Canadian Lawyer

16 N O V E M B E R / D E C E M B E R 2 0 1 7 w w w . C A N A D I A N L a w y e r m a g . c o m On application by the town of Skok- ie, the Circuit Court of Cook County issued an injunction prohibiting NSP marchers from wearing Nazi uniforms or displaying swastikas. To the consternation of many, the Chicago chapter of the American Civil Liberties Union, acting for the NSP and with the support of the ACLU national office, appealed the injunction, arguing that it violated the First Amendment rights of the marchers. (The U.S. Constitution's First Amendment states, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.") The young ACLU lawyer who represented the NSP, David Goldberger, was Jewish. The legal arguments on behalf of the National Socialist Party, advanced by the ACLU, largely prevailed (although, for various reasons, the threatened Skokie march never took place). Subsequently, 30,000 ACLU members, about 25 per cent of its membership, resigned over the affair. One ACLU lawyer commented that those who resigned failed to understand that the ACLU had defended a principle and not an ideology. Some saw defence of the Skokie marchers as the ACLU's finest moment, a principled defence of a despised enemy's right to free expres- sion. Others saw it as a catastrophic, self- destructive error of judgment. Forty years later, in August 2017, with white nationalism and anti-semitism once again on the rise, in a series of events eerily reminiscent of the Skokie affair, the ACLU went to court to fight for the right of white nationalists to hold a rally at a place of their choosing in Charlottesville, Va. Needless to say, the ACLU came under severe attack for doing this. There were resignations from its board and membership, as well as much internal division and conflict. It was pil- loried on social media. ACLU executive director Anthony Romero said, "We have a longstanding history of defending the rights of groups we detest and with whom we fundamentally disagree." Some said the ACLU was partly responsible for the vio- lence at the Charlottesville rally, a view that Romero rejected, although the ACLU did subsequently announce that it would not represent white supremacist groups that carried guns while demonstrating. The hate speech/freedom of speech ethical dilemma is a horrible and persis- t was a monumental clash between hate speech and freedom of speech. It took place 40 years ago, but it feels like it happened yesterday. In 1977, the National Socialist Party of America, an American Nazi group, planned a march through Skokie, Ill., a Chicago suburb. Group members intend- ed to wear Nazi uniforms and carry swastika flags. Skokie had a population of about 70,000 people. More than 40,000 of them were Jewish. Seven thousand had been inmates of Nazi concentration camps. L E G A L E T H I C S O P I N I O N @philipslayton SCOTT PAGE Do lawyers have an ethical obligation to defend the expression of opinions they despise? By Philip Slayton I THE LATE ALAN BOROVOY, GENERAL COUNSEL TO THE CCLA FOR MORE THAN 40 YEARS, FAMOUSLY DEFENDED HOLOCAUST DENIER ERNST ZUNDEL ON THE GROUNDS OF HIS RIGHT OF FREE EXPRESSION. Defending those we detest

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