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  • Rob Werking


The past few weeks seem like a whirlwind. The murder of George Floyd, as witnessed by millions, brought the death of yet another African-American man at the hands of law enforcement to the forefront. Protests (and riots) took place all across the United States and the entire world.

The protests focused primarily changing the current law enforcement model and to make every attempt to address systemic racism in the law enforcement communities. Ultimately, the issue is to address the fact that African-Americans have been outwardly discriminated by law enforcement and the government and that it is time to effectuate change. Black Lives Matter. Say it - Black Lives Matter.

The saying is easy enough but even such a simple statement fosters argument that the saying should be All Lives Matter. However, during this time in history, I believe that majority of person simply understand that right now - following George Floyd's murder under the knee of a police officer - it is time simply to acknowledge Black Lives Matter.

Returning to the 1st Amendment. Previous blog posts have explored one of the protections of the the 1st Amendment was the freedom of assembly. This post will address a similar protection - protection of persons from the government suppressing the content of the person's speech. As with the prior "assembly" cases, the content of the speech common to suppression by the government is unpopular and ugly speech. A seminal case on regulating the content of the speech dates back to 1977 and the National Socialist Party of America v. Village of Skokie, 432 U.S. 43 (1977).

An Evelyn Beatrice Hall (writing under the psuedonym S.G. Tallentyre) quotation fits perfectly. "I wholly disapprove what you say, but I will defend to death your right to say it."

The Village of Skokie, Illinois, is located approximately 15 miles north of downtown Chicago. According the Village of Skokie website, the Village is a home rule village formed under the Constitution of the State of Illinois. Back in 1977, approximately 57% of the population was jewish with several older members of the community having lived through the horror of the Nazi concentration camps.

In 1977 the National Socialist Party of America (The American Nazi Party) would hold assemblies and parades (demonstrations) in the City of Chicago. However, the City of Chicago enacted an ordinance requiring the sponsor of any parade or demonstration to post a large security deposit with the City prior to getting a parade permit.

Rather than pay the security deposit in Chicago, the sponsor of the National Socialist Party threatened to move the Nazi demonstration and parade to Skokie, Illinois. Given the large Jewish population, the mere thought of Nazis walking down Main Street Skokie created a great deal of angst. The Village immediately passed several ordinances which served to preclude the Nazis from obtaining a permit to march or demonstrate in Skokie. The ordinances prohibited the wearing of "military like" uniforms, dissemination of hate speech material and a similar security deposit ordinance.

The Nazis determined that they would march in Skokie without the necessary permits in violation of Village ordinances. The Village sough an injunction to prohibit the demonstration and the injunction was granted. Eventually, the case made it to the United States Supreme Court. The Court determined that in cases involving speech, due process in the application process required that there be built in and immediate appellate relief if the permit was denied.

More importantly; however, the Supreme Court found that the Village of Skokie could not deny a permit based on the content of the speech. In other words, even speech that most people would find reprehensible is protected under the First Amendment to the United States Constitution. Previously, the Supreme Court made a similar ruling regarding the content of speech in Brandenburg v. Ohio, 395 U.S. 444 (1968).

In Brandenburg, the Klu Klux Klan demonstrated in a local park. During the demonstration, a Clarence Brandenburg advocated "revenge" on Jewish and minority groups. Brandenburg was arrested and convicted of violating a criminal law which made it illegal to engage in speech that advocated for political change through violence.

The Supreme Court established a two part test to determine whether speech may be prohibited and punished by the government. First the speech must be directed at or provoking an imminent lawless action and second would the content of the speech likely produce such lawless action. In other words the speech must be so bad that the listener would likely engage in lawless violent action. Thus disagreeable speech, uncomfortable speech, perhaps "hate" speech is still protected by the 1st Amendment to the United States Constitution.

Perhaps George Orwell was absolutely correct in his observation of the freedom of speech, "If liberty means anything at all, it means the right to tell people what they do not want to hear."

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Robert "Rob" Werking was named a Colorado Super Laywer in Criminal Defense once again in 2021. This honor or distinction is based on votes by real attorneys practicing in the State of Colorado.


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