Opinion | Lessons on free speech from David Goldberger – The Boston Globe

As a young lawyer for the American Civil Liberties Union, David Goldberger defended the rights of Nazis to hold a demonstration in Skokie, Ill., a village that was home to many Jewish residents, including hundreds of Holocaust survivors. The famous case, which set the course of his legal career, also led to a historic First Amendment ruling by the US Supreme Court, which was issued in June 1977 47 years ago.

When speech today can so quickly be labeled and censored as antisemitic, would he take up such a cause again? Yes, he said. But Id have a bigger lump in my throat now than I did back then, Goldberger, 82, told me in an interview. When it comes to free speech in America, he sees a hugely disappointing retreat. We fought like hell to establish these rights and it seems like, frankly, they are really under siege, he said. Here we go again.

To think it would be harder in 2024 to fight for free speech than it was in 1977 is somewhat stunning, isnt it? Or maybe not, given the backlash to assorted civil and constitutional rights that were fought for and won over the past half century.

Goldberger is known for calling out the political left and the ACLU for what he sees as failing to defend speech from the right that they find bigoted and hateful. As he told The New York Times in 2021, Liberals are leaving the First Amendment behind. Now, the crackdown on protests over the Israel-Hamas war is putting progressives on the losing end of the free speech debate. It seems to me theres an inability to understand that heated discourse isnt pleasant and it hurts feelings, Goldberger said. But thats not a reason to censor it and suppress it on both sides.

When it comes to protecting speech rather than censoring it, and the courage it takes to do it, there is a lot to be learned from the Supreme Court case National Socialist Party of America v. Village of Skokie. As Goldberger recounted in 2020 for the ACLU, it all began in April 1977 when he got a call from the leader of the Chicago-based Nazi group, who told him local officials wanted to stop them from demonstrating in front of the Skokie Village Hall, wearing Nazi uniforms with swastika armbands and carrying Nazi banners and signs with the words Free Speech for White People. With backing from the ACLU, Goldberger agreed to represent them. After a judge issued a preliminary injunction, the ACLU appealed. When the state court of appeals and Illinois Supreme Court ignored them, the ACLU went directly to the US Supreme Court.

In a 5-4 ruling, the Supreme Court ordered the Illinois courts to rule on the injunction or allow the Nazis to demonstrate. Not doing so, will deprive them of rights protected by the First Amendment, the Supreme Court held. After another year of court battles, the right to demonstrate was ultimately upheld. In the end, the Nazis chose to demonstrate in downtown Chicago, not Skokie. Because tempers were running so high, I moved my family out of our house for the weekend of the demonstration, Goldberger wrote. When we returned, I found that someone had thrown eggs at our front door.

Eggs were the least of what he faced. He was also called a traitorous Jew and feared for his safety. As he also wrote, To this day, the case still brings up difficult feelings about representing a client whose constitutional rights were being violated but who represented the hatred and bigotry that continues to erupt into Americas consciousness. But Goldberger stood by the principle he still embraces that maintaining those rights for everyone, regardless of political ideology, is key to maintaining a healthy democracy.

As Goldberger also notes, Nazis who want to demonstrate on public property have First Amendment rights that are not shared by protesters who set up encampments at private universities. However, to Goldberger, acknowledging that distinction doesnt solve the problem. They are still universities, places where there should be robust debate and even heated debate.

Even with legal authority to clear out encampments, he thinks university administrators should apply a different standard. I wish the university administrators would hold their fire and, as a matter of course, treat the exchange of viewpoints and arguments and heated debate as something that belongs there, rather than as the enemy. I also wish that the kids had a better idea where the boundaries are, he said. Goldberger said he has heard a disappointing amount of directed antisemitism in those college encampments. On the other hand, I cant get past the feeling that some of the counterprotesters have been claiming antisemitism as a weapon and a tool.

Asked about college administrators who say that encampments are a public safety threat, Goldberger said, Frankly, some of that is nonsense, pure nonsense. Where the encampments have been orderly and have not been physically threatening, whats the public safety issue? Its a device used by some university administrators to justify the feeling they cant stand the heat. That heat, he said, is coming from Congress and alums.

After working for the Illinois ACLU as staff attorney and legal director, Goldberger took a teaching position at the Moritz College of Law at Ohio State University. Following the Skokie case, he was involved with three more First Amendment cases that ended up before the Supreme Court, representing right-leaning clients who included the Ku Klux Klan. He currently serves on the legal advisory team of the Foundation for Individual Rights and Expression. If he had not retired from practicing law, he said he would be more than willing to represent pro-Palestinian protesters with legitimate First Amendment claims and peaceful ... encampment protesters facing school disciplinary proceedings. I say this because I am concerned that in many cases there was no need to clear the encampments other than to please self-aggrandizing politicians and pressure from donors, he said.

The controversy associated with Skokie has not faded. Goldberger said he was nervous when he first moved into a Maryland retirement community because other residents, some of whom are Jewish, knew about his past. He was invited to give a presentation about it during which, he said, a lot of people agreed with me and a lot of people disagreed. Thats healthy.

To Goldberger, that is what Skokie was all about and that is what free speech is all about. If only the rest of the country could see it that simply.

Joan Vennochi is a Globe columnist. She can be reached at joan.vennochi@globe.com. Follow her @joan_vennochi.

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Opinion | Lessons on free speech from David Goldberger - The Boston Globe