Can We Split The Bill ... Of Rights?
By Dayvid Fiegler
There were a lot of Jewish babies born in the Chicago suburb of Skokie, Illinois in the 1960s. It wasn’t a surprise. In the mid-sixties, almost 60 percent of the residents of Skokie were Jewish, and as late as 1977, it was widely reported that one out of every six residents was either a Holocaust survivor or related to one. Even though my family permanently moved to Las Vegas in 1971, my birth certificate claims Skokie as my birthplace, too.
I remember the discussions around the dinner table in 1977 and 1978 about American Nazi’s picking Skokie to stage a demonstration. The promised visuals of Nazi flags, Heil salutes, and anti-Semitic chants were all too visceral and infuriating. My father had enlisted in the Army in World War II with the specific purpose to fight the Nazis – even though the government decided his talents were better used in the freezing tundra of the Aleutian Islands in the Bering Sea. And while his only “action” was a single, Japanese air attack over a three-year tour, the toppling of that dead-eyed, fascist, maniac Jew-killer (name never uttered) was foremost in his mind. Our collective family opinion about what was happening back home was uniform among our friends and family – it’s a shanda to let them march. And that was the nicest thing said about these Neo-Nazis or as my dad called them “the Nazis.”
The discussion at the time was not, of course, limited to family tables, but made it all the way up to the United States Supreme Court. The case of National Social Party of America (NSPA) v. Village of Skokie paved the way (but did not decide the merits) for a deliberately provocative march in the face of those Americans arguably most devastatingly impacted by the actions of the Third Reich. Paved the way in that the United States Supreme Court found that, at least procedurally, the efforts to disallow the march could not be summarily upheld; the First Amendment was in play. Then, once the case was sent back to Illinois, it turned out the NSPA had already thought twice about being vastly outnumbered in a hostile environment and moved their efforts to the more general population of Chicago. That the march never actually occurred in Skokie or that the United States Supreme Court never actually said they could is lost to history – the takeaway being that the First Amendment is a powerful vehicle for tolerance of even the vilest speech and that a free society should not only expect controversial exhibitions but be strong enough to sustain even the most provocative of them. Indeed, it is the Skokie case that is most often invoked in defending the rights of white supremacists and our annoyingly persistent villains, the Nazis, to take their tiki-torched, antiquated ideas show on the road in places like Charlottesville, North Carolina. But does the Bill of Rights protect even murderous ideologues calling for the systemic elimination of an entire group of people?
Forty years after Skokie, the debate rages on. But the origins of the discussion of the elasticity and boundaries of free speech under the First Amendment predates even WWII and comes from a line of cases starting after World War I. As we take sides and prepare to protest, counter-protest, or even (forbid) start blathering on social media, it’s a good idea to take stock of how the Courts have defined the meaning of the First Amendment. Some of it may be surprising, but all of it should shape the blueprint of our country’s hallowed marketplace of ideas.
In 1919, while discussing the right of people to attempt to dissuade draft-age men from induction into the military during wartime, the esteemed Supreme Court Justice Oliver Wendell Holmes, Jr. essentially created the test that was used for the next few decades. It called for any punishment for speech to be evaluated as to its “clear and present danger” to society. And while the case, Schenck v. United States, was resolved in favor of prosecuting the speech at issue, the more relied upon quotation that came from that case is known as the “fire in a theater” metaphor. Here, Justice Holmes said “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. [...] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”
In 1927, the Supreme Court upheld another conviction of a woman trying to help establish the Communist Party in the United States. Using the clear and present danger status, the Court ruled unanimously, however, and the decision is most notable for a concurring opinion from the country’s first Jewish Supreme Court Justice, Louis Brandeis. In that case, Whitney v. United States, Justice Brandeis warned of a great danger “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.” He went on to explain the mistakes of the past in suppressing speech:
“Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech, there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one.”
After World War II, the majority of the Court came down with a decision that, for the first time, upheld some incendiary language towards Jews. In 1949, in the case of Terminiello v. City of Chicago, the Supreme Court reversed a small fine imposed on an incendiary Catholic priest who gave a speech laden with anti-Semitic tropes which caused the gathered group of 800 or so followers to react by saying things like, “Yes, the Jews are all killers, murderers. If we don’t kill them first, they will kill us.” The anti-Jewish stories elicited exclamations of “Oh!” and “Isn’t that terrible!” and shouts of “Yes, send the Jews back to Russia,” “Kill the Jews,” “Dirty kikes,” and much more of an ugly tenor. While the famous Jewish Supreme Court Justice Felix Frankfurter dissented in that case, it is the further dissent of Justice Robert Jackson that resonated at the time. Justice Jackson eloquently opined: “The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is a danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.”
Next, in 1969 came Brandenburg v. Ohio, where the Supreme Court, in reversing the conviction of a Ku Klux Klansman intent on gathering to spread the word of hate and anti-Semitism, also reversed the standard of United States v. Whitney from 1927. Now, and this still holds true today, there can only be a conviction if the speech at issue poses “incitement to imminent lawless action.” In other words, if it’s a call to those listening for an immediate riot. This lead to the Skokie situation and a number of subsequent cases including one last case of note from 1992 called R.A.V. v. City of St. Paul. In this final case, St. Paul, Minnesota had passed a law banning cross-burnings and displays of the swastika. The Supreme Court held that even if sometimes displaying a swastika could be considered “fighting words” (and therefore not protected by the First Amendment), there were times when it isn’t fighting words, and therefore the law itself is unconstitutional.
And in all this context of what has come before, comes Charlottesville, North Carolina, where neo-Nazis and white supremacists applied for a permit to “protest” the removal of a statue of Robert E. Lee as what appears to be a clear pretext merely to spread abominable and disgusting words of hate. Citing the precedent of law, a Federal Judge allowed the permit to be issued, and understandable throngs of counter-protesters gathered. Violence ensued amidst clear and unequivocal displays of Nazi salutes and swastikas and chants of Nazi slogans. A woman was killed (and many other injured) when a car drove through the crowd of counter-protesters, allegedly on purpose.
Now, here I am back at the kitchen table with friends and loved ones. Leading the conversation. My parents passed. A law degree under my belt with a fuller and more precise understanding of the tensions of order and liberty. On the one hand, disgusted that it always seems to be the Jews as the targets. Still unable to wrap my head around the WHY US? Always us! Equally repulsed of course by language against specific races, colors, creeds, religion, gender, sexual orientation, country of origin, but not unaware that these groups bring their own personal stories into the equation that I can’t possible fathom. Forty years later it’s all still a shanda.
And then, on the other hand, like many, a firm advocate of speech, of the idea of fighting words not with violence but with better words. Of using all legal means short of suppressing mere words to accomplish the order necessary for a functioning democracy.
But the violence at hand is not a theory, it’s becoming a reality. And the intellectual discourse I wish for is an illusory fantasy. How did we get to this point? Is Justice Jackson’s warning that we could kill ourselves on our own rights true? Is it not so universal that “Nazi” is the closest we know to actual versus hyperbolic evil and can’t we therefore just ban Nazis like they do in Germany and other parts of Europe?
Of course, if banning Nazism and their symbols were enough, the rise of anti-Semitism would not be the reality of today. In fact, it is generally accepted that even with the large uptick in anti-Semitism in the United States, it’s far more prevalent in places where any such expression is banned. And then, once we ban speech or speeches, how far behind are books? In Germany, you can’t find a legal copy of Mein Kampf, but in the Terminiello case, Justice Jackson quoted it – probably the only United States Supreme Court case that does so.
There, Justice Jackson warned that the Nazi slogan ‘possession of the streets is the key to power in the state” is not a laughable abstraction but became the basis of the fascist Third Reich. Words have power, and as they flow unfettered through the streets, they gain more power. I have many thoughtful friends who claim empathy for my terror at the increasing incidences of hateful speech and actions, but they try to assure me that other laws, short of suppressing speech, are in place to combat violence and aggression. It’s true, if not comforting. They don’t share my experiences. If the lessons of legal history have taught anything, this is an issue that perhaps transcends the First Amendment. It is about the human heart and spirit.
Perhaps speech and symbols are not the issue, as much as it’s about truth and speaking out. Pointing out fallacies. Making people responsible for their libelous and hostile words. To think that we can merely all sit down in a room and intelligently work through conceptual hate is naïve, but that we can make it uncomfortable to spread lies and hate is our duty. It’s a lot like the idea of having the right in court to confront your accusers; they say it’s always harder to lie about a person when you’re face-to-face. And even as we may be incited, we must refrain. But as we refrain, we must never forget. And so that we may never forget, we must always, at a minimum, show up and repeatedly prove that those who seek to destroy us are to be marginalized, debunked and called out. Above all, however, we must be sure they are prosecuted the moment they step away from (or over) the First Amendment that protects our fundamental value of liberty over oppression.