Aryan March Has Solid Legal Footing

How do you craft a law that allows the Kiddie Parade, prevents the Aryan Nations march, and doesn’t violate the First Amendment?

There’s no way, many constitutional law experts say. They say it’s a waste of time and money to try.

Earlier this month, Coeur d’Alene accepted an offer from businessman Duane Hagadone to help pay a Seattle attorney to rewrite the city’s parade ordinance. The decision stems from Hagadone’s disappointment that the Aryans were allowed to march through downtown last summer.

David Burman, of the Perkins-Coie law firm, isn’t commenting on the specifics of his work.

“I don’t think (the city) would do it unless they think there is a chance it would be valuable,” Burman said.

Many attorneys disagree.

“This has been litigated over and over again and it’s always lost,” said David Goldberg, who represented the Nationalist Socialist Party of America in its fight to march in Skokie, Ill., in the 1970s. “You would have to amend the First Amendment and I don’t think they have the horses to do it.”

Now a professor of constitutional law at Ohio State University, Goldberg said he’s seen every conceivable attempt at restricting neo-Nazi marches in his career. “If it’s a peaceable march, there’s no way on earth you can stop it.”

Goldberg was at the center of one of the most famous attempts to halt a neo-Nazi march when he worked as an attorney for the American Civil Liberties Union. In April 1977, the Nationalist Socialist Party of America, also called the Nazi party, announced 50 members in storm trooper attire would picket city hall in the Chicago suburb of Skokie. They were protesting Skokie’s refusal to allow a Nazi assembly in a public park.

More than half of Skokie’s 80,000 residents were Jewish and 5,000 of them were concentration camp survivors. Skokie city government sued the Nazis to stop the protest, arguing such a march was “akin to pornography, obscenity, and fighting words,” according to the Brooklyn Law Review. Crowd control might be impossible, it added.

A Chicago court ruled the parade could go forward, but only if the Nazis didn’t wear uniforms, display swastikas or hand out literature promoting hatred of Jews.

Legal jousting led to the Illinois Supreme Court, which denied the Nazis’ request for an expedited decision. The U.S. Supreme Court instead told the Illinois high court to get moving.

A blizzard of complications followed. The Anti-Defamation League sued, charging the Nazi march would inflict undue emotional harm on Skokie’s Jewish World War II survivors.

Skokie passed three ordinances, requiring $300,000 liability insurance for the parade, prohibiting demonstrators from wearing military-style uniforms and prohibiting the distribution of hate literature.

The ACLU filed a third suit, challenging those ordinances.

The Illinois Supreme Court threw out Skokie’s suit against the Nazis, dismissed the Anti-Defamation League’s suit and voided Skokie’s new ordinances. A federal appeals court agreed, ending the fight.

And so the march went on.

But not without provoking the landmark court ruling, which makes Coeur d’Alene’s effort that much more challenging.

“The Skokie decision is still good law,” said Mary Patricia Treuthart, constitutional law professor at Gonzaga University. “We’ve been having some discussions about that at school…everyone’s very anxious to see what the expert comes up with.”

Even civil libertarians appreciate Coeur d’Alene’s plight - the high cost of providing security for the Aryans, the unwanted national attention, Treuthart said. Some believe the courts are beginning to reconsider hate-related issues.

Still, “I’m rather skeptical because basically what we are talking about, a street, is a traditional public forum,” Treuthart said. “If a state or municipality is going to limit people’s rights in that setting, there has to be a pretty compelling reason for doing so.”

Larry Hildes, the attorney representing five people arrested while protesting last summer’s Aryan Nations Parade, said he believes Coeur d’Alene has those compelling reasons.

Allowing the Aryan Nations to march “sends a message that discrimination based on race, sexual orientation, religion and anything else you can find that the Nazis will kill people for is all right,” Hildes said.

Beyond that, Coeur d’Alene legally can decide where the parade will be held, Hildes said. “There are a number of places you can put them where they don’t take over the town.”

Not reacting is the smartest way to deal with such parades, said Jay Miller, executive director of the Illinois ACLU. Miller watched Aryan marches in the Chicago-area in the 1960s.

There’s no way to write laws preventing such marches, he said. “Believe me, they’d have figured it out before this.”

Fighting the Nazi march attracts more attention to Coeur d’Alene. “One of the reasons (Coeur d’Alene) probably attracted so many protesters is because they stalled it and fought it,” Miller said.

Hildes said fighting this battle is good for the Lake City.

“Even if they lose, Coeur d’Alene sends a very different message,” Hildes said. “Intended or not, last year it was `We are going to get out of the way, let the Aryan Nations take over the town and arrest anyone who vociferously protests them.’

“The message that sends is they have official support.”

This sidebar appeared with the story: CDA’S ATTORNEY HAS STELLAR BACKGROUND David Burman, 46, has been hired by Coeur d’Alene to revamp its parade ordinance because of last summer’s Aryan Nations parade. Half of his $40,000 fee is being paid by Coeur d’Alene resort and media tycoon Duane Hagadone. Burman’s constitutional law credentials are excellent, according to attorneys who have seen him practice. He was a clerk for U.S. Supreme Court Justice Byron White in the late 1970s and then joined Perkins-Coie in Seattle. He ran the firm’s general litigation practice from 1991 until late last year. Perkins-Coie has 400 attorneys in four states, Washington, D.C., Taiwan and Hong Kong. While Perkins-Coie often does legal work for Hagadone, Burman has not been assigned any of Hagadone’s previous cases. Burman represented the American Civil Liberties Union in its successful effort to overturn term limits for state officials in Washington. He is currently defending a constitutional challenge by the conservative Washington Legal Foundation to the way legal aid is funded in Washington. Burman is also defending the University of Washington law school in a reverse discrimination case filed by a prospective student - a white woman. He was on the losing side of a challenge to Washington’s physician-assisted suicide law at the U.S. Supreme Court. The attorney also does First Amendment work, representing the Everett Herald. He helped establish the reporter’s privilege to not testify in criminal trials. - Ken Olsen