Freedom of Speech and the Skokie Legacy

Defending the principle vs. the practice of free speech.

This may be considered somewhat of an addendum to the previous essay, given that “freedom of speech” has formed a central theme of campus protests in recent weeks. In many respects, it has been quite revealing. The very political movement responsible for reducing universities to ideological monoliths of intellectual conformity and homogeneity, enforced with a culture of vindictive censorship and intolerance, is now suddenly crying foul on their right to freedom of speech. Across from them stands the Right-wing Bros who have spent the past decade wailing that they “can't say anything anymore” (hate to break it to them, but conspiratorial gibberish and “anti-woke” hysterics just aren’t that interesting) and elevated petulant, emotionally incontinent buffoons like Elon Musk to the role of Saviour of Free Speech, suddenly applauding the force of the State being brought to bear on the protestors. As a spectacle, it has all been rather pathetic.

I had thought initially to include some discussion on freedom of speech in the previous essay, but it seemed a divergence from the central point of Left/Progressive anti-Semitism that would be better elaborated as an essay in its own right. Yet there is a more compelling reason for separating the themes, which is that when it comes to the concept of freedom of speech in America, there is a very particular example that relates directly to anti-Semitism and the Jewish community in America. The example in question was a year-long legal struggle that is considered a highly influential case in modern American jurisprudence on the First Amendment, freedom of speech, and civil liberties. For clarity, the First Amendment to the U.S. Constitution states:

“Congress shall make no law . . . abridging the freedom of speech ... or the right of the people peacefully to assemble and to petition the government for redress of grievances.”

Given some of the slogans and rhetoric which has marred many of the protests (see the previous essay), the questions considered by the U.S. Supreme Court in the Skokie case are highly pertinent today.

The scene is set in Chicago, Illinois, in 1977, and a village (“village” in the American context of local political subdivision) neighbourhood named Skokie. The National Socialist Party of America (yes, “that” type of National Socialist) had applied to the local government for permission to hold a public rally in a Skokie park, to which the authority had insisted, based on local government ordinances¹, that they obtain public liability and property insurance. At ~$350,000 this was a sum the paltry-sized Nazi group could not pay. Skokie at the time had a population of ~69,000, of which ~40,000 were Jewish and included ~7,000 Holocaust survivors; provocation was clearly an intent of the rally, in such a location. To protest the local authority’s insurance requirements, the party announced that they would stage a march through Skokie in full Nazi regalia, dressed as stormtroopers in their brownshirts and jackboots and brandishing swastikas. In response, the Skokie residents passed two resolutions, one which called on the local authority to ban the march and the other mobilising a counter-demonstration.

In fear of the potential for the march and counter-demonstration to result in violence, the Skokie local government sought an injunction to prevent the march before the county Circuit Court, citing the potential incitement to violence that the march entailed; the Circuit Court granted the order. The American Civil Liberties Union (ACLU), who had stepped in to provide legal defence for the Nazis, appealed the decision to the Illinois Court of Appeals and sought a stay on the order to prohibit the march, which the Court refused. Three local government ordinances had been leveraged to prevent the Nazis from marching; the ACLU then appealed to the Federal District Court to quash the ordinances in question, and the Court granted the application, ruling the three ordinances to be unconstitutional.

Specifically, the Federal District Court ruled that the insurance requirements acted as an unconstitutional barrier to the exercise of the rights protected by the First Amendment and that the wording of the ordinances as it pertained to permitted speech was too broad and opaque such that their application could place an unconstitutional restraint on freedom of speech. Skokie had also argued that cosplaying in Nazi uniforms and waving swastikas in an area with Holocaust survivors went beyond the pale of freedom of expression; the Federal District Court ruled that such symbols may indeed be repugnant, but banning the symbols was also an unconstitutional restraint on freedom of expression.

The decision of the Federal District Court was appealed to the U.S. Supreme Court, which declined to hear arguments in the case and granted a final order quashing the ordinances and reversing the decision to refuse a stay on prohibition of the march.  In so ordering, the Supreme Court upheld the decisions of the District Court that the ordinances and the injunction were an unconstitutional deprivation of rights under the First Amendment, i.e., freedom of speech and expression. It should be noted that the Skokie case turned on its particular facts. In particular, the fundamental basis of the ACLU’s appeals to the federal courts on behalf of the Nazis centred on the ordinances themselves in their wording and their use as an obstacle to the exercise of First Amendment rights. The Nazis argued that as they intended to carry placards with terms like “Free Speech for White Americans” and “White Free Speech”, the march was not intended to express religious and/or racial hatred directed at Jews or to incite violence, but rather to protest that their freedom of expression had been unjustly curtailed by the local authority and initial court injunction. This placed the intent of the march somewhat outside other Supreme Court precedents, such as Chaplinsky v. New Hampshire (1942, 315 U.S. 568) Supreme Court decision in which the Court held that the First Amendment does not protect “fighting words”, i.e., words that “inherently cause harm or are likely to result in an immediate disturbance”.

Nevertheless, with the determination of the Supreme Court, the Nazis were legally cleared to march. But the March in Skokie never took place in the end; as the decisions to quash the ordinances applied across the entire city of Chicago, the Nazis eventually took their rally to Marquette Park. Far more consequential was the effect on the ACLU of providing legal representation to the Nazis; it is estimated that over the year of the legal battle, the organisation lost ~15% of its membership - ~30,000 in total - and lost up to $500,000. The Skokie case raised a heated debate about the true intent and application of the First Amendment, in particular, whether the rights enshrined therein should be extended to protect the expression of demonstrably repulsive ideologies. More particularly, the case was notable for the position it placed American Jews in. American Jews have always been vibrant defenders of civil rights and liberties; the executive director of the ACLU at the time, Aryeh Neier, was himself Jewish, and defended the ACLU’s decision to represent the Nazi group in a 1979 book entitled ‘Defending My Enemy’.

However, many saw the ACLU’s position as an example of a principle being defended for specious reasons, divorced from any real understanding of how such a principle operates in practice. In other words, the principle of free speech operates on the assumption that permitting a wide variety of speech contributes to a collective advancement of democratic ideals and the pursuit of truth; there is consequently no principled need to extend this right to people and groups who openly reject such ideals. In this context, “free speech” as a principle may be manipulated by those who have little interest in using free speech for the advancement of those ideals. However, Neier and others who supported the ACLU’s position saw otherwise; that it was the very principle, rather than the practice, that warrants primary consideration. If we are only focused on the practice, then any group could provide a reasonable justification for suppressing the freedom of speech and expression of any other group it disagreed with, by virtue of simply not liking what, in practice, they say and do. And if a group, party, or movement, happened also to be an unpopular minority (like Nazis), this would allow for the strong hand of the majority to impose, without restraint, that restriction of speech and assembly on the group.

This latter distinction formed the core issue of the Skokie case, and the basis of the ACLU’s legal defence; that the local government ordinances amounted to a majority leveraging unfettered power to deny the First Amendment rights of the small group, however repugnant and unpopular their ideas and their expression may be.² The “majority” in this case was the local level government and courts. An interesting characteristic of the Skokie case was the clear delineation between the local Illinois Courts and the Federal Courts. It was at the local (Cook County) Circuit Court and Illinois Appellate Court level that the ordinances prohibiting the Nazis from proceeding were upheld; it was the Federal Courts, being somewhat more removed from the emotions and tensions on the ground, that quashed the decisions of the lower courts. In this regard, we can see the distinction between the principle and practice of free speech. The Illinois Courts, in closer proximity to the realities on the ground, were more sensitive to the practice in question, i.e., cosplaying brownshirts and swastikas, which swayed their decisions. Conversely, the Federal Courts, with the benefit of distance, determined the issue by reference to the principle in question, i.e., the repugnance of the views, speech, and symbols in question was secondary to the consideration of whether undue restrictions had been imposed on their expression.

In Skokie, the village had relied on the Chaplinsky precedent in arguing that the Nazi march constituted “fighting words” within the meaning of that decision. However, the so-called Fighting Words Doctrine has been interpreted with a very narrow scope by the Supreme Court, restricted to cases of face-to-face incitement to violence, i.e., where the addressee of the speech is physically present.³ In addition, a competing doctrine introduced by the Supreme Court in Terminiello v. City of Chicago  (1949, 337 U.S., 1), known as the Heckler’s Veto Doctrine, held that speech which “stirs the public to anger, invites dispute, brings about condition of unrest”, remained constitutionally protected speech, i.e., the presence of an audience that may be hostile to receiving the speech was not grounds for suppressing the speech.⁴⁵ Nor was the offensive nature of speech, or the potential for offence to be taken, sufficient justification for the suppression of speech, as decided by the Supreme Court in Cohen v. California (1971, 403 U.S., 15).⁶ In the proceedings, the ACLU relied on these precedents to make their case that the planned slogans, uniforms, and swastika, however abhorrent, still constituted speech and expression protected under the First Amendment.

All of this leads us back to the recent protests and the suggestion that the ideas, slogans, and chants somehow went beyond the pale. Except, as even the briefest of reference to these precedents makes clear, most if not all of it would be considered protected speech under the First Amendment. Of course, the First Amendment makes plain that assembly protected under its provisions should be “peaceful”, and breaking into buildings, smashing windows, and disrupting the function of a university, placed those who chose to engage in such behaviour beyond those protections. Whether you agree with the extent of the force used by police to deal with those breaches is another matter. Personally, given the highly militarised approach to policing in America, it doesn’t appear to me that American policing is capable of exercising law enforcement without recourse to increasing use of, and levels, of force.

Nevertheless, the legal precedents are quite clear that a wide scope of tolerance is applied to the expression of speech. Even the instance of, e.g., “all Zionists deserve to die” by the Columbia activist leader, would arguably fall outside the narrow scope of the Fighting Words Doctrine given that it was spoken into a camera and could not incite face-to-face violence at the time, and certainly the potential for the words to offend would not be sufficient justification for suppression. It should, however, be noted that this jurisprudence has always contained dissenting interpretations, with one particular line of reasoning being that while “fighting words” may not result in physical violence, they may be so offensive and emotionally distressing so as to place them outside the protections of the First Amendment.⁷ Others have argued for compromise between principle and practice, i.e., in the case of Skokie by allowing the Nazi march but prohibiting the display of swastikas.⁸

The point of this essay is not to exhaustively consider all angles of the speech and assembly of the campus protest relative to the First Amendment and its attendant jurisprudence. Rather, it is to highlight and consider the distinction between principle and practice, and how the considerations raised by the Skokie case are relevant today. Given all the angst about free speech currently, one could be led to the false assumption that people at the time of the Skokie legal battle had a better grasp of the principle of free speech, but the response to the ACLU’s defence of the Nazis demonstrated at the time, people had very little grasp of this distinction. David Hamlin, the executive director of the Illinois branch of the ACLU during the case, reflected on the fact that of the hundreds of phone calls to their office protesting their representation of the Nazis, not a single person knew the basic facts of the case.⁹ Neier highlighted an irony that many ACLU members who wrote letters of resignation also returned their membership cards in the letter without seemingly noticing that the First Amendment was printed on the cards.¹⁰

The primary distinction between then and now is at the institutional level, particularly the Federal Courts which exhibited a clear grasp of the principle of freedom of speech. The issue confronting us presently is that our institutions, governments and corporate tech monopolies in particular, have lost all sight of the principle. They have no idea what to do concerning freedom of speech. This is perhaps the fundamental difference between the climate in which the Skokie case was decided and today. In Skokie, a minority group had access to a forum for the resolution of a rights dispute, the Federal Courts, which was insulated from the pressures of the majority, and the institution (i.e., the federal judiciary) did not cave to the pressures and sensitivities of the group that sought to restrain the exercise of the minority group’s rights. In our current climate, our institutions are no longer functioning and capable of withstanding pressure from special interest groups, often with narrowly defined agendas to suppress legitimate criticisms. In some cases, this manifests as a “tyranny of the minority”, such as with Scotland’s insane recent “hate speech” laws and Ireland’s equally draconian proposed “hate speech” bill, both of which reflect the pressure of Progressive identitarian groups. In some cases, it manifests as suppression of the expression of minority interests, such as with Germany’s obscenely forceful repression of pro-Palestinian protests and conferences.

A particular criticism of Neier and the ACLU’s position at the time was that it gave primacy to theoretical underpinnings and the principle of free speech enshrined in the First Amendment, ignoring the real-world implications of the practice of giving a platform to a reviled and dangerous political ideology. But that was to the ACLU, and remains for us today, precisely the point; it is the fundamentals of the principle that require upholding in a free and tolerant society, rather than for the principle itself to be judged through the specifics of the practice, unless that practice legitimately falls within the narrow circumstances of exception that justify the suppression of speech, expression and/or assembly. Due to this nexus of principle and practice, freedom of speech has always existed in tension with groups who openly advocate for subversion of the socio-political order or those who deliberately promote false or noxious ideologies, because those groups are often openly hostile to democracy. The defence to this at the time, and which some free speech idealists cling to presently, is the idea that the expression of subversive, false, or repugnant ideologies allows them to be confronted by the truth. However, this “marketplace of ideas” concept, which assumes that in a confrontation between falsity and truth, the truth prevails, no longer survives first contact with reality in the social media-driven, disaggregated information age, where “truth” is relative and multifold. 

Neier stated that:

“The marketplace of ideas is, rather, a means to permit people to engage freely in the search for truth. They choose what doctrine to accept and what doctrine to reject. By being forced to compete with falsehood, truth is tested and strengthened. Truth is not allowed to degenerate into a tyranny that only has a hold on the minds of people because it is imposed on them.”

In our fragmented information hellscape, this belief now appears both overly idealistic, and naive. We are in no danger of any tyranny of truth imposed on anyone; the tyranny of our times that has hold of the minds of people is that truth has degenerated into a marketplace of truths, no longer a marketplace of ideas.

Thus, a major lesson from Skokie was that tolerance and democratic rights were preserved because political tolerance as a principle was upheld by institutions. When our institutions lose their capacity to uphold the principle of tolerance, i.e., the exercise of democratic rights to freedom of speech, expression, and assembly, the framework for preserving these democratic norms crumbles. When it crumbles, the consensus around the principle is lost; it was this consensus that led Neier to defend his enemy, understanding that while he may have despised what they believe and stand for, the principles by which they could express those views warranted defending.

And when the consensus is lost, we end up in our current predicament; an unregulated marketplace of truths within which a multitude of groups compete in a zero-sum battle to dictate, by any social and political means necessary, what is permissible to believe, to say, to teach, to represent, and to protest. A telling symptom of our dis-ease in society, and our democratic decay.

1. An “ordinance” refers to a law passed at the local government or local authority level, e.g., speed limits or waste management.

2. Gibson, J.L and Bingham, R.D. Skokie, Nazis, and the Elitist Theory of Democracy. The Western Political Quarterly. 1984 Mar;37(1)32-47.

3. Rabinowitz, R.A. Nazis in Skokie: Fighting Words or Heckler's Veto? DePaul Law Review. 1979 Winter;28(2):259-287.

4. Ibid.

5. Bollinger, L.C. The Skokie Legacy: Reflections on an "Easy Case" and Free Speech Theory. Michigan Law Review. 1982 Mar;80(4):617-633.

6. Ibid.

7. Rosenfeld v. New Jersey, 1972, 408 U.S. 901, 905-06; Powell, J., dissenting. In Ref. 3, p.272.

8. Ref 3.

9. Ref 2.

10. Ibid.