A new documentary airing on WTTW explores the explosive moment when a group of neo-Nazis sought to march in Skokie, Illinois in 1979 – and the landmark legal drama that ensued. We get a closer look at Skokie: Invaded But Not Conquered on Chicago Tonight at 7:00 pm.
Read an interview below with Martin H. Redish, the Louis and Harriet Ancel Professor of Law and Public Policy at Northwestern University School of Law, as he discusses the lasting significance of the National Socialist Party of America v. Village of Skokie case.
Can you give us a description of National Socialist Party v. Skokie and what was specifically at stake?
Well, actually, there are two cases. They are related but distinct in key ways. One was state court and one was federal court. The one that arose initially was the one in state court which ended up coming out of the Illinois Supreme Court, the case was entitled Village of Skokie vs. The National Socialist Party of America. That came down at the end of January, 1978. This was before any of the ordinances had been passed. The village of Skokie had simply gone into court and sought an injunction against the planned demonstration by Frank Collin’s Neo-Nazi group, and they issued injunctions to prohibit the displaying of the swastika or marching in Nazi uniforms, or distributing pamphlets displaying any materials that incited hatred against people of the Jewish faith or other ancestries or religions. And the circuit court, which is a trial level court, initially issued the injunction. It went to the Illinois Appellate Court which modified the order so that the defendants were enjoined only from intentional display of the swastika during their planned Skokie demonstration. It was modified by the Illinois Supreme Court. The Nazi party went up to the U.S. Supreme Court to get a stay of the injunction, and the Supreme Court, with a few dissents, summarily stayed the injunction and remanded for further proceedings. Finally, after more procedural machinations, it ended up back in the Illinois Supreme Court and they overturned the injunction.
Why did they overturn the injunction?
The injunction was stopped, in large part because an injunction amounts to what’s called a “prior restraint,” which is stopping speech before it comes out as opposed to punishing it after it’s said. And there’s a long tradition in First Amendment law going back to England, before the creation of the United States, having a strong presumption against prior restraint so whoever issues them, a court or an administrative agency, and the Illinois Supreme Court finally decided in this case, that there wasn’t enough to overcome that strong presumption against prior restraint issued by a court, so they overturned the injunction.
The village of Skokie proceeded to pass three ordinances. There was an ordinance that prohibited dissemination of materials that promote hatred of persons on the basis of their heritage, they enacted an ordinance prohibiting members of the political party from assembling while wearing military style uniforms, and they passed an ordinance requiring certain persons seeking to parade or assemble to obtain liability insurance of at least $300,000 and property damage insurance of at least $50,000.
What was the intent of the ordinances?
Their strategizing was this: because the Illinois Supreme Court had emphasized the suspect nature of a court injunction, they wanted to go the other route, which was to enact local ordinances which didn’t involved a prior restraint problem; then, if they marched they would be criminally responsible for violation of those ordinances. David Goldberger, who was the ACLU lawyer at the time, he brought a case in the northern district of Illinois entitled “Collins v. Smith.” Albert Smith was the president of the village of Skokie, he wanted a declaratory judgment declaring all of these ordinances unconstitutional, and the court did declare all of them unconstitutional, so what you ended up with was a Seventh Circuit decision. The U.S. Supreme Court never said anything on the merits of this issue, but you had a Seventh Circuit decision from the federal courts and you had an Illinois Supreme Court decision from the state courts. The Illinois Supreme Court’s decision was the end of January, 1978; the decision of the court of appeals, I believe, was May of 1978, so you can see the time progression here.
Were there any commonalities between the decisions?
What they had in common were three main things: first, they both upheld the right of the Nazis to march. Second, both to varying degrees expressed moral distaste for the Nazis, though that wasn’t really necessary for the opinion. And three, when you got right down to it, they both had the same rationale. As a constitutional matter, this was a very easy case. A moral, or emotional or political matter, this was a very difficult case. But as a constitutional case, it was pretty much [open and shut.]
Government cannot suppress speech because it finds distasteful the message being communicated or because people in the community find it offensive. If the First Amendment means anything, it means that. Because, if it didn’t have that complete prohibition against what’s called “viewpoint regulation,” it would simply be a fight for who’s in power. Whoever’s in power would prohibit speech that that group found morally offensive.
If you think about Martin Luther King’s march in Cicero in 1966, the idea of integration was found deeply offensive by many of the residents of Cicero at that time. They didn’t want him to march. Well, if Skokie can stop the Nazis from marching, why couldn’t Cicero stop Martin Luther King from marching? Then it just depends on whose ox is being gored, and pretty much you’ve just turned the First Amendment into a political state of nature, where Hobbes said: “Life is nasty, brutish and short.” And, this isn’t intuitive. This is what I refer to as “turning into the skid.” Your instinct when you’re losing control of your car is to turn away from the skid, but you have to overcome that instinctive intuition and turn into the skid, and that’s what the First Amendment is. It requires a kind of intellectual commitment to broad principles that will require you tolerate some pretty unpleasant stuff for most of us. But that’s what’s required.
And Skokie is an example of this type of thinking.
The argument that the people of Skokie, many of whom at the time were concentration camp survivors, it’s just horrible to think about what it would have been like for them if this march had ever happened. The response of the Seventh Circuit was the only response the First Amendment can make. As long as you’re not coerced to watch it, just turn away. Just don’t go there. And they drew on a Supreme Court decision from 1971 titled “Cohen v. California.” Mr. Cohen had worn a jacket in Los Angeles, I think it was the criminal court building, and on the back it said “F*** the draft.” And he was prosecuted for, I don’t remember what, I think it was disturbing the peace, and the Supreme Court said that message was constitutionally protected. How you convey the message, it wasn’t just opposition to the draft, he used a strong epithet, and that strong epithet conveyed his feeling. And for the argument that people were offended by the jacket, Justice Harlan, who was actually a fairly conservative justice, said “avert your eyes.”
As long as you’re not in a captive audience situation, this is one of the prices we have to pay for having a free society. The village had argued, particularly in the Illinois decision, that the showing of the swastika amounted to fighting words, and those are buzz words in the First Amendment. The Supreme Court had held in the 1940s, somewhat questionably some scholars think, that fighting words are not protected by the First Amendment; words that are abusive and stimulate or induce violent reaction in the listener. And again, quite wisely, both courts rejected that kind of argument, because basically you’re allowing what’s called a “heckler’s veto,” that then anybody can stop speech they find offensive simply by threatening violence, and the answer is for the police to prevent that violence, not to prohibit the speech because the listener isn’t going to like it.
Was this one of the first instances of a group who wanted to communicate offensive speech being allowed to do so by the courts? Did this case set any precedent?
This was perhaps one of the most stark illustrations of it. But there have been cases involving Jehovah’s Witnesses, there have been cases in the 30s involving unions demonstrating, so even in the 70s it had to come out this way. It was also famous because of its emotional impact. The key to keep in mind is that these people were not intending to advocate any type of criminal behavior. They weren’t planning to say “kill Jews, kill blacks.” They were carrying signs that said “support free speech for the white man”. I think they were going to pass out pamphlets that said negative things about Jews, but they were never planning to directly advocate violence or criminal behavior. If they had, it would have triggered a whole different line of First Amendment cases. And you would have had to have found that the danger of harm was imminent, but those cases weren’t even implicated here because there was no plan to do that.
Why should a layman care about this case?
The reason this case is so significant isn’t in its legal precedent so much but because it so strikingly underscores the disconnect between emotive reaction of individuals to the logical implications of the First Amendment, and the important intellectual commitment we have to have to the underlying constitutional values.
This interview has been edited and condensed.
Skokie: Invaded But Not Conquered airs tonight, Thursday, January 24 at 8:00 pm on WTTW11. To learn more about the documentary, click here.