“Defending My Enemy”: Will the legal profession rise to the challenge?

At one time reading Aryeh Neier’s 1979 seminal work of legal ethics, Defending My Enemy: American Nazis, the Skokie Case, and the Risks of Freedom, was de rigueur for young lawyers.  Given recent events in Charlottesville and elsewhere, I think everyone – and lawyers especially – ought to dust it off because it has some real lessons for today.

Here’s some info about the book: In 1977 American Nazis claimed the right to march in in Skokie, Illinois, then home to thousands of Jews – hundreds of whom were Holocaust survivors.  The government, contending that the march would lead to uncontrollable violence, sought to block it.  Neier, a Jewish refugee from Nazi Germany and then the executive director of the American Civil Liberties Union (ACLU), stepped in to help spearhead the defense of the Nazis’ First Amendment rights.

The Illinois Supreme Court eventually agreed that not only could the Nazis march, they could also display their swastika because as offensive as it is, it was still protected “symbolic political speech.”  The ACLU victory was a costly one, however, as the organization lost 30,000 members and hundreds of thousands of dollars in donations.  Neier was personally vilified, as people were appalled that he – as a Jew – would defend the Constitutional rights of Nazis.

Although the Nazis never actually marched in Skokie, they did try to exploit their legal win.  Neier relates what followed:

Hoping to create more Skokies, the Nazis announced plans for demonstrations in several other Chicago suburbs. That petered out, however, when only three Nazis showed up for one demonstration and the press virtually ignored it. The Nazis were on their way back to obscurity.

Remarkably, during those sixteen months, the Nazis gained no adherents. Although Skokie’s attempt to deny the Nazis the freedom to speak had backfired, bestowing on them the opportunity to speak almost daily to the entire nation through the press, when it was all over no one had been persuaded to join them. They had disseminated their message and it had been rejected.

Neier explained something that the military has learned from counterinsurgency operations since 9/11:

Why did the Nazi message fall on such deaf ears?  Revolutionaries and advocates of destruction attract followers readily when the society they wish to overturn loses legitimacy.  Understanding this process, revolutionaries try to provoke the government into using repressive measures.  They rejoice, as the American Nazis did, when their rights are denied them; they count on repression to win them sympathizers.

Fast forward to the Charlottesville incident where, controversially, the “ACLU supported Unite the Right organizer Jason Kessler in court after city officials tried to revoke his protest permit.”   Again, as with the Skokie case, the organization found itself being harshly criticized.  Democratic governor Terry McAuliffe went so far as to suggest that the ACLU lawsuit stopped the government from taking action that might have avoided violence.

The ACLU vehemently denied that allegation, and based on news reports, I would suggest that the governor take another look at how the situation was handled before he points his finger at First Amendment lawyering as being a risk to public safety.

Let’s not forget that Virginia has over 22,000 sworn police officers, and the governor personally commands more than 1,200 state troopers,  8,500 National Guardsmen, and yet another 1,000 in the Virginia Defense Force.  The governor had plenty of resources available to him to prevent violence.  Make no mistake – police officers and first responders lay their lives on the line every day and their willingness to do so helps keep the people in communities and cities across America safe, but leaders need to employ them the right way.

Although I do not always agree with him, ACLU Executive Director Anthony Romero was on point when he made this statement reported by CNBC:

“We fundamentally believe that our democracy will be better and stronger for engaging and hearing divergent views,” ACLU Executive Director Anthony Romero wrote in a blog post Tuesday. “Racism and bigotry will not be eradicated if we merely force them underground.  Equality and justice will only be achieved if society looks such bigotry squarely in the eyes and renounces it.”

Unfortunately, it now appears that the ACLU is wavering.  It announced last Thursday (Aug 17th) that it will “no longer defend hate groups seeking to march with firearms.” 

Of course, no one wants or supports violence – and bringing weapons to a demonstration is a phenomenally bad idea – but refusing to defend people, however despicable, because they seek to march with firearms (which might, incidentally, be a protected if highly unpopular First or Second Amendment right) sends a clear – and worrying – message about the times in which we live.

To me it suggests that an organization historically stoic about criticism for its advocacy has come under truly unprecedented pressure.  Why?  In circumstances not involving the First Amendment, the ACLU hasn’t shrunk from advocating on behalf of those who didn’t just “march” with firearms but who actually used them.  Moreover, what should we now make of the ACLU’s advocacy  on behalf of accused (and admitted) terrorists who sought or used firearms and other weapons, including those detained at Guantanamo?  Or does the ACLU not consider al-Qaeda and associated organizations “hate groups”?

Ironically, unlike what may become the case for right-wing extremists, accused terrorists at Guantanamo have never really wanted for legal representation.  Not only has the U.S. government provided defense counsel at its expense, literally hundreds of lawyers (if not thousands) have volunteered their time, pro bono, to ensure that the detainees received all the rights to which they were entitled under the law.

Indeed, back in 2008 one major law firm reported that it spent the equivalent of $17 million in billable hours defending just six Guantanamo clients.  In addition to support from law firms and others, numerous law students working in Guantanamo defense clinics organized by many law schools (including Duke) have backed defense efforts.  In fact, I don’t know if there has ever been a time when the prosecution lawyers were not significantly outnumbered by the detainees’ attorneys.

A rule-of-law democracy ought to be proud of the robust legal representation it provides not only those it accuses of terrible crimes like 9/11, but also those who are being detained as a result of conflicts in Afghanistan and Iraq (which as of April 26th, cost 6,830 U.S. troops their lives, and injured another 52,341).  Everyone seems to understand that these defense counsels are not defending the acts of their clients, but rather through their advocacy on behalf of clients are supporting the system, which preserves civil liberties for all of us.

But it wasn’t only Guantanamo defense counsel who stood tall in the difficult years after 9/11.  In Pulitzer Prize winning reporter Charlie Savage’s 2007 best-seller Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy, he records how military (and some civilian) lawyers stood up for principle in the very early years following 9/11 when it was hardly popular to do so.  While it is easy – today – to oppose harsh interrogations techniques being applied to terror suspects, it wasn’t so when the horror of 9/11 was so fresh – human remains were still being found in the ruins of the World Trade Center – and the fear of another attack was very real and not unwarranted.  Despite such pressure, here’s what Savage said:

[Political appointees] ran into another group of dissidents: Like [then General Counsel of the Navy Alberto Mora], the top uniformed lawyers—the judge advocates general, or JAGS—erupted. In a series of vehemently argued memos, they said that such techniques were illegal, no matter what Yoo claimed.  Among the critics was Major General Jack Rives, a top JAG in the air force.  In a memo dated February 6, 2003, Rives said that “several of the exceptional techniques, on their face, amount to violations of domestic criminal law,” and that U.S. interrogators who used them would risk prosecution. In addition, he wrote, telling troops that it was acceptable to brutalize prisoners could lead to a general breakdown in their discipline: “We need to consider the overall impact of approving extreme interrogation techniques as giving official approval and legal sanction to the application of interrogation techniques that U.S. forces have consistently been trained are unlawful,” Rives wrote.

Rives, who is now the Executive Director of the American Bar Association, wasn’t the only JAG to take a principled stand in the face of stiff opposition.  Former Homeland Security Secretary Jeh Johnson said in 2007:

I’m here to salute the JAG community…To be blunt, there are civilian political appointees around you who have tried to shape the law to fit the policy and expected you to fall in behind them.  Against your most basic military training, you have had to take the extraordinary step of reminding your civilian leadership, and the public at large, of the rule of law.  You were right to do so.

So, yes, it can be done – even when it is profoundly unpopular.

But where are we now, particularly with the ACLU’s new, scaled-back policy?  Will the law firms who donated millions of dollars in billable hours to defend even those foreign terrorists who admit killing Americans devote the same kind of resources to defend the First Amendment rights of the contemptible in our own society?  Should we expect to see “First Amendment Defense Clinics” springing up at law schools across the country?

I don’t think so.  We live in an age where free speech is increasingly under threat.  A poll taken by the First Amendment Center of the Newseum Institute (prior to Charlottesville and ensuing events) found that “nearly one quarter of Americans say the first amendment goes too far in the freedoms it guarantees.”  Perhaps even more troubling is a 2015 Pew Research Center poll that found millennials favored – far more than any other age group – “censoring offensive statements about minorities.”

And younger Americans are even more equivocal.  A very powerful new column by Greg Lukianoff and Nico Perrino (“Why Even Nazis Deserve Free Speech”) cites a “recent Knight Foundation study [that] found that fewer than 50 percent of high school students think that people should be free to say things that are offensive to others.”  They add this:

The New York Times opinion page, for its part, has run three columns since April questioning the value of free speech for all, the most recent imploring the ACLU to “rethink free speech”—the same ACLU that at the height of Nazism, Communism and Jim Crow in 1940 released a leaflet entitled, “Why we defend civil liberty even for Nazis, Fascists and Communists.”

Some courts also seem more congenial to censorship these days.  In his new book, The Soul of the First Amendment, Floyd Abrams, one the nation’s foremost experts on the First Amendment, sounds a warning that the unique protections for freedom of speech are under siege in this country.

Very recently in a letter to the editor published August 18th, Abrams tried to fend off the view expressed in the Times’rethink free speech” op-ed that proffers the notion that the ACLU ought not defend right-wing causes as it does those on the left because doing so purportedly “perpetuates a misguided theory that all radical views are equal.”  Abrams countered that such thinking “turns the First Amendment on its head” and added:

The theory of the First Amendment is surely not that only one side of debate on public issues is worthy of protection, whether it is radical or not or comes from the right or left.  As Justice Robert Jackson observed, it is that public authorities must be foreclosed “from assuming a guardianship of the public mind through regulating the press, speech and religion.”  He continued, “In this field every person must be his own watchdog for truth, because the forefathers did not trust any government to separate the true from the false for us.”

What is remarkable is that it is progressives, arguably the traditional defenders (and beneficiaries?) of civil liberties, who seem to be rethinking their support of the First Amendment.  In an insightful review of the Abrams’ book, Nadine Strossen, the former President of the ACLU, said:

This book provides a powerful, much needed response to mounting criticism of the robust freedom of speech enshrined in U.S. culture and law.  Individuals from many sectors of society that have traditionally championed free speech – including academics, students, writers, and liberals/progressives – have increasingly advocated curbs on speech by certain disfavored speakers or speech that conveys certain disfavored messages.  (Italics and bolding added.)

Is it really so hard for lawyers to “defend [our] enemy” in today’s world?   I think it depends on how much scorn they can expect.  Defending the rights of Guantanamo detainees, for example, carries virtually no risk of social opprobrium these days; indeed, it is chic to do so.  But defending racists?  If even the ACLU – despite its vaunted history as recorded in Neirer’s book – is backing off because of criticism, what can we expect of the rest of the legal profession, and especially for-profit law firms?

The fact of the matter is that it would take real moral (and maybe even physical) courage to stand up for First Amendment rights when it would seem that the near-term beneficiaries would be Nazis and their ilk.  Robert Kennedy once said:

 

“Few men are willing to brave the disapproval of their peers, the censure of their colleagues, the wrath of their society.  Moral courage is a rarer commodity than bravery in battle or great intelligence.  Yet it is the one essential, vital quality for those who seek to change a world that yields most painfully to change.” 

 

Duke Law’s Dean David Levi, like many other leaders across the country, has rightly condemned “the violence and despicable conduct and speech of white supremacists and anti-semites last week in Charlottesville, Virginia.”  Unlike some others, however, he added this important observation about the responsibilities of the legal profession:

[A]s lawyers, we have a special obligation to defend free speech and the rights of the speaker, including extremists and hate groups, those who are generally despised and whose beliefs we reject.  This dual role is not easy.  We defend the right to speech while we reject the unacceptable content of that speech in our own speech, and oppose all violence, coercion, law breaking, and intimidation. This dual role is particularly important on a university campus.

Free speech is not, however, a cost-free endeavor, and I am not naïve about the harm that extremists like the Ku Klux Klan and others can do.  Like many Roman Catholics of my age, I well remember how religious bias almost derailed the presidential campaign of John F. Kennedy.  The risk was real: the anti-Catholic bigotry promoted by the Klan is viewed as a key reason for Al Smith’s defeat in the presidential election of 1928.

Unfortunately, anti-Catholic prejudice the Klan had fostered remained.  Historian Jay Dolan reports the “bigotry evident in 1928 was still prevalent across the land” when Kennedy ran for president thirty years later.  At first, he tried to ignore the issue, but based on some early primary results, Kennedy concluded that his Catholicism was “the most important and the biggest issue in this campaign.”  He then began speaking about religious tolerance, and did so with genuine success.  In other words, more speech – not censoring bigoted speech – won out.

Sure, it’s true that there has been no Catholic president since Kennedy and, no, I don’t think that anti-Catholic bigotry has been eliminated.  But I am still convinced, much as Neier concludes in his book, that malignant ideologies are best destroyed when exposed to the sunlight of scrutiny and criticism in a free society.  Attempting to censor them puts them in the shadows where they can fester and grow.

I hope the legal profession takes Dean Levi’s advice, but I have my doubts.  A decade ago the Washington Post justly celebrated how the lawyers for Guantanamo detainees were “upholding the highest ethical traditions of the bar by taking on the most unpopular of defendants.”

Will we see the bar doing something as similarly noble today?   Given how even the redoubtable ACLU has begun to hedge, I’ll be surprised if there is much of an upsurge of First Amendment defenders for these extraordinarily difficult and unpopular clients.  But I really want to be wrong about that.  Not for the sake of the extremists, but rather for the sake of our Nation’s principle of free expression which so many have sacrificed so much to preserve.  As Justice Sandra Day O’Connor said in the Hamdi case:

It is during our most challenging and uncertain moments that our nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad.”

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