way (but did not decide the merits) for a deliberately provocative march in the face of those Americans arguably most devastatingly impacted by the actions of the Third Reich. Paved the way in that the United States Supreme Court found that, at least procedurally, the efforts to disallow the march could not be summarily upheld; the First Amendment was in play. Then, once the case was sent back to Illinois, it turned out the NSPA had already thought twice about being vastly outnumbered in a hostile environment and moved their efforts to the more general population of Chicago. That the march never actually occurred in Skokie or that the United States Supreme Court never actually said they could is lost to history – the takeaway being that the First Amendment is a powerful vehicle for tolerance of even the vilest speech and that a free society should not only expect controversial exhibitions but be strong enough to sustain even the most provocative of them. Indeed, it is the Skokie case that is most often invoked in defending the rights of white supremacists and our annoyingly persistent villains, the Nazis, to take their tiki-torched, antiquated ideas show on the road in places like Charlottesville, North Carolina. But does the Bill of Rights protect even murderous ideologues calling for the systemic elimination of an entire group of people? Forty years after Skokie, the debate rages on. But the origins of the discussion of the elasticity and boundaries of free speech under the First Amendment predates even WWII and comes from a line of cases starting after World War I. As we take sides and prepare to protest, counter-protest, or even (forbid) start blathering on social media, it’s a good idea to take
stock o how the ourts have defined the meaning o the First mendment. Some of it may be surprising, but all of it should shape the blueprint of our country’s hallowed marketplace of ideas. In 1919, while discussing the right of people to attempt to dissuade draftage men from induction into the military during wartime, the esteemed Supreme Court Justice Oliver Wendell Holmes, Jr. essentially created the test that was used for the next few decades. It called for any punishment for speech to be evaluated as to its “clear and present danger” to society. And while the case, Schenck v. United States, was resolved in favor of prosecuting the speech at issue, the more relied upon quotation that came rom that case is known as the fire in a theater meta hor. ere, ustice Holmes said “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. [...] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” In 1927, the Supreme Court upheld another conviction of a woman trying to help establish the Communist Party in the United States. Using the clear and present danger status, the Court ruled unanimously, however, and the decision is most notable for a concurring opinion from the country’s first ewish u reme ourt ustice, ouis randeis. n that case, Whitney v. United States, Justice Brandeis warned of a great danger “to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed
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