The March of the American Nazi Party on Skokie:
The Price of Free Speech or A Foolish Consistency?
An Example of a Constructivist Approach to Juris Prudence.
By Richard L Wise
1. A Meta-Level View: Paying Attention To The Man Behind The Curtain
In an earlier draft of this article, I placed the thoughts contained in this introduction at the end. Having a natural affinity for the dramatic, I had planned to antagonize certain readers with some provocative statements and to lead others to believe that my analysis of the problem discussed in this paper was faulty or incomplete; following which I would reveal that the real purpose of this article had nothing to do with the subject matter of the topic analyzed. After then pointing out what it was that I was seeking to accomplish, it was my intent to ask the reader to review the article a second time, keeping in mind my true purpose. While I enjoyed the didactic forcefulness of that approach, I was both concerned that I might lose some readers with such a deception, and sensitive to the time constraints of those who only had limited time in their busy schedules to being forced to read an article twice. Hence, I reluctantly elected to state at the outset that which I was trying to accomplish.
This article is not about how zealous we should be in our support of free speech. Neither is it an argument against the American Civil Liberty’s Union’s representation of the American Nazi Party in their infamous efforts to obtain a parade permit to march through the neighborhoods of holocaust victims in Skokie, Illinois. It is not about the propriety of legalized abortion. It is about intellectual honesty. It is about how to think.
My choice of the Neo-Nazi Party’s march on Skokie was selected specifically because of painful conflict between the extreme and inflammatory nature of the conduct supported by the ACLU and the need to protect what may be one of our most cherished of liberties; namely, the right to pursue freedom of speech. I chose it because even those with whom I spoke who staunchly defend the ACLU’s position were deeply offended by the march itself; yet they concluded that such a result, even as despicable as this, had to be permitted in the defense of this freedom. Clearly, I thought, would it not be better if it were possible completely to defend freedom of speech in a fashion that also was not antithetical to preventing this march? Yet in suggesting that one look at that possibility, even the ACLU’s most reticent defenders routinely stated that an exception here would permit other exceptions that would be even less tolerable.
While that may be the case, I believe it is intellectually dishonest not, at the least, to ask the question and undertake a process of analysis to determine whether or not, the ACLU’s conclusion is, in fact, true. For if it is true, the analysis should yield a firmer, logical foundation for what appears on the surface to be an emotional response. On the other hand, if the analysis proves that such defense of the American Nazi Party was not warranted, then we have established a higher level of legal and ethical reasoning.
The second purpose that this article is to serve is as a plea for the abandonment of advocacy based upon labels. This, of course, is merely a corollaryof the earlier mentioned purpose of intellectual honesty. Yet the pervasiveness of this tendency is often invisible from detection, being camouflaged as principle in the law’s axiomatic jungle; and its insidious side effect is to give the appearance of reason, thereby allowing the listener to suspend the analytic process. By way of example, in response to one’s raising the possibility of limits to free speech, most advocates respond by lauding the sanctity of this treasured talisman which has, in the past, seemed to ward off all evil, rather than realizing that it is a right or concept which ought to stand or fall on its own merits and have independent justification and support. In short, resort to labels qua labels has no more place in logical argument and thought and do attacks ad hominam.
Third, and perhaps most importantly, this paper is both an argument for, and an example of how I approach and analyze legal problems. In order to do this, I have intentionally employed a narrative style that is not common to articles of this sort so that the reader might, if it chose, “sit inside of my head” and feel the flow of ideas and approaches as they have occurred to me. Over the course of my twenty-four years of practice, clients have regularly commented on the unusual approach which they observe when they sit in my office and the relief which they feel after sitting with me once I have simplified their problems and set out the appropriate course for them to follow, even if the ultimate result is an unfavorable one for them. Existence is seamless; hence, one can never analyze a problem only from a legal perspective. The best counselors, it seems to me, approach problem analysis from the totality of existence and with an appreciation for who the client is. Thus, we must be part lawyer, part psychologist, part theologian, part philosopher, part historian, part scientist, part dramatic actor, and the like. In writing this article, therefore, I have used the subject matter primarily as a point of departure to show how I bring each of those skills into an analysis which hopefully yields a unitary and more healing result for those participating in the process, and to provide an example of how it is that I feel an intellectually honest legal code ought to be structured.
As a final, personal note, I confess that while the article which follows seems to criticize the position of the ACLU, I can only say that the defense of the American Nazi Party would have been too distasteful for me personally to undertake. Clarence Darrow once pointed that atheists and zealots seemed to be equally misguided: both espousing dogmatic views about matters as to which there was no firm scientific proof. I suppose that puts me in the agnostic category. Thus, the principle import of this article is to try to urge the legal community to define better what its ultimate and true objective ought to be, failing which, we all turn out to be fanatics; that is, one who having lost sight of his objective, redoubles his efforts.
2. The Analysis
A little over a year ago, one of my law partners and I found ourselves engaged in a passionate dialectic over the propriety of the American Civil Liberty Union’s defense of the American Nazi party in its efforts to obtain a parade permit to march through a neighborhood of Holocaust victims in Skokie, Illinois. It was one of those chill, rainy, fall mornings that are all too common in New England; but the spirit of our argument brightened the pervasive dreariness of the day.
Both my partner and I had been in practice for over a score of years. Like me, he had a reputation for being principled and articulate, passionate about judicial values, yet practical and precise in his analysis of problems and recommended solutions. It was rare for us to disagree so strongly, and both of us were enjoying the challenge of the exchange. I found myself comparing the proposed march to one seeking a right to yell “fire” in a crowded theatre. While I conceded that there was less danger in this case, the pain, shock and suffering which would be imposed upon the local residents, particularly in view of the lack of benefit to the Nazi party, seemed to warrant forbidding such a march. My partner’s retort was to ask whether the same argument could be used in circumstances to hinder an effort that we both believed to be good; namely, could not such an argument have been used to justify a denial to civil rights’ marchers of a permit to march through downtown Selma, Alabama in their protest of segregation: for surely protests against segregation would be offensive and, in certain circumstances, painful to the local residents there as well.
Because I could not give an immediate and adequate answer to that question, we paused our argument to return to pressing business. I knew that my partner felt that he had raised a point to which I could not respond. However, my pausing was not so much due to an acknowledgment of the validity of his argument, but more due to my dilemma as to how to express the complexity of the reasons for why I felt that the analogy that he had made was beside the point. As I continued to reflect on my response, I recognized that the principles underpinning my disagreement with his position had been rattling around in my head for the better part of 20 years, and only in the last five or so had they begun to congeal into some semblance of articulated thought.
In part now to try to set forth my reasoning for separating the two situations discussed in his argument, but primarily, I confess, to foster my own needs to try to put in a coherent form those thoughts and analyses which have thus far not been articulated, I am putting my arguments before those of you who enjoy philosophical and scientific approaches so that you can, if you choose, review them at your leisure and concur in the parts with which you agree, and reject those parts of my reasoning to the extent you are able to ascertain fallacies or inaccuracies.
My analysis involves an amalgam of legal, scientific, religious and philosophical thought. Perhaps the best way to present this is chronologically; that is, not so much in terms of an outline of the argument itself, but rather in the order of the occurrence of ideas that sequentially led me to the position that I now hold.
Any attentive practitioner of law with a reflective turn of mind cannot help but ponder, from time to time, the apparent inconsistencies in our legal framework, and try to develop systems or approaches which might better approximate that abstract notion of what we often refer to as “justice”. My partners and I have lamented Justice Holmes’ observation that when one goes to court, one does not get justice, “one gets law”. It is painful to us, as well as to our clients, that there often is such a large variance between the two. In reflecting on the concept of justice, I remember being particularly struck with the legal analysis contained in a Talmudic parable which my partner shared with me several years ago, concerning a learned Rabbi who had seized the fur coats of the poor laborers who were moving his furniture in the dead of winter. These laborers had, because of their poverty, been unable to compensate the Rabbi for some damage caused through their negligence to his goods in the course of their moving those items for him. The decision of the Rabbinic court to whom these laborers plead their case was that while the Rabbi was completely correct in his assertion that he had an irrefutable right to seize the men’s coats and hold them in distraint until the damage had been repaid, he was nonetheless ordered to return the coats. The reasoning set forth by the court was premised on the fact that if the movers did not receive back their coats, they would die in the cold of the winter. The chief Rabbi of the court stated that because that result would be wrong, and because the law did not permit to happen that which would be wrong, it could not be the law that the Rabbi would be entitled to retain the men’s coats.
While the foregoing could be interpreted as supporting a type of “situational ethics”, or a “result-oriented” view of the law, I have a different view. My view is based on notions of mathematical set theory and Aristotelian logic.
Put in it simplest form, Aristotle postulated that there are no contradictions in nature. Therefore, if one comes across a contradiction, he or she should re-examine the argument by checking one’s original premises. While some philosophers have felt that this admonition applies primarily to explanations of natural phenomenon, the fact is that this statement is included in Aristotle’s Niccomachean Ethics. That work is a series of dialectics involving everything from science to ethics, religion, politics and the like. It seems reasonable therefore, that this logical approach is intended to be applied as much to ethical and social issues as it does to natural phenomenon.
In my view, this beautifully simple statement by Aristotle is a corollary of the Judeo-Christian concept of the unitary nature of God. Concepts related to the immutability and unity of the Almighty are identical to the concept of the immutability of the truth. Indeed the word of God is often referred to by concepts of “truth” and God is often referred to poetically as the “Truth”. Similarly, Aristotle observed that truth is simple and unitary; whereas evil is complex, multifarious. Thus, returning now to the parable set forth earlier in this paper, on one level one could merely say, as did the Rabbinic court, that it would be a wrong result for concentration camp victims to have to endure the sight of neo-nazis marching through their neighborhood yet again and that, therefore, it could not be the law that such would be permitted. Yet, I would go further and state that since there is such an obvious contradiction between the appropriate result and the concept of freedom of speech, perhaps we should go back and “check our premises” as to whether or not freedom of speech is a fundamental principle of justice, to which there should never be exceptions.
At this point I confess that I am not sure whether to address my thoughts regarding the applicability of set theory or of Einstein’s theory of relativity. The relevance of both occurred to me at about the same time. However, since the issues involved with the theory of relativity are simpler, I will endeavor to address them next.
My hesitance to address the applicability of issues involved with the theory of relativity is in part that it does get closer to my ultimate conclusion; nonetheless, it does set the table for my final discussion of the concepts involved in set theory. You see, for centuries Newton’s laws of physics were viewed as immutable statements of truth: fundamental premises about the nature of the universe which could not be challenged. In the early 20th century the first doubts concerning the truth and reliability of Newtonian physics shocked the scientific world when it was learned that there were small variances between results that were predicated based upon Newton’s principles, and the measurements that were actually being made. Admittedly, these variances were very small and occurred under only extreme conditions. Because they occurred only under extreme conditions, scientists first wondered if the measurements were off, and thereby sought to cling to their belief in the sanctity of Newtonian physics.
What Einstein realized, and eventually established, was that Newtonian physics is only an approximation of reality. Indeed, it is virtually indistinguishable from relativistic physics under normal stresses, speeds, temperatures and the like. Only when one approaches the speeds, pressures, temperatures, and stresses which exist in the vast majority of the astrological spectrum, but which we do not normally experience here on earth, does the wide gap between Newtonian physics and relativistic physics appear. I have, therefore, recounted this brief history in order to ask whether, similarly, the postulate of “freedom of speech” is a postulate which, much like Newtonian physics, works under normal conditions, but which “breaks down” when applied to the extreme situations presented by conditions such as the neo-nazi march on Skokie. If it does, then one must ask what is the more fundamental (or “relativistic”) principle, which the goal of “freedom of speech” approximates under normal conditions. Alternatively is there a way to prove that the principle of “freedom of speech” should be inviolate? This brings me to my discussion of the applicability of set theory which, in turn, you will see will bring us full circle to the beginning.
Set theory in the mathematical and philosophical world concerns, in its simplest form, man’s efforts to determine what exists in a given universe. The layman may easily envision this subject as involving ethical precepts, but, in fact, mathematicians see it as involving primarily the defining of mathematical theories and universes, such as the universe of spacial geometry. Despite what appears to be essentially a scientific enquiry, a few mathematicians, such as Bertrand Russell and Paul Lorenzen, have criticized current set theories as being “immoral”. Indeed there is a highly ethical tone to their writings. I shall try to explain the reasons.
Most set theories in the modern era are what is called axiomatic set theories. These are theories that brilliant minds have created, and which while the product of their ingenuity and study, derive from inductive logic; thus their genesis is not strictly controlled by a uniform system. Generally, axiomatic theories are subject to “refinement” over a period of time, when some new thinker discovers a flaw in their predicted results, or a “contradiction” along the lines of what Aristotle admonished us about centuries ago. When that occurs, the theory is then modified, or an exception is placed into the theorem, which then solves the problem which the exception had created.
The opposite of this approach is what is called a constructivist approach to set theory. This is a primarily deductive approach, perhaps the best example of which is Euclidean geometry. In Euclidean geometry, we are given one or more basic “truths” which are always true and to which there are no exceptions. From that we are able constructively and deductively to calculate subsequent postulates, corollaries, find results and develop a whole theory (or “set”) of geometry. At one point, Euclidian geometry was challenged as just another axiomatic theory. This occurred with the development of non-Euclidian geometries, mainly the Remanian and Lobachevshian geometries which involved curved space. Thus, for example, whereas in Euclidian geometry the shortest distance between two points was a straight line, in curved space, it was curved line.
This apparent dichotomy was resolved over thirty years ago by Paul Lorenzen who proved, deductively, that one could derive all principles of non-Euclidian space from Euclidian space, and that, therefore, Euclidian geometry was the fundamental, or “true” representation of spacial arrangements. Dr. Lorenzen subsequently expanded his mathematical work to philosophy and ethics stating that, similarly, it was immoral to develop ethical and legal systems which were axiomatic in their nature since they were, in all events, not premised on fundamental truths. He felt that the proper way to go about developing such a system was to endeavor to follow a constructivist approach and base rules and precepts on immutable truths and the laws derived deductively therefrom.
To me, Dr. Lorenzen’s statements are not much different from those of (1) Aristotle who, to me, seemed to be pointing out that axiomatic systems can never be held out as talismans of the truth, and (2) the Judeo-Christian belief in the immutability and unitary nature of God and truth.
Where does this lead us? Clearly the American legal system, with which I am familiar, (which, in this respect is probably no different from any other legal system) is an axiomatic system. The principle of freedom of speech, therefore, while undoubtedly fundamental to our system and of primary importance, is not derived in any logical or deductive way, but is the result of a profound feeling of what is just and proper, as well as a reaction, at least in this country, to denials of freedom of speech by the British government in the seventeenth and eighteenth centuries. I submit, however, that we may not argue that it can be held to be an immutable truth, particularly in horrifically bizarre or extreme situations.
I suppose I could close this paper here. However, intellectual honesty bids me address the issue which I have thus far left hanging; namely are there immutable truths and principles from which one could deductively extract a legal and ethical code of conduct. Because I must conduct this effort with far less intellectual horsepower than that possessed by Einstein, the best that I can seem to do is to make my own, modest attempt and, if subsequent results seem anomalous to principles which I hold dear, commit to “check my premises”.
Of course, the question to be addressed is not who is to decide or determine such fundamental principles. The obvious answer is that we have to do it; at least until such time as the Almighty decides that there has been enough of our foolishness and dons judicial robes personally to sit on the bench. Thus the real question is how we are to decide. To put it another way, our discussion must focus on what fundamental principles should guide our conduct or determine the legal structure of our society. With all modesty, I would like to suggest an approach.
Einstein had stated that the most powerful guiding principle in refining his thinking was that of “Ockham’s Razor”. Ockham was a medieval monk whose “razor” was a methodology for decision making. In essence, Ockham stated that nature was simple. Therefore, in choosing between two or more explanations of any natural phenomenon, one should choose the simple one.
The principle which I would pose for consideration, therefore, is that “living is good.” This is about as simple as I can get, although I acknowledge that better minds may be able to get even simpler. It would follow that if living is good, non-living is bad. Virtues could then be ascertained as those beliefs and activities which promote life, while those which did not promote life, would be considered bad. I do confess that this use of the terms “good” and “bad” is rather sophomoric, but I use them only to point out an idea that, at least today, I cannot articulate in a better form; for to me, notions of “good” and “bad” are only terms of advocacy designed to induce a primitive people to observe ethical values.
I submit that taking this constructive approach ultimately yields a greater understanding of any problem and forces us to think in a consistent, logical fashion towards resolution of that problem, while forcing us to ignore the seductive and often emotional sideshows which often result from a less rigorous approach. This does not imply that the application of a principle like “life is good” should automatically, and with the aid of deductive logic, yield answers to each legal and moral dilemma with which we are faced, but it does at least provide us with a point of reference to which we may look for guidance in addressing any particular issue.
By way of example, let me take a subject which is a most painful one for American society at the present time. This is the issue of abortion. Occasionally when I find myself bored or in the company of pretentious, pseudo-intellectuals, I offer to the group, intentionally and in a most nonchalant fashion, an off-hand remark to the effect that it is quite obvious to everybody that abortion is morally wrong. The dialogue which then ensues can almost be predicted every time.
“Oh,” they remark with a derisive look, “you must be pro-life.”
“I am, but are you not pro-life as well?”
“No, I’m pro-choice.”
“So am I,” I respond.
“You can’t be both pro-choice and pro-life.”
“Why can’t I?” I ask in wonderment. “Do not you feel that the quality of life of the mother should override, if the mother so determines, the apparently less significant existence of the product of conception with which she is then burdened?”
Hesitantly they admit their agreement. “Then,” I add, “it is obvious to me that you are pro-life, it is just that you are making a decision about the choice of which life needs to be supported at that time. Clearly, you are not ‘anti-life’. On the other hand, even the staunchest advocates of the so-called ‘pro-life’ lobby seemed to acknowledge the permissibility of abortion in the cases of rape, incest, life of the mother, etc. In so doing, they have obviously made a choice as to when abortion should be permitted and when it should not be permitted. Indeed, it seems to me that your differences with that sort of a person are not that they are ‘anti-choice’, since even they make choices based upon the circumstances, but that they have determined that it is they who shall choose the governing standards which are to effect someone else’s life.”
As the group becomes quiet, I usually continue. “Thus it seems to me that concepts of ‘pro-choice’ and ‘pro-life’ really are not helpful. They do not explain anything about the problem but only serve to divide the two factions and increase hostilities. The ‘pro-choice’ supporters are obviously ‘pro-life’ as well, and the ‘pro-life’ supporters obviously believe in choice. The problem is that in our society there is a stigma attached to being ‘anti’ something. The use of the label only allows us to disapprove of the other party and, because it has replaced logic, no solution can be found in its use.”
At this point, someone usually asks how it is that I can be so sure that abortion is morally wrong and how that relates to whether or not it should be permitted. I usually answer the question in two ways. First, I try to point out that anyone who has ever had the misfortune of going to an abortion clinic well knows that those who are there feel deeply the moral wrongness of their conduct. This is not a place into which one marches joyously, like a citizen exercising his or her rights of suffrage. The room is filled with weeping, both by the women who are there and those accompany them. Professionals are there to provide grief counseling and to support the anguish which the patients feel as they proceed through the process which the clinic is there to provide. Second, the moral wrongness of the conduct logically has nothing to do with whether it may or may not be appropriate for them to seek an abortion or even for abortion lawfully to be tolerated. Abortion is only a tool designed to solve a particular problem. The appropriate use of that tool is, I believe, a matter for rational analysis, one of the factors to be weighed in that analyses is the moral wrongness of the act. While I believe that this conclusion is obvious, if one focuses merely on “rights” or labels, one is never able to come to this conclusion. The fact is that it is essential that the person seeking an abortion recognize the moral wrongness of what they are doing lest, in mind at least, they lose their humanity. Having an abortion is not the same thing as using birth control. It is not just another option of that sort. By being in touch with the moral wrongness of the action in which they are engaged, the decision becomes a difficult and painful one pursued only if, after examining their conscience and the attendant circumstances, they believe that is the least objectionable solution in a very imperfect world. This is no different than the decision as to whether or not to kill a human being. It is always morally wrong to kill a human being, yet individuals have determined that there are times when it is permissible to do so. War, self-defense and the like are typical examples. We all recognize the sickness of an individual who suffers no pangs of conscience in, and who may even enjoy, taking a life. For the rest of us, it is supposed to hurt; it is suppose to be painful.
It may then seem that while following a fundamental principle of “living is good” leads us to the conclusion of the moral wrongness of abortion, it does not, nonetheless, give us, at least on the surface, a clear direction as to who should be entitled to have an abortion, when, and who should make that determination. Thus, one may ask what the benefit is in endeavoring to follow that line of analysis. It seems to me that the good that results is an analytical and understanding approach to the dilemmas which face fallible people in a less than perfect world. Further, it acknowledges the rightful and fervent concerns of supporters on both sides of the issue. If we are all willing to engage in a process which discards the labels which divide us, labels that seduce us into engaging our passions rather our intellect, then perhaps, just perhaps, we will all come to face our problems with openness and a commitment to work through all the difficult nuances which go into achieving a resolution. We will be focusing on healing ourselves and our culture, rather than looking for easy answers whose bright and probably arbitrary lines fail to recognize the complexity of human existence. It seems to me that if such an approach is adopted, people much smarter than I am will be able to craft a resolution to the problem of abortion which acknowledges all parties’ interests and which, while not perfect in its answer, heals, rather than divides, us all.
In making the preceding suggestion, I do admit to a prejudice against what appears, at least to me, to be one of the fundamental underlying concepts of the common law. At its core, it is a system based on ascribing fault and rooted in medieval concepts of religious right and wrong. Fault was a tool used to serve as a mark of Cain to be affixed to anyone who would not obey the basic rules designed to keep a people, who were still yet barely civilized, in line. I frankly am not sure whether this continued insistence on finding fault serves any purpose in a modern, enlightened society. The fixing of fault can be an extremely expensive and painful process. And, once it has been completed, one has accomplished nothing. If the same efforts were applied to “fixing the problem”, it is my belief that a great deal more would be accomplished, and we would have a better world. Yet, that is a discussion for another day.
As to how this all applies to the propriety or not of allowing the American Nazi party march through Skokie, I am trying to suggest that there is a better starting point from which to analyze the issue than merely to say that freedom of speech should be paramount. Again, the dogmatic repetition of a principle not derived from or a logical part of an internally consistent moral or legal code, can never satisfy sentient people.
In closing, I would like to make one final argument in favor of the approach in this article. This article has been written using concepts of law, ethics, philosophy, physics, mathematics, and religion. Each of the examples taken from one of the foregoing disciplines supports each of the inclusions raised by the other disciplines individually. In order better to understand our world and create a legal and ethical code that works, we must, I submit, look at knowledge and our life as a unified whole. All parts must work together and support the ultimate conclusions. Eastern philosophies easily recognize that there is no dichotomy between the body and the mind. The physical world and the spiritual and intellectual worlds are deemed one and the same, each having an effect on, and being a part of a greater whole. It has been, in part, my goal to show how principles from each of the disciplines come to the same conclusion. If they had not, I submit that I would have had to go back and check my premises.
© Richard L Wise and RLWise.wordpress.com 2012. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Richard L Wise and RLWise.wordpress.com with appropriate and specific direction to the original content.
Curse of Cassandra 