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