Former House Speaker Newt Gingrich, in arguing against the proposed mosque near the World Trade Center site on Monday, noted that “Nazis don’t have the right to put up a sign next to the Holocaust museum in Washington.” Since then, Gingrich has been under fire for equating Muslims with Nazis. Is he right on the law?
No. The overriding principle in free speech law is that any restriction on, say, putting up a sign should be viewpoint-neutral. In other words, the government can’t silence a speaker based on the content of his message without a really, really good reason. (There are a handful of exceptions, like obscenity and defamation, but none of them apply here.) If a well-funded group of anti-Semites wanted to set up a reading room where young Nazis could gather to contemplate Mein Kampf and sip ice-cold Fanta, Uncle Sam couldn’t stop them, even if their plot were located two blocks from the Holocaust museum.
Gingrich seems to be making the same argument that the village of Skokie, Ill., made in 1978, when a small group of Nazis sought to hold a rally in a city park. At the time, Skokie had the largest Jewish population per capita in America and was home to about 1,000 Holocaust survivors. After a series of attempts by the town to prevent the protest, the 7th Circuit Court of Appeals ruled that the Nazis had the right to march. Even though the rally never actually happened, the decision is now considered a landmark in First Amendment law.
The government does have some limited powers to regulate expression. Reasonable restrictions on the time, place, and manner of speech are constitutional, so long as they don’t discriminate based on viewpoint. Buildings and signs are subject to zoning laws, for example. The District of Columbia could probably pass an ordinance limiting the size of signs in the southwest quadrant of the city, or they might cap the volume of protests after a certain hour. They might even get away with banning demonstrations in front of museums because of traffic concerns. But those restrictions would have to apply to everyone, not just Nazis.
There is one complication here. The U.S. Holocaust Memorial Museum, and all the adjacent buildings, are on government property. While the law can’t discriminate against private speakers based on their views, the government has its own free speech rights. Uncle Sam can say almost anything he wants on public property and may adopt the views of some people and reject those of others. So, on a very technical level, Gingrich is right that we’ll never see a permanent Nazi sign erected next to the Holocaust museum, since the government would be unlikely to allow it. (None of this applies to the proposed mosque in New York, which is to be built on private land.)
The issue of distasteful speech in particularly sensitive areas happens to be pending before the Supreme Court right now. In Snyder v. Phelps, the court will decide whether protesters can be held liable for hurling epithets at the family of a fallen soldier during his funeral. Most First Amendment scholars believe the justices will side with the protesters, because they have previously decided that preventing feelings of offense isn’t a good enough reason to limit speech.
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Explainer thanks Jack Balkin of Yale Law School, Erwin Chemerinsky of UC-Irvine’s School of Law, Geoffrey R. Stone of the University of Chicago Law School, and Eugene Volokh of UCLA’s School of Law.
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