Last word
Free for all
Geoffrey Wheatcroft
Two years ago the National Socialist Party of America (which unlike the National Front openly admires Hitler and his deeds) planned a march through Skokie, Illinois. Skokie is a suburb of Chicago with a pre dominantly Jewish population, of whom a large number are survivors of the Holocaust: the National Socialists' intention to outrage and provoke was patent enough.
An injunction was sought and granted forbidding the demonstration. The National Socialists appealed, and, to cut the story short, they finally won their case in the Illinois Supreme Court.
At an early stage the board of directors of the American Civil Liberties Union decided to take up the National Socialists' case. ACLU lawyers represented the Nazis through successive court hearings. To cut short another story, a fierce debate split the ACLU, nearly a fifth of whose members resigned in protest. The ACLU took, and defended, its decision on the basis that its first duty was to uphold the First Amendment of the American Constitution: `Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peacably to assemble. .
Now, profound and complicated questions are at issue here. We may agree on the unconditional right to freedom of expression. But does `unconditional' mean that no considerations of public order should ever qualify that right? English law is ambiguous on the subject; or rather it has veered back and forth. While there is no statutory right of free speech, there is a traditional disposition in favour of it. At the same time the offence of behaviour likely to cause a breach of the peace is known to the law, as is that of insulting behaviour.
What then of behaviour which may lead to a breach of the peace because of people's sensitivities? In Beatty v. Gillbanks (1882), a case pertinent to Skokie, it was held that a lawful act could not be prevented merely because someone might take violent objection to it. The great jurisprudent A.V. Dicey commented: 'The plain principle is that A's right to . . . walk down the high street cannot be diminished by B's threat to . . . knock him down.'
That ruling was turned around in Wise v. Dunning (1901), a case even more closely resembling Skokie (a Protestant fanatic had made insultingly anti-papist speeches in Catholic Liverpool). Upholding the conviction for unlawful assembly, Mr Justice Darling observed that `the natural consequence of this "crusader's" eloquence has been to produce illegal acts'. Subsequently, the Public Order Act, 1936, a riposte to Mosley's fascists, authorised the banning of processions on grounds of a threat to public order. The question arose in England again in the aftermath of the Lewisham and Ladywood affrays of the summer before last, when several councils temporarily banned political meetings. And of course the same question was at the centre of the ACLU controversy: the ACLU maintained that it was unconstitutional to restrict free speech because of a 'heckler's veto'.
For my own part I do not think the issue is as clear-cut as ACLU maintained. There is a tendency among libertarians to argue entirely in terms of liberty; that is of conflicts between different persons' liberties: which is specious. In civil society we all surrender certain freedoms, voluntarily or involuntarily, in the name of order. When I stop at a red light I don't do so out of freely given respect for your liberty to cross on the green, but from a commonly accepted obedience to the rules of order; and when a far-Right march is approaching a far-Left march it is unreasonable to argue that the State has no right to interpose itself in anticipatory fashion, rather than waiting for the punch-up to begin.
Besides, processions — as opposed to the 'peaceable assembly' of the First Amendment — always do involve a conflict of liberties, especially as even the most orderly marches have a threatening character. If the Very Nasty Party has an absolute right to parade down Upper Street on Saturday morning, what of my right to go about my lawful occasions, in which I am clearly impeded by the marchers? And where does the right of nuisance-making stop: may a man shout `Fire!' in a crowded theatre (a classic example); or talk loudly through a string quartet recital?
Having said all of'which, how superb has been the adherence of the ACLU to the principle of free speech! It was scarcely surprising that many ACLU members strongly objected to defending the National Socialists. How noble, then, are the ACLU officers — many of them Jewish, incidentally — who wore themselves out on the case. They knew that once we stop defending the rights of our enemies — even the common enemies of mankind — free society is lost. I don't wish to labour the point, but it is very hard to imagine our own National Council for Civil Liberties taking on a similar case on the same principle.
Last week I alluded to (rather than quoted) `I disapprove of what you say but . . . 'and Mr Bernard Levin gleefully reminded me that this 'saying' of Voltaire's is apocryphal. (As Edmund Gosse, once caught out in misquotation, replied, 'Young man, you are headed for the pit of perdition') The following quotation, however, is authentic: 'If there is any principle of the constitution that more imperatively calls for attachment than any other it is the principle of free thought — not free thought for those who agree with us but freedom for the thought that we hate' — the late Oliver Wendell Holmes, Justice of the Supreme Court. So is this: 'If we had not supported the Nazis' right to demonstration — with swastikas — the ACLU would have lost its integrity, its reason for being' — Mr ArYeh Neier, Executive Director of the ACLU (and a Jewish refugee from Hitler). And this: 'Hell, if the worst came to the worst and we had folded, these bastards and their fucking swastikas would still have had representation. I'd have taken the case on mY own' — an ACLU lawyer. What a wonderful — and what a lucky country that has such men.
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