Jew. Also, I recall the fear that I might be confronted physically. One time, I requested an off-duty Chicago police officer who was a good friend of mine to accompany me on an appearance (in civilian attire) in which very hostile people were expected to be in attendance. Another time I requested a colleague who was a Vietnam War veteran of large physical size to join me, based on the notion that an audience member who was hostile is less likely to behave aggressively when I had my friend nearby. In two instances people were removed by the local police.
However, Goldberger points to support he received in pursuing the matter and its issue and, in the end it outlines the importance of standing up on behalf of freedom of speech, especially when it comes to speech that is offensive to the majority:
I can recall other occasions of unanticipated help as well. There were instances that, during the talks I delivered on Skokie, Holocaust survivors courageously stood and said that I was correct to represent the Nazis. Another time, a survivor wrote to me and said the same thing. They said that they didn't wish to see the Nazis to be pushed out through laws that repress speech or court orders. They stated that they wanted to spot their enemies in plain view so they would be able to identify who they were.
Their words were like beacons in the dark of anger and miscommunication. Even to this day I am convinced that the ACLU's dedication to equality of rights for all is the foundation of our democratic system regardless of how insensitive our clients may be. Infringing on this principle can lead to the demise of our First Amendment as a bulwark against oppression by dictators.
This is what struck me about this incident more than 30 years later. The essence is the idea (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.”
In the past, (I thought) that was the thing that it was that the ACLU represented — protection of civil liberties to alleven the most vile or least popular causes. For instance, the ACLU was a representative of members of the Ku Klux Klan in its attempt to be a part of Missouri's Adopt-A-Highway program in the late 1990s. The program permitted both organizations and individuals to “adopt” stretches of roadway for cleaning. As a reward, signs bearing the names of adopters are put at the end of each of the stretches that were adopted. Naturally, concerns were raised at the time the KKK applied to participate in the program. The case, too, was a complicated process, but eventually in 2000, the 8th Circuit Court of Appeals declared that Klan's denial of application was not constitutional. In the last section of the decision, the Court explained:
There are more effective methods to counter the racist ideology of the Klan than engaging the state in discrimination based on views. There are a variety of constitutionally sound ways both private and state officials alike can disapprove of the Klan's divisive opinions and denounce those opinions in the most uncompromising words. However, the exclusion of a viewpoint person or group from the government's program isn't an acceptable method of disapproving of ideas — even ones that are utterly unsound, which the government does not like.
In March 2001, the Supreme Court declined to hear Missouri's appeal against an 8th Circuit ruling. According to The LA Times:
Robert Herman, an attorney who is a member of The ACLU in St. Louis defended the Klan and stated that he was satisfied to see the lawsuit closed. “We think we secured an important right. The government cannot punish people for holding unpopular political opinions,” He said.
There's an interesting note to both cases. After the court's decision regarding the Adopt-A-Highway case, the Missouri legislators passed a law calling the highway that was adopted by the Klan “Rosa Parks Highway,” in tribute to the famous civil rights activist.
In Skokie and the Chicago region, a number of anti-Nazi protests were held during July 1977. Following the NSPA's rulings, the NSPA residents of the village decided to set up their own museum, the Illinois Holocaust Museum. The museum's website says:
Following these marches, Chicagoland Holocaust Survivors joined together to create The Holocaust Memorial Foundation of Illinois. They bought a tiny Skokie storefront and then made it accessible to the public, with a focus on fighting hate through education. The 65,000 square-foot Illinois Holocaust Museum & Education Center which was inaugurated in 2009 was the culmination of over 30 years of dedication by the survivors.
There's a common theme in this. This is one that is closely related to my comment in this post:
The most important aspect of healthy public discourse is discernment, not the practice of censorship. In the words of Justice Brandeis that he wrote nearly a century back: “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the process of education, the remedy to be applied is more speech, not enforced silence.”
In light of recent developments — including the hype surrounding Musk's acquisition of Twitter and then the Biden Administration's announcement last week that it would be establishing a “Disinformation Governance Board” -as well as discussions about freedom of speech and First Amendment protections, these lessons are especially relevant.
The ACLU has the following to say about the purchase by Musk:
“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 is a critical tool used to share ideas, express opinions, and consume information that has real-life impacts in discourse in the offline world. 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 not seen an official statement from the organization about the Disinformation Governance Board.
It really is a long way from Skokie.