Mimesis Law
24 August 2019

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).

21 Comments on this post.

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  • Josh
    23 August 2016 at 10:17 am - Reply

    “The Supreme Court had roundly rejected prior restraint…” I see what you did there.

  • Eva
    23 August 2016 at 12:20 pm - Reply

    From your article it could be that the interests of specific groups are taking precedence over the original intent of organizations such as you have indicated.

    That is unfortunate. Our country apparently is already politically skewed and divided into camps that have little tolerance for the beliefs of others who are not the same as theirs. When it comes down to basic constitutional rights we should all be on the same page.

  • Grant Gould
    23 August 2016 at 1:15 pm - Reply

    I think part of the problems between the ACLU and Christian organizations has to be put at the feet of the Christian organizations. These organizations have in nearly every post-1970s case preferred free exercise to free speech or free association as their argument to overturn or win exemption from laws, and as a result their victories have been Pyrrhic.

    This has made the cases easier to win — thanks to laws like RFRA free exercise hasn’t yet taken quite the same beating over the years as free speech or free association have — but has meant that they are essentially arguing for rights only for religious people doing religious things. That’s not a civil liberty at all, since it doesn’t apply to the whole of the public; as the fraction of religious people (and thus people to whom free exercise arguments are available) in the population shrinks, free exercise is more and more obviously an odd privilege granted to one sort of belief and activity and person and not to others. Civil liberties-minded people will reasonably stand back and say that special rights for the religious should be handled by the religious.

    Until and unless Christian and similar groups are willing to say that harassing and excluding those they dislike is a matter of free speech and association (and thus a broad civil liberty available to everyone) rather than of free exercise of religion (and thus a distinct privilege restricted to religious people or religious purposes and unavailable to others), they’re going to have an ever harder time being taken seriously by civil liberties groups.

    • Christopher Best
      23 August 2016 at 2:38 pm - Reply

      I don’t think ‘free exercise’ is as limited as you think it is: it also applies to the non-religious in that the government cannot force them into exercising a religion. That protects Christians, Atheists, and Pastafarians alike.

    • David Meyer Lindenberg
      23 August 2016 at 4:54 pm - Reply

      Like another Fault Lines contributor, Ken White, said, rights are bundled, not a la carte. They rise and fall together, and the only principled thing to do is defend them all, not just the ones we like or think are useful to us.

      • maz
        24 August 2016 at 2:21 am - Reply

        That’s a nice homily, but it doesn’t really address what to do when, as you put it, “a case raises a conflict between two constitutional rights, like EEOC v. Harris Funeral Homes, which set the First Amendment against the Fourteenth.” How do you determine which bundled right gets the nod? By order of precedence? Age before beauty? Knobbing up?

        Don’t get me wrong: I agree wholeheartedly with your assessment of the ACLU’s decline and fall. And you’re right that most of its obvious missteps have occurred in that strange no man’s land where support for diversity and the minority voice weirdly wraps around to become repression and control. But the bulk of these aren’t Constitutional minefields, pitting one clearly delineated right against another: It takes a heaping helping of denial for a civil libertarian group to get behind A revenge porn bill. That’s a failure of leadership, not a potential Constitutional crisis.

        I think a far more interesting situation would be something along the lines of EEOC vs Harris Funeral Homes. I know the question of how one can best address instances where one Constitutional right conflicts with another lies outside the scope of this article, and the particulars of the case making the RFRA pertinent may mean this isn’t the most representative of cases to discuss, but Grant Gould is right: I suspect we’ll see 1st Amendment-based attacks launched against an increasingly broad range of regulation.

  • Mario Machado
    23 August 2016 at 4:50 pm - Reply

    The ACLU of today would do better by (re?)reading some of the text from Robert Bolt’s play “A Man for All Seasons” where Sir Thomas More argues with a zealous prosecutor who is hell-bent — pun intended — on taking More down:

    More: “You’d break the law to punish the Devil, wouldn’t you?”

    Prosecutor: “Break it? I’d cut down every law in England if I could do that, if I could capture him!”

    More: “Yes, you would, wouldn’t you? And then when you’ve cornered the Devil, and the Devil turned round to meet you, where would you run for protection, all the laws of England having been cut down and flattened? Who would protect you then?”

    Whenever the ACLU treats the Bill of Rights like a Chinese restaurant menu when it proposes to violate someone else’s protected speech, it’s acting against its own interests (and of its constituency).

    • David Meyer Lindenberg
      23 August 2016 at 4:57 pm - Reply

      I love that quote.

  • Governor
    23 August 2016 at 5:28 pm - Reply

    Not true. ACLU is defending a college newspaper at UC San Diego called the Koala. They’ve been called racist, sexist, homophobic, misogynistic, among other slurs. The ACLU is still defending them against an administration bent in revoking their funding.

    • shg
      23 August 2016 at 5:47 pm - Reply

      The ACLU of San Diego & Imperial Counties is representing the Koala against UC San Diego for defunding the student newspaper. Even though it was over a satirical article, the press release states:

      The ACLU sympathizes with students who are concerned about the reactions to The Koala’s content, especially by those who have suffered violence, racism, sexual abuse, or other traumas. We find this content disturbing too. But the First Amendment protects “outrageous and outlandish” speech that is often contained in publications such as The Koala, however vulgar and offensive they may be.

      “Trauma is real,” said Loy, “but censorship is not the cure, because it inevitably blows back on those it purports to protect.”

      It’s good that the ACLU took the case. It doesn’t, however, make it “untrue,” as one case doesn’t undo the damage being done in all the other cases.

  • TheHawk296
    24 August 2016 at 1:57 pm - Reply

    I had been an avid supporter, member and volunteer for the ACLU for many years. – But I left and they haven’t seen a penny of my money for a nanosecond of my time for years. Quite simply, the organization morphed under my feet from a civil liberties organization to an organization with a political agenda for special interests that are a very, very minor portion of our population.

    The Illinois Nazi case had impact throughout this country, but it was probably the last good case that the ACLU had that represented civil liberties for everyone. We need to get real and realize that case is about 40 years ago, and probably the ACLU’s last big hurrah.

    IF the ACLU were doing its job:

    1. There would be a lot fewer people occupying our jails for relatively minor crimes, or worse, languishing in jail for months, presumably innocent while awaiting trial.

    2. The ACLU would be “sending am message” to numerous local, county and state governments about exactly what their popo can get always with by suing them into oblivion. While the “Supremes” have given the popo extraordinary powers, that is NOT an insurmountable burden, and clamping down on the overzealous popo and confiscatory fines/jail time is exactly what the ACLU should be doing.

    3. The (now forgotten) 170+ Waco bikers would have some civil rights representation by the Texas or national chapters of the ACLU. Whether one likes bikers or not, what happened in Waco TX in May 2015 was one of the most egregious civil right violations in recent history. 170+ people held on $1 million bails “to send a message”, the JP who imposed the bail is an ex-cop, the prosecutor and district court judge judge were former law partners and law school classmates, obfuscation if not outright tampering with evidence by the Waco popo etc. etc. act. Over one year later, not one of these bilkers has yet been brought to trial. – So with all of this going on – Just when in the hell is the ACLU?

    There are a lot of other civil right issues going on too numerous to list here, particularly violations by the local popo however, the ACLU remains silent on those.

    Does anyone from the ACLU wish to respond to the above and tell us just what the ACLU has been doing in the interest of civil rights for those other than their “pet” special interest projects? – We’re waiting to hear from you

  • micah
    24 August 2016 at 3:44 pm - Reply

    isn’t revenge porn speech “that by [its] very utterance inflict[s] injury”? in the globalized, automated, everything-at-your-fingertips world, seems like there’s not an unreasonable level of expectation that revenge porn could do serious damage to someone’s career and livelihood.

    • David Meyer Lindenberg
      24 August 2016 at 4:15 pm - Reply

      This is such a common suggestion – not just for revenge porn, but for any speech people find offensive – that it merits its own free speech trope.

      The answer is no. Each of those decisions I linked in footnote 2 was a nail in that ill-conceived doctrine’s coffin. 70 years after Chaplinsky, it’s basically never fighting words.

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