AUGUST 24, 2017 – I grew up in Skokie, Illinois. One day in 1975 or 1976, I had just come home from work as a vendor at Wrigley Field when I heard a knock on the door of our apartment. Although I was still soaked with sticky Coca-Cola, I answered the door, and standing there was an older man in short sleeves.
He asked, in a heavily Yiddish-accented English, “You Jewish?”
“Yes” I said.
“Come,” he said, turning his back for me to follow before the word was completely out of his mouth. I followed him across the courtyard into an apartment with a small group of similar men and a few women. This was a Shiva house, and as soon as we walked in, the men began reciting the afternoon prayers. They finished in record time and immediately hustled me out of the room. The only thing I had a chance to notice was that every man in the room had a number tattooed on his arm. They were all Holocaust survivors.
Around the same time, the Nazi group called the National Socialist Party of America was headquartered on the South Side of Chicago. It was led by Frank Collin, whose Jewish father, a Holocaust survivor, had changed the family name from Cohen to Collin. Frank Collin applied for a permit to hold a parade in Skokie. He was clever to choose Skokie. Not only did it have a large population of Holocaust survivors and a substantial Jewish population, it had no ordinance requiring groups holding demonstrations to carry insurance.
Not surprisingly, no insurance company would issue a policy to the Nazis, which meant they could not legally march in places where insurance was required. After the Nazis applied for a permit to march in Skokie, the village government quickly enacted an ordinance requiring insurance and rejected the application.
After years of litigation, the Supreme Court held that Skokie’s insurance requirement was unconstitutional. This decision clearly established that the Constitution protects the right of hate groups – like those who marched recently in Charlottesville – to spread their vile messages.
Once the Nazis received their permit and set a date for their march – June 25, 1978 – Jewish groups across the country mobilized to plan counter-demonstrations. I was attending the University of Wisconsin at the time and a group of us chartered a bus to take us to Skokie for the fateful day. Actor Avery Schreiber, who grew up in Chicago and was a close friend of one of my father’s law partners, was part of a group that chartered a plane from Los Angeles. When he called my father’s office to talk about it with his friend, I was answering the phones and I got so excited to talk to him that I accidentally disconnected the call.
But the Nazis never marched in Skokie. A gathering of 20 or so dispersed after 10 minutes, surrounded by throngs of Jews and others. They didn’t really want to march in Skokie, mainly, I think, because they were afraid of the violence their presence among 30,000 Jews and thousands of Holocaust survivors would provoke. There were even rumors that the Jewish Defense League had promised to kill any Nazi who set foot in Skokie.
What they really wanted, and what they ultimately bargained for, was the right to march in their Chicago neighborhood, where they would be safe among the many anti-Semites and racists who lived in America’s most segregated city. I had experienced Chicago’s anti-Semitism firsthand, mainly in the snide comments a few fans would make when I was selling kosher hot dogs in Comiskey Park during White Sox games.
Given this history, I was not surprised that the recent white supremacist demonstration in Charlottesville, Va., resulted in an eruption of violence. The provocation for the white supremacists’ demonstration was the plan to remove a statue of General Robert E. Lee from a city park that had formerly been named for him but had been recently renamed Emancipation Park.
There is a roiling conflict over the removal of Confederate symbols across the South. While some opposition to the removal of statues like the one of Lee is benign, based in Southern pride and opposition to tampering with history, it is not surprising that the most vehement opposition comes from white supremacists.
Most of the contested monuments were erected decades after the end of the Civil War, and many were intended as expressions of support for Jim Crow laws and opposition to African-American calls for equal rights and racial integration. The monuments were part of a package designed to perpetuate inequality that included lynchings and limitations on black people’s participation in the political and economic life of the South. To blacks, the continued presence of these monuments is less a reminder of pre-Civil War slavery than of 20th century racial oppression. It’s as if Germans opposed to immigration today began erecting statues of Adolph Hitler. The message to immigrants would be clear.
In constitutional law, there is a limitation on freedom of speech known as the “fighting words doctrine,” which allows government to limit speech that is virtually certain to provoke a violent reaction. I have mixed feelings about government using this doctrine to limit white supremacist speech. On the one hand, it is heartbreaking to read about the fear that was instilled in Charlottesville’s Jewish population by the “Sieg Heil” chants of passing demonstrators, the presence of armed white supremacists across the street from their synagogue, and online calls to burn it down. But on the other hand, as a nation we are strengthened by our tradition of free expression, and I don’t trust the government to be a neutral arbiter between permitted and forbidden speech.
I am certain about one thing. It is disheartening that the president of the United States thinks that there are “good people” among the parading white supremacists, and that counter-demonstrators share the blame for the violence that erupted in reaction to their vile message. If the president cannot recognize and call out racial and religious hatred for what it is, we have passed the point of no return.
It is time for this president to resign, for the Cabinet to invoke Section 4 of the 25th Amendment and declare that he is incapable of continuing in office, or for Congress to impeach and remove him for giving comfort to the treasonous activities of our own version of the Taliban, the white supremacists and Nazis who are apparently alive and well in today’s United States of America.
Jack M. Beermann is professor of law at Boston University School of Law, where he specializes in Separation of Powers, Administrative Law, and Civil Rights Litigation.