What Happened To The ACLU?

August 23, 2016 (Fault Lines) — In the spring of 1977, the National Socialist Party of America announced it wanted to hold a rally in Chicago. But when the municipal government blocked its plans, the Nazis decided on a Plan B: marching through the nearby village of Skokie, where over half the population was Jewish and at least 10% were Holocaust survivors.

The mayor and council of Skokie worked together to thwart them. Wielding village ordinances as a bludgeon, they forced the Nazis to post the 2016 equivalent of $1.4 million in insurance, banned the public display of the swastika and gave themselves the power to restrict the speech of anyone in a political party who wears a “military-style” uniform. The town then went to the Circuit Court of Cook County for an injunction.

On April 29, 1977, one day before the march, the court enjoined the NSPA from doing the following:

[m]arching, walking or parading in the uniform of the National Socialist Party of America; [m]arching, walking or parading or otherwise displaying the swastika on or off their person; [d]istributing pamphlets or displaying any materials which incite or promote hatred against persons of Jewish faith or ancestry or hatred against persons of any faith or ancestry, race or religion.

So the Nazis turned to the ACLU for help. After Burton Joseph, a Jewish First Amendment attorney from Chicago, pushed the ACLU to get involved, it agreed. Aryeh Neier, its executive director, a Jew whose family fled Nazi Germany in 1939, and David Goldberger, the legal director of its Illinois Division, were instrumental in committing it to the protection of the Nazis’ constitutional rights.

Both inside and outside the organization, many people were unhappy about the ACLU’s decision. In agreeing to help, the president of the Chicago chapter famously remarked: “We have no choice but to take the case.” 30,000 ACLU members quit in protest. And a coalition of prominent Jews, including Victor Rosenblum, a law professor and past chairman of B’nai B’rith’s Anti-Defamation League, Sol Goldstein, an activist and WWII veteran, and William Kunstler, Ron Kuby’s mentor and an attorney with the left-wing Center of Constitutional Rights, condemned the ACLU for its stance and downplayed the significance of the rights at stake.

Led by the ACLU, the Nazis petitioned the Illinois Appellate Court for a stay of the circuit court’s injunction, arguing that it was an unconstitutional form of prior restraint. And they had a good case: just the year before, the Supreme Court had roundly rejected prior restraint in Nebraska Press Assn. v. Stuart (1976). They were turned away.

Next, they went to the Illinois Supreme Court, which also refused them a stay. Left with no other option, they made an emergency appeal to SCOTUS. In its landmark decision, the Supremes decided in favor of the ACLU and the Nazis, reversed the Illinois courts and remanded the case.

But the battle was not yet won. Instead of granting a stay, the Illinois Appellate Court ruled on the constitutionality of the injunction. It upheld only the part banning the display of the swastika, in part by classifying them as “fighting words,” one of the few recognized categories of constitutionally unprotected speech.

So the ACLU went back to the trenches. It appealed the decision to the Illinois Supremes, arguing that the swastika didn’t constitute fighting words and that interpreting it as such would set a dangerous precedent for other political groups.

Again, the ACLU had a good case. The fighting words doctrine* had been on the wane for years; by 1977, the Supreme Court had so severely limited it** that there was serious doubt whether anything qualified as fighting words anymore.

But the ACLU also made a broader point about the dangers of the fighting words doctrine and calling speech constitutionally unprotected when the people exposed to it hate it enough. What if a black power group marched in a white Southern community and displayed its raised-fist symbol?

Ultimately, the Illinois Supremes were persuaded. The injunction was struck down. Shortly thereafter, a federal district court ruled Skokie’s town ordinances unconstitutional. The ACLU’s victory was complete, the Nazis were free to wear their swastika armbands, and the whole affair ended in slapstick when about 10 Nazis showed up for a rally in Chicago and were booed out of the streets by a giant counter-protest. All in all, it was a great day for speech and civil society.

It was indisputably one of the ACLU’s finest moments, and they were feted for it. They still use it for marketing purposes, calling it proof of their “unwavering commitment to principle.” And just like every conservative worth his salt has an NRA life membership, for a long time, it was de rigueur for liberals to pay their monthly dues to the ACLU.

That was then. But these are strange times. The NRA is now more of a gun than gun rights organization, a group that says nothing when a police officer executes a man for exercising his Second Amendment rights. And the ACLU is in the process of selling its birthright for a mess of potage progressive political beliefs.

In 1977, the ACLU knew that speech, however vile, is always protected by the First Amendment unless it falls into a historically exempt category recognized by the Supreme Court. And because it knew the importance of constitutional rights, it was happy to take the fight to the government to keep those categories narrow and few in number, and the First Amendment strong. Even when bad people were the ones whose speech was at stake.

How different things are now, when the ACLU is at the head of the movement to restrict our rights. When a public university expels college students for saying something racist, the ACLU applauds. And when the federal government proposes a law to criminalize revenge porn, it’s down to party.

According to the civil rights advocates of today, one little tweak – a mens rea component – is all that’s needed to make the law constitutionally kosher. Never mind that revenge porn is speech. Never mind that it doesn’t fall into a category of exempt speech and is therefore constitutionally protected. Revenge porn is bad, and the ACLU opposes bad things, especially trendy bad things that intersect with feminism.

And when a case raises a conflict between two constitutional rights, like EEOC v. Harris Funeral Homes, which set the First Amendment against the Fourteenth in a battle to determine whether someone can be fired on religious grounds because he or she’s transgender, the ACLU doesn’t think twice before jumping in on the side that ranks higher in the victimhood hierarchy. Who cares about the Free Exercise Clause? These days, the ACLU needs to like the people whose constitutional rights are at stake before it’ll step up to the plate, and Christians don’t fit the progressive bill.

The ACLU of 1977 knew that if we want to rely on the First Amendment, it has to be defended, even and especially when the people whose rights are being violated are vile. For this reason, its Jewish leadership and Jewish rank-and-file members went and fought for the right of American Nazis to march on a Jewish town. The ACLU of 2016 knows that your speech only matters if it feels it should.

*Born out of the Supreme Court’s decision in Chaplinsky v. New Hampshire (1942), which held that “words that by their very utterance inflict injury” and “speech that incites an immediate breach of the peace” are constitutionally unprotected.

**In cases like Terminello v. Chicago (1949), Cohen v. California (1971), Hess v. Indiana (1973) and especially Gooding v. Wilson (1972).

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