Confederate Flags and Swastikas are uncomfortable, but still protected under the Constitution.
FORT WORTH, Texas, July 26, 2015 — It has been over a month since South Carolina’s Emanuel African United Methodist church saw the murders of nine innocent people. The tragedy brought the controversy over the Confederate battle flag to light and sparked many arguments about it. Some say to deny display of this flag goes against the First Amendment and free speech. Others argue against, wanting it banned indefinitely because of its association with the system that promoted slavery and racism.
The debate is reminiscent of another fervent free speech battle that happened almost 40 years ago in Skokie, Ill., just outside of Chicago.
The National Socialist Party of America, neo-Nazis, wanted to march in Skokie on May 1, 1977. They asked Skokie officials for permission to stage a rally in front of the village hall to protest a local ordinance. The group planned to wear Nazi uniforms with swastika emblems and armbands. It also promised to demonstrate peacefully and to obey reasonable police instructions or requests.
Not surprisingly, a firestorm of controversy erupted. The Nazis took the case to court. The trial court disallowed the march, and then the Illinois appellate court upheld the ban after refusing to look at the case. The Illinois Supreme Court then refused to grant review of the case or to stay the injunction, effectively denying the Nazis their rights to free speech and assembly.
Lawyers from the American Civil Liberties Union defended the Nazi request. The ACLU asserted that they were not defending Nazi idealism but the freedom of speech. Attorney David Goldberger, a Jew, stated:
“Your Honor, if this court issues a preliminary injunction in the case, enjoining the demonstration of Mr. Collin and the National Socialist Party of America, I fear that the Village of Skokie will be dancing in the grave of the First Amendment.”
The Illinois Supreme Court denied a stay of injunction. The Nazis then took the case to the United States Supreme Court.
The Village of Skokie argued that neo-Nazi speech promoted racial or religious hatred and is unprotected by the First Amendment. The courts rejected this argument on the grounds that it is not a reason for suppressing speech alone. As long as they are not burning down houses, inflicting bodily harm or destroying property, they have a right to express what they want. Why? If the Supreme Court silenced one group, it effectively silences all groups since all Americans have the same rights under the Constitution – even groups that are offensive to mainstream America.
The village also claimed that the purpose of the marches was to inflict emotional harm on the Jewish residents of Skokie. However, the Nazis originally petitioned to march in a different town with a minute Jewish population. Denied that permit, they decided to march in Skokie so they would get publicity for their grievance. Then, when faced with having to pay $350,000 to cover insurance for that march, they became more resolute.
In addition, Skokie mayor Albert Smith testified that, if the Nazis marched, there would be uncontrollable violence as a result. But once a government gives in to such threats of violence, it effectively empowers any group of people who wants to silence others to do so simply by threatening to violate the law.
In the end, the Supreme Court ordered the Illinois Supreme Court to respond. It finally struck down the injunction against the Nazis in January 1978, paving the way for a Nazi demonstration. Fortunately, they declined to march in Skokie and marched somewhere else.
The Village of Skokie had also passed three new ordinances. The first required that a permit would be necessary for any demonstration. Next, political organizations could not demonstrate in military style uniforms. The third ordinance banned the display of symbols offensive to the community.
The Supreme Court, which included Justice Thurgood Marshall, the first black American Supreme Court Justice found the ordinances to be unconstitutional.
I was 13 when this happened. During this time, the Nazis staged a march at Veterans Memorial Park in South Holland, Ill., not far from where my family lived. My girlfriends and I told my mom we wanted to go throw rocks and eggs at them. My mother, in her wisdom, instead of saying no, explained that if we did that we would be giving the Nazis what they wanted — publicity. Good or bad publicity put them in the public eye — right where they wanted to be. And they were willing to endure rocks, eggs and other items thrown at them if necessary.
We decided that the Nazis were not worth our time and effort. The best way to deal with groups like this is to not give them an audience. And we didn’t.
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