Civil Liberties The National Newsletter of the ACLU #380, Spring 1994 (c) 1994 American Ci

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Civil Liberties The National Newsletter of the ACLU #380, Spring 1994 (c) 1994 American Civil Liberties Union Book Review: Is Freedom A Sometime Thing? by Burt Neuborne Hate Speech: The History of an American Controversy by Sam Walker. University of Nebraska Press. 1994. 217 pages. Sam Walker, history professor, longtime ACLU national board member and the ACLU's premier chronicler, has written an ACLU-eye view of the historical effort to censor hate speech. Walker takes us from the sporadic attempts to censor Ku Klux Klan rantings, and the crude anti-Semitism of Henry Ford's Dearborn Observer, in the 1920s; to the efforts to muzzle Nazi propaganda in the 1930s; the occasionally violent targeting of anti-Catholic messages emanating from Jehovah's Witnesses in the 1940s; the half- hearted effort to censor racist and anti-Semitic speech in the 1950s; the virtual abandonment of censorship efforts at home, and the emergence of an international movement against hate speech abroad, in the 1960s; Skokie and the dramatic revival of domestic debate over censoring hate speech in the 1970s, and the resurgence of a powerful movement to censor hate speech in colleges, workplaces and the streets in the 1980s. Walker's comprehensive factual research anchors a rich narrative that is dotted with the unexpected. Did you know that Jack Ruby, Lee Harvey Oswald's assassin, first surfaced in New Jersey in 1939 as one of a violent mob seeking to prevent Nazis from demonstrating; or that Frank Collin, the Nazi leader who tried to march through Skokie, is half-Jewish; or that hundreds of Jehovah's Witnesses were assaulted in the early 1940s for refusing to salute the flag and because of their anti-Catholicism; or that this century's pre-eminent American philosopher, John Dewey, testified before Congress against censorship at the end of World War II? At least two bonuses await the reader of Hate Speech. The first is Walker's important insight that nothing was -- or is -- foreordained in the dispute surrounding hate speech. Walker deftly demonstrates how current First Amendment doctrine incubates the seeds of a powerful censorship movement. To find the legal raw material for widespread censorship, one need only mine the "fighting-words" doctrine of Chaplinsky v. New Hampshire and Justice Felix Frankfurter's decision in Beauharnais v. Illinois upholding a group libel law. Walker's careful marshalling of the legal authorities makes it painfully clear that free speech flourishes not by a mechanical application of legal principles, but by judicial and social choice -- a reminder that free speech is too fragile to be left exclusively to lawyers. After demonstrating that First Amendment doctrine does not clarify the censorship/hate speech issue, Walker turns to the heart of his inquiry. Why, he asks, did American society go down the free speech road when legal rationales for censorship were so accessible? One possible answer, hinted at but not pursued by Walker, is that we did not go down that road for everyone. My predecessor, Mel Wulf, is quoted as observing that even as the nation was rejecting the censorship of hate speakers, it was vigorously attempting to censor communists and opponents of the Vietnam War. But that's another book. Walker prefers the explanation that no real political constituency existed, as it did regarding communists, to support censorship of hate speech. In the absence of such a constituency, he hypothesizes that the ACLU, as the only game in town, nudged the Supreme Court and society in a libertarian direction. Until recently, he points out, those representing the principal targets of hate speech -- the NAACP, the American Jewish Congress and the ACLU -- were united in a strategic understanding that hate speech laws little served their interests. Thus, in the wake of the 1952 Supreme Court's Beauharnais decision, which, in upholding group libel laws, apparently opened the door to widespread suppression of hate speech, virtually no efforts were made to enact hate speech laws. In fact, ten years after Beauharnais, the Illinois legislature actually repealed the very law the Supreme Court had upheld. A second bonus is Walker's reminder that the civil rights coalition's historic opposition to censoring hate speech was spurred by a fear that the power to censor, once unleashed, might be turned against them. Thus, the ACLU decided in 1934 to fight censorship of Nazis, fearing, in part, that the weapon used against the right would inevitably be used to crush the left. And the NAACP and AJC declined to endorse censorship of hate speech in the critical years after Beauharnais, out of fear that civil rights demonstrators in the South would be its next targets. Walker's perception that civil rights advocates championed the free speech rights of hate speakers for strategic rather than principled reasons is an important lesson toward understanding the current support of censorship by those who no longer view censorship as a threat to their political programs. Walker's message that free speech is a matter of political choice, not logical doctrine, and that until now no real political constituency has existed for censorship of hate speech, highlights the importance of the ACLU in the current controversy. If historic victims' groups decide, strategically, to call for censorship, the ACLU will increasingly stand alone in its principled support of free speech for all. If I have a serious criticism of Hate Speech, it is the author's failure to explore why some civil rights groups are abandoning the traditional consensus that supported a libertarian approach to hate speech. Why is support for censorship gathering on the American reformist left, where it barely existed before? Why are calls for censorship coming now from egalitarian reformers? I, for one, would have been deeply interested in Sam Walker's explanation. It is not enough to understand the past. We need to understand the present, the better to affect the future. -------------------- Burt Neuborne, a former legal director of the ACLU, is a Professor of Law at New York University School of Law ============================================================= ACLU Free Reading Room | A publications and information resource of the gopher://aclu.org:6601 | American Civil Liberties Union National Office ftp://aclu.org | mailto:infoaclu@aclu.org | "Eternal vigilance is the price of liberty"

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