Note: This is a unedited rush transcript. Please check any quotations against the audio recording.
Nico: As I promised at the end of last episode, we have a very special guest for today’s show. Since this show began, we’ve discussed this counterintuitive concept of defending my enemy. In the civil liberties context, it’s a phrase popularized by former ALCU Executive Director Aryeh Neier in his seminal 1979 book, Defending my Enemy, American Nazis in Skokie Illinois and the Risks of Freedom. For those of you just joining the show, this idea of defending my enemy speaks to the even handed approach civil liberties advocates must take if they wish to secure their fundamental rights.
Two episodes ago, we spoke with Virginia V. Black, Attorney David Baugh about this concept. We also spoke with Glen Greenwood, who as you’ll recall spent the early part of his legal career defending the free speech rights of neo Nazis. And today, we finally get a chance to speak with the man himself, Aryeh Neier. Thanks for coming on the show.
Aryeh: I'm very glad to be here.
Nico: Aryeh, in the civil rights, civil liberties world, has an incomparable resume that spans more than half a century. Aryeh, you served as the president of the Open Society Foundation for nearly 20 years. Before that, you helped found Human Rights Watch. And before that, as I mentioned, you worked at the ACLU. And it was during that time that you presided over what has become the reference point for the breadth of America’s first amendment protections, particularly the protections to free speech and assembly.
As anyone who has worked in the free speech space long enough knows, when we talk about what it means to have freedom of speech in America, we often talk about how even the Nazis have free speech rights. So let’s dive right in. Aryeh, what exactly happened in Skokie, Illinois in 1977?
Aryeh: Well, there was a small group of Nazis in Chicago and they had tried to exploit racial tensions in the city by demonstrating in Marquette Park, an area of Chicago that divided a neighborhood populated mainly by people of East European origin and a neighborhood that was predominantly black. And at a certain point, the City of Chicago obtained a court order barring the Nazis from demonstrating in Marquette Park. And the local ACLU, the ACLU of Illinois, represented the Nazis in that free speech battle over Marquette Park.
When they were excluded from Marquette Park, the Nazis were looking for some way to continue to attract attention. And so they wrote letters to a number of suburban communities saying that they were going to come to those communities to demonstrate. And most of the communities ignored their letters. Skokie, as one suburban community, did not ignore the letter and essentially wrote back saying don’t you dare come here.
And so the Nazis responded to the bait and scheduled a demonstration in Skokie. And Skokie quickly passed a number of ordinances to prohibit the Nazi march. One of them would have prohibited demonstrating in uniform, another would have required posting of a very large bond to pay for any damage resulting from the demonstration.
And so the Nazis went back to the ACLU of Illinois which had represented them in the Marquette Park litigation and asked for legal representation with respect to Skokie. And the ACLU of Illinois agreed and took on the case.
Nico: And this was a pretty easy case for the ACLU to take, right? It wasn’t out of the ordinary for you guys?
Aryeh: It wasn’t out of the ordinary. I was the National Executive Director of the ACLU. And if an ACLU affiliate took on a novel case or a particularly significant case, they would always notify the national office. But in taking on routine cases, they didn’t feel they needed to notify the national office.
Nico: And the chapter, the people that were working on this case were David Hamlin and David Goldberger, correct?
Aryeh: Yes. David Hamlin was the Executive Director of the ACLU of Illinois, and David Goldberger was the Legal Director of the ACLU of Illinois. They took the case as a routine matter. And only after they took the case, it began to attract attention.
Nico: And it attracted attention, from my understanding, because Skokie was a home for a large quantity of Jewish immigrants, right?
Aryeh: Not only Jewish immigrants but Jewish immigrants who could appropriately be characterized as Holocaust survivors. Apparently in a town of about 40,000 people, there were about 700 people who could be characterized as Holocaust survivors. And so this made the Skokie case the focus of national attention. And that’s how I first heard about the case as the National Director of the ACLU.
Nico: In 1940, I found it interesting in reading your book, the ACLU even put out a leaflet: Why we Defend Civil Liberty Even for Nazis, Fascists and Communists. So very much not outside the character of the ACLU, this [inaudible] –
Aryeh: It had been the practice of the organization of, I would say, really from the beginning to defend free speech for everyone.
Nico: But the response to your taking the case, as you’ve mentioned, was out of the ordinary. There were protests – we’re here in New York today – protests at your offices in New York, correct?
Aryeh: There was an organization called the Jewish Defense League. They were led by a man named Rabbi Meir Kahane. Meir Kahane eventually emigrated to Israel, became the leader of a far right movement within Israel, and was eventually assassinated in Israel. But long before that, he had not only demonstrated in front of the building where the ACLU had its offices –
Nico: Where was that in the city?
Aryeh: We had offices at 40th Street and Madison Avenue at that moment. But he also led his followers into the ACLU offices and conducted demonstrations within the office. And in effect, wanted us to call the police.
Nico: But you didn’t, right?
Aryeh: We didn’t call the police. We managed to get them out of the ACLU offices. But they disrupted the place quite a bit. And they did more than that. They followed me home.
Nico: Oh, really?
Aryeh: I hadn’t known that they were doing that but they wanted to know where I lived and conducted demonstrations at my apartment building. It happened that my apartment building had a garage entrance on a separate street. And for a period, my wife and I were using that garage entrance to go in and out of our building rather than past the demonstrators.
Nico: You didn’t mention that in your book. You also got many angry letters, right?
Nico: Did these angry letters from the ACLU members, did this take you by surprise?
Aryeh: Yes. It took me by surprise because I mistakenly thought that most ACLU members knew our practice of defending free speech for anyone, including the Nazis. There had been well publicized cases that I was involved in, that others were involved in in which we had defended free speech for Nazis. I think what happened was that the ACLU had gotten a large number of new members during the period that Richard Nixon was president. They were anti Nixon people. They didn’t really know the history of the organization.
They didn’t know its practice of defending free speech for everybody. And I think a lot of those people were taken by surprise when we defended the Nazis. And I hadn’t realized that a lot of these new members didn’t understand the history and culture and principles of the organization.
Nico: Would you have done anything differently, had you known that?
Aryeh: No. I don't think we would have done anything differently. We might have tried to explain what we were doing a little bit earlier in the process but that’s only – that’s the only thing I can think of that we might have done differently.
Nico: You talk about it in the book, actually. You have a very interesting anecdote that I think speaks to both poles about people’s support for free speech during that time but also poles about people’s free speech today. It seems as though people appreciate free speech in the abstract. If you ask them do you support free speech, they’ll say yes. Do you support the right to assemble? They’ll say yes. But it’s really when you dig down into the specifics about what that actually means that you find some people get off the bus, so to speak.
And you talk about in your book how you did an interview in Columbus, Ohio, our QUBE where they had this very interesting technology at the radio station where listeners of viewers – I think it was a TV station – were able to respond either yes or no to specific questions that were asked. And one of the questions was should everyone be allowed to demonstrate? And 80 percent of people responded yes.
And then they asked a very specific question: should the Clan be allowed to demonstrate in front of the state capitol? And they said – 52 percent said yes. So you had 48 percent that said no. have you seen that as sort of a thread through your long career?
Aryeh: Yes. I think that abstractly, almost everybody will say they uphold free speech. But I think when it gets down to specific cases and forms of free speech are particular offensive, then quite a lot of people are not willing to apply the abstract principle.
Nico: So is this lack of understanding of free speech principles and the response you got to the Skokie case, is that what prompted you to write your book? Or was there something else? Do you feel like you needed to explain yourself?
Aryeh: I did think I needed to explain myself. First, I'm Jewish. I could be described – I haven’t thought of myself that way but I could be described, myself, as a Holocaust survivor in the sense that I was an infant refugee from Nazi Germany to England. And the fact the British at that particular moment were generous in admitting refugees from Nazi Germany enabled me to survive. I was too young to have any consciousness of what was taking place in Germany at that point.
But the fact that I had been born in Berlin during Hitler’s period made me, in a sense, a kind of symbol of the free speech concerns. And so it seemed useful for me to try to explain myself by writing the book.
Nico: What were some of the specific arguments you thought you needed to address in this book to explain yourself?
Aryeh: I think the basic argument was that if the Nazis, whose free speech I was defending, came to power that free speech could not possibly exist. That ultimately, it would do a disservice to the principles that I was trying to uphold if one defended those persons on the basis of those principles. And that argument was made in sophisticated ways and unsophisticated ways during that period. And I felt the need particularly to respond to that.
Nico: Yeah, you say in your book, “It is dangerous to let the Nazis have their say but it is more dangerous by far to destroy the laws that deny anyone the power to silence Jews if Jews should need to cry out to each other and the world for sucker.” To you, this concept of defending my enemy, you don’t mean defending your enemy in every way.
Nico: You mean it in a very specific way.
Aryeh: In a very specific way in terms of their freedom to express themselves.
Nico: You say in your book, “Defending my enemy is the only way to protect a free society against the enemies of freedom.” I want to dive into something, an interesting – you devote a whole chapter in your book. Your book suggests that there were both some people within the ACLU and outside the ACLU, and also within Jewish partner organizations who were particular strong in their support for free speech but who in this case seemed to – their support seemed to crumble. You mentioned one specific guy, I think Joel Sprayregen?
Nico: Who you used to work with at the ACLU who then testified on behalf of the Skokie ordinances. Why was that? Even amongst people who should presumably know better or have a more nuanced understanding than the general public?
Aryeh: It’s difficult for me to explain somebody else’s motivations in taking that position. I'd rather that they speak for themselves, rather than I should try to attribute things to them. But I think a lot of people are particularly concerned with dangerous forms of speech, dangerous forms of expression when it seems directly to touch them. And I think he was sensitive to anti Semitic forms of speech. There were many other people in the ACLU who were unwilling to defend free speech for the Clan. And we had a branch of the ACLU in Mississippi and we were very pleased by the fact that it was a racially mixed branch of the ACLU. I think there were as many blacks on the board of the ACLU affiliate as there were whites.
Nico: Yes, it was one of your most diverse boards, if not the most.
Aryeh: That had pleased us. But it was very difficult to persuade the black members of the board, and also some of the white members of that board, that they ought to defend free speech for the Clan. I relied heavily in that period on a black board member of the ACLU from Atlanta who represented the national ACLU in going to talk to branches of the organization that were reluctant to defend free speech for the Clan.
I'm not sure I mentioned this in the book; I don't think so. But one of the attorneys who had worked for the ACLU when I first joined the staff was Eleanor Holmes Norton, who in the recent period has been the member of Congress for the District of Columbia.
Nico: She litigated Brandenburg, right?
Aryeh: Not Brandenburg. She litigated a free speech on behalf of a racist organization in Maryland. The attorney who was involved in Brandenburg for us was Norman Dawson.
Nico: You mentioned the Mississippi chapter, and this goes back to my earlier question about this whole chapter you have in the book about struggles both within and without the organization bringing in allies within the free speech fold. In your book, you identified a struggle between the ACLU and this Mississippi chapter but also the San Diego chapter.
Aryeh: The San Diego chapter was very strongly in favor of free speech but they were part of the Southern California ACLU, which was based in Los Angeles. And it was essentially a Los Angeles group that was reluctant in defending free speech for the Clan. The San Diego group eventually split from the Southern California branch and created its own branch of the ACLU. And that free speech dispute of that time had a significant part in that.
Nico: But it speaks to this larger issue that you talk about in the book over whether the organization – or an organization’s primary commitment should be to left wing causes and politics or to civil liberties. What do you mean by this, and are civil liberties not a left wing cause?
Aryeh: I don't think civil liberties should be characterized on the basis of one’s place on the political spectrum. I think there can be and should be people on all parts of the political spectrum who come together in defense of civil liberties in terms of free speech, in terms of due process of law, in terms of equality before the law. I think all those issues can be issues on which people on different parts of the political spectrum will agree.
Nico: So this tension you talked about in the ‘70s, was that always there within the ACLU, and does that continue to be there amongst civil liberties organizations, not just the ACLU?
Aryeh: I think it was always there within the ACLU. I think there was always a certain amount of tension on those issues. Just to name an example, not on a free speech matter but during World War II there was the question of defending the Japanese Americans when internment was ordered. And there was a significant debate within the ACLU at that time. The left was not very willing to defend the Japanese Americans at that point. Franklin Roosevelt had entered the war. They saw him, therefore, as an ally of the Soviet Union. They didn’t want to impede Roosevelt’s war policies.
And so the left within the ACLU was reluctant to defend the rights of the Japanese Americans and to challenge Roosevelt’s order in that period. And so the politics of this cut in sometimes unexpected ways. But there have been people in the ACLU throughout its history who have believed in a non political approach to civil liberties, an across the board approach to civil liberties. They haven’t always prevailed. They haven’t always prevailed immediately. But they’ve generally prevailed over the long term.
Nico: Because in the ‘40s or ‘50s – I forget the specific date – you speak to an order memorandum forbidding avowed Communists or alleged Communists from leadership in the ACLU.
Aryeh: Yes. That was a different matter. What happened there was during the late 1930s, there had been a couple of Communists on the ACLU board. And in that period, before the Soviet Union was embroiled in the war in Europe, before Hitler invaded the Soviet Union, the general policy of the Communists was to stay out of the war. They had opposed defending the civil liberties of people who were in favor of the U.S. entering the war. The most prominent Communist in the ACLU at that point had been Elizabeth Gurley Flynn.
The ACLU – or some people within the ACLU – felt that it was inappropriate for Elizabeth Gurley Flynn to continue to serve on the ACLU board because her loyalty to the Communist party line took precedence over her defense of civil liberties. And so there was a move to expel Elizabeth Gurley Flynn from the ACLU board, and that led to the adoption of what was called the 1940 Resolution. The 1940 Resolution said that it was inappropriate for persons who were committed to communism, fascism, or other forms of totalitarianism to serve on the ACLU staff or on the board of the ACLU.
And the 1940 Resolution was adopted, and then there was a trial of Elizabeth Gurley Flynn within the board of the ACLU. The board split evenly and the chair cast the deciding vote to expel Elizabeth Gurley Flynn from the board of the ACLU. That was one of the most controversial moments in the history of the ACLU.
Nico: That resolution, I'm assuming, was eventually repealed?
Aryeh: It was eventually repealed. It was repealed in the 1970s.
Nico: I want to take a step back to the Skokie case and talk about some of the tactics that were used to go – after Frank Collin was the leader of the march. Specifically the use of the so-called neutral standards to attack free speech, or allegedly neutral standards; the insurance fees, the policies that were aimed at offensive speech or something of that nature. And then also the Heckler’s Veto. Did you see any of those as the most insidious or the best – what do you think was the best argument? Because it seems like –
Aryeh: It’s hard for me to characterize any of those as the best argument. Frankly, I saw all of them as ways of preventing free speech from taking place. And it seemed to me that one had to knock down every one of those arguments.
Nico: In reading the book it seemed like you were playing whack-a-mole, in a sense. It says as soon as they made one argument, you’d knock that down in court. They’d make another one and you’d have to knock that one down in court. But what do you say to this Heckler’s Veto argument? You quote a man, Mr. Goldstein, in the book and you say that he did not intend to use violence but he did not know if he could control himself when he saw the swastika and would not promise that he would refrain from attacking Collin.
I bring that up because I’m not sure if you’re familiar with this story but just yesterday, Sunday June 26, there was a story in the New York Times about these Nazis who were marching on the capitol in Sacramento, California. Seven people were stabbed, nine were hospitalized and this was just a couple of months after there as another violent interaction between Clans marchers and counter protesters. The details are still fuzzy but I was following this conversation about this on Twitter.
You saw a lot of arguments to this Heckler’s Veto, that the Nazis got what was coming to them, the police shouldn’t have let this happen because they knew what was going to happen in the form of violence. There was one tweet that said, “Being tolerant to literal Nazis doesn’t ever end well; ask Weimar, Germany about it.” And you addressed that point in your book, as well. Another tweet that I saw was, “Someone who believes in rights without historicism, without context positions power against the oppressed.”
And they put rights in quotation marks when they said that. So what’s your response to this Heckler’s Veto argument? This story shows that this conversation is still happening even 40 years later.
Aryeh: My view of it is if you have noticed on all the demonstration, then it is entirely possible to have a sufficient police presence so as to avoid violence. I think it’s somewhat different if a demonstration takes place spontaneously and there is no possibility of having the law enforcement presence. Under those circumstances, I think you can assign more of the blame to those who may be engaged in some kind of provocation. The way you have notice of a march, as you did in the Skokie case, I don’t know the facts of the Sacramento matter but where you have notice of it, the police can be present and can avoid that kind of violence.
Nico: And you talk in your book about how in some ways – and correct me if I'm wrong – this is sort of what these neo-Nazis are looking for, is this sort of controversy.
Aryeh: They wanted to attract attention. And I pointed out in the book that when they finally were permitted to march in Skokie, they never turned up. They were simply no-shows. They did, thereafter, hold a demonstration in Marquette Park. And then the little group of Chicago Nazis seemed to dissolve and wasn’t heard from again.
Nico: I think it speaks to the even-handedness of the ACLU’s approach in that year when they did eventually march in Marquette Park. You talk about how there’s a group of anti Nazi protestors who the police prevented from getting in, and then the ACLU came to their defense.
Nico: One of the takeaways at the end of the book is that this gave the censorship efforts both on behalf of Chicago and the Skokie local governments gave Frank Collin and his small group 16 months of free publicity. But as you point out, not one new adherent, it seems. They lost out in the marketplace of ideas. I want to take a step back and just learn a little bit more about what got you interested in civil liberties work. Was it your early experience with tyranny or… you don’t speak about it in the book so I'm just curious.
Aryeh: I'm sure that my early experience had a big role. I would say that my coming to the United States from England and the period that I came, played a big part. I came to the United States when I was 11 years old. And a couple of years after that, I went to high school. My years in high school were 1950 to 1954, which was exactly the four year period in which Senator Joseph McCarthy was at its height. McCarthy declined after the Army McCarthy hearings of May, June 1954, and I graduate from high school in June, 1954.
But in the years that I was in high school, McCarthy and McCarthyism were the most important political issue in the United States. Even as a high school student, I was caught up in debates over that. We had, in the high school I attended, Siverson High School in New York City, we had a history club. I became the president of the history club and invited speakers who debated the issues involving McCarthyism. And then I went to college starting in September of 1954. I would say that there were three political matters that were significant during the period that I was in college which shaped my subsequent career.
In January, 1955, a few months after I started college, the Montgomery Bus Boycott took place, led by Martin Luther King. And that precipitated me into concerns about racial equality. And then in 1956, my second year in college – actually, I was into my junior year – there was the Soviet crushing of the Hungarian Revolution. And that was another major factor for me and in some way precipitated my involvement in international human rights.
And then another factor in that period is that leftover from the McCarthy period, there were speaker bans on college campuses. Communists were not allowed to speak on college campuses. A man named Buell Gallagher was then the President of the City College of New York, and Buell Gallagher prohibited communists from speaking at the City College of New York.
When the Hungarian Revolution took place in 1956, one of the things that interested me as a college student was that the man who was then the editor of the Communist party newspaper, The Daily Worker, a man named John Gates, published an editorial in The Daily Worker saying that American communists should free themselves from control by the Soviet Union and should denounce what the Soviets had done with respect to the Hungarian Revolution. And I thought that was interesting. And so I went to see Mr. Gates at the offices of The Daily Worker.
Nico: You just wrote to him after you read that?
Aryeh: Yes, and I invited him to come to speak at Cornell. And I organized a student group to sponsor it. I talked to the administration, and the administration had no difficulty with a communist speaking on the Cornell campus. I got a number of prominent faculty members to serve as faculty advisors and I got critics of the Communist Party to speak at the same forum. But I wanted to challenge, or I wanted to show opposition to the speaker ban at Cornell. And other students did this at other universities around the United States then to show that they weren’t going along with speaker bans.
So those three things, the Montgomery Bus Boycott, the Hungarian Revolution, the speaker bans were the things that sort of framed my political development during my years at college. And I think of everything that I've been engaged in since as having been concerned with the same issues that I was concerned with at that moment.
Nico: Oh, absolutely and that’s fascinating to hear, actually. Because of course, we at the Foundation for Individual Rights and Education do free speech on campus work. And one of the things we’ve seen in recent years, not as widespread speaker bans but on a few campuses you see presidents of universities telling students that they can’t invite a specific speaker to campus because of their views on race or sex or any number of issues. And that always backfires. The press has always been very good about free speech issues in our experience.
It creates a sort of Streisand effect where more people end up hearing about those views as a result of the ban. You talk in your book – and this is just a fascinating anecdote and ties into what you were saying – about how Hitler was banned from speaking on campus in Bavaria And Goebbels used that to their advantage.
Aryeh: Yes, why is this man of 2 billion people in the world forbidden to speak?
Nico: And the ban eventually was rescinded and he was allowed to speak. I mentioned this earlier; you talk about the Weimar.
Aryeh: Yes, republic.
Nico: People – that one person on Twitter earlier talked about how the Weimar Republic was responsible in part for bringing Hitler to power. You say it wasn’t a free speech issue; it wasn’t Hitler who won out in the marketplace of ideas but he used something else called political violence.
Aryeh: Yes. Look, there were a very large number of political murders during the Weimar period. Probably the single most prominent political murder was that of a man named Walter Rathenau. Walter Rathenau was an intellectual in Germany, the heir to a large department store fortune. But he was also a foreign minister of Germany. He was murdered. Murders like that were often not punished, or punished by ridiculously low prison sentences. And when you create an atmosphere, or allow an atmosphere to develop where hundreds of political murders can take place without significant punishment, the state loses all credibility.
The state loses all authority and violent groups such as the Nazis can thrive under those circumstances. It seemed to me that the failure to act effectively against political murder was the real shortcoming of the Weimar Republic and the downfall of democracy in Germany.
Nico: And then when Hitler did get into power, he instituted speech codes which you talk about in your book, prohibiting pretty much any form of dissent. So they walked through the door and then closed it. You couldn’t have anticipated this, and I know you’ve written about this before. Your book came out in 1979. But Bosnia and Rwanda, what do you say about those situations? Because those are the modern examples.
Aryeh: Right. What I say is the following. That it’s one thing to defend freedom of speech in circumstances in which, by and large, free speech prevails. But if you take a situation like Rwanda where there was not free speech, where the Rwandan government essentially did not allow radio stations to be licensed or to operate if they offered certain points of view. But then gave its blessings to a radio station which fermented hatred and which incited violence.
It’s hard to defend that radio station on free speech grounds when it has been given a kind of exclusive opportunity to broadcast to the Rwandan population in the sense then the radio station is merely carrying out government policy in circumstances of that sort. So I could not defend the radio station which incited the genocide on free speech grounds where it had that exclusive ability to broadcast. In the case of the Rwandan radio station, it actually went beyond incitement.
It even went to the point of organizing the genocide. It said there are 100 tootsies who are taking shelter in so-and-so church; go get them. And in that fashion played a direct role in the genocide. It was not as if it was on point of view being heard along with other points of view or opposing points of views engaged in some kind of free speech debate.
The Bosnian situation was similar. It wasn’t quite as extreme as the Rwandan situation but it was also the case that Milosevic did not allow opposition voices to be heard. There was a radio station which could not be heard beyond the City of Belgrade, which was a critic of Milosevic and a critic of those policies. But in terms of any radio station that could broadcast on a national basis, or in terms of television on a national basis, it was all inciting the violence that subsequently took place.
Nico: So going back to the Skokie case, the Supreme Court gave them the go ahead, or it didn’t accept the seven circuit –
Aryeh: Essentially this was decided at the U.S. Court of Appeals level. The Supreme Court declined to hear the case.
Nico: It’s been four years since that happened and the case is still very much on the public’s consciousness. I mentioned in the introduction that when people reference the breadth of free speech protection in the United States, they talk about the Nazis and Skokie, Illinois.
Aryeh: And it’s the symbolic value of the case that seems to me its importance from a free speech standpoint, not its legal significance as such.
Nico: Are there any lessons that you take away from that era, or is there anything within the book that you’ve changed your mind about? It has been a long time.
Aryeh: No, I have not changed my mind about this. I did write about the Rwanda and Bosnia matters in another book that I published much later on and tried to explain in the other book why I considered the principles that were important in the Skokie case still to be applicable, but not to apply in the Bosnia and Rwanda cases because of the very different factual circumstances.
Nico: Those radio stations, for example, had the monopoly on the marketplace of ideas. There was no marketplace of ideas.
Nico: I always end my conversations with guests with a couple of general questions. And one of them is do you have a free speech hero? Someone who, when you’re analyzing these issues, you always think back to?
Aryeh: Well, I could name a couple of free speech heroes. I suppose the earliest one is John Lilburne, who was the 17th Century leveler who, in some ways, anticipated a lot of the more recent debates over free speech and other aspects of civil liberties and was rather substantially punished during that period for his championship of freedom of speech. I also think of someone I knew and admired greatly. Norman Thomas had been the Socialist Party candidate for president six times up until 1948. And he had also been one of the founders of the American Civil Liberties Union.
He was an antagonist of Elizabeth Gurley Flynn when she tried to prevent the ACLU from defending free speech for everyone. I got to know Norman Thomas when I was about 19 years old, and knew him until his death about 20 years after that. And greatly admired him as a defender of civil liberties. Although he was a Socialist Party candidate for president, he never seemed to speak very much about socialist ideas. He always seemed to speak about civil liberties issues. He was an extraordinarily effective public speaker, among other things, and a man who used humor extremely well. He was a hero of mine.
Nico: You speak back to the founding of the ACLU and I find it fascinating and inspiring the narrow focus the ACLU had at the beginning. You talk about in your book, the first annual report was the fight for free speech, or the founding doctors and the fight for free speech. And the next year it was a year’s fight for free speech. Just as an aside, when did the mission of the ACLU expand? It expanded quite a bit by the time you got there.
Aryeh: It expanded over time and expanded more after I got there in the sense that we took civil liberties into circumstances where civil liberties had not been defended previously; into schools, into the armed forces, into closed institutions such as prisons. We expanded the mandate of the ACLU. But I think over time, it expanded. When the ACLU started, it was kind of a division of labor with the NAACP. The ACLU was founded in 1920, it grew out of a World War I organization, the Civil Liberties Bureau. The NAACP had started in 1909, some years before the ACLU.
And so the NAACP had basically dealt with racial equality, and the ACLU dealt with freedom of speech and then due process of law. But over time, the ACLU then began to take on the racial equality issues. It took on the rights of women. It took on the rights of gays. It took on a large range of issues and became the organization that it is today.
Nico: You sort of won a lot of the free speech battles. Free speech was in dire straits when the ACLU was founded and you talk about by the time you get to Skokie, these free speech cases, many of them are paper cases, as you call them, where it doesn’t take much resources from the ACLU for example, to litigate them. That’s one of the arguments they used to shut down – as you said, you shouldn’t be giving your resources to the Nazis. Well, it doesn’t take much of our resources to [inaudible] [00:48:41]. But getting back to my generic questions at the end, favorite book on these issues?
Aryeh: Favorite book on these issues. I liked very much Thomas Emerson’s book, The System of Freedom of Expression. I thought that it was a very good, comprehensive work on freedom of speech. There’s a less well known book by a man named Franklin Haiman on free speech, which I always thought of very highly. The most recent book on free speech is the book by the British SIS, Timothy Garton Ash has just written a book. He tries to set forth ten principles of freedom of speech. And in general, I like his principles. I tried to persuade him to add a couple to his list.
Nico: I saw you do a YouTube video. You did a video interview with him.
Aryeh: I wasn’t successful in getting him to do that.
Nico: Well, ten is a nice, round number so he probably wanted to keep it that way.
Aryeh: I think it’s a good book.
Nico: What do you see as the greatest threat to free speech today? A lot of the arguments to go after free speech are the same arguments that censors were using hundreds of years ago. But the threats sort of shift in their intensity. What do you see as the greatest threat today?
Aryeh: To a certain extent I worry about political correctness as a threat to freedom of speech. That is I'm a believer in equality, equality on the basis of race, equality on the basis of gender and so forth.
Nico: Your career is a testament to that.
Aryeh: I worry that sometimes the people who are concerned with those issues seek to restrict speech by antagonists of those positions. And I think it’s important to defend free speech in all circumstances; there shouldn’t be any exceptions.
Nico: And that goes back even to the debate you had within the ACLU regarding progressive left wing causes and civil liberties causes.
Nico: And you don’t see those two in conflict?
Aryeh: I don’t see them in conflict. I always used to enjoy an attack on my approach by the National Lawyers Guild, which I think I quote in the book.
Nico: You talk about it at length, yes.
Aryeh: Where they accused me of poisonous evenhandedness. And it was such a wonderful phrase. I couldn’t have invented that phrase. But I plead guilty to it.
Nico: The United States – and I don’t know if you talk about this in your book, but it holds a bit of a unique position in the world as a defender of free speech. The last few decades of your career you spent defending civil rights, civil liberties across the world, not just within the United States. What do you see as the United States’ role or position in that [inaudible] [00:52:29]?
Aryeh: I teach a course on human rights in Paris. One of the things I try to do with my students is to explain the differences between the American approach to rights and the European approach to rights, or you might say even the global approach to rights. I'd say the difference can be summarized, as far as free speech is concerned, in this way. That elsewhere in the world, the crucial aspect of speech is the content of the speech. And in the United States, it is the context of the speech.
That is in a lynch mob atmosphere, the speaker can’t be protected by saying: there’s a black; go get him. But in that lunch mob atmosphere, that speaker is directly precipitating the violence. In the European approach or the global approach, it is the content. It is what the speaker actually says, rather than the circumstances in which it is said. And I do think that the American context approach is, from my standpoint, more protective of rights and a better approach than the content based approach.
I think the law should always be content neutral, but it can say that there are contextual questions. Rwanda and Bosnia could be examples of contextual questions which do require some modification of what one will defend.
Nico: Do your students in Europe understand this? Do they get this American approach or does it seem so foreign to them?
Aryeh: It’s a question that is debated but I think they get the idea. I also point out that the crucial concept in the American approach to rights is the concept of liberty. And the crucial concept in the European approach to rights is the concept of dignity. And liberty and dignity overlap to an extent, but they also can come into conflict with each other, to a certain extent. So I try to explain the consequences of a liberty approach and the consequences of a dignity approach, and I actually prefer some combination of liberty and dignity as a way of protecting rights.
Nico: Were you teaching this course during the Charlie Hebdo attacks, for example?
Aryeh: Yes. I wasn’t there at that particular moment; that took place in January and my course is each fall so my course had ended by the time the attack took place.
Nico: But had that shaped – did you notice a difference between your students’ approach to these issues before that and after that? Or has it sort of remained this dignity versus liberty or dignity overlapping with liberty approach?
Aryeh: The Charlie Hebdo affair clearly had an important effect on my students. I'm not sure, though, that it shifted their thinking on those issues.
Nico: Well Aryeh, I appreciate your time. I know you’ve got other things to do besides talk to me but it was really fascinating and I think it’s going to be very fascinating –
Aryeh: I've enjoyed it a great deal, thank you.
Nico: Like I said, we’ve been talking about your book with many different thinkers and attorneys over the past couple of weeks, and it’s nice to finally round it out with the man himself.
Aryeh: Thank you very much.
Nico: That was Aryeh Neier. Don’t forget to pick up Aryeh’s book, Defending my Enemy; American Nazis in Skokie, Illinois and the Risks of Freedom. It is available on Amazon.com and should be required reading for anyone interested in the First Amendment and its history. This podcast is hosted and produced by me, Nico Perrino, and recorded and edited by Aaron Reese and Chris Maltby. To learn more about So to Speak, you can follow us on Twitter at Twitter.com/freespeechtalk, or like us on Facebook at Facebook.com/sotospeakpodcast.
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