Note: This is an unedited rush transcript. Please check any quotations against the audio recording.
Nico Perrino: At long last, welcome back to So To Speak, the free speech podcast where usually every other week we take uncensored looks at the world of free expression through personal stories and candid conversations. I am your host, Nico Perrino.
And I wanna apologize to all you for the show’s monthlong hiatus. This past month and a half or so, I saw kind of the perfect storm of events conspiring to prevent me from producing the show. For one, I got married at the end of July and then embarked on my honeymoon. So, I was out of the office for more or less two weeks.
But more significantly, I’ve been engrossed in two projects that have been in the works for years, and we are racing to the finish line to complete and share them with you all. One of those projects is still secret, but it should be announced on or around September 22nd. So, stayed tuned for that.
The other project I’ve briefly alluded to on the show before. And it’s the one that I’ve been working on since 2018 with my FIRE colleagues, Aaron Reese and Chris Maltby. We’ve been preparing a feature-length documentary about the life and career of former ACLU Executive Director Ira Glasser. He ran the ACLU from 1978 to 2001. Ira has been on the show before, way back in 2017. And it was that interview that inspired us to put some of his war stories to film.
We largely focus in the film on his free speech work, on First Amendment issues. But the film goes beyond that to cover his childhood growing up in Brooklyn and seeing Jackie Robinson break the color barrier. We look at the deaths of Martin Luther King, Jr., and Bobby Kennedy and how those impacted Ira’s lives.
But we also look at Ira’s friendship with William F. Buckley, Jr., and much, much more. So, the film is called Mighty Ira. And the trailer is now out and available on the movie’s website mightyira.com. And I’ll also link the trailer in the show notes here.
The film, for those of you who wanna see it, will premier in a virtual theatrical format via Angelika Film Center’s website on October 9th. Angelica is an Indie movie theater chain throughout the United States. But it will be available on wider streaming platforms and DVD and Blu-ray in the weeks following.
I’ll keep you updated on this show. And you’ll also be able to follow the updates on social media or at mightyira.com. And those updates will be more cotemporaneous than our every-other-week so to speak episode.
So, today’s guest is actually heavily featured in Mighty Ira. His name is David Goldberger, and he was the lead attorney in the 1977 case that has simply become known as the Skokie case. It’s come to epitomize what the First Amendment means in America.
David, as most of you should know, represented the Chicago-based National Socialist Party of America and its Neo-Nazi leader, Frank Collin, after that group was denied the right to rally in Skokie, Illinois, outside of City Hall. Skokie was home at the time to a large number of holocaust survivors.
David won the case but, as you can guess, not without a lot of controversy along the way, which we’ll discuss. But we’ll also discuss the rest of David’s storied legal career, including his four Supreme Court cases, all of which he whether or not I should say and two of which he argued. So, now, let’s get on to the show.
David Goldberger, welcome onto the show.
David Goldberger: Well, thank you. Good to be with you.
Nico: So, I wanted to start by asking you – what led you to a career in the law? Was that something you were always interested in?
David: I started college with a commitment to go into the Foreign Service of all things. I’d been a high school exchange student, and I got to graduate school. My dad had been telling me in the meantime – get a law degree. Get a law degree. He was very traditional. And his view was – no matter what it is; nobody can take it away from you. You can always make a living.
And I got off to graduate school in international affairs. And I started to look at the people around me that were gonna go into the Foreign Service. And I said, “I’m not like these guys at all.” This isn’t gonna work. And then I started to think about the things I could do with a law degree, and it all focused on public service and law reform. And I started to get really excited about it, and I went to law school.
Nico: Where’d you grow up?
David: I was born on the north side of Chicago in the Rogers Park area. And we moved to the south suburbs, a place called Park Forest.
Nico: Oh, I’m familiar. I grew up in Elmhurst.
David: Oh. So, you know a little bit about it. Well, when I was there, it was very, very conservative. Six to one in terms of – six Republicans for every Democrat I was told. So, from the outset, I was kind of pushing against the current. And from there, I went off to college.
Nico: Where’d you do your undergrad work?
David: I started at the University of Illinois. But after a year, I transferred to the University of Chicago. And, again, those were political times. It was the Vietnam War, and reform and protest was in the air.
Nico: Were you an activist? Is that how you’d describe yourself? Did you oppose the Vietnam War?
David: I was opposed to it, but I wasn’t very active in my opposition because at that point I just was working my tail off on my studies and was very, very reluctant to take time out to do anything except work toward my degree. So, it really wasn’t until after I got out of law school and got my first job at the ACLU that I became an activist.
Nico: And why the University of Chicago Law School? You did your undergrad work there or some of it. Was it just the easiest transition? Or was there something particular about the school that drew you to it?
David: Well, it mostly had to do with the fact that it was in the college, and I knew the law school was good. But I had no idea at the time that its tradition was very libertarian, kind of Chicago school economics at least at the time when Milton Friedman was on the faculty. So, I really had no sense of the kind of orientation that it had. So, I went there because it seemed to make sense, and I was accepted. I really wasn’t very strategic about it at that point.
Nico: And that was the law school?
Nico: When you were in law school, did you know what type of law you wanted to practice? I hear from aspiring attorneys all the time that they don’t really know what they wanna practice –
Nico: – when they get to law school. And it’s kind of after law school or at the tail end of law school that they decide.
Nico: Few are the students who know as soon as they go in. Were you one of those?
David: Well, I probably – somewhere in between. I knew that I was not going to go into private practice. I was going to go either into the public defender’s office or find a job where I was involved in public service some place. I had no interest in the traditional private practice. I can’t say that I knew I wanted to work in the First Amendment or civil liberties area because I had no idea what my options were. But I knew what I didn’t wanna do, and that was private practice.
Nico: How do you get to the ACLU then? Was that your first job out of college at the Illinois affiliate?
David: Talk about dumb luck – I had enrolled in a program called Vista, which was a government program that provided lawyers for the community in legal services and so forth. And while I was in the training session and I was riding to work with a woman that was a year behind me who knew my politics and my orientation. And she told me about this opening at the ACLU. And at the time, I thought that was pretty radical stuff. But I was excited about it. So, I went and applied. And I ended up getting the job, and the rest of it is kind of history.
Nico: Tell me a little bit. You said – you thought the ACLU was radical stuff. What did you know about the American Civil Liberties Union?
David: Fairly little. I knew that they were doing civil rights work and civil liberties work. As I just told you, I had come out of a very conservative community. And I was very sensitive to the Army-McCarthy and McCarthiate shenanigans in Congress. So, I was feeling very cautious about what kind of an organization I wanted to get involved in.
I absolutely did not wanna be in a position where I was working with an organization where for some reason or another I could get blacklisted moving laterally from one job to another. I had a sense that the ACLU was not gonna put me in a position where I was gonna be accused of being anything but a libertarian or a civil libertarian. So, I moved to it pretty easily. I knew its First Amendment work, and that’s what really excited me about it.
Nico: When you arrived at the Illinois division of the ACLU, how big was it? What were your first impressions?
David: It was comparatively small. I think there were maybe a half dozen of us on the staff. There were two lawyers, an executive director, a fundraiser – that’s four – an office manager – five – and then there was another woman that I think she was a utility infielder so to speak, and that was six. So, it was really small.
Nico: And did you come on as a staff attorney? You eventually became legal director.
David: Right. I came on as a staff attorney. I didn’t select my words carefully. I didn’t know my “you know what” from my elbow. I mean I really did not. Legal education for me was sitting in a classroom and taking notes and taking exams or writing papers. I’d never had any training in trial practice. I did not know how to try a case. So, I was not in a position, I felt, to do any kind of leading. I wanted to go to a place where I was gonna learn how to do it.
Nico: Is that still kind of the case as an aside –
Nico: – with legal education? I didn’t go to law school.
Nico: So, I don’t know.
David: No. I mean there was a clinic there when I was at the law school. But it was not something that every law student took, and there was not much stress on learning how to try a case or anything like that. Now it’s not so much the case. I think that there are the clinics that do terrific work around the country. They represent all kinds of clients. Many of them do very important law reform work so that students, I think, come out of law school with a much better or much more rounded education than they did when I came out.
Nico: What were the most common kinds of cases you saw at the Illinois affiliate?
David: Well, it’s kinda hard to say what were the most common kinds of cases. It was, uh, whatever really emerged in the papers or clients walking through the door. So, there was a little of everything going on. There were First Amendment cases. There were misdemeanor cases. There were due process cases.
When I talk about misdemeanor cases, you prosecuted either for demonstrating and getting charged with disorderly conduct. Or we had a client that was kind of forced to plead guilty when it was clear that he was incompetent to stand trial, and it was a misdemeanor. I had a long hair case. Boys were being thrown out of school for letting their hair grow too long and touching their collars.
A girl that was thrown out of school because she got pregnant. And the school policy is if you’re pregnant, you’re not allowed to complete your education – so that it was a little bit of this and a little bit of that up until the Vietnam protests really became intense because I started in 1967.
And the national mobilization against the war in Vietnam started a year or two or three after I got there. And that’s when I really started to zero in on First Amendment work because they were in there seeking permits needing to negotiate parade routes and so forth. And I was the point man just by chance, but it was a very challenging and an exciting time. So, it was just a little bit of this and a little bit of that until the war in Vietnam really forced a focus on First Amendment.
Nico: Before you actually got involved in the First Amendment work, what was your conception of the First Amendment, in particular the free speech and assembly clauses. Or did you kind of really cut your teeth on what First Amendment philosophy was doing it? I guess it’s a long way of asking – did you think critically about the First Amendment protections before you were actually involved in the casework?
David: No, I probably didn’t think as critically as one would assume. I understood from my class work and the law schoolwork. I had had First Amendment cases. I didn’t take a First Amendment course. I took a course on libel. But the First Amendment was a significant part of my constitutional law training. So, I had a sense of the First Amendment. And at home, my dad who was a businessman had an instinct for these kinds of issues. And he was always talking about the right for people to exercise their rights, particularly when they wanted to advocate a position.
But I really did not get into the depth of it, really, until I began to ligate against the City of Chicago when it tried to block the anti-war demonstrators from using public forums. They tried to block the National Socialist Party from using Chicago parks. It was then I was in the crucible, and it was learning by doing, which was probably the whole early part of my career.
Nico: You mentioned the National Socialist Party. So, I think now is probably a good time to get into a little bit of the Skokie case, which represented, I’m assuming, a definitive moment or time in your career. Frank Collin was the leader of the National Socialist Party of America. And one day, he gave you a call, right?
David: Yes. But let me walk you back a step. He was a client on two or three cases that nobody ever heard of before Skokie. And that’s how he knew to give us a call.
Nico: He had a punch card with you all.
David: Well, we were the only place in town that would stand up for him and his group. And whatever was going on, whatever the ideas were, each of the times he walked into the office and asked for help, he came in with a pristine First Amendment case. No questions about violence. No questions about misrepresentation of the facts or anything like that. It was a straight-up classic First Amendment case.
I mean he was in that sense a little like the Jehovah’s witnesses in the 40s who were out on the streets saying horrific things about the Catholic Church and getting arrested. But each time they got arrested, it was a pristine First Amendment case, and there he was. And he had the uncanny ability to figure out how best – and this was without our coaching – how best to raise the issues so that he could maximize his opportunities to use public places to speak.
Nico: And to be clear, he was a Neo-Nazi, correct?
Nico: His group would rally wearing Nazi uniforms with the swastika insignia on their arms.
David: Absolutely. And his speeches were racist in the parks where he gave them. And the signs – he had one huge swastika banner, and that would appear at each of the marches and lots of signs or several signs – it depends. The group wasn’t that big. I mean I figured there were 25 to 50 regulars. And when he marched in the area of his headquarters on the southwest side of Chicago, then there would be people from the community that would join the march.
Nico: A lot of people don’t understand the context, and I was one of those until I sat down to learn more about it. But Skokie didn’t begin in the suburb of Skokie. It began in Chicago when Frank Collin was prevented from not only marching or rallying on the southwest side but in any public park in Chicago, he came to you. And there was a big debate, controversy, in Chicago at the time about desegregating the schools and gentrification and white flight. And Frank Collin didn’t like that white communities were fleeing for the suburbs.
David: As a general statement, what you said is accurate. More precisely, he had a headquarters building that he apparently owned on the southwest side of Chicago in Marquette Park. And to the east of Marquette Park was a Black community. And folks from that community were starting to try to buy houses in Marquette Park, which was white; and as I recall, a very significant percentage were Lithuanians.
And there was a panic, and he basically began to proselytize that he could save the community from integration and from white flight just by his rallies. So, that’s how things started, and the reaction of the City of Chicago was to refuse permits to the local park, which was near his headquarters, Marquette Park. And then when he tried to – and that was one case or a couple of cases.
And then there was another case, which went to the court of appeals, in which they – realizing that he was gonna try to be a regular customer. He tried to get a permit to go up to the north side of Chicago at Lincoln Park. And what they did was they said, “Well, you can come but only if you use our designated sites for your assembly.” And, of course, the sites were not ones that he wanted.
So, that was the first really important case that we litigated for him challenging the authority of the Chicago Park District – to take a public forum and say, “Well, you can’t use these areas. These are for picnics, and these are for families. And these are for baseball. You have to use these sites over here on the edge that we give you permission to use.” And it was through that series of cases that we became familiar with him and the issues that he raised.
Nico: As his lawyer with a Jewish background, did Frank find it difficult to work with you? Or did you find it difficult to work with Frank?
David: Frank was a client. And my attitude was that it was no different than me representing someone accused of a felony. Yes, it was uncomfortable. But my attitude was that it was the job of a lawyer to put away feelings of disdain for a client and to roll up one’s sleeves and get the job done so that – and I wanna add to that – as I worked with him, I began to understand that whatever his agenda was and whatever he did on the streets, his answers to me were always accurate.
He didn’t lie to me about what he was planning to do with the assembly or at the assembly he was trying to get the permit for. So, I could trust what I was dealing with. And it was a relationship, therefore, that was defined as an attorney-client relationship addressing a particular issue. So, you could always have your sense of separation from your client, and you could keep your feelings under control.
Nico: Do you think that’s still an ethos that motivates a lot of young lawyers today? I know you’ve been out of teaching for a long time. But at least in my generation – I’m 30 – I find it harder for people to separate the principle from the work or the beliefs of those whose rights they are defending. And you see this in other aspects of our culture as well. For example, you can’t look at some artists or watch their films if they have a background that might be seen to be deplorable or unsavory in certain aspects.
David: I think the issue of the arts – that’s another can of worms. We may get to it. We may not. But…
Nico: It’s a longstanding question too. That one’s not a new one.
David: Yeah, yeah.
Nico: But this question of neutral principles, I guess.
David: No. Well, it’s not so much the neutral principles that I’ve seen shift and the attitude toward neutral principles. For example, I think the public defenders and criminal defense lawyers are still hewing the line. They’re doing what they’re supposed to be doing, and they’re not turning their noses up in the air and saying I won’t touch that case. I have a professional obligation to do it, and I’m gonna get the job done, win, lose, or draw.
Nico: To present the question kind of squarely with an example – Ronald Sullivan, who’s a high-profile criminal defense attorney, professor at Harvard, Black professor at Harvard, led one of the residential houses there.
Nico: He joined Harvey Weinstein’s legal defense team and was essentially driven out from the residential house – people thinking that it was unsafe to live –
David: Right, right.
Nico: – in the same environment with a man who was on the legal defense team for someone accused of sexual assault.
David: I watched the Sullivan case with some disappointment. I was particularly disappointed with Harvard in the way it addressed the thing and what the results were. So, as far as I was concerned, Sullivan was doing what lawyers do. And you could say, “Well, he could get another lawyer.” And that may be the case in that case because there was so much money involved that Weinstein could always get another lawyer. But that’s certainly no reason to criticize a lawyer who takes the case. Lawyers do that all the time.
Skokie – it was an easier case from my point of view because there was no other lawyer that could represent the Nazis. And if we didn’t step up, their rights would not be vindicated. And that to me was completely unacceptable.
But to go back to your first question, my view was that – first of all, we have to keep separate the reaction of non-lawyers. The non-lawyer students at Harvard, for example, was a disappointment. And it’s wrong, and there needs to be some education, although there’s so much polarization in watching the intolerance of the progressive left right now, which parallels the intolerance of the far right in this country. There is the tendency of lawyers who I think 30 or 40 years ago would’ve been more willing to step up to hard cases.
Now, there’s a tendency of the lawyers – and I think this is true at the ACLU, which is a bother – a bother; it’s a disappointment – that the lawyers tend to identify with their clients, which is not in my view professional. And once they identify with the clients and they feel that they should identify with the clients, it means that they’re not gonna be able to represent people that they don’t identify with. And that’s a terrible criteria for representing someone or standing up for a principle.
Nico: The Skokie case – the facts of it have been played out and retold in countless places, including the forthcoming documentary that you appear in that we’re putting out. But the fact that you had a large group of holocaust survivors, Frank Collin and his band of Neo-Nazis wanted to rally in front of City Hall and were denied. And the holocaust survivors and the larger Jewish community in Skokie revolted against the efforts of Frank Collin to comment and your effort and the ACLU efforts to vindicate his rights.
But I wanna ask you about your particular journey within that case. It became a national phenomenon. What did you experience? I’ve read that you’ve received hate mail, death threats. The Jewish Defense League even came to your office. Can you talk about the challenges that you faced during that time?
David: Well, to start, remember I said I’d represented him a couple times prior to his asking for representation in Skokie. And it had been reported in the newspapers, but nobody thought a lot about it. There was a friendly editorial in the Chicago Tribune once saying that we were doing what we should be doing in a First Amendment set of cases.
So, when he asked for representation, I really did not understand how explosive the Skokie case was going to become. And it was not until when I discussed it with my general counsel, a very wise old man – loved him – named Ed Rothschild. He listened to what was going on, and it was a classic First Amendment case, a classic ACLU case. He said, “David, I order you to take the case.”
And I said, “Ed, what are you saying?” I have the authority and the staff has the authority to take the case because it’s clearly within policy. What’s this ordering? You’ve never done that before.” He said, “David, you have no idea what’s coming.” He said, “And when they come after you, they’re gonna have to come after me too.” And that’s when I began to get an idea that this was a much more explosive case than I ever imagined.
Nico: One of the most explosive appearances or interviews that I’ve seen you do about the case was on the Phil Donahue Show.
Nico: I was able to track down for this documentary the full segment, which isn’t available anywhere else online, and watched the whole thing. And Phil Donahue packed the audience with holocaust survivors from Skokie. It’s just you and Phil having a conversation, and then he opens up to these audience members, some of whom are rolling up their sleeves and showing you their tattoos. Talk about that experience. Did you know they were gonna be there?
David: No, I had no idea what was coming. I didn’t even know who Phil Donahue was. I thought he was a local talk show host. And I was in the studio shortly before the – I mean he called, and he said, “Would you appear on the show?” And our attitude was – and, particularly, the executive director always said, “Whenever you’re asked to explain your work, it’s part of our duty as educators to educate people about civil liberties.” So, you go and you respond, and you respond quickly.
So, I got the call. And I said, “Of course, I’ll do it.” He then asked me if I’d do it with Collin, and I said “no.” I said, “If you wanna interview Frank Collin, feel free. But I’m his lawyer, and if we are there together, I think people will confuse me with his cause. And that’s just not something I’m up for.”
So, I showed up at the studio, and then I said naïvely, “About how big do you think your audience is?” And I was expecting him to say “oh, several hundred thousand.” And he said “well” – and this was big at the time. I don’t know whether it’s big anymore. But he says “about five million.” And at that point, I said, “Oh my god, what am I in for?”
And then, we went out. And again, he said, “Well, I have a few people in the audience from Skokie who may wanna ask some questions.” I said “fine.” Well, I recognized some of them when questions started back and forth because I’d had contact with some of them. And I knew how irate they were. I did not expect survivors. I absolutely did not expect the kind of heated exchange that emerged. I expected kind of a quiet conversation at 10:00 in the morning on a weekday. So, it was a baptism under fire is all I can tell you.
Nico: Speaking to holocaust survivors about the case, did you do a lot of it? I mean you obviously did some of it during the Phil Donahue Show. Did you find it difficult?
David: I’ve never examined those feelings because it was my responsibility to talk and explain and make clear what was going on. It made me uneasy and uncomfortable, but my view was that if I could explain what I was doing, perhaps they would understand even if they wouldn’t agree. So, I went out of my way to make myself available anytime that I knew people from Skokie, including survivors, were gonna be in the audience. And I went up to Skokie on occasion, and I did speaking engagements all over the north side and the North Shore of Chicago where the Jewish community was concentrated.
Nico: Frank Collin eventually won his right to rally in Skokie. He never did. He ended up winning the right to rally in the City of Chicago both in the city proper and then also on the southwest side in Marquette Park which is where everything began. But that first time he returned to Chicago, I read somewhere that you had moved your family away, not permanently, but you left because you feared there would be violence.
David: Nope. This was just on the day of the assembly. I got them out. We owned a house on the south side of Chicago, and I figured that the best thing for me to do was to get out of the house in case there was any – either picketing or anybody threw stones at the house or anything like that. So, I guess for about 24 to 48 hours we were out of the house.
Nico: You eventually moved to Columbus, Ohio, to teach at The Ohio State –
David: Ohio State.
Nico: – Law School. That always cracks me up. How did that opportunity come up? What year did you go over there?
David: Skokie ran from ‘77 to ‘79. And after we won in the Illinois Supreme Court and after the assembly and – because the assembly wasn’t held in Skokie, as you pointed out. But due some negotiations and Collin’s real agenda, which was to get into the Chicago parks – Skokie wasn’t, I think, his ultimate goal. It was a peripheral secondary goal, which he was forced to by the closing of the Chicago parks.
In any case, his demonstration was moved to downtown Chicago. After it occurred and it was successful – there was a minimum of arrests, almost no violence to speak of – I started to say “maybe.” I’ve been in this job for a good while. I had been teaching at the Chicago-Kent Law School as an adjunct, and I liked it. And I said, “Why not do it full-time?” It’s kind of like once I’d been through Skokie, frankly, it was time for a change. The case had really taken a lot out of me, much more out of me than I really understood. And I liked teaching. And I applied to schools around the country and interviewed at Ohio State and got the job.
Nico: While you were at Ohio State, you didn’t stop litigating.
Nico: If my research is correct, there were three subsequent Supreme Court cases you were involved in –
David: Right, right.
Nico: – Supreme Court cases –
Nico: – two of which you argued. I wanna talk a little bit about those cases. Were they done as part of a clinic at Ohio State? Or was this…
David: Yeah, my course load at Ohio State was a constitutional law course. This was throughout my career at Ohio State, which ran for 29 years. I taught con law, the First Amendment, and I taught in the clinic and became the director of the clinic ultimately. And so, I continued to litigate law reform cases where I could in light of all the other things that were going on. So, the cases that I litigated that you refer to were clinic cases, and I did them in conjunction – the ones that went to the Supreme Court. The ACLU was also involved institutionally. I was lead counsel. They signed on as institutional support.
Nico: You kind of continued the theme of representing individuals at the periphery of American society in some of those cases.
Nico: And Cutter v. Wilkinson – I believe it was Satanists who were…
David: Well, it was…
Nico: And this is 2005, the most recent one.
David: Right, right. The clients were – oh, there were three different religions, Satanist, Asatru, and the third one will come to me probably after we’re done with the interview. But they were the three lead clients. The most visible and the most active client were the Asatru clients and they…
Nico: What’s Asatru? I’m not familiar.
David: They were essentially worshipers of Thor and the gods of Northern Europe.
David: That’s right except for the fact that they were being blocked because the department of corrections saw them as white nationalists and felt that therefore they were part of the white inmate culture that would be potentially violent. So, they wanted to make sure that they couldn’t get together for group worship, and they could not have permission to engage in any kind of worship at all. As far as the department was concerned, they threatened the safety and the well-being of the department’s institutions.
Nico: You argued that case.
Nico: Did you win that case or lose that case? It was confusing to me.
David: No, we won. We won that case. It turned out that about the time that I undertook the representation in that case – it started as a free exercise case because the clients in a certain sense like Collin – the clients were identifiable as racists, I suppose.
But the bottom line is that the religious activity that they wanted to engage in was peaceable and fit well within the regulations of the department in terms of the kinds of activities that other religions engaged in so that there was absolutely no evidence of gang activity, which is what the department said that they were concerned about.
And so, the department was saying you can’t do it. So, about six months after I got involved, Congress passed a law because the department of corrections had been blocking worship of all kinds of groups, including fundamentalist Christian groups. And Congress passed a law called Religious Land Use and Institutionalized Persons Act, which required departments of corrections to accommodate the religious worship of the inmates if they were gonna get federal money.
And the State of Ohio challenged the constitutionality of that law. And that’s what went up to the Supreme Court as to whether that was a constitutional law, whether it was consistent with the establishment clause.
Nico: The other case you argued was in 1995. You had two cases in 1995 at the Supreme Court. One of which you argued. One of which, if I’m correct, you were co-counsel on.
Nico: But the one you argued was a campaign finance case. Now, when a layperson…
David: It was a campaign regulation case. That was about whether or not a person who was leafleting to oppose a school levy and handing out leaflets without her name on it could be fined because Illinois – beg your pardon – the Ohio Legislature had passed a law requiring that the individuals always had to identify themselves on their campaign leaflets and on their campaign materials.
Nico: And you won that case.
Nico: I mean a lot of people don’t think of campaign regulations as involving this sort of activity, just a concerned citizen handing out leaflets in opposition to a proposed school tax levy.
Nico: Often, they are applied to your average citizen, your neighbor who’s engaged in the activity. And it’s done unknowing to them. And often these regulations are applied inconsistently and only when there’s someone who has an ax to grind with the underlying speech or activity.
David: Margaret McIntyre, the client, I don’t think politically I could agree on lunch with her.
Nico: Well, that’s you and a lot of your clients it seems like, David.
David: Yeah. Again, it was clean as a whistle because she was outside the school board meeting handing out her leaflets. And there had been past tax levies that had failed in that community. And she was part of an anti-tax group there in the community. So, the school district just hated her. So, here was an opportunity because she was a gadfly. She was a community gadfly. Here was an opportunity to sting her. So, they went after her in the Ohio Election Commission [inaudible] [00:50:08] in and went after her, and she was fined.
Nico: The other case – and you were 4-0 at the Supreme Court if you include the Skokie case, which went up there for review in kind of a quick and dirty fashion. But the other case was Capital Square Review and Advisory Board v. Pinette if I’m pronouncing that last name correctly.
David: Pinette, yeah.
David: Yeah, Vince Pinette. Right.
Nico: And this involved the right of the Ku Klux Klan to place an unattended cross on the Ohio State House Plaza near a privately sponsored menorah during the holiday season.
Nico: Now that’s a very visceral image for a lot of people. The review board denied the application for them to erect the cross. But if we’re committed to viewpoint neutrality, allowing the menorah to go up and not the cross would seem to me to be viewpoint discrimination.
David: Absolutely. And I mean it wasn’t like they were gonna be juxtaposed to one another, but they weren’t gonna be all that far apart. I would imagine 50 or 100 feet apart.
But one of the things that kind of surprised me during the case, although the argument was abandoned in the Supreme Court. When I asked the attorney general – or I beg your pardon – I guess, the state solicitor at that point, how you could have the menorah without allowing the cross. And his response was, “Well, the menorah’s not as holy as the cross.” And I mean what do you say to that? I as a Jew was offended.
David: And I told him. Are you gonna tell me my symbol’s not as worthy of respect as the Latin cross? Give me a break. Fortunately, they did not make – he was not the same attorney that argued the case in the US Supreme Court. Ultimately, they did not make that argument in the Supreme Court. I did not think it was gonna fly.
Nico: Yeah. Presumably, you could ban cross burnings or as the Klan likes to call them “cross illuminations” on the property. But the mere image – to the extent that you ban open flames and whatnot.
David: Right, right. I mean as far as the public was concerned, it was a cross. In fact, the only thing that connected it to the Klan was the fact that there was a disclaimer added to the bottom from the litigation that this is not a – in fact, I don’t think it referred to the Klan. It just said, “This is not the property of the state, nor does the state have anything to do with the message here.”
Nico: The 90s were quite a time for Klan cross cases. I mean there was Virginia v. Black and I believe RAV was also –
Nico: – a Klan cross case. All of which, I believe, the ACLU was involved with in one way or another.
David: Yes. And that’s a worry because, hopefully, they will show up when the time comes. I think the national legal director understands their responsibility in these kinds of cases.
Nico: Yeah, David is a very strong First Amendment guy. I actually watched the documentary about the ACLU’s Trump cases called The Fight that recently came out. And they talked a little about Skokie, and there were a number of people who were arguing against the ACLU’s position of the Skokie case. But David stayed pretty strong on it. I don’t know if he’s fighting a lonely battle or not, but in my experience, David has been a very strong free speech First Amendment advocate.
David: Well, because some of the younger people on the ACLU staff are not so inclined.
Nico: The Supreme Court cases – what’s it like to argue in front of the Supreme Court?
David: Intimidating. There are lawyers who kind of practice with a swagger and with a sense of absolute self-confidence. I’m not one of them. And so, arguing before the Supreme Court, you know that it’s gonna be – these are people that are smarter than you are or as smart.
And at the very least, the justices have read the papers, and they’ve had law clerks also help prepare them. And they have positions. So, they’re gonna use the questions, and you know this ahead of time. They’re gonna use the questions they ask you to make their position clearer to justices that they think don’t agree with them or that they wanna bring along to their side.
And you also know, which is something that’s not – I don’t know if they still do it. But I know they did it when I argued my last case. It was rumored that they would take a vote on who made the best argument of the day when they were back in chambers. So, you knew that it was like a law school examination, and those aren’t fun.
Nico: I wanted to close out. You used the word earlier in the conversation, “civil libertarian.” And I’m younger, like I said 30 years old, doing similar work albeit in a smaller domain that is higher education. And some of my heroes when I first started doing this work about a decade ago were the old school civil libertarians.
I attended Nat Hentoff’s funeral in 2017. And Norman Siegel and Ira Glasser – I didn’t know them at the time; I hadn’t even heard their names before – came up to me – were introduced to me. And they said, “Oh, you’re at FIRE. You do what we used to do.” And I said, “Okay. Well, who are you, and what did you used to do?” And they explained it to me.
And, subsequently, I invited Ira to come on this same podcast. He had retired in 2001 as executive director of the ACLU and told me when I invited him on the show that he might not remember much. And anyone who’s ever spoken to Ira knows that…
David: He remembers everything.
Nico: Three hours later, we hadn’t even reached the tip of the iceberg. He remembered everything. That man – he’s 82 years old now or something. And he’s got a steel-trap mind.
David: Yeah, he’s amazing.
Nico: But Nat Hentoff, Ira Glasser, Normal Siegel, Aryeh Neier, David Goldberger, these are my heroes when I started this work, old school civil libertarians, many of whom came from Brooklyn.
Somebody told me a joke one time that if you called up the ACLU with a First Amendment case and you got someone with a Brooklyn accent on the phone, you knew you were in good hands, which what I started to think about though is that the NYCLU and at the National ACLU, I was like – yeah, you’re probably right actually at least back in the day. But this is a generation that’s retiring from the barricades.
David: Right, right.
Nico: When I was interviewing Normal Siegel for the same documentary that you’re appearing in, he made this gesture. He said, “If I could define what I do, it would be neutral principles. If I had any tattoo, it would be across my chest, and it would say neutral principles.”
Nico: And that to me defines what it means to be an old school civil libertarian. But that generation and the events in America that led that generation to believe what it believed; namely, the civil right movement for many of them, the Vietnam anti-war movement – again, retiring from the barricades or in the case of people like Nat Hentoff or Norman Dorsen are quickly fading.
That’s what inspired me to make the film that’s ostensibly about Ira Glasser and his life and career. But it’s more about what it means to be a civil libertarian. And I worry that my generation doesn’t value the same principles or doesn’t know the history well enough to value the same principles. I wonder if you have that fear as well.
David: I share the fear, although it’s maybe not for the exact same reasons that you’ve articulated. It has less to do with the history and more to do with the fact that everything has become so polarized and politicized that it’s almost as though there’s something wrong with you if you do not back the cause perfectly in whatever cause it is. And the idea of neutral principles, of course, and the commitment to neutral principles is a commitment to stand to one side and say, “Look, there’s this principle that applies to everybody and not just to my friends and the people that I agree with.”
And right now, American democracy is foundering because that seems to be gone everywhere. And I mean for the first time in my life I fear not just for the loss of notions about neutral principles but about whether we’re gonna be able to have a democracy in the way that we have always assumed we had, whether the institutions are gonna be able to withstand this polarization and this refusal to say that there are rules that apply to everybody and not just to my friends.
Nico: Well, you see that in Congress too. I call it the politics of expediency –
Nico: – erasing norms, eliminating filibusters, talking about stacking the Supreme Court, all those ways to reach a short-term political goal without fear of the consequences long term, which is exactly the sort of neutral principles that civil libertarians stand to uphold the idea –
David: Right, right.
Nico: – being, of course, that if you give in to short-term political expediency, then this larger principle, which is more important, will be lost. And it’s harder to get back.
David: Absolutely. There’s no reason that you cannot be either a progressive member of the Democratic Party or a member of the Tea Party if you will or whatever they call themselves at this point in time and still also adhere to the notion that there are neutral principles that apply to everybody, even to me, and even when I don’t like the consequences. And that’s being lost.
Nico: Last question for you here – when you reflect on your career, which was many decades, what is the one thing that you’re most proud of? Would it be that Skokie case?
David: Yes. In terms of what I did, yes. That was something that I am very proud of. To answer the question a different way, I am proud that I’ve been able to stand up for neutral principles and basic fairness, which is what I think neutral principles means. And I hope that that’s not lost in the next generations.
Nico: Well, David, it’s been a pleasure having you on this show. And, hopefully, I can have you on again sometime soon.
David: All right. I appreciate the invitation.
Nico: That was David Goldberger. You can learn about him and the Skokie case in the forthcoming documentary, Mighty Ira, which is due out on October 9th via Angelika Film Centers.
This podcast is hosted, produced, and recorded by me, Nico Perrino, and edited by Aaron Reese. 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. You can also email us feedback at email@example.com.
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