Why Americans Still Have to Fight for the Streets

(Bloomberg View) -- “Whose streets? Our streets!” If you found it disturbing to hear white supremacists chanting these words as they marched last weekend through Charlottesville, Virginia, I’m about to make you feel worse. This blueprint for political rise comes directly from Adolf Hitler’s “Mein Kampf,” where the would-be dictator advised his followers that “the road can be cleared for the movement … by the conquest of the streets.”

What’s particularly relevant about this translation of Hitler’s ideas into today’s America is that the U.S. Supreme Court has already analyzed it in depth -- in 1949, when struggling with violent street confrontations between far-rightists and far-leftists as the Cold War dawned. The lessons of that historical moment shaped the constitutional law that now governs confrontational, provocative free speech. And they are directly applicable to this moment of incipient street conflict.

We can start with the core idea of dominating the streets formulated by Hitler during Germany’s shaky Weimar period. And our guide will be Justice Robert Jackson, who learned about it in detail while on leave of absence from the Supreme Court as chief prosecutor at the Nuremberg trials.

Hitler’s instinctive understanding was that the liberal state was weak, and that the relative freedom of expression and association allowed under the Weimar Constitution could be exploited. “We should not work in secret conventicles,” he wrote, “but in mighty mass demonstrations.”

The point of Nazi mass marches wasn’t to convince people by the strength of Nazi ideas, but to convey a message of ownership and control. “It is not by dagger and poison or pistol that the road can be cleared for the movement,” Hitler explained. The goal of “conquest of the streets” was to “teach the Marxists that the future master of the streets is National Socialism, just as it will some day be the master of the state.”

Looking back on Hitler’s rise after the war, Jackson commented that they laughed at Hitler: “First laughed at as an extravagant figure of speech,” Jackson wrote, “the battle for the streets became a tragic reality.”

The vehicle for realizing Hitler’s vision, according to Jackson, was “an organized Sturmabteilung” -- Stormtroopers -- whose slogan was that “possession of the streets is the key to power in the state.”

It’s easy to see that today’s neo-Nazis share a similar aspiration. And gun laws that allow white supremacists to carry assault rifles and march like platoons on patrol -- activity that would’ve been unimaginable in Weimar -- make the threat in a certain sense more tangible.

But of course Charlottesville isn’t Berlin and the U.S. isn’t Weimar. The question then is what authority the liberal state ought to have to regulate or even suppress Nazis who want to take over, but don’t have a realistic chance of doing so.

That issue was confronted by the Supreme Court in the case of Terminiello v. Chicago. The facts are a bit complicated, but to simplify, in February 1946, the suspended Catholic priest Arthur Terminiello, a racist, anti-Semitic speaker sometimes called the Father Coughlin of the South, came to speak at a women’s club on Ashland Avenue in Chicago.

Terminiello arrived at the auditorium to find hundreds of protesters, including members of labor unions, the American Jewish Congress and the Communist Party USA. The protesters blocked the entrance, and police had to escort attendees into the meeting. As the speech began, the crowd outside turned violent. They threw rocks, bricks and ice picks, breaking 28 windows in the auditorium; a group of young men rushed the police. Nineteen people were arrested, and several were injured.

Inside the auditorium, Terminiello condemned the protesters as “slimy scum.” The crowd in the auditorium reportedly responded with shouts of “Kill the Jews.”

What happened next is surprising from our perspective: the head of the Chicago Civil Liberties Committee, which had withdrawn from the national ACLU to avoid being expelled for communist tendencies, went to the local police station and swore out a warrant for the arrest of Terminiello, the speaker, for disturbing the peace. Sure enough, the police arrested Terminiello. A judge told the jury that the speaker was guilty of breach of peace if he “stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance.” The jury convicted the priest, who was given a $100 fine.

In a 5-4 decision, the Supreme Court reversed Terminiello’s conviction. Justice William O. Douglas wrote the opinion. His point was simple. The jury was told that there was a crime to invite dispute. But, Douglas insisted, “a function of free speech under our system of government is to invite dispute.” Thus, the speaker could not be penalized for opponents’ violent reaction to his message.

Jackson, fresh from Nuremberg, profoundly disagreed. He thought what happened in Chicago was a “local manifestation of a worldwide and standing conflict” between fascists and communists. His view was that the government must have the ability to arrest speakers whose very purpose was to provoke reaction and generate street violence. If the state was not be able to intervene at an early stage, the radicals could gain control of the streets.

Jackson quoted Hitler’s views at length -- still the only time “Mein Kampf” has appeared in a Supreme Court judgment.

In retrospect, Douglas was right -- but only because Nazis and anti-fascists lacked the capacity to hijack American streets as they had done in interwar Germany. Jackson wasn’t being foolish, but he was overreacting to a parallel that was salient in his mind.

The takeaway for our moment is that, as was true in 1949, neither Nazis nor anti-fascists are able to challenge the government for control. Yet in order to make sure that it remains so, the liberal state needs to police seriously and intensively, maintaining order and preventing violence.

Free speech must therefore be protected -- including chants about owning the streets. But even the ACLU today recognizes the danger of its representing hate groups that seek to march carrying firearms.  

There must be no mistake that the streets are owned by the entire public and protected by police who work on behalf of the liberal state that represents the people. That’s the way to avoid a situation where radicals can actually contribute to destabilization.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His seven books include “The Three Lives of James Madison: Genius, Partisan, President” and “Cool War: The Future of Global Competition.”

For more columns from Bloomberg View, visit http://www.bloomberg.com/view.

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