33.

WHEN NAZIS IN THE UNITED STATES WERE SHOWN THE RESPECT THEY SURELY DID NOT DESERVE

Wearing hoods, marching in goosestep, and carrying tiki torches like the protestors in Charlottesville in August 2017 are not the actions of sincere debaters in possession of ideas. They are, instead, the fully realized tactics of would-be criminals seeking to evoke fear in otherwise vulnerable citizens.

JUST THIRTY-TWO YEARS after the liberation of Auschwitz, in 1977, neo-Nazis obtained permits to march on the Village of Skokie, Illinois, with its disproportionate number of Holocaust survivors as residents. People who had barely escaped the crematoria discovered a new brand of Nazis wishing to torment them—across an ocean—in Illinois. The neo-Nazis had no intention of engaging in a civilized debate in the public square. Instead, they handed out advance leaflets with the words: “WE ARE COMING!” They were targeting the Holocaust survivors, reminding them that they should not get too comfortable in the Midwest. The master race was apparently portable. A thug can, seemingly, shout “Heil Hitler!” anywhere. They had a knack for instilling fear. Other leaflets read: “Where one finds the most Jews, there one will find the most Jew haters.” The neo-Nazis produced drawings of swastikas with hands outstretched, choking a stereotypical Jew.

So much for the marketplace of ideas.

The expected outcome did not disappoint. The buildup to a march that, in the end, would never even take place because it had already achieved its purpose, reinvigorating in the minds of Skokie’s Holocaust survivors the psychological trauma of past persecution. One survivor, Erna Gans, said in 1978, “Yes, it did terrorize us. It brought back many hours of anguish. Something we thought we left behind. . . . This realization brought back a terror. . . . [H]ere we are again, in the same position. . . . [F]or some it was very realistic—it is here today and I am going to kill them.”³²² The Corporation Counsel for Skokie, Harvey Schwartz, interviewed a year after the case, recalled the state of mind of the survivors on the day when the neo-Nazis came closest to actually entering the Village: “[T]hey were changed people: fanatical, irrational, frightened, angry. No one could possibly appeal to them with any reasonable argument. . . . They were possessed, some of them. It was as if they had repressed something for twenty years that was now loose. It was very disturbing. At this point I realized that the First Amendment theory grossly underestimated the impact on these people. This was not the ‘exchange of ideas’; it was literally an assault. . . . People there on that Saturday were injured, damaged—I dare say even physically.”³²³

The Village filed a claim for the intentional infliction of emotional distress. None of the various opinions that led up to Collin v. Smith, the captioned case, paid much attention, however. The Seventh Circuit noted this “‘new tort’ of intentional infliction of severe emotional distress,” but went on to say that, even if specific individuals were to bring such an action, the court speculated, as if foreshadowing Snyder v. Phelps, that it might be barred under the First Amendment.³²⁴ Not unlike Cohen v. California, the Holocaust survivors were dismissively informed that they always had the option to avert their eyes by “simply avoid[ing] the Village Hall for thirty minutes on a Sunday afternoon.”³²⁵ The court recognized with “certainty” that the “historical associations [the neo-Nazis] would bring with them to Skokie, many people would find their demonstration extremely mentally and emotionally disturbing.”³²⁶ But it went on to note that “[t]he problem with engrafting an exception on the First Amendment for such situations is that they are indistinguishable in principle from speech that ‘invite[s] dispute . . . induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.’ Yet these are among the ‘high purposes of the First Amendment.’”³²⁷

That conclusion is simply and demonstrably wrong. It is not the same at all. Skokie was a case involving “targeted intimidation posing as free speech.”³²⁸ Acts of intimidation like the conduct of the neo-Nazis in Skokie, the Westboro Baptist Church in Snyder v. Phelps, the burning of crosses in front of African-Americans, such as in Virginia v. Black, and the burning of flags before families who have lost relatives during wartime serving their country have nothing at all to do with symbolic speech and have everything to do with unadulterated, unmerciful violence. Wearing hoods, marching in goosestep, and carrying tiki torches like the protestors in Charlottesville in August 2017 are not the actions of sincere debaters in possession of ideas. They are, instead, the fully realized tactics of would-be criminals seeking to evoke fear in otherwise vulnerable citizens.

Is there any wonder that the general public has lost faith in its public institutions—and especially the legal system—when courts cannot seem to make a sensible distinction between someone who wishes to raise ideas and argue points for the public good and another who wants nothing more than to terrorize Holocaust survivors, African-Americans, homosexuals, and even an innocent family who merely wants an uninterrupted moment to bury their son? Stanley Fish was correct when he wrote, “It is hard when reading these opinions not to feel that the entire enterprise has gone off the rails and that you are in the hands either of charlatans or idiots.”³²⁹

Some courts, however, are capable of getting it right. In the early 1980s in Galveston Bay, Texas, the KKK decided that recently resettled Vietnamese fishermen were unwelcome and would make for a nice target to intimidate. Wearing military regalia and brandishing weapons, the Klan exercised their First Amendment rights by burning in effigy a Vietnamese, offering a message that the Vietnamese were not then, nor would ever be, Texans. Try to tease out the content, much less ideas, in that manner of expression.

The Vietnamese brought suit in federal district court, seeking injunctive relief and asserted violations of several civil rights statutes, along with claims of intimidation and the infliction of emotional distress and tortious interference with contract. They prevailed on the two claims other than the one for emotional distress, largely because the plaintiffs were unable to show an accompanying intentional tort with a physical dimension, such as trespass or assault. In 1981, that is how emotional distress claims were routinely decided. Without a more tangible harm, the emotional distress claim could not stand alone. But the court did rule that, through their actions, the KKK targeted the Vietnamese community of Galveston and therefore had engaged in conduct, and not speech. The burning of a Vietnamese in effigy was ruled to be non-speech.³³⁰ The court did not, however, examine whether the provocative actions of the KKK were, under Chaplinsky, tantamount to “fighting words,” where no First Amendment protection would apply.