Others entertained the idea of foregoing Constitutional rights altogether and adopting a manner of legal censorship currently employed by Germany, whose Strafgesetzbuch (Criminal Code) prohibits outright the public display of “symbols of unconstitutional organizations” outside the context of "art or science, research or teaching.”
Apropos of this discussion and harkening back to a similar debate, I checked out Aryeh Neier’s Defending My Enemy: American Nazis, the Skokie Case, and the Risks of Freedom from our library.
Mr. Neier was National Executive Director of the ACLU from 1970-78, an organization committed to arguing (often controversial) cases in defense of the First Amendment. The book chronicles one such case in 1977, National Socialist Party of America v. Village of Skokie, in which the ACLU took up the right of Frank Collin, leader of the National Socialist Party of America, to hold a rally in Skokie Illinois -- a deliberately provocative move in light of the large population of Holocaust survivors within that particular city. (Also interesting is the fact that Mr. Neier himself is a survivor of the Holocaust, born in Berlin in 1937 and having escaped to England with his parents at the age of two).
Neier spends the initial part of the book providing a history of anti-semitism and activity of national socialist movements in the United States (the German-American Bund of the 1930’s and George Lincoln Rockwell’s post-WWII founding of the American Nazi Party in the 50’s, The National Rennaisance Party in the 60’s, The National Socialist White People’s Party and the National Socialist Party of America in the 70’s, et al., et al.). The term “Party” is deceptive here, as Neier makes clear they were in those times relatively small in membership and for which reason they -- much like today -- craved the publicity of the media to cultivate a much larger impression of themselves among the general public. We learn that it was once the position of the National Jewish Community Relations Advisory Council that “public protests against [Rockwell’s] appearances and noisy and violent mass demonstrations merely provide him with increased publicity and bolster the image of martyred hero which as such an appeal to the elements he seeks to attract to his banner” -- which I suppose is the modern-day equivalent of the online admonishment: “don’t feed the troll.”
Chapters 3 and 4 are devoted to presenting the background and specifics of the Skokie case itself. He reviews the criticisms of those who opposed the Nazi march in Skokie (both external critics as well as internal dissenters within the ACLU), and the reasoning that ultimately led the organization to affirm the Nazi’s right to a march and to challenge the various measures -- ultimately found unconstitutional by the Illinois Supreme Court -- which the city of Skokie sought to stop them (ex. ordinances demanding exorbitantly high insurance for the holding of public rallies; an injunction forbidding the distribution of literature that incited hatred, the display of the swastika, the wearing of uniforms). Some of the explanations for why Nazis should be forbidden to speak may ring familiar to those on social media or college campuses today: the Anti Defamation League, for example, sought an injunction against the march on grounds that it would be tantamount to the infliction of “menticide” or emotional harm.
Curiously this was not the first legal case of its kind for the ACLU, nor the first time that it had defended Nazis’ right to speech. According to Neier, the ACLU handled more free speech cases in the 1960’s than at any time previously in the organization’s history. It was pretty much understood that anybody who had a legitimate case to exercise their constitutional right -- Nazis, the KKK, Communists, unionists, civil rights and anti-war demonstrators, et al. -- would receive their assistance. “The streets were so crowded with demonstrations of all sorts In the late 1960’s and early 1970’s that the appearance of a few Nazis attracted little interest.”
What then, made the ACLU’s defense of Skokie so controversial? -- Neier blames himself: “the fault, it became clear, was in our (my) failure to provide adequate information to the membership. It was not enough, Skokie proved, to say that the ACLU defends everyone’s right to speak.” Apparently many fairly recent and "progressive" members within the ACLU (not familiar with the demonstrations of the 60’s), while affirming a general and abstract right to speech, found themselves backtracking when said right became a tangible, defensible reality for those to whom they were ideologically or politically opposed. More than 4,000 ACLU members would respond to Skokie by sending in their letters of resignation, despite the unanimous approval of the state and national leadership to move forward with the case.
In chapter 5, Neier discusses several related legal cases to Skokie including that of Rockwell vs Morris (arguing for the Nazi right to demonstrate in NYC’s Union Square Park) and a fascinating and controversial case in 1977 involving the ACLU’s defense of both members of the KKK and black soldiers against the U.S. Marine Corps at Camp Pendleton, CA, another display of “poisonousness evenhandedness” which, unlike Skokie, would elicit great internal dissent between (the again, "progressive") local chapter of the ACLU and the principled national leadership.
In all fairness, Neier devotes one chapter (“They Have Rights?”) to presenting the various arguments made by the opposition as to why Nazis should be prohibited from rallying, and a subsequent chapter (“The Risks of Freedom”) countering them. He particularly excels in the remaining chapters of the book demonstrating, via copious historical examples, how the very arguments proposed, and policies employed, to suppress the speech of Nazis or the KKK -- whom we would (justifiably) regard as deplorable -- are often turned around by authorities to suppress groups we might find laudable or on the side of justice (civil rights workers, anti-war protestors and anti-nuclear or environmental activists). Consider several examples:
- The National Espionage Act of World War I punished the uttering, writing or publishing of disloyal, profane, scurrilous or abusive language intended to cause contempt, scored, contumely or disrepute to the form of government of the United States, the Constitution, the flag, or the uniform of the Army and Navy. State and local laws patterned after the act, and contributed to "the gravest period of political repression in American history" — denying the freedom of speech or political action to Communists (displaying a "red flag" at a youth camp), Jehovah's Witnesses (breaching the peace through distribution of anti-Catholic literature) and the Industrial Workers of the World ("Wobblies"). Though meant to only apply in time of war, the remaining provisions of the act were "sweeping enough to have allowed the Nixon administration to indict Daniel Ellsberg in December 1971 for disposing publicly the contents of the Pentagon papers." [p. 109-117]
- Chicago Mayor Daley expressed support of a proposal to prohibit depictions of excessive violence on television; when asked to provide an example of such violence, he referred to a documentary including graphic footage of Chicago police beating up anti-war and anti-Daley protestors. [p. 140]
- Joseph McCarthy and his colleagues, in their zeal to defend America against "enemies of freedom", prosecuted Stalinists and anti-Stalinists alike — fellow travelers and liberals they mistakenly identified as Communists. [p. 146]
- Parliament adopted the Public Order Act in an effort to suppress English fascists in the 1930's, making it a crime to use "in any public place threatening, abusive or insulting words with the intent to provoke a breach of the peace" and to empower police to suppress such political marches. The act also prohibited the wearing in public places uniforms expressing a political point of view. During the Cold War and beyond, the government invoked the Public Order Act to suppress the demonstrations of Communists and later, anti-nuclear activists. [pp. 149-159]
- In 1965, Parliament adopted the Race Relations Act, making the incitement of racial hatred a crime and prohibiting the distribution of abusive, threatening or insulting literature directed at any racial group. In a move that the National Front would find most pleasing, such measures were adopted by parties ranging from student unions on college campuses to the United Nations General Assembly to suppress the speech of Zionists campaigning for a Jewish homeland. (Meanwhile, the National Front circumvented the Act by adopting code words substituting for race (i.e., "immigrants"). [pp. 149-159]
"In Britain, Parliament has the law word," observes Never. "A parliamentary law abridging the freedom of speech is only susceptible to challenge by Parliament itself." Under the Official Secrets Act, Britons are routinely denied information about the proceedings of their government, and laws against libel and public comment on judicial proceedings are used to curb the public. (p. 150).
Noting that England has no equivalent of the First Amendment, Neier notes that the British citizen "whose freedom of speech has been curbed cannot challenge the Public Order Act, the Official Secrets Act, or the Race Relations Act. They can only resist and hope that officials charged with administering the laws will be wise and will exercise self-restraint." (p. 158)
According to Nier, though Thomas Jefferson and John Milton “understood the risks of freedom, they knew that it is far more dangerous to entrust the government with the power to determine what doctrines may be safely expressed by the people. (p. 136) … it is far more dangerous to allow government to deny the freedom to speak to the enemies of freedom. Almost inevitably, government confuses the enemies of its policies with the enemies of freedom. (p. 146)”
I found Defending My Enemy: American Nazis, the Skokie Case, and the Risks of Freedom to be very educational reading on this topic, providing an insight against how a Holocaust survivor could defend the constitutional right of Nazis to hold a march in the United States. Others are certainly entitled to disagree with Mr. Neier on this point, refusing the recognition of free speech to those who espouse ideologies adversely at odds with their own or America's founding principles. But as Mr. Neier demonstrates, while it might provide us with great personal or emotional satisfaction to suppress (by city ordinance, or even at times through vigilante violence) the speech of those we disagree with or consider a threat, there may be long-term consequences to doing so.
“The best consequences of the Nazis’ proposal to march in Skokie is that it produced more speech, a great deal more -- it stimulated more discussion of the evils of Nazism and of the Holocaust than any event since the Israelis captured Adolf Eichman in Argentina in 1960 …
The worst consequences of the Nazis proposal to march in Skokie is that the argument against permitting the march have fostered the impression that a community can asert that those whose views are anathema to it can be forbidden to enter its boundaries. It is not the first time a town or neighborhood has asserted a power to exclude views or dislikes from its own “turf.” The practice, however, had been largely discredited after Mayor Frank Hague lost his battle forty years ago to keep labor organizers out of Jersey City. Skokie revived the idea that it might be legitimate.” (p. 145)
Page citings refer to the 1st (1979) edition.