Cases discussed in this episode:

• National Socialist Party of America v. Village of Skokie, 432 U.S. 43 (1977)
• Snyder v. Phelps Brief Citation 562 U.S. 443 (2011)

Transcript:

This is Michele Goodwin, executive producer of Ms. Studios and  Ms. Media. Welcome to our new, limited series, Speaking Freely: a First Amendment Podcast with Stephen Rohde. In this illuminating new series, prominent First Amendment expert, Stephen Rohde, who has litigated and written about freedom of expression for decades, will explore some of the most controversial free speech and free press cases decided by the U.S. Supreme Court. Looking at hot-button issues like hate speech, defamation, incitement, social media, obscenity, flag burning, espionage, and academic freedom. 

0:00:44

We hope you enjoy these intriguing programs. For a full transcript, links to cases referenced in this episode, and further reading, check out our landing page at MsMagazine.com.. And now, here is your host Stephen Rohde with our episode: Do the Nazi’s Have the Right to March in Skokie?

00:00:58 Stephen Rohde: 

On March 20, 1977, Frank Collin, the leader of the National Socialist Nazi Party of America, informed the Village of Skokie in Cook County, Illinois, that his group intended to march on the village’s sidewalk on May 1st. Skokie had a population of approximately 70,000 persons of whom approximately 40,500 were Jewish. Thousands of them had survived the Holocaust and many others were the families of men and women who had perished in Nazi concentration camps. The Nazi’s attempt to march in Skokie would trigger one of the most famous free speech battles in American history. 

00:01:47 

Almost 30 years later on March 10, 2006, in Westminster, Maryland, seven members of the Westboro Baptist Church led by the church’s founder Fred Phelps picketed the funeral of U.S. Marine Lance Corporal Matthew Snyder who was killed in the Iraq War. On public land about a 1,000 feet from where the funeral was about to begin, the church protesters displayed placards that read: Thank God for Dead Soldiers, Thank God for IEDs, God Hates Fags, Fag Troops, America is Doomed, God Hates the USA, Thank God for 9/11, Hope in Hell, Priests Rape Boys, Don’t Pray for the USA, and You’re Going to Hell. 

00:02:46

The protest lasted about 30 minutes and ended before the funeral began. Three decades apart, the Skokie and the Westboro Baptist Church cases both tested how far the First Amendment would go to protect deeply hateful and offensive speech. And the court decisions in these cases teach us why these tests are good for our constitutional democracy. Let’s look at the Skokie case first. Frank Collin, the Nazi leader, wrote a letter to Skokie officials stating that the purpose of the demonstration was to protest the Skokie Park District’s ordinance requiring a bond of 350,000 dollars to be posted prior to the issuance of a park permit. 

00:03:41

He said the demonstration would consist of 30 to 50 demonstrators marching in single file in front of the Skokie Village Hall. The demonstrators would wear uniforms similar to those traditionally worn by Nazis including swastika armbands. Collin also said that the demonstrators would not make derogatory public statements and would cooperate with reasonable police instructions. The Village of Skokie immediately went to court seeking a preliminary injunction to stop the march. The Cook County Court treated Collin’s letter as a sworn affidavit and took the testimony of a number of Skokie residents. 

00:04:26

One testified that a number of Jewish organizations planned a counter demonstration for the same day with an expected attendance of 12,000 to 15,000 persons and that the appearance of Nazi demonstrators would lead to violence. The mayor of Skokie also testified that the demonstration could lead to uncontrollable violence. The court restrained the Nazi’s from marching, walking, parading, or otherwise displaying the swastika on or off their bodies on Mar-May 1, 1977. The Illinois courts denied the Nazi Party’s request to temporarily halt the injunction and the case went to the U.S. Supreme Court. 

00:05:16

On June 14, 1977 in an unsigned per curiam opinion on behalf of six of the justices, the court reversed the injunction and sent the case back to Illinois. It held that Illinois had failed to provide strict judicial safeguards including appellate review to enable the Nazi’s to challenge the injunction thereby depriving the Nazi Party of its First Amendment rights. On remand, the Illinois Supreme Court focused on the First Amendment implications of the display of the swastika. Skokie attorneys argued that for Holocaust survivors seeing the swastika was like being physically attacked. But the State Supreme Court rejected that argument ruling that display of the swastika is a symbolic form of free speech entitled to First Amendment protection. 

00:06:16

Its ruling allowed the Nazi’s to march. In parallel litigation in federal courts, the village’s ordinance was declared unconstitutional first by the district court and then by the Seventh Circuit Court of Appeals. In an ironic footnote to history, after all this litigation establishing the Nazi’s right to march, the Nazi’s chose not to march in Skokie but instead held a rally in Chicago. So, we need to ask why would the First Amendment protect the right of Nazi’s to march in Skokie? One of the most powerful answers came from international human rights advocate Aryeh Neier. Neier escaped from Nazi Germany as a child with his immediate family while the Nazi’s slaughtered his extended family. 

00:07:14

In 1977 and ’78 he was the executive director of the American Civil Liberties Union, the ACLU, and it was the ACLU that defended the First Amendment rights of the Nazi’s to demonstrate in Skokie. How could Neier defend the free speech rights of the ideological heirs of the very people who had killed his family? In his book Defending My Enemy, and elsewhere, he explained as follows: “I could not bring myself to advocate freedom of speech in Skokie if I did not believe that the chances are best for preventing a repetition of the Holocaust in a society where every incursion on freedom is resisted. Freedom has its risks. Suppression of freedom, I believe, is a sure prescription for disaster.” 

00:08:19

Indeed, punishing hate speech has not been shown to effectively reduce racism or intolerance. There’s no correlation between the enforcement of hate speech laws and the elimination of hate. For example, both during the Weimar Republic and in recent decades, Germany has vigorously enforced strictly written hate speech laws yet Hitler and the Nazi Party rose to power during the Weimar period and today the openly racist AfD Party has grown dramatically in recent years. Thus, Germany experienced disturbing upsurges in violence against Jews and other minority groups during both periods despite the enforcement of hate speech laws. 

00:09:11

Proponents of racial equality and the elimination of bigotry are not powerless in the face of virulent hate speech. Reports by human rights advocates in many countries and in international agencies have concluded that the answer to hate speech is counterspeech. Speech should be prioritized over censorship. For example, the European Commission against Racism and Intolerance, which monitors the implementation of many European hate speech laws, recently concluded that in contrast to such laws, “[c]ounterspeech is much more likely to be effective in countering intolerance.” 

00:10:01

Now let’s turn back to the Westboro Baptist Church case. After the group protested at the funeral of Matthew Snyder, his father Albert Snyder filed a civil lawsuit for defamation, intrusion upon seclusion, publicity given to private life, intentional infliction of emotional distress, and civil conspiracy, seeking damages from the Westboro Church and its founder Fred Phelps. In response, the defendants argued that the demonstration was a lawful exercise of their right to free speech and the right to peacefully protest as protected by the First Amendment. 

00:10:48

The Westboro Baptist Church was founded by Phelps in 1955. It is headquartered in Topeka, Kansas. The congregation consists of about 60 or 70 members the majority of whom are Phelps’s children, grandchildren, relatives and in-laws. Since Westboro’s founding, members of the church have picketed hundreds of military funerals to communicate, in its words, the “belief that God hates the United States for its tolerance of homosexuality, particularly in the American military.” At trial, Snyder testified that, “Westboro turned this funeral into a media circus and they wanted to hurt my family. They wanted their message heard and they didn’t care who they stepped over. My son should’ve been buried with dignity, not with a bunch of clowns outside.” 

00:11:47

He testified that although he glimpsed the top of the signs from the funeral procession, he did not see what they said until he watched a news program on television later that day. He also indicated that he found Westboro’s statements about his son on their website from a Google search. He called several expert witnesses who testified that his diabetes had worsened and he had experienced severe depression as a result of the defendant’s activities. In their defense, Westboro and Phelps established that they had complied with all local ordinances and had obeyed police instructions. The picket was held in a location cordoned off by the police approximately a thousand feet from the church from which it could be neither seen nor heard. 

00:12:42

In his instructions to the jury, Judge Richard D. Bennett stated that the First Amendment protection of free speech has limits, including vulgar, offensive, and shocking statements, and that the jury must decide “[w]hether the defendant’s actions would be highly offensive to a reasonable person, whether they were extreme and outrageous, and whether these actions were so offensive and shocking as to not be entitled to First Amendment protection.” On October 31, 2007, the jury found that Snyder, found for Snyder and awarded a total of 10,000…strike that. Repeating, On October 31, 2007, the jury found for Snyder and awarded a total of 10,900,000 dollars. 

00:13:43

On February 4, 2008, Judge Bennett upheld the verdict but reduced the punitive damages from 8 million to 2.1 million to take into consideration the limited resources of Westboro. The final judgment stood at 5 million dollars. Court liens were ordered on church buildings in an attempt to ensure that the damages were paid. Westboro announced that despite the verdict the church would continue to picket military funerals. On appeal, the U.S. Court of Appeals for the Fourth Circuit reversed the jury verdict and set aside the 5 million dollar judgment. The Fourth Circuit ruled that the lower court had erred by instructing the jury to decide a question of law rather than fact. Specifically, whether or not the speech in question was protected by the First Amendment. 

00:14:41

The Fourth Circuit also ruled that the protest signs were “rhetorical hyperbole and figurative expression rather than assertions of fact,” so they were a form of protected free speech. On March 30, 2010, the court ordered Albert Snyder to pay the defendant’s court costs totaling 16,510 dollars. People all over the country, including Fox political commentator Bill O’Reilly, agreed to cover the cost pending appeal. O’Reilly also pledged to support all of Snyder’s future court costs against the Phelps family. Snyder appealed to the U.S. Supreme Court which heard oral argument on October 6, 2010. 

00:15:33

On March 2, 2011, in an 8-to-1 decision, the Supreme Court ruled in favor of Phelps upholding the Fourth Circuit’s decision. Chief Justice John Roberts wrote the majority opinion. He stated as follows: “[w]hat Westboro said, in the whole context of how and where it chose to say it is entitled to special protection under the First Amendment and that protection cannot be overcome by a jury finding that the picketing was outrageous.” He pointed out that the funeral was not disturbed saying, “Westboro stayed well away from the memorial service, Snyder could see no more than the tops of the picketer’s signs, and there was no indication that the picketing interfered with the funeral service itself.” The decision also declined to expand the “captive audience doctrine,” saying that Snyder was not in a situation where he was forced to hear the negative speech. 

00:16:44

Justice Stephen Breyer wrote a concurring opinion emphasizing his view that the decision related only to the picketing and did not take into consideration Westboro Baptist Church’s online publication that attacked the Snyder family. _____ (00:17:03). Justice Samuel Alito wrote the sole dissenting opinion. He wrote that “our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case.” And that “in order to have a society in which public issues can be openly and vigorously debated, it is not necessary to allow the brutalization of innocent victims like petitioner.” 

00:17:38

In 2019, on NPR Walter Snyder explained that after years of reflection he realized that his son had fought and died to protect freedom of speech and that the Supreme Court made the right decision in upholding Westboro’s free speech, as painful as it was. I’m not sure I have ever heard or read a more poignant validation of the entire foundation of American free speech law than the touching words of Albert Snyder. Thousands of books and hundreds of court decisions have been written justifying the modern constitutional principle that the First Amendment to the United States Constitution protects the free speech rights even of that speech that is hateful, offensive, and _____ (00:18:36). 

00:18:38

But Albert Snyder captured that principle better than all those books and decisions put together. As painful as it is, sometimes to be the targets of free speech we’ve banked the American experiment, in large part, on protecting the widest, most robust, free-for-all of free speech in human history. That experiment has sometimes succeeded brilliantly and sometimes failed miserably over the course of the last 232 years. 

00:19:13

Thank you for listening to Speaking Freely. I’d like to thank my producer Allison Whelan and I welcome you back to future episodes of Speaking Freely: A First Amendment Podcast.