Protecting Nazi rhetoric in the United States is not about the first amendment.
There’s a lot of people, perhaps asleep and believing strongly they’re taking a principled stance, that believe deeply that somehow allowing Nazi rhetoric in the United States is an issue of protecting the First Amendment. This is a lie, and our country needs to face the truth. That includes the ACLU.
I’m watching the news, just like a lot of you, about the Nazi rally in Charlottesville that turned deadly, when an American Nazi got into his car and plowed it into a crowd of people there. The people he hurt were there to condemn the violent rhetoric of American Nazis.
And afterwards, all day today? I saw it, already, the people talking about, “You have to protect the free speech rights of Nazis to protect all free speech in America.”
And it hit me.
Nobody knows what the hell they’re talking about on this issue.
Nobody knows the details. And somehow, weirdly, I do, because I know the case that became the ground zero source of this dumb meme we live with today, that protecting Nazi speech is about protecting all speech.
The case that most people know, or think they know, about this idea of a principled defense of Nazi speech is “National Socialist Party of America v. Village of Skokie (1977).” On the surface, we all know the story. The basic through-line, one that even the ACLU will sometimes allude to, is that the government (in this case, the people of Skokie, Illinois) have no right to restrict any political speech. Thus, to protect the political speech of everyone, the ACLU took a principled stance, fought this case on First Amendment grounds, then won a victory for the First Amendment and the freedom of all Americans, irregardless of belief. This idea has become so much of a part of so many people’s frameworks on freedom that the details of “Nationalist Socialist Party of America v. Village of Skokie (1977)” have been lost to most people who vaguely understand this case. It’s become almost a truism, especially on the Internet, that we have to tolerate racist, white supremacist rhetoric, because otherwise we would lose our right to free speech.
You’ve heard the argument. Someone says something racist. Someone else says, “I condemn the speech, but I defend the right of anyone to say it.” That’s the echo of the aforementioned Skokie case, echoing into the present.
But I’m telling you, as a point of truth, that “National Socialist Party of America v. Village of Skokie (1977)” had nothing to do with the First Amendment in the end. It wasn’t even decided on First Amendment grounds. Here, read the decision yourself. Have you ever read it? Most people haven’t.
Now, here’s a caveat. 20 years ago, I was considering a career as a lawyer. As a day job, I went into software because, hey, the Internet was exploding. But at my first day job, I worked in a law firm as a paralegal on the Exxon Valdez case. And I’d use their resources to read about cases, including “National Socialist Party of America v. Village of Skokie (1977).” Because at the time, I thought it was interesting, and wanted to be a lawyer. By the time I stopped working at that law firm, I didn’t want to be an attorney. But I had read a lot before I left.
So, I’m willing to concede that maybe, in all of that research and continued reading from time to time over the last twenty years, I’ve missed some cases or case law that has come from “Skokie (1977).” If you can cite the cases, please correct me if I’m wrong. But I remember, over twenty years ago, being astonished that this case that held such a place in our popular culture was essentially irrelevant from the perspective of the Supreme Court. In all this time, I’ve yet to find sources that can show how THAT Supreme Court decision directly impacted, or was used as precedent, in other cases. I’m not an attorney, again, so maybe they do exist. If you know of some case law developed from that decision, leave a comment. But remember, I’m not talking about a Newsweek article, or your opinion, or an ACLU flyer mentioning this while asking for donations, or even what you think you know.
What I mean is case law. What case law has been founded on Skokie (1977), especially in regards to the First Amendment? That’s, arguably, a pretty good litmus test for how important a case is when it gets to the Supreme Court. How much future law does it impact?
You would think a documentary, a text, something would cover the affect of that decision, given how important a lot of us think it must be. Most stories I’ve found cover the creation of a Holocaust museum in Skokie as if that was some sort of ‘blessing’ from the decision in it.
And I’m going to pause here. Before you go any further, please ask yourself, “How was Skokie (1977) decided?” Hold onto that answer. Because we’re going to get to the real decision, and perhaps you’ll see how your perception versus the reality is skewed.
Because no one, as far as I’ve been able to find, has ever really covered the EFFECT of Skokie (1977), either in terms of popular culture or case law, since then. There was a TV movie called “Skokie” from 1981 that arguably laid the groundwork for that limited pop culture understanding so many people vaguely have. But that’s really it. For a case that holds such a grip on a part of our popular imagination, seriously, in the 40 years since it was decided, no one has done a follow-up media piece of any substantial nature about it except for a TV movie that took a lot of artistic license with the case.
I was taught about this case, very briefly, as a teenager. A lot of people are. It’s that idea I mentioned at the top, that essentially, part of doing the right thing was defending the rights of people you despised, and that the case was a victory for free speech. But, if you look closely at the decision, most of the objections were mostly procedural. In other words, it wasn’t decided on a question of speech, Skokie (1977) was decided on an issue of due process.
This is the relevant passage that even a non-lawyer can understand.
“… if a State seeks to impose a restraint on First Amendment rights, it must provide strict procedural safeguards, including immediate appellate review… Absent such review, the State must instead allow a stay.”
The Supreme Court didn’t say, “a State cannot impose a restraint.” The Supreme Court said, IF a State wants to impose a restraint, you have to follow due process. Since Illinois didn’t follow process, Illinois had to hold a hearing to determine whether the Nazi rhetoric constituted “fighting words,” citing Chaplinsky v. New Hampshire (1942).
So, what are Fighting Words?
Fighting Words is a concept from a case, Chaplinsky v. New Hampshire (1942). In that case, a Jehova’s Witness, Chaplinsky, was distributing pamphlets. People in the town got upset. The town Marshall, Bowering, tried to stop him. Chaplinsky then allegedly said to Bowering, “You are a God damned racketeer” and “a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists.”
Chaplinsky was charged under a town ordinance that said you couldn’t call someone offensive names.
This was the unanimous decision of the Supreme Court in Chaplinksy v. New Hampshire.
“It is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit may be derived from them is clearly outweighed by the social interest in order and morality. “Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.”
In simpler words, the Supreme Court found in 1942 that ‘Fighting Words’ would allow a community to restrict the free speech rights of a citizen. Because Chaplinsky had threatened people, it was reasonable for those same people (in this case the local government) to ‘restrict’ his free speech rights. Because he used fighting words.
So, in 1942, the Supreme Court says, “You can’t use fighting words and be expected to have unrestricted right to speech.” It was a unanimous decision. There was no direct citation of the 10th Amendment in the opinion, but, arguably the ability to restrict ‘fighting words’ speech on common sense grounds is one of those rights that’s still kept by the states and the people.
So, in Skokie (1977), the decision that the Supreme Court came to directly cited Chaplinsky v. New Hampshire (1942) and said, “Illinois, you need to decide whether Nazi speech constitutes fighting words.”
So, when the Illinois Supreme Court had a hearing, they determined that the rhetoric of the American Nazi party didn’t constitute “fighting words.” Therefore, there was no grounds to stop the march. After their victory, the Nazi’s didn’t march on Skokie, they instead marched in Chicago, which was likely their original goal in the first place.
Now, let’s pause for a second. Did you notice how quickly we skipped over something important. Let me repeat this for emphasis.
In 1977, the Illinois Supreme Court decided that the rhetoric of American Nazis didn’t constitute Fighting Words. What were they saying then? Very similar to what’s being said now. The American Nazis said that Jews are lesser people. The American Nazis said that black people aren’t human. The American Nazis said that the white race was under attack. So much vicious, vile, contemptible rhetoric from the American Nazis that tells you, in plain terms, “These are the people we will hurt, murder, and enslave if we have political power.” In even simpler terms, American Nazi political rhetoric is a never-ending death threat to everyone who’s not “of the white race.”
To the white people in the Illinois Supreme Court in 1977, I could see how that kind of speech would seem removed from them. I wish I could ask Timothy Caughman whether he thinks that the speech of Nazis constitutes fighting words. He was murdered this year by an American Nazi on the streets of New York by a sword, on March 20, 2017. The rhetoric of his murderer was the rhetoric of Nazis. And, feeling unrestrained, an American Nazi fulfilled the promise of his rhetoric, and murdered a man in the streets of New York because of the color of his skin.
I think a lot of people look at Skokie (1977), especially us lefty types, from a place of tolerant reverence. I’ve heard people explain to me that the case was about protecting free speech rights. I’ve had people, who’ve never read the case, or understand the nuances, tell me over and over again that it was about Free speech.
BUT THAT’S NOT HOW THE CASE WAS DECIDED. It wasn’t decided on First Amendment grounds. It was decided on procedural grounds, and the procedure in question ALLOWS A LOCAL GOVERNMENT TO RESTRICT SPEECH. But the only way that Nazi speech can be restricted is if the speech constitutes fighting words. If you’re white, it probably doesn’t sound like fighting words. If you aren’t? The speech of Nazis sound like death threats, which are fighting words. The myth of Skokie (1977) has overtaken what actually happened, and the details involved.
And what happened was, the Supreme Court said, “Illinois, if you’re going to restrict speech, follow procedure, you must have a hearing.” And in the hearing, the judge decided that Nazi rhetoric wasn’t ‘fighting words’ in 1977.
And if you look closely, at cases like Chaplinsky v. New Hampshire (1942) that actually DID have far reaching impacts on our rights, a clear pattern emerges over the 20th century …
1. Minority religious and ethnic speech rights are typically persecuted (like Chaplinksy himself)
2. White nationalist speech rights are protected (like in Skokie)
3. If courts do protect speech, it’s typically speech directed AT the government (or its agents) that’s protected.
And number 3, by the way, is what the First Amendment was written for, to prevent the Federal Government from declaring its critics to be seditionists and simply jailing them.
As I’m typing this, a state of emergency now exists in Charlottesville, and riot police have allegedly suspended the Nazi rally there. The reason? In case you forgot, it’s because a white nationalist used a car to murder a person who was condemning the racist speech of Nazis.
Does driving a car over someone constitute fighting words? Is it murder?
That’s a stupid question. It really is.
Let go of the idea that restricting Nazi speech is a slippery slope. Look at it. See it. Learn about how things really work. See white nationalist speech for what it is, as a death threat to everyone around you that’s not white.
And ask yourself, “what have I really been protecting all of these years when I defend the speech of racists on first amendment grounds?”
The answer is sitting in a jail cell for killing someone with his car.