"He that
would
make
his
own
liberty secure,
must
guard
even
his
enemy
from
oppression,
for
if
he
violates this duty,
he
establishes a
precedent
that
will
reach
to
him-
self."
Thomas Paine
2
1
Why
does
the
ACLU
defend
free
speech
for
Nazis,
KKK
members, and
others
who
advocate racist
or
to-
talitarian doctrines?
Because
we
believe that
the
constitutional
guarantees
of
freedom
of
speech and press
would
be
meaningless
if
the
government
could
pick
and choose
the
persons
to
whom
they
apply. The ACLU's
responsibility-since
its
founding
in
1920-has
been
to
make sure
that
all are
free
to
speak,
no
matter
what
their
ideas.
In
what
circumstances
does
the
ACLU defend
such
people?
The ACLU defends
the
right
of
such per-
sons
to
make
speeches
in
which
they
ex-
press
their
beliefs;
to
print
and
distribute
written
material;
to
hold
peaceful marches
and
rallies;
to
display
their
symbols, and
to
be members
of
groups
which
promote
their
doctrines.
Has the ACLU always defended
such
people?
Yes.
Always. The ACLU's very first annual
report
describes a
case
in
which
the
ACLU
defended free speech
for
the
KKK.
We have
been
defending
free
speech
for
these
groups-and
all
others-ever
since.
ACLU defense
is
needed
when
the views
of
some
people
are
unpopular
and
the
gov-
ernment
interferes
with
their
ability
to
ex-
press
their
views
peacefully.
In
times
and
places
where
the
views
of
civil
rights
ac-
tivists, pacifists,
religious and political dis-
senters,
labor
organizers
and
others
have
been
unpopular, the ACLU has insisted
on
their
right
to
speak.
3
Throughout
the
history
of
the
ACLU,
we
have adhered
to
Voltaire's
principle
that
"I
may disapprove
of
what
you
say,
but
I
will
defend
to
the
death
your
right
to
say
it."
But does
the
First Amendment pro-
tect even those who urge
the
destruc-
tion of freedom? Does it extend
to
those who advocate
the
overthrow of
our democratic form
of
government
or
who espouse violence?
In
1%9, in
an
ACLU case
involving
a
KKK
leader
who
had urged
at
a rally
in
Hamilton
County,
Ohio,
that Black Americans be sent
back
to
Africa,
the
United
States Supreme
Court
unanimously
established
the
princi-
ple
that
speech may
not
be
restrained
or
punished unless
it
"is
directed
to
inciting
or
producing
imminent
lawless action and is
likely
to
incite
or
produce
such
action."
(Brandenburg
v.
Ohio)
In
this, and
in
earlier cases
involving
advo-
cates
of
draft
resistance in
World
War I and
leaders
of
the
Communist
Party
during
and
following
World
War II,
the
Supreme
Court
made
it
clear that before a speaker can be
suppressed
there
must be a clear and pre-
sent danger that
the
audience
will
act ille-
gally
and
do
what the speaker
urges-
not
just believe
in
what
is
advocated.
When
Nazis
or
others
like
them
choose
to
demonstrate in places like
Skokie, Illinois,
where
hundreds
of
survivors of the concentration camps
live, are they not creating a
clear and
present danger of violent reactions?
A
..
Speaking
or
marching
before
a hostile
audience is
not
the
same
as
inciting
a sym-
pathetic crowd
to
engage in illegal acts. The
audience is
not
being urged
to
become vio-
lent
and
do
bodily
harm
to
the
de-
monstrators. Hostile crowds
must
not
be al-
lowed
to
exercise a
veto
power
over
the
speech
of
others
by themselves creating a
clear
and
present
danger
of
disorder.
Otherwise
any
of
us
could
be
silenced
if
people
who
did
not
like
our
ideas decided to
start a
riot.
It
is
common
practice
for
speakers and
demonstrators
to
carry
their
messages
to
hostile
audiences-perhaps
in
the
hope
of
making conversions, perhaps
to
attract at-
tention,
or
perhaps
to
test
the
potential
for
restraint
or
for
ugliness in
their
adversaries.
In
hundreds
of
cases,
the
ACLU
has
de-
fended
the
right
to
speak even
when
the
speakers
were
so
unpopular
that
opponents
reacted violently. The
Wobblies
carried
their
unionization
message
to
Western
mining
towns. That message was so
unpopular
that
some
of
them
were lynched. Jehovah's Wit-
nesses
distributed
their
tracts
in
Roman
Catholic neighborhoods. They
were
stoned.
Norman
Thomas
spoke
in
Mayor
Frank
Hague's jersey City.
He
was
pelted
with
eggs
and
narrowly
escaped serious violence. Paul
Robeson sang at a concert
in
Peekskill,
New
York. There was a riot. Civil rights activists in
the
1960s
chose
to
demonstrate
in
Missis-
sippi
and
Alabama.
Some
of
them
were
murdered.
Opponents
of
the
Vietnam
war
picketed military bases.
Many
of
them
were
beaten.
Martin
Luther King,
Jr.
marched
in
the
most
raci~t
neighborhoods
of
Chicago.
And
there
was racial violence.
The
duty
of
government
is
to
permit
speech and
to
restrain those
who
would
dis-
rupt
it
violently.
Opponents
of
a
point
of
view
must
be free
to
have
their
say,
but
not
to
make any
public
place
off-limits
for
speech
they
don't
like.
But
isn't
a
demonstration
in
an
in-
tensely hostile area the same as falsely
shouting
"fire" in a crowded theater?
Speaking
or
marching
with
offensive mes-
sages
in
public
places is
not
at all
the
same
as
falsely
shouting
"fire"
in
a
crowded
theater.
The
members
of
the
crowd
are
not
in
a
tightly
enclosed arena
where
a panic
would
almost certainly
follow
by a sudden and
un-
expected
cry
of
danger
before
any contrary
view
could
be heard. They have
come
to
the
scene freely, probably
knowing
what
to
ex-
pect, and
they
may freely
turn
away
if
they
are upset by
what
they see
or
hear.
just
as
speakers have a right
to
express themselves,
listeners
have a
right
to
ignore
them
or,
if
they
choose,
to
hold
peaceful
counter-
demonstrations.
Hasn't
the
Supreme Court said
that
certain kinds of
communciation-like
hurling epithets
at
another
person-
are
so likely
to
lead to fighting that
the
speaker,
and
not
the
audience,
is
re-
sponsible?
Isn't the display
of
a swas-
tika
or
the burning of a cross the same
as such "fighting
words?"
The Supreme
Court
has
made
it
clear that
speech can be punished
as
"fighting
words"
only
if it
is directed
at
another
person
in
an
6
I
J
individual,
face-to-face
encounter.
The
Court
has
never
applied
this
"fighting
words"
concept
to
nonverbal symbols dis-
played
before
a general audience (like
the
display
of
a swastika
or
a peace symbol
or
the
burning
of
a cross
or
of
an
effigy
of
a political
leader).
Why
do
the
ACLU
and the courts be-
lieve
that
prior
restraints
on
free
speech
are
so
much
worse
than
punishments after a speech has been
made?
Prior restraints
not
only
prevent
entirely
the
expression
of
the
would-be
speaker,
but
they
also
deprive
the
public
of
its
right
to
know
what
the
speaker
would
have said.
When
the
Nixon
Administration
tried
to
impose
a
prior
restraint
on
the
Pentagon
Papers,
they
told
us
that
publication
would
injure
the
national security.
When
the
Pen-
tagon
Papers
were
published
,
we
discov-
ered
that
they
exposed
misdeeds
by
the
government,
but
did
no
damage
to
national
security.
If
the
purpose
of
the First AmendQlent
is
to
insure a free flow
of
ideas,
of
what
value
to
that
process
are
utterances
which
defame
people
because
of
their
race
or
religion?
Can't
we
prohibit
group
libel
that
merely
stirs
up
hatred
between
peoples?
Legal
philosopher
Edmond
Cahn
dealt
with
this subject in a notable address deliv-
ered at
the
Hebrew
University
in
jerusalem
in
1962.
If
there
were a
prohibition
against
group
defamation, said Cahn:
7
"The
officials
could
begin
by
prosecuting
anyone
who
distributed
the
Christian
Gospels, because
they
contain
many
de-
famatory
statements
not
only
about
jews
but
also
about
Christians;
they
show
Christians
failing
jesus
in
his
hour
of
deepest
tragedy. Then
the
officials
could
ban Greek literature
for
calling
the
rest
of
the
world
'
barbarians.'
Roman
authors
would
be
suppressed
because
when
they
were
not
defaming
the
Gallic
and
Teutonic
tribes
they
were
disparaging
the
Italians.
For
obvious
reasons,
all
Christian
writers
of
the
Middle
Ages
and
quite
a
few
mod-
ern ones
could
meet
a
similar
fate. Even
if
an
exceptional
Catholic
should
fail
to
mention
the
jews,
the
officials
would
have
to
proceed
against
his
works
for
what
he
said
about
the
Protestants
and,
of
course,
the
same
would
apply
to
Protes-
tant
views
on
the
subject
of
Catholics.
Then
there
is Shakespeare
who
openly
af-
fronted
the
French,
the
Welsh,
the
Danes
. . .
Dozens
of
British writers
from
Sheri-
dan
and
Dickens
to
Shaw
and
joyce
in-
sulted
the
Irish.
Finally,
almost
every
worthwhile
item
of
prose
and
poetry
pub-
lished
by
an
American
Negro
would
fall
under
the
ban
because
it
either
whis-
pered,
spoke,
or
shouted
unkind
state-
ments
about
the
group
called
'white.'
Lit-
erally
applied,
a
group-libel
law
would
leave
our
bookshelves
empty
and
us
without
desire
to
fill
them."
History teaches us that
group
libel
laws are
used
to
oppress
racial
and
religious
minorities,
not
to
protect
them.
For exam-
ple,
none
of
the
anti-Semites
who
were
re-
sponsible
for
arousing France against Cap-
tain
Alfred
Dreyfus was ever prosecuted
for
group
libel. But Emile Zola was prosecuted
for
libelling
the
military
establishment and
8
the
clergy
of
France in his magnificent
}'Ac-
cuse and had
to
flee
to
England
to
escape
punishment.
Didn't
Weimar
Germany's tolerance
for
free
speech
allow
Hitler
to
achieve power?
No
. The Weimar
government
did
not
up-
hold
free speech.
When
Hitler
and
the
Nazis
violently
interfered
with
the speech
of
their
opponents
,
the
Weimar
government
took
no
effective action
to
protect
speech and re-
strain violence.
Even
murder
of
political op-
ponents
by
the
Nazis-where
the
murderers
were
known-went
unpunished
or
virtually
unpunished.
Why
should someone
who
detests the
Nazis and the
KKK
support defense
of
their right
to
speak?
In
a society
of
laws,
the
principles estab-
lished
in
dealing
with
racist views necessar-
ily
apply
to
all. The ACLU
defended
the
right
of
Father Terminiello, a suspended Catholic
priest,
to
give a racist speech
in
Chicago. In
1949,
the
U.S. Supreme
Court
agreed
with
our
position
in
a decision that is a landmark
in
the
history
offree
speech.lime
and again,
the ACLU was able
to
rely
on
the
decision
in
Terminiello
v.
Chicago
in
defending
free
speech
for
civil rights demonstrators
in
the
deep
South. The Supreme
Court
cited
its
own
decision
in
Terminiello
in
its leading
decisions
on
behalf
of
civil
rights
dem-
onstrators,
Cox
v.
Louisiana and Edwards
v.
South
Carolina.
Similarly,
the
Supreme
Court's decision in 1%9
in
Brandenburg
v.
Ohio
upholding
free speech
for
the
KKK
was
9
the principal decision relied
upon
by
a
lower
court
the
following
year
in
overturning
the
conviction
of
Benjamin Spock
for
opposing
the
draft.
The
principles
of
the
First
Amendment
are
indivisible.
Extend
them
on
behalf
of
one
group
and
they
protect
all
groups.
Deny
them
to
one
group,
and all
groups
suffer.
Doesn't
providing
racists
and
to-
talitarians with a legal
defense
give
publicity
to
their
cause
and
their
ideas
that
they
would
otherwise
not
receive?
It
is
the
attempts
by
communities
to
pre-
vent
such
people
from
expressing
them-
selves
that
gives
them
the
press coverage
they
would
ordinarily
not
receive.
If
provid-
ing a
legal defense
for
their
constitutional
rights results
in
a
continuation
of
the
public-
ity,
that
is
an
unavoidable consequence
of
the
events
that
were
set
in
motion
by
the
original denial
of
First
Amendment
guaran-
tees. A fact
that
seems
little
understood
by
those
who
take
a
restrictive
view
toward
speech
they
do
not
like
is
that
attempts at
suppression
ordinarily
increase
public
in-
terest
in
the
ideas
they
are
trying
to
stamp
out.
But
doesn't
the
ACLU
have
more
im-
portant
things
to
do
with its limited
resources
than
to
defend racists
and
totalitarians?
The ACLU
has
many
important
jobs
to
do
and
it
devotes its resources
to
a
wide
range
of
civil liberties
concerns-sexual
equality; ra-
cial justice; religious
freedom;
the
freedom
10
to
control one's own
body;
the
constitutional
rights
of
students, prisoners, mental patients,
service
personnel, juveniles,
the
elderly; and
the rights
of
privacy
for
all
of
us.
More
than
6,000
court
cases are undertaken each year by
the ACLU
to
protect these rights.
But first among the freedoms
we
are dedi-
cated
to
defending
are
those
of
speech, press
and
assembly,
for
they are
the
bedrock
on
which all
other
rights rest. We are involved in
only
five
or
six
cases
each year
to
defend free
speech
for
racists
or
totalitarians.
Even
though this
is
only
a tiny fraction
of
the
AC-
LU's
work,
we
think
it
is
important
.
We
cannot
remain
faithful
to
the
First
Amendment
by turning
our
backs when
it
is
put
to
its severest
test-the
right
to
freedom
of
speech
for
those whose
view
s we despise
the most.
I
support
the
righ
t
to
freedom
of
sp
e
ech.
Enclosed is
my
che
ck
for
$ *
Name
__________
____
________________
_
Address
____
________________________
_
Sugg
ested
Gi
ving Categori
es
Individual
Joi
nt
B
as
ic
Contributing
Supporting
Sus
ta
ining
$20 $30
$35 $50
$75 $75
$125 $125
(
of
which
50¢
is
for a year's subscr
iption
to the
Nationa
l
ACLU newsletter,
Civil
Liberties, and 50¢ is for a year's sub-
scnptlon
to
the state ACLU affiliate newsletter.
Make
check payable and return w ith this
form
to
ACLU, 22
Ea
st 40 S
tr
eet, N.Y., N
.Y.
10016
11
