“Jews will not replace us.” When 300 neo-Nazis marched with flaming torches through the central quad of the University of Virginia on a late Friday evening in August 2017, their message was clear. The college’s response, in contrast, was a study in confusion. As a public institution, wrote then-President Teresa Sullivan, the university “must abide by state and federal law” regarding the First Amendment rights of free speech and freedom of assembly. Short of barring the “torch-bearing protesters” as an imminent threat to safety, university officials’ hands were tied. National Jewish organizations such as the Anti-Defamation League and the American Jewish Committee concurred, denouncing the shocking display of hatred but urging the public to let the “protesters” voice their “protected speech.”
Yet after the violent weekend that led to one death and multiple casualties, UVA lawyers unearthed a decades-old state law still on the books that banned the burning of objects on private or public property “with the intent of intimidating any person or group of persons.” It turned out that the Virginia General Assembly had dealt with this very problem back in the early 1950s, when the Ku Klux Klan tried to launch a new campaign in the state. The legal means to prevent this racist and anti-Semitic menace without violating the First Amendment had existed. No one had remembered to look for it.
An overlooked law written for a danger assumed to be long past. A domestic extremist movement masquerading as a political cause. An unswerving fealty to the First Amendment blinding lawyers to the violent danger staring them in the face. This lonely epilogue to Charlottesville is a fitting symbol for the current crisis facing the American civil-rights movement. White supremacists have twisted the law itself into a weapon with which to launch a frontal attack on American liberalism.
That this brazen attack took place on a campus where I teach Jewish history, including the long Jewish struggle on behalf of human rights, only underscored another historical irony. Anti-Semitism has returned with a vengeance, yet American Jews have forgotten how to fight it.
From Charlottesville to Squirrel Hill, Pennsylvania, to Poway, California, American anti-Semitism has repeatedly demonstrated its deadly propensity for violence. The common link is a social mediascape in which anti-Semitic and racist ideas and memes freely circulate, intensifying as they do so. Yet most American Jews feel powerless to fight anti-Semitism, trapped in a simplistic understanding of the First Amendment. Separate church and state, they believe, defend freedom of expression, and fight for equal treatment and a race-blind society, and over time anti-Semitism and other hatreds will dissipate. So the logic goes. Many Jewish lawyers pride themselves on their defense of civil liberties, safeguarding the expression of even unpopular views, from politics to pornography. Some proudly defend the rights of neo-Nazis and other anti-Semitic bigots.
That principled approach has its virtues. Yet in our day and age, this civil-libertarian orthodoxy has left society reliant on the fuzzier tools of tolerance education, public shaming, and private litigation to fight anti-Semitism. As a result, the press often replaces the courts as the forum for judging harmful words. Civil-rights lawyering is reduced to an exercise in punishing violent hate crimes after the fact, rather than preventing them beforehand. And worst of all, free speech and hate speech are imagined as two disconnected islands of contradictory ideologies, separated by an unbridgeable sea of constitutional law, rather than interrelated categories whose shared history stretches back to the opening years of the 20th century.
Just like Virginia’s forgotten anti–Ku Klux Klan law, there is more to the story of American Jews and civil rights than a stalwart faith in the ennobling virtues of free speech. Across the first half of the 20th century, Jewish lawyers stretched civil-rights law wider and deeper than the pursuit of absolute individual equality in order to prevent both verbal and physical attacks on Jews and other vulnerable minorities. They employed the novel legal approach of group libel. Their efforts formed part of the larger Jewish drive to defend civil liberties and seek political inclusion. They yielded striking legal innovations, including a bevy of state laws to shut down the most extreme peddlers of racism and anti-Semitism. Those laws even produced an important Supreme Court precedent, Beauharnais v. Illinois, which has never been overturned and remains relevant to contemporary civil-rights questions.
Yet even though the courts deemed group libel a legitimate way to stop hate speech without violating the First Amendment, over time American Jewish civil-rights groups edged away from their own achievement. Instead, they began to focus on the First Amendment as the ultimate counter-majoritarian instrument of self-defense against hatred. Exposing extremism would suffice to stop its spread. The teeming marketplace of ideas would crowd out the few malevolent Judeophobes and racists. Curbing present-day incitement risked future government censorship. The price of American freedom was some marginal discomfort inflicted by extremists, who were best managed through the tools of mainstream liberalism.
Today, as American society grapples with a deadly resurgence of anti-Semitism, it is well worth recovering the lost history of Jewish civil rights. For just as the roots of contemporary hatred stretch far back into the American past, so too does the forgotten record of the law’s struggle against it. Charlottesville is not only a reminder of the persistence of the past. It is a summons to reckon with American Jewish history’s timely legal lessons for today.
In August 1790, the newly elected President George Washington wrote a short note to the Jews of Newport, Rhode Island. Thanking them for their message of congratulations, he went on to praise the “Children of the Stock of Abraham who dwell in this land.” “The Government of the United States, which gives to bigotry no sanction, to persecution no assistance,” Washington memorably wrote, “requires only that they who live under its protection, should demean themselves as good citizens.”
Over time, the Newport letter came to symbolize the larger promise of religious liberty in the new American republic. Right now, these very words adorn the facade of the National Museum of American Jewish History in Philadelphia. In contrast to Europe, where ancient prejudices trailed Jews ominously into modern times, the new country announced its ideal of strict religious neutrality. The United States would privilege no one religion, for as Washington proclaimed, “All possess alike liberty of conscience and immunities of citizenship.”
Today American Jews treasure Washington’s letter like a precious birthright. Few realize that the stirring words were actually scripted for him by the Jewish community itself. Most of the ideas and much of the language were copied verbatim from the initial letter sent to Washington by Moses Seixas, a leader of Newport’s Jewish community. Yet even more striking than the language Washington cribbed is what he chose to omit from his letter. By describing Jews as entitled to civil equality despite their non-Christian status, and only at risk of discrimination for their religious beliefs, Washington effectively established a legal precedent. There would be no European-style corporate group identity or racial stigma attached to Jewishness in America. By law, American Jews would be implicitly treated as white Americans of a different religious faith.
That liberal vision, of Jews flourishing as individual citizens living in voluntary communities, neatly matched the egalitarian ideals of the young republic. It worked well in a country where Jews remained a negligible percentage of the population, and where there were virtually no Jews of color. In Washington’s day, the 1790 census counted a mere 1,500 Jews, most of whom came from Sephardic backgrounds in western Europe, amounting to 0.05 percent of the total American population. A century later, despite another wave of immigration, this time from German-speaking Central Europe, the number had risen only to 0.5 percent.
Then, in the late 19th century, millions of Yiddish-speaking eastern-European Jews began to pour into American society. Their arrival coincided with the post-Reconstruction rise of modern American nativism, Jim Crow laws, and a new current of racial anti-Semitism. Suddenly, formal religious equality was not enough to stop active discrimination from WASP elites in the urban North, or rippling threats of violence from Southern Ku Klux Klan members. New kinds of anti-Semitic mass media and populist demagogues targeted wealthier, acculturated Jews and their unwashed immigrant cousins alike. They blamed successful Jewish entrepreneurs for the ills of capitalism and poorer newcomers for their racial deviancy. Almost overnight, America decided that Jews might not count as fully white after all.
In May 1907, the management of the Marlborough-Blenheim Hotel in Atlantic City, New Jersey, turned away the family of a Jewish widow from Baltimore named Bertha Rayner Frank with a curt line: “We don’t entertain Hebrews.” In response, Louis Marshall, a renowned constitutional lawyer and the president of a newly established Jewish civil-rights organization, the American Jewish Committee, proposed an anti-discrimination law for New York State. When finally passed in 1913, the New York Civil Rights Act banned denial of service to people at restaurants, hotels, and all manner of other commercial venues based on race, color, or creed. Yet in a twist, it also prohibited any advertising that even mentioned denying accommodations to certain groups. Now it was a legally punishable offense to discriminate in deed or to defame in words.
That same year, the Anti-Defamation League launched as a second Jewish civil-rights organization. Its stated mission was “to stop, by appeals to reason and conscience and, if necessary, by appeals to law, the defamation of the Jewish people.” Over the next decade, at the behest of Jewish civil-rights groups, six more states followed New York’s lead, drafting laws that outlawed advertising and other published expressions of discrimination directed at a specific group. At root, these laws relied on a concept of group defamation, or, as it was alternately known, group libel. For hundreds of years, English common law had recognized the individual citizen’s right to sue for personal libel. Now state legislatures began to experiment with civil-rights statutes that allowed for the prosecution of individuals who defamed or injured the reputation or property of members of a minority group. Marshall even helped sponsor a draft federal law before World War I to ban the dissemination of hate literature by U.S. mail.
Targeting defamatory speech against a group was a bold step to protect the freedom of Jews, African Americans, and other minorities. Much of this work went hand in hand with the new African American civil-rights activism of groups such as the NAACP, which numbered among its senior leadership many Jewish lawyers and rabbis. Just like anti-lynching laws, group-libel statutes moved the law beyond the protection of formal equality for individuals, to an equity-based model that acknowledged group differences in society. The ideal of blind justice would not suffice when it came to a racialized society in which minorities were targeted disproportionately and distinctively—sometimes with the law’s consent.
Yet the assertive drive for positive group protection also stirred up anxieties among Jewish leaders. Some feared that anti-bias laws might not only run afoul of the First Amendment rights to freedom of speech and assembly but actually compromise the legal and political security of Jews as individual citizens. Separating Jews out as a minority group risked reinforcing anti-Semitic stereotypes. Worse still, such a move might give the American government license to treat Jews as a potentially unassimilable national or racial minority as in Europe. That fear derived from a disturbing reality. The turn-of-the-century restrictive American immigration laws banned nonwhite racial minorities, threatening to close the doors to millions of Jews fleeing extreme poverty and increasingly violent anti-Semitism in eastern Europe.
Then, in 1920, America’s most famous business tycoon, Henry Ford, began publishing a nakedly anti-Semitic newspaper with a national distribution, The Dearborn Independent. Ford promoted a variety of malicious stereotypes about Judeo-Bolshevik power, fanned fears of Jewish racial impurity, and portrayed jazz and baseball as Hebraic conspiracies to pollute American society. He even republished the Russian anti-Semitic conspiracy tract, The Protocols of the Elders of Zion.
Ford’s hate speech seemed tailor-made for the kind of group-libel law already in effect in states across the country. Yet bitter divisions quickly emerged among Jewish civil-rights leaders over how to respond, as Victoria Saker Woeste showed in her 2012 book, Henry Ford’s War on Jews and the Legal Battle for Hate Speech. In 1924, Ford’s newspaper launched a series of articles to expose “Jewish exploitation” in the American cooperative-farming industry, particularly targeting the California lawyer and cooperative activist Aaron Sapiro. Enraged by the patent falsehoods and anti-Semitic attacks, Sapiro sued in federal court in Detroit for libel.
Sapiro’s lawsuit attracted the attention of other Jewish civil-rights leaders, chief among them Marshall. By the early 1920s, Marshall had argued several cases for the NAACP at the Supreme Court, mediated labor conflicts between Jewish workers and factory owners in New York City, and pioneered environmental conservation in upstate New York. But he balked at the idea of suing Ford for libel of any kind. Marshall feared such a move would trigger more anti-Semitism and mark Jews as a racial minority. In a pretrial ruling, the judge had found that Sapiro could not sue for group libel, because Michigan had not passed a group-libel statute. When Sapiro’s personal-libel lawsuit was then dismissed on a technicality after a secret smear campaign by Ford, Marshall breathed a sigh of relief. He seized on the moment to negotiate a public apology in which Ford claimed (falsely) that he had not known his underlings were spreading anti-Semitic calumnies.
Having pioneered the progressive idea of outlawing hatred in the 1910s, a decade later now Marshall swung toward an uncompromising defense of individual free expression. Immigration fears no longer mattered, since the worst had just come to pass. In 1921 and 1924, Congress had imposed sweeping restrictions that excluded eastern-European Jews, along with many other races deemed inferior, from entering the country. Now Marshall feared that in a climate of rising nativism and conservative populism, political progressives might lose out if speech were to be overly regulated in a modern democracy.
Similar reasoning led Marshall’s fellow Jewish lawyer and great rival Louis Brandeis, the first Jewish Supreme Court justice, to write his 1927 opinion in Whitney v. California. In a ruling upholding the conviction of a California woman charged with espousing communism, Brandeis offered an eloquent defense of the moral virtues of the First Amendment.* The solution to offensive speech of all kinds, he wrote, was to “expose through discussion the falsehood and fallacies, to avert the evil by the process of education, [such that] the remedy to be applied is more speech, not enforced silence.”
Neither Ford’s pseudo-apology nor Brandeis’s soaring rhetoric, though, did much to stop the surge of anti-Semitism in American society in the late 1920s and 1930s. Racial populists such as Father Charles Coughlin began to use the new medium of radio to seek out national audiences. Propagandists mastered the art of cheap publishing on a national scale. The most famous of these new hate-merchants was Robert Edward Edmondson, the founder of the Pan-Aryan League and the premier anti-Semitic pamphleteer of his day.
Over the course of the 1930s, Edmondson published hundreds of booklets and newspaper articles, denouncing “Jewish anti-Americanism and Talmudic communism,” “the communistic Jew deal,” and the “invisible government” for destroying American business, media, government, and entertainment. He also repeatedly smeared non-Jews such as Secretary of Labor Frances Perkins, who he falsely claimed was in reality one “Rachel Lazanski” of “Russian Jewish origin” impersonating a New England WASP.
In 1936, Congressman Samuel Dickstein of New York demanded legal action. Mayor Fiorello La Guardia responded by invoking his power as chief magistrate of the city of New York to issue a summons for criminal libel, and then asking the New York County district attorney to take a personal role in the case, suggesting he charge Edmondson with “false, malicious, scandalous, and defamatory libel of and concerning all persons of the Jewish religion.” La Guardia dismissed his critics: “The right of free speech is based on the recognition that those who indulge in it or who claim it as a right must be prepared to be held responsible for their utterances or their writings if they transgress. The remedy is not by suppression or curtailment of speech or writing, but by invoking the law of criminal libel if the statement is not truthful or the motive unlawful.”
American Jews responded to Edmondson’s indictment with great enthusiasm. The Yiddish-language Jewish Daily Forward opined, “The entire population of New York, regardless of race or religion, wholeheartedly welcomes Mayor La Guardia’s swift action against the fanatics and juvenile-delinquents, who spread … social poison, wild race-hatreds, anti-Jewish calumnies, and antisemitism … that incite unlawful acts.” Rabbi Stephen S. Wise, the leader of the American Jewish Congress and a co-founder of the NAACP, showered La Guardia with praise for the “grand thing” he had accomplished. Wise mocked the murmurs of hesitation among the more anxious of his own people, the “sh-sh Jews who, instead of rejoicing over what you have done, are chiefly fearful lest, as they put it, Edmondson has his day in court—as if he had not had it already, through the publication of millions of pamphlets!”
Edmondson’s lawyer defended his client’s writings as “patriotic politico-economic educational analyses, issued under the Constitutional guarantee of free speech and free press.” His client never meant to criticize Jews in the United States or elsewhere, his lawyer insisted, only the true enemies of the American people: “Socialist Jews, Communist Jews, Bolshevist Jews, and Mongol Jews.” There was no case for group defamation, only an instance of legitimate political criticism of the wrong kinds of Jews. To ensure a fair trial, however, he insisted that the judge empanel an all-Aryan jury.
Edmondson never got his all-Aryan jury, or any jury for that matter. The case did not go to trial. Despite their initial eagerness to prosecute, the Jewish civil-rights groups, including Wise’s own American Jewish Congress, the American Jewish Committee, and the National Council of Jewish Women, all summarily retreated as the trial approached. All three submitted amicus briefs petitioning the judge to dismiss the case on the grounds that applying criminal libel in defense of any group was a mistake. In the words of Wise’s own organization, to sanction Edmondson would only make him a “‘martyr’ to the great cause of civil rights … and freedom of speech and of the press.” Better to let an anti-Semite speak his erroneous truth than expand the role of the law in the fight against anti-Semitism. The judge acquiesced and threw out the case. If the injured party itself disavowed the injury, he reasoned, how could it be called a crime?
The outbreak of World War II and the emerging news of the Nazi Holocaust shocked American Jews out of this pattern of ambivalence vis-à-vis group libel. In 1943, Wise’s American Jewish Congress successfully campaigned for a Massachusetts statute criminalizing the publication of “false written or printed material with intent to maliciously promote hatred of any group of persons in the commonwealth because of race, color or religion.” To spearhead its legal efforts, it hired Alexander Pekelis, an Italian Jewish refugee-law professor and prominent early scholar of fascism.
Fleeing Italy for the United States in 1940, Pekelis quickly emerged as a leading practitioner of the “legal realism” school of jurisprudence that emphasized law’s dynamic interaction with society. In the same New Deal spirit, Pekelis viewed law as a constructive tool for modern social reform. Across the early 1940s, he pushed forward a number of ideas for how to combine “individual protection and group action” to stop anti-Semitism. Time and again, he stressed that modern economics had changed the way people thought about law for workers and organized labor. The right to organize workers was necessary because of the power of businesses in the marketplace. Now law could do the same for members of minority groups, who were both individuals and members of a vulnerable segment of society. In a 1945 essay in The New Republic he wrote:
People singled out for attack as a group have the right to defend themselves as a group. This principle has led, in industrial relations, to collective bargaining and has provided a defense against conspiracy charges. The same principle can lead to equally important results in the field of ethnic relations. For instance, the enforcement of antidiscrimination laws should not be left to individual initiative only, but minority organizations should be given the power, analogous to that enjoyed by the unions under the National Labor Relations Act, to file charges of unfair practices.
That same year, Pekelis petitioned the Federal Communications Commission to deny an FM radio station a license to the New York Daily News on the grounds of its “consistent bias and hostility … in its editorial and news columns against Jews and Negroes” and “its readiness to publish irresponsible and defamatory news items.” During World War II, he charged, the Daily News had all but adopted the Nazi line on Jewish malfeasance and warmongering. Far from violating the First Amendment, denying bigotry a media platform would “result in a fuller protection of the basic aims of free speech and free press.”
Pekelis’s argument was echoed in an influential series of early 1940s articles by another law professor, David Riesman. He cast his proposal in terms of the larger struggle of liberalism. “Defamation and the law of defamation have become weapons in the political struggle between democracy and fascism,” he wrote. Why not extend that principle to social groups? “It is only through strengthening the protection of the groups to which an individual belongs that his own values and his own reputation can be adequately safeguarded,” he insisted. “The isolated person is as helpless in the face of systematic defamation by opposing groups … as in the face of concerted economic power.” Relying on the general theory of torts (civil damages), Riesman proposed to give Jews and other minority groups a necessary legal remedy.
The chief obstacle to such a legal move, according to Riesman, was not the legal fine print or free-speech concerns, but “the American heritage of middle-class individualistic liberalism,” which obscured the need for group protections. “Our thinking is still in terms of the ‘individual’ and the ‘state,’ and our law of defamation, such as it is, is conceived of only as a protection against individual injury, as the law of assault and battery is a protection for individual life and limb.” Where there was a political will, as in the case of labor unions, it was possible to construct legal protections for groups in society. The same could be done for Jews and other minorities.
By the end of the 1940s, eight states had enacted statutes to criminalize different forms of group libel. Meanwhile, in 1949, Senator Jacob Javits of New York and Representative Arthur Klein sponsored a bill to create a federal group-libel statute. A legal revolution seemed in the offing. Yet behind all these new laws lurked a question that had dogged similar efforts since the 1910s: Were group-libel statutes even constitutional?
In July 1951, the ACLU petitioned the Supreme Court to hear the appeal of an anti-Semitic, racist pamphleteer in Chicago convicted of violating an Illinois group-libel law. The defendant, Joseph Beauharnais, the president of the White Circle League of America, had published a pamphlet opposing the “the further encroachment, harassment and invasion of white people, their property, neighborhoods and persons, by the Negro.” The great dangers of crime and communism, “which is rife among the Negroes,” he wrote, justified the need for the white race “to assert its natural rights to self-preservation.”
The news that the ACLU would defend Beauharnais broke during the very same week as the Cicero race riot, when a mob of 4,000 white Chicagoans attacked an apartment building that housed a single African American family. In a letter to his ACLU friends, the NAACP’s Walter White questioned the logic of their decision, especially given the fact that Beauharnais had just reportedly led the mob violence in Cicero: “You will remember, of course, Mr. Justice Holmes’s famous edict that the right of free speech does not include the right to shout fire in a crowded theatre.”
Other letter writers did not mince words. “Exactly what, in the name of an all-merciful God, do you gentlemen think you are accomplishing [by defending] … the Chicago monster?” asked Isidor Shaffer of Queens. The ACLU executive director’s reply to both men was a study in condescension: “This is one of those hard choices that people who believe in all civil liberties for everybody are frequently forced to make—in a conflict between free expression and respect for the human dignity of a minority group. In asking you to join us in choosing free expression, we realize that such a choice costs you far more than it costs us.”
The price tag on principle also proved too costly for the Supreme Court. In a close 5–4 verdict, the justices ruled in Beauharnais v. Illinois that the Illinois law was constitutional. Writing for the majority, the court’s sole Jewish justice, Felix Frankfurter, himself a co-founder of the ACLU, laid out the opinion’s reasoning:
If an utterance directed at an individual may be the object of criminal sanctions, we cannot deny to a State power to punish the same utterance directed at a defined group … Long ago this Court recognized that the economic rights of an individual may depend for the effectiveness of their enforcement on rights in the group, even though not formally corporate, to which he belongs. Such group-protection on behalf of the individual may, for all we know, be a need not confined to the part that a trade union plays in effectuating rights abstractly recognized as belonging to its members.
A notable dissent came from Justice Robert Jackson, fresh from his tour as the chief U.S. prosecutor at the Nuremberg trials. “Group libel statutes represent a commendable desire to reduce sinister abuses of our freedoms of expression—abuses which I have had occasion to learn can tear apart a society, brutalize its dominant elements, and persecute, even to extermination, its minorities,” he wrote, adding charitably, “Such efforts, if properly applied, do not justify frenetic forebodings of crushed liberty.” Yet in the end, Jackson worried, such laws would “present most difficult policy and technical problems” of enforcement. Minority groups also had to acknowledge the double-edged sword: “No group interest in any particular prosecution should forget that the shoe may be on the other foot in some prosecution tomorrow.”
Frankfurter dismissed Jackson’s concerns about the logistical challenges and the potential abuse of the statute for censorship. This was merely “the price to be paid for the trial-and-error inherent in legislative efforts to deal with obstinate social issues.” When all was said and done, it would be foolish to avoid reasonable legal efforts “to curb false or malicious defamation of racial and religious groups, made in public places and by means calculated to have a powerful emotional impact on those to whom it was presented.”
Frankfurter’s majority opinion might have ushered in a new era of expanded civil-rights efforts to stamp out anti-Semitism and white supremacy in American society. Though not without its critics at the time, Beauharnais offered a powerful tool to complement the array of other state-level legal efforts to ban discrimination in housing, employment, and education. Moreover, given that the civil-rights struggle had begun to play out on the national political landscape, this law provided a means to check a new wave of Ku Klux Klan and other white-supremacist mobilization. Immediately following the verdict, for instance, an alarmed Gerald L. K. Smith, the notorious Christian-nationalist-crusade leader, wrote to the ACLU, worried that the “terrible decision handed down by the Supreme Court” might yet put his movement out of business. Though he was aware that the ACLU was full of Jewish lawyers, he still counted on its help for his cause: “I do know that it requires a philosophical Jew to defend my right of free speech.”
Smith needn’t have worried about his freedom of expression; many Jewish civil-rights lawyers were on his side. Across the board, Jewish civil-rights organizations greeted Beauharnais with silence. Fearful of the rising tide of McCarthyism, all of the major Jewish organizations declined to seize the opportunity it presented. They opted to stress their all-American bona fides and push liberalism in a different direction, rather than emphasize their minority needs. They wagered that civil libertarianism coupled with formal desegregation would suffice to secure racial and religious equality.
In 1954, Jewish organizations vigorously supported the NAACP in the Brown v. Board of Education case to strike down federal racial segregation. They followed with other state-level anti-discrimination legal initiatives and a vigorous push against religious discrimination by insisting on the larger legal separation of church and state and against school prayer. But one by one, in the 1960s, all the Jewish civil-rights organizations formally renounced their support for group libel as a legal strategy in favor of individual equal protection. Instead, they embraced the landmark 1964 Civil Rights Act, which forbids all discrimination on the basis of race, religion, color, sex, or national origin.
A rising faith in free speech, equal protection, and due process as the best antidotes for racism and anti-Semitism formed the quintessence of postwar American Jewish civil-rights work. There was a compelling logic to this approach at the time. Eliminate prejudice as a whole, treat everyone as individuals, handle hate speech as an individual pathology best fought in the classroom and church pew rather than the courtroom, and anti-Semitism would vanish together with American racism. Fulfilling liberalism’s promise meant making American justice race-blind and faith-blind, not creating new protected categories for what one Jewish activist called “imaginary groups in American society.”
Alongside this philosophical faith in mid-century liberalism, American Jews recognized tactically that defending free speech in maximalist terms could help block the rearguard actions of white supremacy. In 1962, a Montgomery, Alabama, police official sued The New York Times for libel, claiming that he had been unfairly maligned in a paid advertisement by civil-rights groups that accused local police of racial bias. The Supreme Court’s 1964 decision in New York Times v. Sullivan produced the most famous affirmation of the freedom of the press. It solidified as a core tenet of liberal faith the assumption that unfettered free speech would always serve the cause of civil rights more effectively than troublesome hate-speech laws.
But white supremacists and neo-Nazis also took note. Though Sullivan in theory left Beauharnais undisturbed, it signaled to new groups such as George Lincoln Rockwell’s American Nazi Party and the National Socialist Party of America that they had little to fear from the courts. Worse still, it inspired a cynical new tactic on the part of these groups, which began using their freedom of speech to directly target their victims.
In 1977, the National Socialist Party of America declared its intention to march, dressed in military-style uniforms displaying the swastika, through a Chicago suburb full of Jewish Holocaust survivors. Town authorities went to court to ban the march. After both the local and state courts acceded to that request, the ACLU appealed to the U.S. Supreme Court, prompting one of its most famous free-speech rulings. The ACLU dispatched two Jewish lawyers, David Goldberger and Aryeh Neier, himself a child Holocaust survivor, to argue on behalf of neo-Nazi First Amendment rights.
Just as in earlier decades, Jewish civil-rights organizations found themselves internally divided on their response. In the end, the American Jewish Committee, American Jewish Congress, and Anti-Defamation League all reversed their 1960s policy. Each submitted briefs calling, to various degrees, for modest prior restraints on the neo-Nazi provocation. Still, they focused narrowly on the use of incendiary symbols and the event’s location. “The flaunting of the swastika or a Nazi uniform,” said the American Jewish Congress official Naomi Levine, “is not an expression of a constitutionally protected idea … [but] a provocative and insulting symbol which by its very nature inflicts injury and tends to incite an immediate breach of peace.”
The tactics of these Jewish groups reflected a desire to reconcile their proud tradition of civil libertarianism with an anguished awareness that violent anti-Semitism had not disappeared from society. The old tools still applied; they just should be used with utmost discretion. This time, however, the Supreme Court chose to view hate speech not as group defamation or inciteful “fighting words” but simply as insults to Jewish feelings: The “public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.”
Skokie marked the beginning of a new free-speech orthodoxy in American civil-rights jurisprudence. Over the course of the 1980s and 1990s, nearly all of the state group-libel statutes still on the books were repealed. A wave of progressive hate-speech codes floated in colleges and universities were consistently ruled illegal by courts. Other related anti-bias criminal statutes were deemed unconstitutional. After Skokie, courts began a march toward maximalist views of free speech.
American Jewish civil-rights groups, meanwhile, struggled to balance their proud fidelity to the First Amendment with a growing unease at the persistence of anti-Semitism. Neo-Nazi hate groups remained active, and politicians such as David Duke suggested the potential for such ideology to seep into mainstream electoral politics. The far left revealed its own brand of anti-Semitism as well, centered principally on classic tropes of exaggerated global Jewish financial and political power, along with a venomous anti-Zionism that often bled into anti-Semitism. Still other versions came directly from the Reverend Louis Farrakhan and the Nation of Islam, which targeted Jews in grossly anti-Semitic terms as racial enemies, even to the point of finding common cause with white supremacists.
These and other controversies, many centered on college campuses, tested the limits of Jewish faith in free speech as an absolute good. In search of a solution, Jewish civil-rights groups opted to privatize the battle against anti-Semitism. Across the 1980s and 1990s, they conducted private intelligence surveillance on extremists and promoted educational initiatives to combat extremism and anti-Semitism. The soft instruments of public-awareness campaigns, tolerance training, and informal advocacy replaced the harder force of legal action.
The privatization of Jewish civil rights produced one other strategy: individual civil lawsuits to bankrupt hate groups. In 1971, a white southern businessman and lawyer named Morris Dees Jr. joined with his Jewish law partner Joseph Levin and the African American activist Julian Bond to launch the Southern Poverty Law Center. Their novel approach was to use civil tort law to combat racism and anti-Semitism. In 1979, the SPLC sued several Ku Klux Klan and neo-Nazi groups for civil damages for racist attacks on individuals, winning multimillion-dollar jury verdicts. A new idea was born. Rather than task the government with silencing extremists, private citizens could simply take matters into their own hands by pursuing their material assets after the fact. The effect would be the same. Putting hate groups out of business would ensure that they could not speak freely anymore.
During the 1980s and 1990s, the SPLC grew into a multimillion-dollar nonprofit behemoth. It took advantage of a war chest filled via direct-mail fundraising and its own private intelligence work to launch a series of successful high-profile lawsuits on behalf of victims of domestic terrorism and violent hate crimes. That approach scored some wins. But it removed the burden of litigation from the government—as well as the responsibility to prevent transparently ideological abuses of free speech.
The reliance on private torts to do the work of public justice led over time to a technocratic, free-market approach to combatting extremism. Anti-Semitism and racism became economic problems to be solved through seizing assets after the fact rather than checking hate speech before it could inflict its damage. Most crucially, the regnant free-speech orthodoxy has proved increasingly ineffective in the face of a newly empowered alt-right that makes sophisticated use of digital publishing, social media, and public spectacle to market its own ideology. The whack-a-mole approach to defunding hate is unlikely to achieve the same effect as comprehensive public legal statutes. Nor will politicians’ demands for Facebook, Twitter, and other social-media companies to police their own users serve as effectively as constitutional laws that draw a clear line between legitimate expression and hate speech.
Early last spring, six months after the neo-Nazi march on Charlottesville, the U.S. Congress drafted the Anti-Semitism Awareness Act. From its name many might assume the legal measure to be intended to counter the spread of white-supremacist anti-Jewish hatred. Instead, the Anti-Semitism Awareness Act, like other related congressional bills and a bevy of new state-level statutes, is primarily intended to protect Jewish civil rights on college campuses from far-left anti-Semitism connected to the Israeli-Palestinian conflict and the BDS, or Boycott, Divestment, and Sanctions, movement. The BDS campaign is a loose coalition of activists who seek to exert pressure on Israel’s government in the context of the Israeli-Palestinian conflict, much like anti-apartheid activists did to South Africa, by ostracizing Israel and encouraging corporations to cut ties and investments. Its very vagueness about its end goals and often demonizing rhetoric have led many to conclude that its ideology crosses over from political critique into blatant anti-Semitism.
The draft bill has won acclaim from many Jewish communal organizations, including the Anti-Defamation League, Hillel International, and the American Jewish Committee. Yet other progressive Jewish groups, along with the ACLU, have denounced it as politically motivated overreach that will criminalize legitimate public debate about the Israeli-Palestinian conflict and U.S. foreign policy.
To many on the progressive left, efforts to ban offensive speech surrounding Israel and Zionism amount to political censorship stemming from a conservative political agenda. That’s why many progressives, Jews and non-Jews alike, dismiss new legal initiatives against anti-Semitism as disingenuous, illiberal moves motivated solely by Islamophobic, pro-Israel politics or gross pandering to elite GOP donors and evangelical Christians. This cynicism is compounded by a sense that American Jews do not require this sort of legal protection because they are manifestly less vulnerable than people of color and sexual minorities. At its root, moreover, the left displays a curious binary view of the law in which hate speech and free speech are completely separate phenomena, with no area of potential overlap—and a similarly naive assumption that BDS can never be anti-Semitic.
Conservatives, meanwhile, fear that left-wing anti-Semitism cloaked as anti-Zionism threatens Jews the most. They detect a common anti-Jewish thread running through the leadership of some of the core institutions at the heart of the contemporary left, including the Women’s March, the Black Lives Matter movement, the new progressive cohort in Congress, and the new cluster of anti-Zionist Jewish-youth movements. Yet their choice of solution is an odd one. For decades, conservatives have decried political correctness, campus speech codes, and identity politics. Now, however, they urge a renewal of older kinds of group legal protections precisely to meet the new dangers of anti-Semitism, particularly those that hail from the left. The First Amendment is apparently no longer quite as sacred as it used to be to them—at least not when it comes to anti-Zionism.
What neither side seems inclined to acknowledge is that another, far deeper issue is at stake—and a potential way forward. Protecting American Jews today may require revisiting legal ideas that were repeatedly proposed and abandoned by earlier generations of Jewish lawyers in their quest for civil rights. Group-libel laws hold the potential to protect Jews and other minorities from incitement and other dangerous speech that poses a new threat. They can fill the space between free speech and hate speech with a comprehensive, uniform set of laws to settle controversies otherwise reduced to media circuses and political polemics.
American Jews long ago pioneered new legal tools to combat hate from spreading through the national media, stop its entry into mainstream politics, and check its threat to minority communities. They, too, faced a world of disruptive media, populist politics, and global anti-Semitic currents. Those ideas and experiments remain available today as options to confront rising anti-Semitism and other forms of hatred across the political spectrum.
To access those legal instruments, however, will require accepting some hard truths about the place of Jews in American society and exploding some myths about the First Amendment. Progressives must accept that Jews face real threats and deserve legal protection. Conservatives must come to terms with the fact that not all offensive political speech about Zionism and Israel is anti-Semitism. Moreover, the best way to ban discriminatory behavior is not by singling out American Jews or the state of Israel for special protection, but by drafting laws that address all forms of bias equally. And everyone needs to think again about the proper balance between free speech and hate speech in American civil-rights law.
We live in an era in which what was once thought impossible has become possible. Generations of constitutional lawyers assumed that the right of free speech could never be applied to private corporations. Then came the Supreme Court Citizens United v. FEC decision. For decades, Roe v. Wade was considered settled law. Now conservatives have set their sights on overturning it. For nearly a century, law professors decried President Franklin D. Roosevelt’s 1937 attempt to “pack the Court” by expanding the size of the Supreme Court. Now progressive lawyers have begun to refloat this radical idea as a legal solution to the larger ills of American politics. All of these developments should remind us that constitutional law is a fundamentally open-ended project subject to ceaseless debate and constant reinterpretation.
When it comes to civil rights, the arc of the moral universe does not bend toward justice all by itself; humans bend it. Their hands can shape law only in the directions that their minds can imagine. That mental exercise begins with historical retrospection. If we look backwards with opened eyes, law’s forgotten past can suggest new ways to rethink its present and reenvision its future.
* This article originally stated that the Supreme Court had overturned the conviction in Whitney v. California. In fact, the Court upheld the conviction.
This article is part of “The Speech Wars,” a project supported by the Charles Koch Foundation, the Reporters Committee for the Freedom of the Press, and the Fetzer Institute.
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