KRYSTALNACHT

 On November 9-10 in 1938, state sanctioned gangs of nazi thugs broke the store windows of Jewish businesses in Germany and looted them (thus the phrase "the night of broken glass"). 30,000 Jews were rounded up and sent to concentration camps. Good German citizens looked the other way. 

In the 1950s and 1960s Jews marched with African Americans. Both groups had been marginalized by Americans. In Miami Beach it was common to see signs that read "No Blacks or Jews". Want to buy a home in certain parts of Miami? A house built in the 1940s in Bal Harbour will often have the restrictive covenant that the property could not be sold to a person with one quarter black blood or one eighth Jewish blood. It was more insidious to be Jewish than Black. 

Currently, while white hate groups gather force at the ever shrinking margins of American society, some African- Americans buy into the hate speech ideas that Jews have all the money and that Jews control Hollywood. African American athletes repeat such speech, spreading the type of hate their parents and grandparents suffered from. 

Speaking personally for a moment- something I rarely do on this blog- I never thought it could happen here in America. But now I am not so sure. We have the makings of another Krystalnacht right here. And that worries me. 

Speaking of racism, our own Judge Hirsch has a Constitutional Calendar that covers some of what we speak of:

   On the evening of November 10, 1919, Supreme Court Justices McKenna, Pitney, and Van Devanter paid an unexpected call at the home of their colleague Oliver Wendell Holmes.  The three justices had a good idea of what Holmes was planning to write in his impending dissent in Abrams v. United States, and they opposed it so strongly that they broke protocol and simply showed up on Holmes's doorstep.  (Mrs. Holmes may have been in on the plan.  Uncharacteristically, she joined the discussion, and joined the opposition to her husband's anticipated dissent.)

    The Abrams defendants were foreign-born Jews, pamphleteers who had urged American workers not to support American opposition to the Bolshevik revolution.  They had been convicted under the Espionage Act as it then existed, and sentenced to up to 20 years in prison.  Justice Holmes's three colleagues were concerned that an energetic defense of free speech from his pen would do far-reaching damage to the nation's safety.  (They also suspected that Holmes, who was philo-Semitic, was being influenced by Justice Brandeis and Professors Laski and Frankfurter.)

    Although the conversation remained cordial, Justice Holmes's reply to his colleagues came in his separate opinion in Abrams v. United States, 250 U.S. 616, 619 et. seq. (1919).  The opinion includes these excerpts:

”I do not doubt for a moment that by the same reasoning that would justify punishing persuasion to murder, the United States constitutionally may punish speech that produces or is intended to produce a clear and imminent danger that it will bring about forthwith certain substantive evils that the United States constitutionally may seek to prevent. The power undoubtedly is greater in time of war than in time of peace because war opens dangers that do not exist at other times.

“But as against dangers peculiar to war, as against others, the principle of the right to free speech is always the same. It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned. Congress certainly cannot forbid all effort to change the mind of the country. Now nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger that its opinions would hinder the success of the government arms or have any appreciable tendency to do so.”

    . . .

    “In this case sentences of twenty years imprisonment have been imposed for the publishing of two leaflets that I believe the defendants had as much right to publish as the Government has to publish the Constitution of the United States now vainly invoked by them. Even if I am technically wrong and enough can be squeezed from these poor and puny anonymities to turn the color of legal litmus paper; I will add, even if what I think the necessary intent were shown; the most nominal punishment seems to me all that possibly could be inflicted, unless the defendants are to be made to suffer not for what the indictment alleges but for the creed that they avow — a creed that I believe to be the creed of ignorance and immaturity when honestly held, as I see no reason to doubt that it was held here, but which, although made the subject of examination at the  trial, no one has a right even to consider in dealing with the charges before the Court.

    “Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care whole-heartedly for the result, or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.”