(By Harvey A. Schwartz) In 1998, I took on an unlikely client who had captured national headlines. “The client” was a Mississippi-based neo-Nazi organization, The Nationalist Movement, 30 men deep, who were fighting to defend their First Amendment rights to march in a Boston parade.
The client was unlikely because I was a civil rights lawyer who embraced the late Dr. Martin Luther King Jr.’s call to non-violence. And said client was all the more unlikely because I am Jewish.
But most of all, the client was unlikely because none of my colleagues would take up the mantle of this case. Not a single Massachusetts lawyer would represent the group in its First Amendment claim.
My wife said I was crazy. My partners told me not to do it. My father, who had been a POW in Nazi Germany, couldn’t understand. Nonetheless, I offered to step into the breach. Why? I’m a civil rights lawyer. The Nationalists have as much of a right to express their views as Dr. King had in his “I Have a Dream” speech. Their leader, Richard Barrett, was clearly displeased that I was a Jew. But no one else would defend them.
Barrett and the Nationalists had chosen Boston for their parade because they thought it offered a relatively pro-majority environment. Back in 1993, a local civic group had succeeded in effectively banning the Irish-American Gay, Lesbian and Bisexual Group of Boston (GLIB) from Marching in the city’s annual St. Patrick’s Day Parade. Boston’s mayor and city officials denied Barrett’s group a parade permit. But Barrett and 14 followers marched anyway, surrounded by thousands of angry spectators. Then next year, the parade was canceled in the wake of the controversy.
When their case came to the US District Court in ‘98, I didn’t take it because I agreed with The Nationalist’s views: I found them as asinine as they were reprehensible. I took the case out of support for the legal system as a whole, and for due process.
And I won. The U.S. District Court struck down Boston’s parade permit law because it afforded too much discretion to city officials to grant or deny the permits. The judge stated that Boston’s mayor and city officials violated Barrett’s rights of free speech. They were still citizens, I argued, endowed with the same constitutional rights as any other citizen. The court enjoined the city from applying its parade ordinance, awarded the Nationalists $700 in damages and ordered the city to pay my attorneys fees.
That was 1998. Today, in 2018, I wonder if I’d feel the same way if it happened again.
Looking back, I realize I had the luxury then of being confident that my clients would never in any conceivable universe get to put their “asinine” views into effect. Their huffing and puffing was no more than that, just huffing and puffing in their white supremacist fairy tale world that would never blow anybody’s house down in the real world.
At that time, I couldn’t have fathomed a country in which the President would embrace the nationalist label, declaring, “I am a nationalist…. I’m very proud. I think [the word] should be brought back.” Nor that he would boast that Nationalists like my clients were “fine people,” as he called the white supremacists at Charlottesville–even, apparently, giving them all-access passes to the White House. I couldn’t have imagined the government-sanctioned separation of undocumented children from from undocumented parents. And I never thought I’d be flying down to Guantanamo Bay, as I did in 2007, to visit two Saudi clients chained to a ring in the floor, imprisoned with no charges or trial. Or release date.
It isn’t that I’ve lost my fundamentalist First Amendment beliefs. I still believe that even Nazis have the right to express their views. The difference between 1994 and 2018 is that back then, in representing the white supremacists, I was defending the constitution more than I was defending the individuals. There was no risk that the individuals’ goals were in any way attainable.
This is no longer the case. The stakes are much higher now.
There is a tipping point at which constitutional freedoms give way to limitless freedoms to a preferential group.
Today’s Neo-Nazi demonstrators aren’t play acting any longer. They actually believe they’ll be able to keep all Muslims from entering the country. They actually believe they’ll be able to deport all the groups they want to deport. They know they have friends, friends in high places who have the power to make things happen. I know that, too.
I have written in my new novel Never Again about the tipping point at which citizens of a democracy may bend on their fundamentalism in order to protect what is most sacred. I’m deeply concerned, as a retired civil rights lawyer, as one who travels widely, as a Jewish man, that we may be nearer than any of us think to the dissolution of constitutional freedoms for all citizens of this country. And I don’t want to help anyone advance us past the tipping point. I’m willing to bend on my fundamentalism in order to protect the Constitution. I hope others are,
Harvey A. Schwartz is a retired civil rights lawyer. He spends his summers on a Dutch barge cruising throughout the waterways of France. His new novel, Never Again releases this month. His website is www.harveyaschwartz.com.