Aryeh Neier

Where Do You Draw the Line?

VTR Date: November 18, 1998

Guest: Neier, Aryeh


Host: Richard D. Heffner
Guest: Aryeh Neier
Title: Where Do You Draw The Line?
Recorded: 11/18/98

I’m Richard Heffner, your host on The Open Mind. And when my guest today joined me here not so long ago, we focused on his compelling and devastatingly graphic new Times book on war crimes and on the brutality, genocide and terrorism that even now seem to doom significant areas of the modern world and to undercut any meaningful struggle for justice.

Aryeh Neier is President of the Soros Foundation and its Open Society Institute. He had been Executive Director of both Human Rights Watch, which he helped found, and before that of the American Civil Liberties Union.

At the ACLU, though he had himself fled Nazi Germany as a child, my guest was known particularly for defending freedom of speech even for the American Nazis who sought to hold a provocatively anti-Semitic demonstration in the town of Skokie, Illinois, home to a large number of Jewish Holocaust survivors.

That was in the 1970’s and twenty years ago Mr. Neier wrote a splendid book about the Skokie case and about what must always be the risks of freedom. He called his book Defending My Enemy … while I’ve used as a title for our program today a question instead: namely, “Where Do You Draw The Line?”.

In a sense that question derives from what last time I thought I detected as even the very slightest bit of ambivalence when at the end of our time together I asked Mr. Neier not whether he’d do Skokie all over again today, but whether anything has changed for him over this past generation to modify at all his ACLU-era seemingly absolutist concerns about free speech for everyone, even our enemies who hate and would destroy us.

Indeed, let me start today with that question, particularly since even in Defending My Enemy I think I detect a willingness to entertain an alternative to freedom. Indeed, Mr. Neier wrote himself, “the alternative to freedom is power.
If I could be certain that I could wipe out Nazism and all comparable threats to my safety by the exercise of power, perhaps I would be tempted to choose that course”. And I want to ask my guest what he meant.

NEIER: Well, I suppose that one always fantasies that one could do things in a better way if one had the power. But ultimately I don’t think anybody ought to entrust me with power to a greater extent than I would trust anyone else with power. And therefore there have to be ways of limiting power. And I think freedom is essentially a way of exercising certain limits on, on power.

HEFFNER: But hasn’t it been demonstrated throughout history that that freedom, or the opportunity has led to the exercise, the malevolent exercise of power?

NEIER: Well, certainly those who gain power often use freedoms in order to achieve power. But I think that when we can hold them accountable, when we can limit them by checks and balances, then we can live with the exercise of power. It’s when power becomes absolute, when it isn’t controlled that the abuses are likely to take place and then we suffer from those abuses. So I think that it’s absolutely significant in any society to find ways of circumscribing the exercise of power.

HEFFNER: Would you have described yourself as I did as an absolutist back at the ACLU?

NEIER: Well, the word isn’t one I’m comfortable with. But if you ask the question first “would I defend the right of the Nazis to march in Skokie once again”, I would say “Yes”. If you asked me, “are there limits that I would place on freedom of speech?”. I think I would answer it that “so long as its speech that we’re talking about and it’s in the context of a society where speech is generally protected, I would not impose any limits”. You could define that as an absolutist position, but I’ve hedged very slightly in the way in which I come at my absolute position.

HEFFNER: But of course in your book, the one about Skokie, Defending My Enemy …


HEFFNER: You do indicate … let’s see … page 89 … you write about Houston. You said that in Houston there was a case …


HEFFNER: … that created a dispute within the ACLU itself. “In Houston a Nazi group had sponsored a recorded telephone message that told listeners, ‘We are beginning a battle by offering a $5,000 prize for every non-White killed during an attack on a White person’. It called for a race war ‘against Jews and other non-Whites’.” Your position at that time?

NEIER: I would not defend that from the standpoint of freedom of speech and that’s really why I said, “so long as it’s only speech”. The offer of a reward to those who would engage in violence comes too close to being a part of the violence that could take place. It’s something like the reward that the Iranian, or an Iranian foundation acting under the auspices of the Iranian government put up for the murder of Salman Rushdie. If Rushdie had been murdered as a result, one would have to say that the Iranian government was a party to the murder to Salmon Rushdie and at the moment that it put up the reward, it seemed to me that it was directly implicated in trying to, have the murder committed.

HEFFNER: Now, having drawn the line …


HEFFNER: … where you did in Houston, there were members of the ACLU who quit, who wouldn’t draw the line where you drew it.

NEIER: Well, I think that a lot of these cases are quite complicated and people feel very strongly about these issues. The ACLU, or at least the ACLU out at its best is about the defense of freedom of speech. And people who join the ACLU have very strong views and when they see the organization departing from their point of view, they will often make that known by resigning as members of the organization.

HEFFNER: Which happened at the time of Skokie.

NEIER: It certainly happened at the time of Skokie. Probably there were a larger number of resignations from the ACLU because of the defense of free speech for the Nazis at Skokie than over anything else that happened in the organization’s history, which is now some 78 years.

HEFFNER: Well, of course, you know I started asking you about that, this issue last time and press you now … not because I like to press people …

NEIER: MmmmHmmm.

HEFFNER: … but because I think we have so much to learn about this question. I know I do about whether changing times warrant … I was a member of the ACLU, I served on the National Board …

NEIER: MmmmHmmm.

HEFFNER: … wondered whether someone who was as, as firm in his beliefs as you have been has modified them any further and if you drew the line in Houston, not in Skokie …
NEIER: MmmmHmmm.

HEFFNER: … but in Houston, would you draw the line a little closer in today?

NEIER: I don’t think I would draw it closer in. But what I have learned since the days that I defended free speech for the Nazis at Skokie is that it’s very difficult to transplant the approach to freedom of speech that I took in the domestic context in the United States to other societies. And particularly to other societies where there is no freedom of speech. And then the question comes, “what happens in a society where freedom of speech generally does not prevail and someone comes along and is engaged in the dissemination of hate. And in circumstances of that sort, where the government tolerates the dissemination of hate, but does not generally respect freedom of speech, it gets to be a kind of governmental participation in the dissemination of hate, which gives it a different character than when a dissident group in the United States takes an extreme position. There’s no suggestion that the government is implicated in the point of view that is being expressed, and many other points of view can also be heard. And the circumstances, I think, require one to consider those examples in different ways.

HEFFNER: You say the circumstances …


HEFFNER: … between countries outside …


HEFFNER: … and our own country. And circumstances in this country, haven’t they changed in these years?

NEIER: Well, they’ve certainly changed but I’m not sure that they’ve changed in a manner that ought to make us less insistent on defending free speech for all. I would say that the circumstances today would not seem to me to require a different approach to the Nazis. I noticed recently that the ACLU has been involved in a case in Virginia involving a Nazi group. And it happens that the attorney who is defending free speech is a Black lawyer in Virginia. And I think that’s, that’s a very good thing, and it’s characteristic of the ACLU, and I’m glad they’re still doing it.

HEFFNER: If one moved outside, though, of the area of hate speech …

HEFFNER: … outside of the area of Nazism …

NEIER: MmmmHmmm.

HEFFNER: … has there been an opportunity for you, or the need for you to modify your thinking about absolutism?

NEIER: Well, I can think of one area where I have parted company with the ACLU over freedom of speech. And it’s an area where my successors at the ACLU would say they are holding to the line, they’re continuing to take the pure possession and they would probably say that I have departed from that position. I don’t agree. I, I consider it an instance in which the free speech arguments they make are not applicable. It’s the area of campaign finance. The ACLU was involved in, responsible for the Supreme Court’s decision, a quarter of a century ago, in a case called Buckley versus Valeo, it was the case which said there could not be limits on campaign spending because that would interfere with freedom of speech. The case said many other things as well, but I think it helped to pave the way for what I consider to be the really horrible situation the country has gotten into over campaign finance and I would no longer take the point of view that I did at that time. And I would like to see the Supreme Court reverse its decision in Buckley versus Valeo.

HEFFNER: What … what is the … what is the underlying change?

NEIER: Well, I think one has to look at the purposes of freedom of speech. Why do we value freedom of speech so much? And I think that there are a number of reasons. One of the reasons we value freedom of speech is because we have, and we believe in a democratic form of government. And a democratic form of government implies that people have a right to choose who their representatives will be in government. They have a right to influence their government officials to express their point of view. They engage in a constant dialogue with those who govern them. And it’s that dialogue that takes place both during an election in which they actually make choices and between elections when they make their point of view known that allows a democratic system to operate.

HEFFNER: Thus far that’s the ACLU position.

NEIER: Thus far, and that is my position as well.

HEFFNER: What happens then?

NEIER: Well, I think that we’ve gotten into a situation where the people who govern are so dependent on appeals to certain kinds of interests that can provide substantial funds that it has distorted our political system. And that there have to be certain kinds of limits that are imposed on expenditures on political campaigns which will, I think, help restore a lot of the democratic process which has been sacrificed to the system for raising campaign funds.

HEFFNER: But can’t we achieve what you want to achieve without entering the sacred precinct of free speech as measured by one’s economic resources?

NEIER: Well, the question is whether free speech and dollars can be completely equated. And I don’t think they can be completely equated. I wouldn’t limit anybody’s opportunity to speak, but I do think a campaign system, for example, which allows wealthy people to spend unlimited amounts of money on their own campaigns and effectively to buy elections or buy the right to be considered serious candidates, is not an example of free speech at work. I’m in favor of a public financing system, but a public financing system can only work if there are certain limits on campaign expenditures. Because you can’t keep taxing the public treasury to keep up with whatever anybody who is … who has unlimited wealth is willing to spend on a political campaign. So that puts me on the side of limits on, on expenditures in campaigns, limits on what candidates can spend in their own behalf, and in effect I’ve broken with the ACLU and I’ve broken with what they consider to be the pure position on freedom of speech.

HEFFNER: Have you also broken with what you, at one time, considered the pure position?

NEIER: I was the Executive Director of the ACLU at the time that Buckley versus Vallejo(???) took place. The Supreme Court decision wasn’t exactly what the ACLU had sought. The Supreme Court had its own approach to the issue, but basically I’ve, I’ve altered my view on that issue.

HEFFNER: So, when I ask, “where do you draw the line?” … the line is drawn differently now.

NEIER: The line is drawn differently. It is a question of what is speech? And I’m no longer willing to equate speech with expenditure to the degree to which I was a quarter of a century ago.

HEFFNER: Are you willing to equate speech with entertainment.

NEIER: I think entertainment can be one way that people engage in expression, certainly. For example, comedy or farce or satire are very important forms of speech.

HEFFNER; Well, of course, I’m leading to the question of regulation as it relates to the entertainment media …

HEFFNER: … that entertain us with violence, that entertain us with sexuality, that entertains us with many elements that a number of us feel …

NEIER: Well …

HEFFNER: … may undermine …

NEIER: … yeah, I’m not for prohibitions on violence or on sex in entertainment. I know of your own role in the ratings systems and I’m not opposed to ratings as a way of providing people notice as to the manner in which some one proposes to entertain them.

HEFFNER: But even in a time now when this material no longer appears in theaters that are separate from our homes but that pours into our homes with our children present, willy-nilly …

NEIER: Well …

HEFFNER: … an R rating doesn’t keep you out of your home.

NEIER: No, it doesn’t keep you out of your home, but it’s still the case that parents are responsible and should be responsible for bringing up their children and are in a position to, to control the kind of entertainment that their children are exposed to. Many parents are not willing to exercise the kind of control they could over their children, but I do think the decision-making should be that of parents and not of the State.

HEFFNER: Well, let’s say, let’s agree that the decision-making should be, if only it could be …


HEFFNER: … in the hands of the parents, but we do understand that in a latchkey children society, such as our own, what you’re describing and I would certainly second the motion of the desirability of parental control, doesn’t exist.

NEIER: Well, first of all I’m not sure that it’s such a problem as far as latchkey children are concerned. To my knowledge what’s available on the broadcast media during the hours that children may be home from school that parents have not yet returned from work, hasn’t really become a significant problem. The kind of programming that you’re talking about on television, as far as I know, is primarily available at nighttime, when parents do tend to be home and when they are in a better position to be able to control what their children see. Beyond that I have some difficulty with the idea that what is available on television ought to be determined on a sort of lowest common denominator basis. That is, that if certain things are not suitable for children, we ought to restrict adults from, from seeing those things. That doesn’t seem to me to be a sensible way to try to deal with an issue of that sort.

HEFFNER: That’s a very real and troubling problem. I remember when Newt Minnow became Chairman of the FCC under John Kennedy and the first thing he did was sit down and watch. And then talked about a “Vast Wasteland”. I’d like to find you some day the means of sitting down and watching before late night when parents are home to see what it is … what is on the air or comes through the Internet at all times, or what-have-you. But the question I was asking about latchkey children …


HEFFNER: … really relates to the willingness of parents to exercise what you want them to exercise, is presumably their ability to not permit their children to see things that they don’t think their children should see. We talked about changes in our society before. Don’t you think one of the changes has been that we’re not taking that kind of responsibility today?

NEIER: Well, I’m not sure that it’s … that we’re not taking that kind of responsibility. I do think that it is the case that many parents have circumstance which make it difficult for them to take that responsibility. We have an increasing number of single parent homes. We have predominantly homes where both parents work, and the typical school day … the nine to three o’clock school day doesn’t meet the economic realities of the present circumstances. It happens that in my Foundation capacity one of the major programs, in fact the largest expenditure we’re making in domestic programs in the United States is to try to develop after school programs for children precisely to address those hours of the day when parents are not in a position to deal with their children and we want to provide children with education, with artistic programs, with other things that will be stimulating to their minds and to their bodies during that period of the day and at the same time help parents to have a safe place for their children during that period of the day. But I think that the government ought to recognize it as a responsibility to deal with the part of the day that is not covered by, by schooling, which was a part of the day that didn’t have to be addressed to that extent in, in an earlier period.

HEFFNER: Marshall McLuhan wrote that every school kid knows that going to school is essentially a waste of time, that his education or her education takes place after school, and that probably must be true with a vengeance today. But I gather you, you still subscribe to the buyer-beware notion …


HEFFNER: … rather than the seller-beware …


HEFFNER: … notion. Do you …

NEIER: And ultimately there are certain beliefs that underlie that. Again I think that one has to exercise, or one has to provide limits on the power of the State. And I’ve not yet encountered the platonic guardians in whom I would entrust the, the power to determine what people can read, what people can see. They are going to mis-use that power. All human history teaches us that they’re going to mis-use that power. And, with all of the risks, with all of the harm that can be done, I think we’re better off by providing that there shall be no limits on what can be published, what can be broadcast.

HEFFNER: I can’t respond because we’ve reached the end of time. Thank you so much, Aryeh Neier for joining me today.

NEIER: Thank you.

HEFFNER: And thanks, too, to you in the audience. I hope you join us again next time. If you would like a transcript of today’s program, please send four dollars in check or money order to: The Open Mind, P. O. Box 7977, F.D.R. Station, New York, New York 10150.

Meanwhile, as an old friend used to say, “Good night and good luck”.

N.B. Every effort has been made to ensure the accuracy of this transcript. It may not, however, be a verbatim copy of the program.