dience \(like the display of a swastika or a peace symbol or the burning of a cross or Why do the ACLU and the courts believe that prior restraints on free speech are so much worse than punishments after a speech has been made? Prior restraints not only prevent entirely the expression of the would-be speaker, but they also deprive the public of its right to know what the speaker would have said. When the Nixon Administration tried to impose a prior restraint on the Pentagon Papers, they told us that publication would injure the national security. When the Pentagon Papers were published, we discovered that they exposed misdeeds by the government, but did no damage to national security. If the purpose of the First Amendment is to insure a free flow of ideas, of what value to that process are utterances which defame people because of their race or religion? Can’t we prohibit group libel that merely stirs up hatred between peoples? Legal philosopher Edmond Cahn dealt with this subject in a notable address de livered at the Hebrew University in Jerusalem in 1962. If there were a prohib ition against group defamation, said Cahn: “The officials could begin by prosecuting anyone who distributed the Christian Gospels, because they contain many defamatory statements not only about Jews but also about Christians; they show Christians failing Jesus in his hour of deepest tragedy. Then the officials could ban Greek literature for calling the rest of the world ‘barbarians.’ Roman authors would be suppressed because when they were not defaming the Gallic and Teutopic tribes they were disparaging the Italians. For obvious reasons, all Christian writers of the Middle Ages and quite a few modern ones could meet a similar fate. Even if an exceptional Catholic should fail to mention the Jews, the officials would have to proceed against his works for what he said about the Protestants and, of course, the same would apply to Protestant views on the subject of Catholics. Then there is Shakespeare who openly affronted the French, the Welsh, the Danes . . . Dozens of British writers from Sheridan and Dickens to Shaw and Joyce insulted the Irish. Finally, almost every worthwhile item of prose and poetry published by an American Negro would fall under the ban because it either whispered, spoke, or shouted unkind statements about the group called ‘white.’ Literally applied, a group-libel law would leave our bookshelves empty and us without desire to fill them.” History teaches us that group libel laws are used to oppress racial and reli gious minorities, not to protect them. For example, none of the anti-Semites who were responsible for arousing France against Captain Alfred Dreyfus was ever prosecuted for group libel. But Emile Zola was prosecuted for libelling the military establishment and the clergy of France in his magnificent J’Accuse and had to flee to England to escape punishment. Didn’t Weimar Germany’s tolerance for free speech allow Hitler to achieve power? No. The Weimar government did not uphold free speech. When Hitler and the Nazis violently interfered with the speech of their opponents, the Weimar government took no effective action to protect speech and restrain violence. Even murder of political opponents by the Naziswhere the murderers were knownwent unpunished or virtually unpunished. Why should someone who detests the Nazis and the KKK support defense of their right to speak? In a society of laws, the principles established in dealing with racist views necessarily apply to all. The ACLU defended the right of Father Terminiello, a suspended Catholic priest, to give a racist speech in Chicago. In 1949, the U.S. Supreme Court agreed with our position in a decision that is a landmark in the history of free speech. Time and again, the ACLU was able to rely on the decision in Terminiello v. Chicago in defending free speech for civil rights demonstrators in the deep South. The Supreme Court cited its own decision in Terminiello in its leading decisions on behalf of civil rights demonstrators, Cox v. Louisiana and Edwards v. South Carolina. Similarly, the Supreme Court’s decision in 1969 in Brandenburg v. Ohio upholding free speech for the KKK was the principal decision relied upon by a lower court the following year in overturning the conviction of Benjamin Spock for opposing the draft. The principles of the First Amendment are indivisible. Extend them on behalf of one group and they protect all groups. Deny them to one group, and all groups suffer. Doesn’t providing racists and totalitarians with a legal defense give publicity to their cause and their ideas that they would otherwise not receive? It is the attempts by communities to prevent such people from expressing themselves that give them the press coverage they would ordinarily not receive. If providing a legal defense for their constitutional rights results in a continuation of the publicity, that is an unavoidable consequence of the events that were set in motion by the original denial of First Amendment guarantees. A fact that seems little understood by those who take a restrictive view toward speech they do not like is that attempts at suppression ordinarily increase public interest in the ideas they are trying to stamp out. But doesn’t the ACLU have more important things to do with its limited resources than to defend racists and totalitarians? The ACLU has many important jobs to do and it devotes its resources to a wide range of civil liberties concernssexual equality; racial justice; religious freedom; the freedom to control one’s own body; the constitutional rights of students, prisoners, mental patients, service personnel, juveniles, the elderly; and the rights of privacy for all of us. More than 6,000 court cases are undertaken each year by the ACLU to protect these rights. But first among the freedoms we are dedicated to defending are those of speech, press, and assembly, for they are the bedrock on which all other rights rest. We are involved in only five or six cases each year to defend free speech for racists or totalitarians. Even though this is only a tiny fraction of the ACLU’s work, we think it is important. We cannot remain faithful to the First Amendment by turning our backs when it is put to its severest testthe right to freedom of speech for those whose views we despise the most. I support the right to freedom of speech. Enclosed is my membership check for $ Name Address City Zip Suggested Giving Categories Individual Joint Basic $20 $30 Contributing $35 $50 Supporting $75 $75 Sustaining $125 $125 Student $5 $5 *of which 500 is for a year’s subscription to the National ACLU newsletter, Civil Liberties, and 500 is for a year’s subscription to the state ACLU affiliate Make check payable and return with this form to ACLU, 600 West 7th Street, Austin, Texas 78701. THE TEXAS OBSERVER
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