Should the First Amendment Protect Hate Speech? Forty years after the courts upheld neo-Nazis' First Amendment rights, is it time to reconsider which kinds of speech deserve constitutional protection?

• Author: Ross, Brooke
• Position: TIMES PAST 1977

After surviving unspeakable horrors at nine different concentration camps during the Holocaust, Ben Stem, a Jewish man from Poland, never thought he would have to face Nazis again.

In 1946, after World War II (1939-45), he and his wife emigrated from Europe to the United States to start new lives. They settled in Skokie, Illinois, a suburb of Chicago, and spent the next 30 years raising a family.

But Stern's quiet life was upended in 1977. To his shock, the Nazis were back--specifically, a small group of American neo-Nazis called the National Socialist Party of America. (Neo-Nazis advocate hatred of Jews, non-whites, and other minorities.) They planned to hold a rally--complete with Nazi uniforms and flags bearing swastikas--in the largely Jewish suburb.

The town of Skokie issued an order prohibiting the demonstration. But the neo-Nazis found an unlikely ally in the American Civil Liberties Union (A.C.L.U.), a legal rights group that took their case. The dispute reached the U.S. Supreme Court, which helped clear the way for a lower court to rule that the neo-Nazis had a right to march under the First Amendment, which protects freedom of speech.

The landmark case helped clarify that all people have the right to rally publicly, no matter how offensive their views. But now, 40 years later, some legal experts are starting to question whether all speech--including hateful speech-deserves constitutional protection. The debate has come under renewed focus in the aftermath of a violent white supremacy rally in Charlottesville, Virginia, last year, which left one person dead and several others injured.

American laws are "the most protective of free speech of any nation on Earth and any nation in history," says Lee Bollinger, the president of Columbia University and a free speech legal expert. But the question, he says, is "should free speech be extended to speakers whose purpose and message is to deny free speech, people who want to overthrow the government by violence and--if successful--bring about the end of free speech?"

'Hitler's Tyranny Followed Us'

Formed in the 1970s, the National Socialist Party of America (N.S.P.A.) was a small but powerful hate group. Its members held regular anti-black demonstrations in southwest Chicago, aimed at keeping AfricanAmericans out of that neighborhood.

But when Chicago tried to make it more costly for the neo-Nazis to march--requiring the group to purchase expensive insurance for its rallies--the N.S.P.A. decided to bring its message of white superiority to nearby Skokie. In March 1977, it requested a permit to hold a rally there later that year.

It was a particularly cruel choice of location because Skokie, a town of about 70,000 people, was nearly 60 percent Jewish. And like the Sterns, thousands of residents were survivors of the Holocaust, the mass slaughter of millions of European Jews and other oppressed groups by the forces of Nazi Germany from 1933 to 1945.

"I couldn't believe it, that in this great country of ours, that we were going through this again," Stem, now 96, told The Mercury News last year. "We came to the States, and Hitler's tyranny followed us."

After an outcry from residents, Skokie officials attempted to block the march. But the N.S.P.A. argued that it had a constitutional right to assemble. With the backing of lawyers at the A.C.L.U.-a group better known for defending civil rights marchers in the South than preachers of hatred--the neo-Nazis sued.

The U.S. Supreme Court weighed in early on the legal dispute. It struck down lower court rulings that were preventing the rally from taking place, saying that those courts had followed improper protocol. This cleared the way for state and federal courts to continue hearing the case over the next several months. Eventually, a federal district court ruled in favor of the neo-Nazis. The march could go on as planned.

The Bill of Rights

Why would the courts side with the neo-Nazis? It's because of the First Amendment, which is part of the Bill of Rights--the first 10 amendments to the U.S. Constitution. The First Amendment protects Americans' freedom of speech and religion, as well as freedom of the press, the right to assemble peacefully, and to petition the government for change.

While it also has been interpreted by the courts as protecting most hate speech, the First Amendment does not give anyone the right to make threats or false statements, or use language that incites violence. One often-cited example is that you don't have the right to falsely yell "Fire!" in a crowded movie theater.

In polls, Americans regularly rank freedom of speech as their most important constitutional right. According to a Rasmussen Reports survey released last year, an overwhelming 85 percent of Americans said the right to speak freely is more important than making sure no one is offended by what others say. The Supreme Court has long grappled with how to interpret the meaning of...