Lincoln wouldn’t have liked Illinois Nazis, either

Some readers may remember the dispute which erupted in the 1970s when avowed Illinois Nazis sought to demonstrate in the Chicago suburb of Skokie, Illinois, a village inhabited by many Holocaust survivors. Other readers may remember that Illinois Nazis (based on the real ones) were the villains in the 1980 movie The Blues Brothers.

“I hate Illinois Nazis,” pronounces Blues Brothers protagonist “Joliet Jake” Blues (John Belushi) when he encounters the totalitarian apologists demonstrating on a bridge where a court – defending their First Amendment rights – has allowed them to demonstrate. Belushi shows what he thinks of the Illinois Nazis – and their rights – when he drives them off the bridge and into the river below, to the applause of anti-Nazi bystanders.

Would Abraham Lincoln have had a similar reaction (and  you were wondering what relevance this essay has to the Civil War! This will soon be made clear.)

Aryeh Neier was the executive director of the ACLU during the Skokie controversy, and on Neier’s watch the ACLU was responsible for winning multiple court victories affirming the First Amendment right of the Illinois Nazis to demonstrate in Skokie: uniforms, swastikas, and all (the Nazis ultimately agreed to demonstrate in Marquette Park in Chicago, rather than in Skokie). In 1979, Neier published his book Defending My Enemy: Skokie and the Legacy of Free Speech in America to vindicate his stance in the Skokie case. Neier himself escaped the Nazis as a child before coming to America. Despite this – or, he would argue, because of this – he defended the rights of extremists such as Illinois Nazis to exercise their First Amendment rights in the most offensive contexts. As a person to whom the Nazis would have been among  the first to single out for murder, Neier is all the more enamored of the virtues of a free country like the U. S. A., where civil liberties protect the people against Nazi-like oppressive governments.

The book was first published by E. P. Dutton in 1979, but in 2025 it was reissued in a 186-page edition by The  New Press. The main impetus for re-releasing the book was Nadine Strossen, herself a former ACLU president (but not a current ACLU spokesperson). The 2025 edition has an afterword by Strossen, a foreword by Eleanore Holmes Norton, and an extra chapter from Neier about Skokie’s legacy and modern threats to the First Amendment.

Neier defends a robust vision of free speech (with a few narrow exceptions), even going to the extent of protecting people (such as Illinois Nazis) who oppose the foundations of the republic itself. Punish such adversaries for any political violence, says Neier, but leave them free to advocate even the most intolerant doctrines. Otherwise, the government would be in the position of saying which doctrines were intolerant, often resulting in the censorship of good speech which the regime happens to describe as intolerant – meaning, in reality, speech which is inconvenient to the regime. Furthermore, the legitimacy of a democratic government is based on full public debate. If the government excludes certain viewpoints from discussion, then when the voters decide which candidates and policies to support, the voters will be acting on incomplete information. The consent of the governed would be lacking if citizens didn’t have the full information on which to make decisions about government policy. Thus, the First Amendment is essential to upholding a democratic government’s very legitimacy.

The reason for discussing Neier’s book in a Civil War blog is that Abraham Lincoln also faced issues involving the First Amendment rights of dissenters. Lincoln faced opponents who said that the Northern war-effort was wrong, and that the North should negotiate a compromise peace with the Confederacy. In a modern “hate speech” angle, there were also critics who opposed Lincoln because the president was fighting a war to free the slaves. Some of these opponents believed that the war should be fought solely on grounds of preserving “the Union as it was.” Other opponents believed that, due to the war’s antislavery nature, it should not be fought at all. These critics, needless to say, were not pacifists, but racists who simply did not believe that freedom for Black people was worth the cost in White lives. The advocates of a compromise peace – whom we know as “Copperheads” – wanted the compromise to be at the expense of Black people.

Other critics (or sometimes the same ones) denounced the Lincoln administration as corrupt, motivated by the desire to enrich its capitalist allies rather than promoting Union or humanitarianism.

Lincoln did not prosecute most of his critics, but he certainly prosecuted a lot of them. He suppressed antiwar newspapers, banished the antiwar politician Clement Vallandigham to the Confederacy, and locked up numerous opponents of the war (often without trial). Nor was Lincoln shy about defending this repression. To him, with the country facing the existential threat of a civil war, peacetime rights of free expression did not apply. Criticizing the war effort could undermine the war effort, and criticism could be particularly insidious while a draft was going on. How does one tell the difference between honest criticism of the war and attempts to obstruct the draft, since to draft-age men in the audience, the messages could sound similar? There is no way to improve on Lincoln’s eloquence: “Must I shoot a simple-minded soldier boy who deserts, while I must not touch a hair of a wiley agitator who induces him to desert?”

Neier would defend modern Supreme Court doctrine, that even if a speaker seems to be inciting violation of the law (including the draft law), the government shouldn’t censor him unless there’s no opportunity for “counterspeech” by supporters of the government position. So if someone like Vallandigham is arguing against the war to an audience including potential draftees, the solution is not to arrest Vallandigham, but to have a prowar speaker make the case for waging a war for Union and liberty (and for drafting young men to serve in that war).

Neier’s point about the First Amendment as a guarantor of the legitimacy of government policies seems to apply here (assuming we accept Neier’s argument). Lincoln and his supporters were arguing a position which was, shall we say, not universal. Before there can be any legitimacy to a war for the restoring the Union and freeing the slaves, the public needs to have the chance to hear the argument against such a war. Then, having heard both sides, the public would hopefully support Lincoln’s war aims.

These elevated free-speech arguments sound very bracing and optimistic. As a cynic, I wonder whether, had Neier lived during the Civil War, Lincoln would have taken the risk of making Neier the attorney general. Such an experiment (a hostile interpretation would be “co-opation”) would be similar to FDR appointing Francis Biddle, a lawyer who used to write briefs for the ACLU, as attorney general during the Second World War. Here is what I consider to be a very optimistic and positive-minded summary of Biddle’s career as attorney general. Even the article, though, admits that Biddle prosecuted some dissenters.

Looking at the issue from Lincoln’s viewpoint, he might think the case of the Illinois Nazis was an easy one. By the 1970s, the Americans had defeated the Nazis on the battlefield, and the swastika-wearing hoodlums would be about as persuasive to the general public in the 1970s as an unapologetic pro-British Tory would be in the world of the 1860s (if politicians paid attention to Toryism in the Civil War, it was to bend over backwards to avoid being accused of it themselves).

Lincoln’s concern about his opponents was that, unlike Illinois Nazis, they actually had a chance of prevailing, through a combination of First Amendment activity and more conspiratorial paramilitary activity.

What would a hypothetical Attorney General Neier think of that?