Free Speech and the Skokie Case

If liberty means anything at all, it means the right to tell people what they do not want to hear.
—George Orwell

I may not agree with you, but I will defend to the death your right to make an ass of yourself.
—Oscar Wilde

The current flurry over how much free speech should actually be free and how much should be kept in cages is not new. Euripides, in 400 BC, argued it was slavery not to speak one’s thought. Abbie Hoffman, founder of the Yippies in the late 1960s, humorously said that “Free speech means the right to shout theatre in a crowded fire.”

A proposed march by an American Nazi party in Skokie, Illinois, in 1977, was defended successfully under US freedom of speech laws by the American Civil Liberties Union (ACLU) and a lawyer—who was Jewish! What was startling about this case was that one out of six citizens of the town of Skokie were either direct survivors of the Holocaust or an immediate relative of one. Despite thousands of members resigning from the ACLU in protest, the case found its way to the Supreme Court where it was won by the ACLU. Jewish activist groups in Skokie didn’t care. They threatened violent resistance against the Nazis if they dared to show their faces and the hated swastika.

Communities in Australia, and in the USA, are divided about the right of their citizens to have absolutely unfettered speech. Feminist scholars argue that context of speech is the crucial issue and suggest not free speech but the concept of “fair” speech needs to be the qualifier. But what does this mean and how can it be clarified in law?

In the case of FCC v The Pacifica Foundation, in 1977, the US Supreme Court agreed:

it is not the words which are of concern, but the societal context in which the “speech” takes place. Vulgarisms, racial epithets and religious slurs are destructive of the civility which is necessary to the order of society. This kind of offensiveness alienates members of society from each other while adding nothing to the quality of discourse.

Completely free speech under all circumstances can never be a possibility—there are easily demonstrable exceptions and contexts, such as national security in time of war. Sometimes in such cases secrets can be of greater service to freedom than open discourse.

There is a statutory limitation upon the use of abusive speech which is found in Title 18 § 1464 of the United States Penal Code:

Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years, or both.

Speech is very much unfree in our schools, and in the presence of young children, in the mainstream media, including television and radio and in everyday business affairs.

So what exactly might be a good practical and working definition of free speech, and how can we correctly associate it to the concept of fair speech?

Political control of speech and thought is one of the most persistent social issues in recorded history. All totalitarian governments restrict speech as a matter of course and all democracies restrict it to some degree in time of national crisis.

In 212 BC, in ancient China, “The Burning of Books and Burying of Scholars”, or “The Fires of Qin”, named after the First Qin Dynasty Emperor, Qin Shi Huangdi, was initiated to crush discourse and political opinion, in order to unify thought, arguing that the intelligentsia fomented dissent through libel. Many key classical texts were destroyed, discussion of their content was forbidden by death, and those found in possession of outlawed books were banished as convicts to work on construction of the Great Wall. Upwards of one thousand scholars were buried alive, many of them Confucians. This policy resulted in the rapid overthrow of the Qin Dynasty by the Han Dynasty and the restoration of popular Confucianism.

While Australia does not have any constitutional or statutory declaration of rights that formally frame freedom-of-speech laws, as in the USA, the Howard government brought back punishment for seditious speech:

Any person who, with the intention of causing violence or creating public disorder or a public disturbance, writes, prints, utters or publishes any seditious words shall be guilty of an indictable offence punishable by imprisonment for 3 years.

Arguments that pornography constitutes a form of free speech have split the modern feminist movement into for-or-against camps. Some claim pornography, as a form of free speech, should not be made illegal, arguing that women now create and consume their own “women-empowering” erotic materials, which should have a clear distinction from the “women-exploitative” pornography usually produced by men.

Betty McLellan, in Pornography and the Myth of Free Speech, argues that all pornography, and specifically violent pornography, causes harm. She asserts that to protect pornography under an umbrella of free speech is misleading because restraint of hurtful and dangerous speech sometimes is necessary, citing the classic example: no one is free to shout fire in a crowded theatre if no fire exists. Speech is not free in that context. The context once again becomes the deciding factor. So, if in that instance, why not in other instances?

McLellan suggests that in an imbalanced culture such as ours, fair speech is a necessary qualifier to free speech:

that for speech to be truly free, and free for all, it must be fair. A cursory look at the way democratic societies operate reveals some interesting facts about the kind of free speech which is blind to the principle of fairness.

McLellan argues that completely free speech in a society with a culturally “stacked deck” will always favour the powerful, entrench inequality, focus on the individual over community, and ignore the issues of quality of life. She says that “the principle of free speech is so deeply mediated by power that it cannot assure the equality promised by democracy”.

Dr Megan Boler, Professor of History and Philosophy of Education at the University of Toronto, in her essay “All Speech is Not Free: The Ethics of Affirmative Action Pedagogy”, also makes the argument:

Until all voices are equal, we must operate within a context of historicized ethics which consciously privileges the insurrectionary and dissenting voices, sometimes at the minor cost of silencing those voices which have been permitted dominant status for the past centuries.

The Australian Attorney-General George Brandis recently stated: “In a free country people do have rights to say things that other people find offensive or insulting or bigoted.”

Aside from the customary name-calling, what exactly is a bigot? Merriam-Webster defines bigot as a “person who strongly and unfairly dislikes other people and/or their ideas”. And bigotry is the state of mind of a bigot. A state of mind is not an illegal action. One can have the state of mind of wishing to poison one’s neighbour’s incessant barking dog but until it becomes an action, it is not a crime. To try to legislate against a state of mind is a slippery slope.

The name “Skokie” comes from a Potawatomi word for marsh. A suburb of Chicago, the area was originally settled by immigrants from Germany and Luxembourg. Its previous main claim to notoriety was in 1934 when the bullet-riddled body of the twenty-five-year-old gangster Baby Faced Nelson was discovered in a ditch on the outskirts of the town.

By 1977, Skokie had the highest concentration of Holocaust survivors and their direct descendants in any single town in America—over 7000 people trying to live together peacefully in a community of others like themselves with shared traumatic war experiences, far from the spotlight of mainstream American culture.

The National Socialist Party of America (NSPA), led by Frank Collin, picked Skokie for its march deliberately for the media attention it would provoke. Collin was looking to increase membership. What better way to do it than a big demonstration through this concentrated Jewish sanctuary, carrying their swastikas high, with their actions shielded firmly behind the US First Amendment right of free speech?

Collin and his Nazis enlisted the help of ACLU attorney David Goldberger, who ironically was a Jew. Goldberger saw it as a matter of principle and a case to demonstrate that the law should not be prejudicial. The ACLU agreed to defend Collin and his marchers pro-bono. As a result 30,000 members of the ACLU, many of them Jewish, resigned in protest.

Many members of the Skokie community at first wanted to respond by “quarantine” or no-reaction, but Sol Goldstein, a Holocaust survivor, organised a counter-demonstration against the neo-Nazis should they attempt to come into their town. The American Nazis claimed rights to march under free-speech laws as protected by the Constitution, while Jewish citizens argued for their right to live without intimidation from assaultive speech.

Assaultive speech, under Chaplinsky v New Hampshire, was not protected under the US First Amendment. Assaultive speech is speech which:

may inflict injury by its very utterance … of lewd or profane or fighting words. There is such a thing as verbal violence, a kind of cursing, assaultive speech that amounts to almost physical aggression, bullying that is no less punishing because it is simulated.

The Skokie townspeople managed to win a temporary court injunction blocking the demonstration but the ACLU appealed the decision to the Supreme Court and successfully defended the Nazis’ right to proceed. Judge Bernard Decker ruled:

It is better to allow those who preach racial hate to expend their venom in rhetoric rather than to be panicked into embarking on the dangerous course of permitting the government to decide what its citizens may say and hear.

But the bonds of the Jewish community of Skokie were stronger with each other than their bonds with outside culture and its free-speech laws. Intimidated by the avowed counter-demonstration and certain violence of the greater numbers of angry and determined Skokie residents, and cognisant that he had now achieved his promotional aims for the party, Frank Collin announced he would be willing to drop the Skokie march if his members were allowed to demonstrate instead in Chicago, where Collin was born. Permission was granted for the march to take place in Marquette Park. On the day of the demonstration, a total of twelve Nazis showed up.

In supreme and surreal irony, Frank Collin, whose original family name was discovered to be Cohn (or Cohen), was later exposed as being the son of a Jewish Holocaust survivor himself. A psychiatric evaluation at the time suggested that Collin was so consumed by hatred for his father that in rebellion he became a neo-Nazi and anti-Semite. Pictures linking Collin to pedophilia were subsequently found in his desk by members of the National Socialist Party, and turned over to the police. Collin pleaded guilty to homosexual child molestation and served seven years in Joliet and Menard prisons. When he was released, avowing he was a new man, he became a “pagan” and, under the pen-name “Frank Joseph” a writer of New Age works about Atlantis.

A television movie, Skokie, was made in 1981, directed by Herbert Wise and starring Danny Kaye, Eli Wallach and Brian Dennehy. Later a book, When the Nazis Came to Skokie, won an honourable mention in the American Bar Association’s 2000 Silver Gavel Award for outstanding efforts to foster public understanding of the law.

Holocaust deniers are always raised as the ultimate warning whenever someone supposedly green-lights freedom for racist and bigoted speech. But Holocaust deniers do exist. So what? Andrew Bolt has expressed the view that Holocaust denial should be debated into silence, not legislated. Jewish community leader Mark Leibler thinks the “offence” provision of the Race Discrimination Act should go.

Many people deny God exists. Once those people would have been burned at the stake. Now we just call them atheists. It is said jokingly that even atheists have a spiritual help line: you ring it—and no one answers. Maybe bigots should simply have their own help line, so they can ring it and scream at someone who is not like them.

Louis Brandeis, an Associate Justice of the US Supreme Court, with regard to the implications of allowing bigoted and racist speech the right to be heard, said:

Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of free speech to free [us] from the bondage of irrational fears.