THOUGHTS ABOUT SKOKIE: A DISCUSSION
Goldberger, David & Epstein, Cynthia Fuchs & Coser, Rose Laub & Pachter, Henry & H., I.
During the recent controversy concerning Skokie, we did not print anything on the case. But the issues remain, and touch upon some of the most perplexing problems of democratic politics. We print...
...The Weimar Republic gave no effective constitutional protection, and civil liberties were only selectively granted...
...He has more reason than most to despise what people calling themselves nazis stand for...
...but is it also better to let one gang usurp power than to suffer the pangs of conscience over an alleged suppression of its freedom of speech...
...Bands of toughs today roam streets where non-white English subjects have chosen to make their homes, and schoolchildren and men and women going off to work in the mornings and coming home in the afternoons live in fear of beatings and possible death...
...When the authors of the Constitution gave us civil rights, they meant to make sure that any minority could hope to become a majority: but how many Jews in Skokie did the Nazis hope to convert to their cause by marching in uniform...
...To be sure, the First Amendment was not meant to protect provocateurs...
...Think of such power in the hands of a racist sheriff, or a local police department hostile to antiwar demonstrators, or the wrong kind of president...
...Goldberger) seeming to "think that Nazis are just crazy people...
...Skokie did not...
...Had the Nazis been unable to plead their case in 227 court, it would have been our duty to see that they have that right...
...And there was no Civil Liberties Union to act as the people's watchdog...
...Henry Pachter thinks that "we owe due process even to our enemies" (emphasis added...
...Recent racial confrontations in Great Britain pose an instructive example that moves the discussion of rights, freedoms, and the notion of "clearand present danger" from the conceptual to a flesh-and-blood issue...
...Dear Mr...
...And what about ACLU's lobbying in Washington...
...Or to parents and teachers in a high school that has just banned Kurt Vonnegut and Bernard Malamud from its shelves...
...You define freedom formalistically and dogmatically as the right of every scoundrel to insult us and to lead us by the nose...
...Right now, we may have to say no...
...Many would still contribute to the organization if they could have the choice of refusing to support those few percent of ACLU "clients" whose causes contradict their sense of justice...
...Had the Nazis been denied the right to speak, to assemble peaceably, to demonstrate...
...But I disagree with your motto, Fiat justitia et pereat inundus: The Nazis must have what they claim as their civil rights even if that means for other citizens that they must go without the protection of the law...
...Dear Mr...
...its laws are a mixed bag...
...The British response is to permit the party to exist...
...You agree almost entirely with a liberal candidate, say, but you dislike his position on abortion or environment...
...Suppose, for the sake of the argument, that one disagrees strongly with the ACLU position on Skokie: is that a sufficient reason to refuse to support or join it...
...District Court to overrule the Chicago Park District's opposition...
...I would love to do that since I have always felt that your work is necessary and useful...
...It is crucial that these kinds of laws and requirements be struck down, because there is no 226 way to limit them...
...Pachter assumes a unity within a society that seldom exists in a democracy...
...Who needs that...
...What to do...
...I agree with Pachter on one thing: one does not get cancer from smoking one cigarette...
...bang, you vote for his opponent...
...For Americans who argue that the tragedy suffered by Jews, Catholics, Communists, Socialists, and Gypsies under the rule of Germany's Nazis "couldn't happen here," England is a good example of what can happen since it is a society generally characterized by restraint...
...But is a democratic government obliged to let street battles decide whether it will be allowed to continue existing...
...The ACLU is now on the edge of a precipice, and it needs your hand...
...We print here the bulk of a letter sent out by David Goldberger, the ACLU lawyer in the case, followed by an answer and comments by a few Dissent editors...
...Even if that order of the city of Skokie was in error, the question was not whether civil rights were being denied but whether a provocation was intended and how a street brawl should be prevented...
...It has also gravely injured the ACLU financially...
...Many of the towns that received the nazis' request just ignored it...
...If the Nazis can persuade ajudge that there is no other way to exercise what they call "free speech," let them try but not with the help of an organization I support, or with my money...
...Yet many, understandably, did not see it that way...
...They have it...
...The Skokie laws are the real issue...
...Yet, there are other ways of preventing these inroads into human decency than the writing of laws that would legally restrict the right to speak or to assemble...
...In fact, Skokie has already used the very same law to deny the Jewish War Veterans a permit to parade...
...Recently one of your ACLU lawyers argued on Public Television that the conditions at Texas State Penitentiary resembled those of a Nazi concentration camp...
...Conseuently, it's important to keep supporting such an organization, even if with a disclaimer on Skokie, or with an effort internally to change its position...
...This is why I believe that the ACLU is an investment in our future...
...That is what was at stake in the Skokie case...
...I wish to use this argument in favor of the ACLU position: we do not encourage fascism when we allow fascists to demonstrate, provided they do so peacefully and in respect of the law...
...The Skokie laws require anyone who wants to speak, parade, or demonstrate to apply first for a permit, and they grant the village officials the power to deny a permit if in their opinion the proposed speech portrays a "lack of virtue" in others or "incites hostility...
...The National Front party was tiny...
...There is a difference between banning speeches that exhibit a "lack of virtue" and those that "incite hostility...
...The nazis asked us to defend their right to hold the rally, and to challenge one of the laws prohibiting it...
...The overwhelming bulk of what the ACLU does in this country is very good, even though some of us may have reservations about the "politicized" course that it took under Aryeh Neier's leadership...
...Dear Friend, I am the American Civil Liberties Union lawyer who went into court last year to defend freedom of speech in Skokie, Illinois, for a handful of people calling themselves "nazis...
...The fact that prisoners have constitutional rights does not ipso, facto guarantee that within the prison their rights will not be violated...
...Do the fair-minded feel this is directing England on a course toward repression...
...to do that they needed a Jewish lawyer who may have wished sincerely to show the world how democrats lean over backward...
...If we Americans haven't seen evidence of violence resulting from inflammatory speech should we be complacent...
...The First Amendment contains no language permitting anybody to march in uniform and to provoke or intimidate other citizens...
...Yes: let justice be done...
...It was not even meant to permit insult or abuse, or even lack of courtesy...
...To attack this principle is to lay the groundwork for legitimizing McCarthyism...
...I believe that the Nazi regime in Germany was due not to too much democracy, but rather to too little...
...But, fortunately, this right is so secure that they don't have to fight for it...
...In your anxiety to protect a .form—which might be emptied through misuse—you neglect the substance of democracy which must be defended at all costs...
...However, this right is purely formal: we owe due process even to our enemies...
...I agree that in general it is better to err on the liberal side than to risk the erosion of freedom...
...Can we not protect people before they are hurt, or protect them from hurts that are not immediately obvious...
...Right to work" laws were used to undermine the rights of labor to strike...
...A democracy must take certain risks, and I would support the right to advocate the abolition of the Constitution...
...Not because they expected to have a little fun seeing scared Jewish faces...
...I've opposed them when they were used to block civil rights marches, and I've opposed them when they were used to ban antiwar demonstrations...
...One must defend the substance, not the form of democracy...
...He implies that this cannot possibly be so, since one cannot "imagine the inmates of Auschwitz hiring a lawyer to defend their civil rights, suing the government, and talking on public TV to plead their case...
...Goldberger: In your moving letter you ask me to resume my previous contributions to the ACLU...
...All over the country, ACLU offices have had to lay off staff, and financial support for many of its cases is now in jeopardy...
...They do not specifically prohibit nazis from speaking...
...For many, their activities recall the parades of Nazis in the '30s in Brick Lane, London, which led to outbreaks of violence...
...We would welcome brief comments from readers and brief rebuttals . from participants...
...I share that agony...
...The nazis chose to rally in Chicago when the ACLU persuaded the U.S...
...A few people even made personal threats against me and other members of the ACLU staff...
...Admittedly, I am quite ignorant about American prisons...
...The executive director of the ACLU, Aryeh Neier, is himself a survivor of nazi Germany...
...The city of Skokie asked them to post bond in case there should be trouble...
...Skokie was one of those towns...
...Very few people have actually seen the Skokie laws...
...The Weimar Republic fell because it allowed its enemies to exercise terror in the streets and to explode the fundamental modes of democratic procedure in politics...
...Goldberger, let's not be masochists, either as Jews or as democrats...
...In the long run, this matter may even be more important than Skokie...
...Violence in Britain against non-whites caused the killing of several blacks and of a ten-year-old Bengali child, and numerous firebombings of businesses owned by West Indians...
...The ACLU does depend for a good part of its contributions on those who have particular reason to find the Nazi messages offensive and frightening...
...Your letter was accompanied by the reproduction of a cartoon showing judges who hold their noses but accord justice to those who produce the bad odor...
...Beyond that they entered a plea of substance: that their intention was not to provoke but to speak peacefully...
...Now a new bill, improved but with many of the same provisions in it, is about to pass...
...230...
...I think that Henry Pachter is unfair in his argument...
...They don't even mention them...
...For that is precisely what the ACLU's action did, an action that your letter still defends...
...it is now larger...
...What do we say to a former government employee whose book on the CIA is being censored...
...I think not...
...In defense of its institutions and of its people a democracy must occasionally also take a risk in the other direction: the risk that some liberals see suppression of civil rights where there is prudent (even if perhaps erroneous) defense of the democratic order...
...Why make civil-rights martyrs out of Nazis...
...but, first of all, let's not clothe the malodorous crowd in the garb of martyrdom for civil rights...
...Anyone who wants to speak must also post a $350,000 insurance bond...
...But now the others are in danger, too, because there isn't enough money to continue...
...They felt that the nazis' views were so reprehensible that they did not deserve the protection of the Constitution...
...Similarly, with the ACLU...
...On May 22, 1978, the United States Court of Appeals struck down all three Skokie laws including the $350,000 insurance requirement...
...But the Skokie case was quite different...
...Skokie responded by obtaining a court order banning the rally, and by passing several local laws that in effect prohibited most political rallies, not only the nazis...
...Still not being clear in my mind about the issues raised by David Goldberger, I say nothing about them...
...some people are prepared to hit back...
...At the risk of belaboring the obvious, let me just recall Rosa Luxemburg's statement that "freedom is always and exclusively freedom for the one who thinks differently...
...We do, however, endanger freedom of association and demonstration for ourselves if we allow laws on the books that deny such freedoms...
...For the first time in 58 years of serving as a watchdog and enforcer of the Bill of Rights, the ACLU is suffering a decline...
...Great Britain's National Front party has expressed its antagonisms to nonwhite immigrants vociferously in speeches and demonstrations...
...I do not question the principle that even enemies of the Constitution should enjoy its protection...
...The case began when the nazis scattered requests to several Chicago suburbs seeking permits to hold a rally in their towns...
...Too many members have stopped contributing...
...Imagine the inmates of Auschwitz hiring a lawyer to defend their civil rights, suing the government, and talking on public TV to plead their case...
...Do you remember S. I, the notorious revision of the criminal code that we successfully beat back a year ago with our members' help...
...I think I know why the American Nazis picked Skokie, of all places, to demonstrate...
...I think that, unlike Aryeh Neier, who was brought to this country at a very young age, I have had some experience with Nazi tactics...
...but precisely because they hoped to prove through their action that democracy does not work for those whom it promises to make free...
...Thereby you've made your "point," and everyone suffers the conseuences...
...ACLU lawyers with whom I have discussed the Skokie case have argued that all speech, except that which presents a "clear and present danger," should be fiercely defended under the guarantees of the First Amendment, to insure a free society...
...228 Comments: The Skokie case needs sorting...
...What a 229 curious way of putting the matter...
...We are currently making longrange plans for rebuilding our financial strength, but meanwhile we must survive this crisis...
...Right to lifers" today vie with people who feel it is every woman's right to choose whether or not to have a child...
...I have no evidence of the ACLU defining freedom "as the right of every scoundrel to insult us and to lead us by the nose," nor of the ACLU (or Mr...
...Skokie's population is predominantly Jewish, and includes a large number of concentration camp survivors...
...I have been torn both ways on the Skokie issue...
...Fortunately, the United States is better protected...
...There is a strong "sectarian" tendency in American politics these days, which takes the form of "oneissue" politics...
...Of the approximately 6,000 cases handled by the ACLU throughout the country, only six—or onetenth of one percent—are like the Skokie case...
...All of us at the ACLU do...
...but you cannot expect me to support an organization whose lawyers don't know the difference between a state of law and a gangster state...
...But the nazis are not the real issue...
...You prejudge the case by turning the question upside down...
...The question comes down to the old familiar one: whether means justify the end, or whether they determine the end...
...When we try to contain and canalize the forces of our destruction, you raise the specter of total suppression of all free speech...
...The ACLU has exercised a bias in favor of some of these rights rather than others, as it does now...
...Is a democratic government obliged to let the Nazis decide when and where such battles are to be fought...
...Fortunately, the German Federal Republic is less squeamish than the Weimar Republic was about the misuse of civil rights and is cracking down on the Neo-Nazis...
...The effect of all this on the ACLU has been very disturbing to me...
...I have seen the Nazis conquer street after street by using just such provocations— proving in each case how utterly helpless a formal democracy is to protect peaceful citizens, making a mockery of civil rights by using them to deny their enjoyment to others, shaking honest citizens' belief that persuasion consists in the use of verbal, rational arguments...
...The ACLU has a wonderful track record, but it is not infallible...
...We were relieved that the citizens of Skokie were spared yet another reminder of the horrors that nazism represents...
...Apparently the Nazis did not have enough brainpower to confuse and pervert these issues...
...We can't help...
...They were simply asked to march where they would not provoke a brawl...
...I would like to explain why we took the case, and why the ACLU needs your help now...
...I challenged your judgment that the Skokie ordinance constituted a civil-rights case that should concern the ACLU...
...If I agree with the view that the Nazis have criminal purposes, I should not forget that the law must protect criminals, not only nice people like us, and that the criminals' civil rights have to be respected...
...If the ACLU were in Britain, would they feel comfortable soliciting money from the Bengalis and West Indians to overturn the Race Relations Act...
...Thousands of members have resigned, and its income has plummeted...
...A short time later the United States Supreme Court refused a request to bar the Skokie demonstration...
...I've had a lot of experience with bans on speech like the one in Skokie...
...We have already cut back substantially, because too many of our members have stopped contributing...
...Ens...
...You still seem to think that Nazis are just crazy people...
...Though I detested their beliefs, I went into court to defend the First Amendment...
...I think the latter: if we provide mechanisms for the abrogation of the civil liberties of our enemies, we have no recourse if the latter were powerful or numerous enough to use these mechanisms against us...
...I think the ACLU made a poor judgment in defending the rights of the "wrong side...
...But a society always needs to consider when the rights of some infringe on the freedoms of others...
...Things have been bad even if they haven't met the threat of British M P Enoch Powell that "rivers of blood" would flow if immigration were not restrained...
...It is these civil rights, grounded in the Constitution, that make it possible, in Pachter's example, for prisoners to hire lawyers, to defend their rights, and to sue the government when the internal conditions of a prison resemble those of a concentration camp...
...What do we say to the woman who has been cut off from Medicaid payments for abortion...
...In other words, to argue the fact that having constitutional rights in itself will guarantee the adequacy of institutional arrangements is conceptually similar to an apparently opposite statement, namely that ours must be a fascist society since some of its institutions foster conditions that remind us of fascism...
...Better let one criminal go free than risk the liberty of all innocents...
...Whether this was true or a lie, I submit, was for the judge to decide, and I saw no reason for me to associate myself with that plea...
...But I still take exception to the argument that originally led to the disaffection of many members and that, unfortunately, your letter reiterates—in my opinion, a narrowly formalistic and dogmatic interpreation of "civil rights...
...It is very possible that inside an institution like a prison civil rights are being violated to such an extent that conditions resemble those of a concentration camp—yet still the constitution also makes it possible to appeal...
...Pachter marvels at the fact that "Recently one of [the] ACLU lawyers argued on Public Television that the conditions at Texas State Penitentiary resembled those of a Nazi concentration camp...
...This requirement applies to everyone, not only the nazis, and since insurance companies rarely will write such insurance, the requirement in effect prohibits everyone's free speech...
...Let it reconsider its priorities and be more responsive to supporters and membership...
...The question is not whether these people stink but whether, perhaps, they deliberately produced the stench for a criminal purpose...
...Others do...
...But I cannot concede the right to abolish it through action, to undermine it through provocations designed to bring it into disrepute...
...However, the Race Relations Act was passed, which specifies that speech may not be inflammatory...
...To allow people calling themselves nazis to parade in that town seemed to many an agony too much to bear...
...If they are not struck down, then towns evertwhere will have the legal power to pass identical laws, and to use them to prohibit whatever the}' believe is offensive...
...Fair-minded Britains have been concerned...
...At this very moment, lam representing the Martin Luther King, Jr., Coalition, which has been banned from Marquette Park, a hostile white neighborhood on the southwest side of Chicago, by a law very much like one of the Skokie laws...
...Or to the parents of a mentally retarded child rotting in a state institution...
...Both these statements fail to recognize the fundamental principle of a democracy in which there is more than one center of control...
...There is probably no such thing as freedom for all...
...This is nonsense—one does not get cancer from smoking one cigarette...
...Do we stop lobbying...
...Nor do I think it helps the argument if we panic each time we are reminded of the horrors we have experienced in the past...
...But there is another issue raised here that seems to me important...
...First we have to ask whether this is indeed a civil-rights question...
...The case has had an enormous impact on my life...
Vol. 26 • April 1979 • No. 2
