‘The Constitution Is Not a Suicide Pact’
By the time Arthur Terminiello arrived at Chicago’s West End Woman’s Club on a Thursday evening in February 1946, a hostile crowd that would swell to 1,000 or so protesters had already gathered outside the auditorium. They were outraged by the event at which Terminiello was scheduled to speak: a Christian Veterans of America meeting organized by the evangelist Gerald L.K. Smith, a flagrantly antisemitic populist and spectacularly unsuccessful presidential candidate who had founded the America First Party three years earlier.
Picketers blocked access to the building, repeatedly tried to force their way in, and castigated those who dared to enter, calling them “Nazis,” “Hitlers,” and “damned fascists.” An overmatched contingent of about 70 police officers escorted speakers and attendees into the building while vainly trying to maintain order. Angry protesters tore people’s clothing and hurled vegetables, rocks, bottles, and stench bombs, breaking more than two dozen windows and injuring three officers.
The riot resulted in 19 arrests, though most of the charges were later dismissed. One charge that stuck: Terminiello, a suspended Catholic priest from Alabama who was advertised as “the Father Coughlin of the South,” was charged with “breach of the peace”—a species of “disorderly conduct.” A municipal court jury convicted him of that offense two months later, and he was fined $100, equivalent to about $1,700 today. Terminiello, who argued that he was being punished for constitutionally protected speech, unsuccessfully challenged his conviction in the First District Appellate Court and the Illinois Supreme Court.
Terminiello had more luck with the U.S. Supreme Court, which in May 1949 ruled that the Chicago ordinance under which he had been convicted, as construed by the trial court, was inconsistent with the First Amendment. Municipal Court Judge John McCormick had instructed the jury that “misbehavior may constitute a breach of the peace if it stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance, or if it molests the inhabitants in the enjoyment of peace and quiet by arousing alarm.” That construction, the Supreme Court said, was plainly at odds with freedom of speech.
“A function of free speech under our system of government is to invite dispute,” Justice William O. Douglas wrote for the majority in Terminiello v. Chicago. “It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. There is no room under our Constitution for a more restrictive view.”
Douglas’ ringing defense of free speech against the heckler’s veto still echoes today. His observations are relevant when student protesters disrupt speeches by people whose views they abhor or when such events are canceled by university administrators worried about the unrest they might provoke. Douglas’ insistence that speech must be tolerated even if it results in bitter disagreement is likewise salient when issues such as police brutality, immigration, and Israel’s war with Hamas provoke protests and counter-protests in the streets or on campuses. But Terminiello is also remembered for a dissent that took a less accommodating view of free speech.
Justice Robert H. Jackson, who had previously served as solicitor general, attorney general, and the chief U.S. prosecutor at the Nuremberg trials of Nazi war criminals, thought Douglas and the four colleagues who joined his opinion were out of their minds. Like many Americans today, Jackson perceived a country on the precipice of chaos, with right-wing and left-wing extremists staging deliberately provocative demonstrations aimed at overturning democracy. Drawing an analogy to the violent clashes that set the stage for Adolf Hitler’s ascendance, he argued that the majority’s understanding of the First Amendment was a potentially lethal threat to democracy, freedom, and peaceful coexistence.
“This Court has gone far toward accepting the doctrine that civil liberty means the removal of all restraints from these crowds and that all local attempts to maintain order are impairments of the liberty of the citizen,” Jackson complained. “The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.”
In the decades since, that formulation has taken on a life of its own, cited as a justification for expanding government power and restricting individual freedom in situations far afield from the original case. The continuing influence of the “suicide pact” meme in legal and political debates is remarkable for two reasons. First, Jackson was expressing a view that the Supreme Court has emphatically and repeatedly rejected. Second, his concluding admonition was a rhetorical flourish, not a logical argument. Confusing the two invites shortcuts that sacrifice liberty on the altar of order.
‘Slimy Scum’
The size of Terminiello’s audience rivaled that of the mob outside. “Persons desiring to hear defendant speak filled the 800-seat auditorium to capacity,” the Illinois Supreme Court noted, while “others stood in the rear and about 250 were turned away.” Some people who were unsympathetic to Terminiello’s message gained entry via admission cards they had obtained from acquaintances—a fact to which he alluded at the beginning of his speech.
“I suppose there are some of the scum got in by mistake, so I want to tell a story about the scum,” Terminiello said. “Nothing that I would say can begin to express the contempt I have for that howling mob on the outside…and nothing I could say tonight could begin to express the contempt I have for the slimy scum that got in by mistake.”
Terminiello warned that “the tide is changing, and if you and I turn and run from that tide, we will all be drowned in this tidal wave of communism which is going over the world.” In Russia, he said, “from 8 to 15 million people were murdered in cold blood by their own countrymen, and millions more through Eastern Europe at the close of the war are being murdered by these murderous Russians, hurt, being raped, and sent into slavery. That is what they want for you, that howling mob outside.”
Terminiello’s animosity was not limited to Russians. He averred that Henry Morgenthau, who as secretary of the treasury during the Roosevelt administration was the first Jew in the presidential line of succession, had a “plan for the starvation of little babies and pregnant women in Germany.” He also claimed that Jewish military doctors serving in Europe made it a practice to amputate the arms of German men “so they never could carry a gun” and that Jewish nurses would “inject diseases in them.”
Terminiello called upon his audience to oppose “every attempt to shed American blood to promote Zionism in America.” He inveighed against “atheistic, communistic Jewish or Zionist Jews.” (The Jewish Jews are the worst!) “We must not lock ourselves up in an upper room for fear of the Jews,” Terminiello declared. He clarified that he was referring to “the Communistic Zionistic Jew, and those are not American Jews.” Then he added: “We don’t want them here; we want them to go back where they came from.”
Wrapping up his speech, Terminiello delivered a mixed message about how his audience should deal with the protesters outside. “They are being led,” he said. “There will be violence. That is why I say to you, men, don’t do it. Walk out of here dignified. The police will protect you. We will not be tolerant of that mob out there. We are not going to be tolerant any longer. We are strong enough. We are not going to be tolerant of their smears any longer. We are going to stand up and dare them to smear us. We are not going to be tolerant any longer of their pagan eye-for-an-eye philosophy.”
During Terminiello’s trial, the reaction to his speech was a matter of dispute. Testimony by defense witnesses, the Chicago Tribune reported, “tended to show that no remark made by [the speakers] caused any disturbance or commotion in the hall, but that all the riotous disorder occurred outside the hall and was incited by hundreds of pickets.” As the Illinois Supreme Court later put it, those witnesses “testified that the audience was quiet, attentive and orderly at all times.” The city’s witnesses told a different story.
‘Dirty Kikes’
Terminiello’s chief accuser was Ira Latimer, who at the time was a Communist but later turned against the party and its ideology, eventually serving as executive vice president of the American Federation of Small Businesses. In 1946, Latimer was executive secretary of the Chicago Civil Liberties Committee, which seemed like a misnomer given his role in the case against Terminiello. After unsuccessfully seeking a permi
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