The First Amendment principles that apply to prior restraints are straightforward. While any effort to censor by punishing a speaker after the fact is likely to violate the First Amendment, preventing the speech ahead of time is even more likely to violate the Constitution, even where the anticipated speech is profoundly offensive and hateful. Central to the ACLU’s mission is the understanding that if the government can prevent lawful speech because it is offensive and hateful, then it can prevent any speech that it dislikes. In other words, the power to censor Nazis includes the power to censor protesters of all stripes and to prevent the press from publishing embarrassing facts and criticism that government officials label as “fake news.” Ironically, Skokie’s efforts to enjoin the Nazi demonstration replicated the efforts of Southern segregationist communities to enjoin civil rights marches led by Martin Luther King during the 1960s.
