It was a call he didn’t expect, let alone want, back on April 27, 1977. At the time, David Goldberger was a lawyer for the Illinois chapter of the American Civil Liberties Union (ACLU) and was developing broad expertise in the rights of people to engage in protests on private property.
He had helped the Communist Party fight McCarthy-era statutes to get on the ballot in Illinois and anti-Vietnam-War activists to fight the never-ending legal roadblocks the city of Chicago deployed to stop protesters from assembling in the city’s public spaces. In short, he was a rising First Amendment star and defender.
“The ACLU represented both sides and not the sides we preferred,” Goldberger told Newsweek. “That’s the best way to educate the public about the importance of fairness, equality and neutral principles of law.”
The call that would forever change Goldberger’s life, put his belief in free speech to the test and lead to a historic First Amendment ruling by the U.S. Supreme Court came from Frank Collin, the leader of the Chicago-based National Socialist Party of America (NSPA). “He wanted me to represent him because he’d just been sued by the village of Skokie seeking an injunction to prevent him from holding an assembly in the village the following Saturday,” Goldberger said. “It was Tuesday evening, and the hearing was the next morning.”
What Goldberger next told Collin was important as what he didn’t. “I regarded it as just another case,” Goldberger said, explaining why he agreed to represent the neo-Nazi leader. “It’s what we do. We believe in the principles of the First Amendment. End of discussion.”
What he didn’t tell Collin was more remarkable. Goldberger, it turned out, was Jewish. And he soon found himself protecting the right of 25 to 50 NSPA members to appear in Nazi uniforms with swastika armbands, Nazi banners and signs. To make matters worse, the village the Nazis chose for their rally was calculated—and cruel. “I learned at the hearing the next morning that Skokie, at the time, was 40 percent Jewish, and there was a significant percentage that were Holocaust survivors,” Goldberger said.
Blocking the neo-Nazi demonstration was not the initial reaction of city officials. “They thought the best thing to do was ignore them, let the demonstration go and forget about it,” Goldberger said. “But Holocaust survivors, and a very significant percentage of the Jewish people living in Skokie, said, ‘No, that’s what we did in Germany, we’re not going to do it here. We’ve got to oppose it and do everything we can to prevent it from happening.’”
Goldberger sympathized with Skokie’s residents. “They didn’t really care about the legal distinctions between what was going on in Germany and in Skokie,” he said. “It was a distinction without a distinction.”
Skokie wanted what’s known in the law as a prior restraint. “While any effort to censor by punishing a speaker after the fact is likely to violate the First Amendment, preventing the speech ahead of time is even more likely to violate the Constitution, even where the anticipated speech is profoundly offensive and hateful,” Goldberger explained. Ironically, he added, Skokie’s legal maneuvering resembled the efforts of Southern segregationists to stop civil rights marches during the 1960s.
The hearing in Illinois lasted an entire day, with Skokie presenting its case first. “One of its star witnesses was Holocaust survivor and community leader Sol Goldstein, who testified that while a violent reaction against the Nazis was not planned, he was not sure he or other onlookers could restrain themselves from violence if the Nazis came to Skokie,” Goldberger said.
“Later in the hearing, Nazi leader Frank Collin responded with testimony that his organization was planning a peaceful assembly, that his followers would be in uniform, and that they would carry signs and banners. There were to be no speeches and no weapons,” he said.
The hearing ended, and that’s when the legal blockade began. “The judge issued a temporary restraining order, and we immediately appealed to the Illinois Court of Appeals, and they sat on it. So we filed another request in the Illinois Supreme Court, and again nothing happened,” Goldberger said. “The following Saturday came and went and still no action from the court.
Though it was rare, Goldberger knew a way to get an emergency ruling from the U.S. Supreme Court. He argued that the delays by the Illinois courts amounted to a long-term prior restraint against speech. The Supreme Court agreed, taking the case quickly and ordering the Illinois courts to quit stalling.
Goldberg believed the ruling would help drive a greater understanding of First Amendment principles. He also thought the growing backlash would subside. He was wrong on both counts.
The case dragged on for months, as Skokie passed a series of ordinances designed to block the neo-Nazis right to assemble. Attacks against the ACLU grew more vitriolic, with the Chicago office besieged by calls objecting to its efforts. Nationwide, thousands of members resigned. “Still, the Illinois ACLU board responded by voting in support of our continued representation of the Nazis,” Goldberger said. “The only dissent came from a longtime board member whose wife was a Holocaust survivor.”
After a nearly 18-month court battle, the neo-Nazis won the right to march through Skokie, but the march never took place. After negotiations with the Justice Department, the neo-Nazis’ party leadership settled on a demonstration in downtown Chicago.
During the ordeal, Goldberger got requests from synagogues to explain the ACLU’s actions. “We knew we had to educate the public about the First Amendment and how it applied to everyone, no matter how much you hate them,” he recalled.
He faced a barrage of criticism, much of it from fellow Jews. But it wasn’t all anger and bile. “I remember a woman with a thick German accent spoke up in the back of one room in a clear, loud voice. And she said, ‘I am a Holocaust survivor, and I believe you are doing the right thing because I want to know who my enemies are. I want to be able to see them. I don’t want them driven underground.’”
Goldberger empathized with many of his Jewish critics but was driven to defend the neo-Nazis precisely because of his heritage. “Part of the baseline of my values—that everyone should be treated fairly and equally under the law—can be traced to my own upbringing as a Jew. That Jews have had a hard time through history and have constantly been a target of hatred and abuse, and the only defense against that hatred and abuse are laws that are applied to everybody,” Goldberger said. “So I basically stood my ground and made no secret of the fact that I was Jewish.”
There were other pockets of support. A group of people in the area got together and took out a full-page ad in one of the Chicago newspapers, Goldberger said. ‘It said that the ACLU was defending the First Amendment, not the Nazis.”
Other good things flowered from his free speech fight. “After the case was over, the people of Skokie and members of the broader Jewish community created a Holocaust museum in town that’s quite impressive.”
But there was a steep price to pay too. Goldberger faced threats from friends and foes alike and experienced problems within his most intimate social circles too. “It was our mutual experience that even our friends would at least question, if not attack, what we were doing,” Goldberger told The New York Times. “It became a very isolated existence and one which could easily have led to a lot of bitterness.”
He also faced attacks from colleagues in legal circles. “Philip Kurland, a noted constitutional scholar at the University of Chicago who had taught Mr. Goldberger as [a] law student, disagreed publicly with the court decisions upholding the Nazis’ rights,” the Times reported. “I am troubled by a dictum once attributed to Huey Long,” Mr. Kurland told an audience at the university. “‘When fascism comes to this country, it will come in the name of freedom.’”
“That was troubling,” Goldberger told the Times. “Part of it forced me to face my adulthood. I wasn’t a student anymore.” But more disturbing, he said, was that his old professor felt “compelled to cite Huey Long at all, as opposed to Thomas Jefferson.”
Goldberger eventually moved his family out of Illinois and went on to serve as lead counsel on a few more Supreme Court cases, all of which he won.
Looking back, he has no regrets. “I fervently believe that free speech is the core of democracy and that, as a general rule, the curative for bad speech is more speech,” he told Newsweek. “That is at the very foundation of the First Amendment. The alternative is to have the government decide who can talk and what they can say.”
Our colleges and K-12 schools—and our government officials, journalists and pundits—should make this free speech hero a household name. One of our nation’s founding heroes would agree. “If freedom of speech is taken away, then dumb and silent we may be led, like sheep to the slaughter,” George Washington wrote.
The post The Story of the Jewish Lawyer Who Defended the Free Speech Rights of Nazis appeared first on Newsweek.
