Page 19 - Delaware Lawyer - Fall 2019

Having assessed the actual operation of hate speech laws and the actual state of discriminatory attitudes and actions around the world, these on-the-ground experts have concluded that hate speech laws are at best ineffective, and at worst counterproductive, in promoting our shared goals. Their observations have convinced them that counter-speech and other non-censorial measures are encour- agingly effective.
While doing the research for my book, I asked myself, as always, a question that is the title of a forthcoming book by philos- opher Jeffrey Glotzbach (the President of Skidmore College), What Would It Take to Change Your Mind? Accordingly, even though I, and the ACLU, had repeatedly re-examined and reaffirmed our tradi- tional defense of freedom “even for the thought that we hate,” still further re-ex- amination was yet again warranted by the renewed questioning in the wake of Char- lottesville. This re-examination included questions being raised from within the ACLU itself.
Moreover, the First Amendment like- wise invites such re-examination. After all, the First Amendment does not ab- solutely, always protect free speech. And free speech does not and should not auto- matically prevail over other fundamental rights, including equality, if there are ten- sions among them.
Thus, if evidence showed that a restric- tion on hate speech was necessary to pro- mote equality, I would not oppose that restriction. Likewise, under such circum- stances, courts should uphold it as satisfy- ing the strict scrutiny standard.
Free Speech and the Court of Public Opinion
This same conclusion was reached in terms of general logical principles by a dis- tinguished non-lawyer, Aryeh Neier, who was the ACLU’s Executive Director in 1977-78, when we controversially did in Skokie, Illinois what we did 40 years later in Charlottesville, Virginia. In Skokie we defended the free speech rights of white supremacists, whose messages were dia- metrically opposed to our own egalitar- ian values. The Nazis provocatively chose Skokie for their demonstration because it had not only a large Jewish population,
Most people instinctively support suppressing ideas that they hate — even many ACLU members.
but also, at that time, a large population of Holocaust survivors.
While we easily won the case in the courts of law, including the United States Supreme Court, we had a much tougher time in the court of public opinion. In- deed, the ACLU’s staunch defense of free speech in Skokie went too far even for many people who identified as such die- hard free speech defenders that they had become “card-carrying” ACLU mem- bers. Many ACLU members urged us to make “just one” exception to our neutral defense of free speech for this speech that was especially repugnant to the most fun- damental civil liberties values. In fact, a full 15 percent of ACLU members re- signed in protest over our handling of the Skokie case.
By the way, I regularly remind people of this number in response to claims that today’s college students are supposedly un- usually hostile to free speech, because sur- veys show that they don’t support freedom for racist or other hate speech. But as the Skokie situation illustrates, throughout my adult lifetime, most people have instinc- tively supported suppressing ideas that they hate — even many ACLU members.
That has been true for people of all ages and ideologies. Journalist Nat Hen- toff well captured this general pattern in the title of a book he wrote way back in 1992 — which is still apt today: Freedom of Speech for Me, but Not for Thee: How the Left and Right Relentlessly Censor Each Other.1
The attacks against the ACLU’s po- sition in the Skokie case were especially
pointed against our then-Executive Di- rector Aryeh Neier, who was himself a Holocaust survivor. He had been born in Berlin and his entire extended family was assassinated by the Nazis. Ultimately, Aryeh and his immediate family managed to escape Nazi Germany, after severe or- deals and suffering. You can just imagine the horrific hate mail he received during the protracted Skokie litigation. Ironi- cally, some of the hate mail came from vicious anti-Semites, and some from Jews and other opponents of anti-Semitism.
In fact, a major reason the neo-Nazis sought to demonstrate in Skokie in par- ticular, with its large Jewish population, was because the Nazis “blamed” Jews for supporting the Civil Rights Movement and racial integration. So they lumped to- gether as their hated enemies not only Af- rican Americans and other racial minori- ties, but also Jews and civil libertarians.
Ironically, this shows that the enemies of liberty and justice for all also share the ACLU’s view that all rights for all people are indivisible. But they see it from the other end of the looking glass.
Recall last fall’s Pittsburgh synagogue massacre. The perpetrator linked his ha- tred of Jews to the fact that Jewish or- ganizations and individuals were leading supporters of rights for refugees and other immigrants.
I and the ACLU are also regularly as- sailed by anti-Semitic invective, and also even by the “N-word.” I vividly recall the first time I was personally subjected to this type of hate speech, shortly after I became ACLU President. During a radio call-in show, a listener addressed me as the leader of [quote] “the [N-word]-lov- ing ACL-Jew.” And believe me, he used the whole nasty word, unexpurgated! Suppressing Speech, Suppressing Freedom
Shortly after the Skokie case ended, Aryeh wrote a powerful book about it, called Defending My Enemy: American Nazis, the Skokie Case, and the Risks of Freedom.2 Aryeh went on to become one of the most renowned, respected lead- ers of the global international human rights movement, and he has continued to strongly defend the same neutral free speech stance as in Skokie. Therefore,
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