Vol. 9 No. 5 (May 1999) pp. 192-194.
WHEN THE NAZIS CAME TO SKOKIE: FREEDOM FOR SPEECH WE HATE by Philippa Strum. Lawrence: University Press of Kansas, 1999. 172pp.
Reviewed by Tom Bateman, Department of Political Studies, Augustana University College, Camrose, Alberta.
In June, 1976, Frank Collin, leader of the neo-Nazi National Socialist Party of America (NSPA), applied to several park districts in and around Chicago for permission to demonstrate. The village of Skokie, Ill., replied that Collin would have to post a bond of $350,000 in order to qualify. To Collin, and to the American Civil Liberties Association (ACLU) which took up his cause, the bond requirement amounted to an unconstitutional limitation on First Amendment free speech principles. What insurance company would underwrite the public demonstrations of one of the most vilified and controversial groups in the United States? In protest against the insurance requirement, Collin announced that he would hold a free speech demonstration in Skokie, drawing Americans’ attention to the fragility of civil liberties protections for unpopular voices. Officials responded by securing a court injunction prohibiting the NSPA from demonstrating on the appointed day. Collin countered by planning to hold the demonstration one day sooner than planned, complying with the letter of the injunction but plainly violating its spirit. Skokie responded by having the injunction extended. Soon a flurry of litigation from all sides was initiated, plunging a classic American civil liberties disputes into the procedural morass of the judicial system.
Two years later, Collin and his NSPA emerged both the winners and the losers. Their rights to free speech were vindicated, their standing as an organized, savvy political force fatally wounded.
What gives this story it sharp edge is the demographic composition of Skokie at the time of the neo-Nazis’ agitation. This Chicago suburb of 70,000 was home to perhaps 30,000 Jews, 5,000 to 6,000 of them Holocaust survivors and their families. To have brown-shirted hatemongers with swastikas on their arms march through a neighborhood whose inhabitants were so deeply affected by the Final Solution would simply be too much. Could any redeeming purpose be served by letting the neo-Nazis march? Could there be a civilized response other than to ban the demonstration?
To these questions Strum addresses her short, readable book. In an accessible, engaging narrative, she answers yes to both questions, affirming the "firstness" of the First Amendment at a time when First Amendment jurisprudence may have more detractors than defenders. Hers is no simplistic defense. She does not lionize the group whose speech is under attack. She is fair to both sides and depicts the malignance of Collin and his company in full color. NSPA leaflets boldly declare "WE ARE COMING!" and contain a swastika reaching out to throttle a stereotyped eastern European Jew. Commenting on his desire to frighten Jews in the neighborhoods in which the leaflets were distributed, Collin said: "I hope they’re terrified. I hope they’re shocked. Because we’re coming to get them again. I don’t care if someone’s mother or father or brother died in the gas chambers. The unfortunate thing is not that there were six million Jews who died. The unfortunate thing is that there were so many Jewish survivors."
At the same time, she makes clear that Collin and his rag-tag group of losers were mostly bluster--poorly organized, few in number, and surprisingly cowardly when met by large numbers of counter-demonstrators. As good a story about free speech for the socially and politically reviled as this is, readers are left in no doubt that the NSPA presented no threat whatsoever to freedom and democracy in America. Free speech for the politically inconsequential is easy to defend.
But in some ways this is not what the Skokie controversy was about. For Strum, Skokie prefigured more contemporary debates about group libel, psychological harm as a ground for limiting free speech, and critical race theory’s attempt to define demeaning, hateful speech as discriminatory action whose prohibition can be supported by 14th Amendment principles of equality. Strum’s book defends traditional First Amendment jurisprudence against its contemporary critics who would trade absolutist free speech for more "European" principles of order, tolerance, and equality.
Events support her purpose. In reaction to the NSPA’s provocations, myriad efforts were made to stop the demonstrations: local ordinances, insurance requirements, court injunctions, state legislation and a class action suit claiming that NSPA demonstrations amounted to "menticide." All of these failed in the face of actual or potential First Amendment challenge. What succeeded was a torrent of community and interest group organization to counter NSPA efforts. Counter-demonstrators vastly outnumbered the pathetic turnout of NSPA partisans when the latter did eventually march in Chicago. The neo-Nazis, with police protection, would briefly show their faces and slink away in fear. They never did demonstrate in Skokie.
One cannot say that the opposition to the NSPA was all rational and civil. The Jewish Defense League and the Anti-Defamation League were among those organized against the NSPA and they threatened to break the heads of the neo-Nazis to preserve the honor of their forebears. So some ‘fighting words’ frighten the NSPA, achieving a goal legal measures could not.
The interest group which has Strum’s undying admiration is the ACLU. In fact the book reads as a vindication of its support for a most unpopular group. The ACLU lost members and financial contributions for its support of the NSPA’s free speech rights but Strum is convinced it was always on the side of the angels. Readers are invited to feel the strain within ACLU ranks: should the ACLU defend constitutional principle or should it devote its limited resources to the "progressive" causes? ACLU supporters lamented the passing of the old days when the unpopular people were also the "good" ones. Strum is no agnostic on the question of who are among the ‘good’ people. She merely believes that a devotion to constitutional principle – maximum free speech short of direct incitement to violence – will necessarily redound to the benefit of the progressives.
This is a very American point of view. Courts elsewhere dissent. Then Chief Justice Brian Dickson of the Supreme Court of Canada wrote in his majority reasons in the 1990 Keegstra case (in which a school teacher who denied the Holocaust, charged with promoting hatred against an identifiable group, challenged the constitutionality of that criminal prohibition) that "it is not inconceivable that the active dissemination of hate propaganda can attract individuals to its cause...."(1) He quoted with approval the report of a government committee in the 1960s which argued that the old faith in human rationality, that truth will be preferred to error, can no longer be believed "in such a simple form." People’s emotions will dominate in the short run. Collective reason, legislation, must preserve rationality from the nearer enemy of passion.
Strum is aware of American exceptionalism in all this. She simply disagrees with other countries’ approaches. Americans come up short, she admits, on the obligations attending the exercise of freedom. But the alternatives, no matter how well-intended, are more fragile in the long run. She cites a series of cases in which legislation modeled on the concept of group libel was used by dominant groups to stifle the efforts of embattled minorities to confront their oppressors.
This is a good book for undergraduates studying civil liberties, American government, or the judicial process. It is stimulating, readable, and will provoke discussion among all but the dullest students.
Many themes run through the book: the firstness of the First Amendment; definitions of harm that should prevail in discerning limits to rights; racism and the proper political means of combating it; the singular evil of the
Holocaust; individualism versus group rights; interest groups and the judicial process; and the inherent contestability of values in liberal societies. On this last point, Strum’s book corroborates a study of civil liberties in which the authors assert that constitutional rights are inescapably open to reasoned debate, and that people, whether they are among society’s elites or not, can and will differ on the meaning of rights.(2) In the Skokie controversy, the two main positions – that the NSPA should be able to exercise the plenitude of free speech rights, and that the NSPA’s hateful vitriol deserves no such thing – were both eminently defensible. This is why, over Skokie controversy of the late 1970s, the American Jewish community was divided, why the ACLU was almost torn apart, and why this book is such an engaging read.
NOTES
R. v. Keegstra [1991] 2 W.W.R.1, 43.
Paul M. Sniderman et al, The Clash of Rights: Liberty Equality, and Legitimacy in Pluralist Democracy (New Haven:
Yale University Press, 1996).