The MacNeil/Lehrer Report; The A.C.L.U. And The Nazis

ROBERT MacNEIL: Good evening. If you`ve been following the curious and disturbing story on the Nazis and Jews in Skokie, Illinois, the Nazi march appears for the moment to be on again. A federal court in Chicago ruled today that attempts by the village of Skokie to stop the march are unconstitutional. The federal judge, Bernard M. Decker, said the court was acutely aware of grave dangers posed by public dissemination of doctrines of racial and religious hatred, but he said ordinances to stop the march violated the First Amendment protection of free speech and the Fourteenth Amendment right of equal protection. The judge also quoted the opinion of Justice Holmes, that the constitutional principle of free thought meant free thought not for those who agree with us, but freedom for the thought we hate. Tonight, reaction to that decision, in one of the most perplexing free speech cases of modern times. Jim?

JIM LEHRER: Robin, the facts of the case are these: last spring the National Socialist Party of America, self-styled Nazis and admirers of Adolf Hitler, announced their intention to stage a march through Skokie, Illinois. They would wear full Nazi regalia, including the swastika. Skokie is a suburb of Chigago. 40,000 of its 70,000 residents are Jewish; 7,000, survivors of the Nazis` World War II concentration camps, many others relatives of concentration camp victims. Skokie officials, citing the possibility of the march`s provoking violence, quickly passed ordinances that would prohibit the march. The Nazis, represented by the American Civil Liberties Union, challenged the ordinances in state court. Illinois courts ruled with the Nazis on the grounds of free speech. It was then taken to federal court by Skokie, aided by various Jewish organizations. It was the first federal court ruling again upholding the Nazis` right to march that came down today. Robin?

MacNEIL: Among the groups who voiced concern about the proposed Nazi march is the American Jewish Congress. Will Maslow is general counsel to the Congress and a former member of the board of directors of the American Civil Liberties Union. Mr. Maslow, what`s your first reaction to this decision today?

WILL MASLOW: I have no great quarrel with the opinion. I regard this as merely a skirmish along the way, but not the main battle. There were two efforts to stop the Nazis from marching in Skokie; the first was by an injunction suit brought by the village of Skokie, and that, as you know, after first being granted in the lower court and modified in the intermediate court, was dissolved by the Illinois Supreme Court. And a petition is now pending to have that case heard by the United States Supreme Court. Now, while this injunction suit was pending, the village of Skokie, determined to make sure, also adopted three ordinances designed to make it impossible for the Nazis to march. But in their zeal they made the ordinances so broad that they would have prevented many other persons from marching as well. And I expect that`s what really motivated the federal judge in his opinion.

MacNEIL: I see. So you don`t have a quarrel with that particular decision today because the ordinances were too broad.

MASLOW: Yes.

MacNEIL: Will that decision be appealed to the Supreme Court, as far as you know -- today`s decision?

MASLOW: Before it gets to the Supreme Court it must go to an intermediate federal court, the court of appeals for that circuit. There was an announcement in Skokie that the mayor would also appeal that.

But it`s unlikely that that case will be heard before the injunction suit is disposed of, and which is on its way to the Supreme Court.

MacNEIL: I see; but the point of all this is that probably, if the Supreme Court accepts, there will be a Supreme Court consideration of the constitutional issues involved here.

MASLOW: And those issues are likely to be broad enough to dispose of the ordinances as well.

MacNEIL: Right. Now, as things stand today, even with an appeal pending, can the march take place on April 20 as the Nazis want?

MASLOW: That depends upon whether the village of Skokie, when it appeals, gets a stay of whatever suit is pending. If they ask the Supreme Court for a stay of the dissolution of the injunction pending the appeal in order to keep the entire proceeding in a status quo, that is possible. That depends upon whether the court will grant the stay or not.

MacNEIL: Can you describe the harm -- as a member of the American Jewish Congress -- you feel will occur if that march actually takes place?

MASLOW: Yes. Now, my organization decided to enter this case after a great deal of soul shaking, and after it had gone through a commission hearing, an executive committee meeting, and a governing council meeting. And we entered the case not because we wanted to make a broad attack upon the First Amendment, but we regarded this is a special situation unlikely to recur again, and not therefore in danger of creating a precedence or a case that would beget a great deal of harmful progeny. Here was almost a laboratory instance: a town predominantly Jewish, ten percent of the population survivors or relatives of survivors. Now, I read this afternoon in some literature about what happens to concentration camp survivors thereafter; and they never forget that experience. A sight of a black limousine stopping at their door, a sight of a Nazi uniform, the same uniform that sent their relatives to the gas chambers and so on, begets a feeling of horror that it`s going to happen again in America. In addition, there`s a feeling of guilt that they hadn`t done enough to resist Nazi terror before Hitler came to power.

MacNEIL: So you`re saying that it could have profound psychic effects on these people.

MASLOW: And that was the testimony in the trial as well, by psychiatrists, that people who`ve been through a concentration camp, who lived through nuclear disaster, find that this is reactivated by pushing certain buttons. And here is a group, therefore. Now, if there were a march by the Nazis in a city in Texas, there would be an entirely different situation and different constitutional issues. We`re not saying that this tiny group of misfits has no right to march anywhere in the United States. We`re saying in this particular city, in this context, where there`s so much likelihood of psychic damage and so much likelihood of violence, that the lower courts were correct in granting the injunction.

MacNEIL: Well, we`ll come to those constitutional issues in a moment. Thank you. Jim?

LEHRER: The suit on behalf of the Nazis was brought by the Chicago office of the American Civil Liberties Union. Ralph Temple is the legal director of the National Capital Area Civil Liberties Union. Mr. Temple, I take it the ACLU sees today`s decision as a victory of principle. What is that principle?

RALPH TEMPLE: The principle is that history has taught time and again, and the people who wrote the Constitution -- those geniuses, Thomas Jefferson - - knew that free speech is indivisible; that if you carve out an exception to it -- and I`m not talking about pornography or libel -- if you carve out an exception to it based on psychic injury, based on provocation, based on the vileness of the advocacy itself, that eventually that exception will eat up the right itself; that governments historically have been unable to apply such a rule with restraint; that the only real restraint that can protect free speech is an absolute restraint on government authority.

LEHRER: Why did the ACLU decide to represent the Nazis in the first place? For this basic reason that you just outlined? It had no choice, as they saw it?

TEMPLE: Well, that is true, we do not turn down free speech cases from any source; and they did ask to be represented; and because of our commitment to the free speech principle, regardless of what the ideas being advocated are, regardless of how loathsome they may be to us and everything that we believe in, that we will represent anybody in it. But beyond that, it`s also because the Nazis are really the acid test. They are really the measure of how much security the rest of us have if the heat is ever on. They are the measure of what is ultimately the limit of what an outraged majority can do to a minority which -- rightly, perhaps, or wrongly -- the community may be outraged against.

LEHRER: You reject, then, Mr. Maslow`s thesis that this is a special case and it would have been a very limited case because it was Skokie, Illinois, and if it had been a place in Texas this would not have been the case; it would not have been relevant.

TEMPLE: I do not reject the contention that this will be painful for the residents of Skokie. I think it would be, in a lesser sense, painful to any American, and certainly to any Jew.

LEHRER: You`re Jewish; have you caught heat or serious questions about why, as a Jew, you would defend the Nazis, get yourself in that position?

TEMPLE: Yes.

LEHRER: What do you say?

TEMPLE: I think that it is most fitting that we represent them, that Jews represent the Nazis, first of all because I think that the representation of this free speech principle should be in a context where it is quite clear that the advocacy of the principle gives no legitimization to the vile views that are being promulgated under its protection; and secondly because as a Jew, I feel that there is no group that is in greater need of firm restraints on what an outraged majority can do to a detested minority. In this case, appropriately detested; but we have seen the reverse of that -- we have seen it in this country. We saw what an outraged and frightened community did to the Japanese in this country, that they could have swept up tens oœ thousands of people solely by reason of their ancestry, their connection to a foreign country with whom the United States was in conflict, and in effect put them in domestic concentration camps, benign concentration camps, because they were not tortured and murdered as the Jews were in Nazi Germany. But just the same, it shows that it can happen here; and as a Jew I feel that it can happen here. And as a Jew I want those restraints to be so firm that no matter what the outrage, no matter what its degree, that there are limits on what can be done to a hated minority.

LEHRER: Thank you, Mr. Temple. Robin?

MacNEIL: We`ve heard from two lawyers with different views of the case. Now a view from a constitutional expert. Father Charles Whelan is professor of constitutional law at Fordham University Law School here in New York City. Father Whelan, victory for a principle, or the natural defeat for ordinances that were too broadly drawn, as Mr. Maslow said?

Father CHARLES WHELAN: Well, I think it`s clear that the ordinances were drawn too broadly. I wonder, though, after having looked at the judge`s decision, if any ordinances designed to protect against this kind of provocative parade would survive judicial analysis. It seems to me that the criteria that the judge has relied upon are indeed criteria that the Supreme Court has established, so I can`t quarrel with the judge`s knowledge of the law.

MacNEIL: The Supreme Court has established, but Mr. Temple just said free speech is indivisible, which was the principle that was upheld in today`s decision, and presumably will be the principle that will be addressed, whichever of these cases gets to the Supreme Court. There have been exceptions to that in the past, and one of the best known, as I understand, is the one called the "fighting words" exception. Can you just explain that exception briefly, and tell why it does not apply in this kind of case?

WHELAN: Well, the exception is concerned with the use of personally abusive epithets directed at a particular individual and used in a context where it`s really likely that that individual will respond violently to those epithets because of the emotional background overtones.

MacNEIL: In the past the Supreme Court has said that can be an exception to total freedom of speech.

WHELAN: Yes. In one of the first cases a gentleman reviled a public official at a town meeting and used language that was certainly not part of debate, it was just personally abusive and opprobrious, and the court said that you could be punished for doing that.

MacNEIL: Now, is the so-called "fighting words" exception no longer fashionable or respectable constitutional law?

WHELAN: I have begun to wonder over the last couple of years whether it still is good law, because in a whole series of cases in the last five or six years the Supreme Court has reversed a number of convictions where the "fighting words" doctrine would have appeared to permit a conviction. Part of the reason for that, though, is very important in connection with Skokie. You see, the civil rights demonstrations of the 1950s and the anti- Vietnam War demonstrations later on were opposed, in a number of municipalities, on the same general ground, this fear of a violent reaction by the population of a town; and the Supreme Court -mostly in an effort, I think, to sustain the constitutional right to demonstrate for civil rights and to demonstrate against the war...

MacNEIL: Demonstrations being a form of free speech.

WHELAN: Right -- chipped away, I think, very substantially at the "fighting words." Another aspect that`s very important is two or three cases that don`t involve the civil rights demonstrations of the `50s or the anti- Vietnam War demonstrations; these just involve ordinary people: abuse of police officers; abuse of passengers by taxicab drivers. And even in these cases the court has shown itself, I think, extremely reluctant to apply the "fighting words" doctrine.

MacNEIL: Thank you. Jim?

LEHRER: Mr. Maslow, I`d first like to come back to you for your response to Mr. Temple`s position as to why the Nazis` right to march must be upheld.

MASLOW: I`d like to remind him of an incident that took place during the Lindsay administration. The Ku Klux Klan applied for a permit to march with sheets and hoods in Harlem. The corporation counsel, who is now a dean of a very good law school, advised the mayor that the Ku Klux Klan should not be allowed to march with sheets and hoods in Harlem. He said they would have the choice: they could march in Harlem without the sheets and hoods, or they could march elsewhere with sheets and hoods. I`d like to know what the ACLU would do in a situation like that, where there`s almost certain to have been a riot and where, judging by the experience in London last summer, many, many policemen would have been injured defending the right of the Ku Klux Klan to march with sheets and hoods in an obviously provocative manner and not designed to communicate any ideas.

LEHRER: Mr. Temple?

TEMPLE: I think that we should have brought a lawsuit to enforce the right of the Klan to do it. We did it when they wanted to keep Dr. Martin Luther King out of Cicero, Illinois for the exact same reason: the authorities of Cicero said, "They will tear you apart." And of course Martin Luther King brought his protest to Cicero, because it was a community filled with people who could not tolerate the idea of blacks moving into their community. Martin Luther King did it, if you like, as a provocation; but nevertheless the same principle is involved. It`s indivisible. I don`t think you can draw -- you`ve got to look to the authorities to put the police personnel, and if necessary, troops, there. In Cooper vs. Aaron, a school integration case, the Little Rock school board came to the court and said, "If you integrate these schools there is no way we can prevent violence." And the lower court for that reason said, "All right, you don`t have to integrate them." And the Supreme Court reversed and said, "The mob will not limit constitutional rights. You will use whatever enforcement resources are necessary to protect them."

LEHRER: Mr. Maslow, how about the point that Mr. Temple`s now reiterating, that these rights are indivisible?

MASLOW: I draw a distinction between an effort to communicate ideas and an effort to incite hatred. Now, if the Nazis want to conduct a course of instruction or to win adherents, they have a constitutional right to do so. The question is, do they have the right to march in a city which they deliberately chose because they know that television cameras from all over America would be focused upon them and they know that this would happen? Was this an effort to communicate an idea, or was this an effort to incite hatred and to hope that violence would ensue?

TEMPLE: Again, I don`t think that if you created a rule saying that if the motive is to incite provocation, free speech could survive under such a rule. We have seen, oh, I would say a number of examples of that. Lyndon Johnson did everything he could to stop demonstrations on his own front doorstep, the White House. We prevented that with litigation. The government tried to stop demonstrations at the Capitol against the Vietnam War. We stopped that with litigation.

LEHRER: "We," meaning the ACLU.

TEMPLE: Right. Another interesting angle on that: the National Union of Students in Great Britain, a very strong organization, passed a resolution in 1974 that the advocacy of racism would no longer be al lowed on British campuses, and furthermore that racist organizations would not be allowed on British campuses. In 1975 the United Nations passed a resolution -- a disgraceful resolution, in my view -- saying that Zionism is racism. In 1975 and `76 the National Union of Students engaged in a campaign and succeeded in kicking Jewish organizations off of two or three campuses and stopping Jewish speakers, including the Israeli Ambassador, from speaking on college campuses. As this was gaining momentum, finally the National Front, which is the British Nazi party, came out and applauded the National Union of Students. At that point the pressure got too strong and it put a stop to it. But the basic point is the same: the minute you have a rule like that -- and there is nothing in the Constitution or in the pronouncements of the Supreme Courts from the time of Justice Brandeis that would support that kind of distinction, that if it`s an idea, okay, but if it`s just hatred, no.

LEHRER: Would you agree with that, Father Whelan, Mr. Temple`s reading of what the Supreme Court rulings have been up till now?

WHELAN: I would have to disagree to some extent. I think that where the evidence is overwhelming that the purpose of the speaker is to incite hatred and provoke imminent violence, that the Supreme Court would sustain a restraint on such a speaker. I think that there`s another principle involved, though, in this whole problem in Skokie. A long time ago Justice Holmes said that no one has a right to shout "Fire" in a crowded theatre when there`s no fire. Well, in a recent book by Professor Tribe of Harvard Law School, he raises the question whether anyone has a right to shout "Boo" at a cardiac patient. So I think there does have to be a real distinction, and I think the court is still prepared, although maybe reluctantly, to accept a distinction between vigorous discussion of political, racial, religious propositions and deliberate provocation of hatred and violence.

MacNEIL: Because the court does accept limitations to free speech, as everybody knows, in the case of obscenity, for instance.

WHELAN: Copyright law.

MacNEIL: And in copyright law. Perhaps the one more familiar to the ordinary public is that magazines and things are constantly being either removed from bookshelves or people are up on obscenity charges; and they try and use the First Amendment, free speech, to defend themselves.

Let me ask this another way: could you not argue that what the Nazis promote is a political philosophy -- since you do limit it for obscenity -- which some people just regard as an obscenity?

WHELAN: Well, of course the constitutional doctrine of obscenity has been narrowed by the Supreme Court very clearly in the last couple of years to sex-related matters, so if we want to call some philosophy an obscenity we`re not using obscenity in the constitutional sense. But I think it`s important to realize that the court has come down, as Mr. Temple said, squarely in defense, over many, many years, of the right to propagate any political philosophy, any racial philosophy, any religious philosophy. And I`m in agreement with the court on that; that`s very important for our country. But what Skokie involves is more than the propagation of a particular philosophy. It involves, as far as I can tell, a very definite attempt to provoke.

MacNEIL: Which would come under the "fighting words"....

WHELAN: Well, "fighting words" is usually reserved for an individual confrontation; if I were to abuse you or you me. There is an older case whose status is doubtful today-- the judge discusses it at some length - Beauharnais against Illinois. That dealt with group libel, and in that case the Supreme Court did sustain the statute, but as the judge pointed out in his decision, there is good reason to wonder whether the court would hand down the same decision today.

MacNEIL: A writer in the New York Times pointed out the other day that Canada a few years ago passed a no- ate" law, under which it`s illegal to malign a whole group. Would such a law be unconstitutional in this country? MASLOW: Well, in Beauharnais the Supreme Court upheld a very poorly drafted group libel law. As Professor Whelan suggests, a great many years have passed. I don`t know of any groups today in the United States-- any organized groups, Jewish, black or so on -- that are pushing for group libel legislation. There are all sorts of difficulties.

MacNEIL: We have just a couple of minutes. Let`s come back to this case and what is likely to happen if it gets to the Supreme Court. It seems to me there`s a difference of opinion. You`re suggesting that may be in this case free speech could be argued not to be indivisible, that some restraint could be put on it. Do you think that is the case?

MASLOW: Yes. There are today many exceptions to the doctrine. Free speech is not absolute. The state can govern the time, the place, even the loudness with which you speak. A noisy sound truck can be stopped. There are, in addition, half a dozen exceptions. You can enjoin a breach of contract in which speech is involved. You can enjoin an unwarranted raking up of old events. There is no such doctrine as an absolute doctrine of free speech. And we say therefore, you will not create this fearsome progeny that Mr. Temple is worried about. What protects Jews in America -- if they had to rely only upon the courts, God help them -- what protects them is American tradition of equality and fair play.

MacNEIL: Mr. Temple?

TEMPLE: Well, I think that Jews are also protected by the restraints of what can be done to minorities. We have not always abided by that discipline, and this case right now is a tremendous test of that discipline.

It would be hard to conceive of a harsher test of that discipline, but I feel that it is essential that we withstand this test, that even in this circumstance the principle of free speech be allowed; and I don`t think we can afford a principle that turns on some board of censors judging history and what kinds of things are deliberate provocations rather than ideologies.

MacNEIL: Do you have a final comment on that, briefly?

WHELAN:I hope that the Supreme Court will revitalize the doctrine of "fighting words," especially as it applies to individuals. And I hope that the court will take the case that is now before it involving the in junction from the state courts, and cast some more light.

MacNEIL: Well, we have to stop it there. Thank you very much, Mr. Temple. Thank you both here. Good night, Jim.

LEHRER: Good night, Robin.

MacNEIL: That`s all for tonight. We`ll be back tomorrow night. I`m Robert MacNeil. Good night.