The Holocaust Historiography Project

Court stays clear of fray over free speech, Holocaust history

Mon, 1 Jun 92 9:57:36 PDT

WASHINGTON (UPI) — The Supreme Court Monday let stand a decision that the city of Los Angeles and a number of private organizations can be sued for allegedly conspiring to ensure the cancellation of a scheduled speech by a "Holocaust revisionist."

The court, without comment, refused to entertain the delicate case pitting the First Amendment and contractual rights of the "revisionist" against the free speech rights of those who did not want his message espoused at a public event.

In 1984, David McCalden signed two contracts with the California Library Association to present an exhibit and separate program on his revisionist views at the CLA's 86th Annual Conference in Los Angeles.

McCalden believed the Nazi murder of millions of Jews in the 1930s and 1940s was a hoax.

One of his programs was entitled: "Free Speech and the Holocaust — An overview from several speakers of the severe censorship and intellectual terrorism which inhibits any objective, open discussion of this controversial subject."

Shortly after McCalden signed his contracts, the American Jewish Committee and others brought pressure on the CLA to cancel the contracts.

McCalden claims CLA representatives were told privately that if his contracts were not cancelled, the conference would be disrupted, property damaged and the CLA "wiped out."

The Los Angeles City Council, meanwhile, passed a unanimous resolution requesting that McCalden be removed from the program and severing the city's participation in the program.

And the director of the CLA was told by Los Angeles Police that he had received death threats, and that it would not be able to provide adequate police protection during the conference.

To add to the pressure, the Simon Wiesenthal Center for Holocaust Studies allegedly was allowed to rent a conference room adjacent to that from which McCalden was scheduled to speak, purportedly to disrupt the program.

The CLA eventually cancelled its contracts with McCalden prior to the conference.

McCalden sued, claiming the city, the Wiesenthal Center and others illegally conspired to deprive him of his First Amendment free speech rights through "extortionate threats."

McCalden contends that by privately threatening the CLA with property damage and violence, and then offering to remove the threat if the contracts were canceled, the groups broke the law.

A federal district court threw out the suit, but a three-judge panel of the 9th U.S. Circuit Court of Appeals, in a 2-1 ruling, said McCalden could pursue the charges.

The entire 9th Circuit later rejected a request that it hear the case, with five judges dissenting.

Los Angeles and the Wiesenthal Center claim the 9th Circuit is allowing a lawsuit to proceed against them simply because they expressed their views.

McCalden's wife, who has pursued the suit since her husband's death, said that while groups are entitled to boycott or express disagreement with a conference program, they are not free under the First Amendment to threaten violence in private conversations.

"There is no First Amendment right to intimidate by threats of violence or to magnify threats of violence by refusing to provide police protection," attorneys for McCalden wrote the high court. "Nor is there a First Amendment right intentionally to organize a violent demonstration or to plan disruption of a conference to prevent someone from speaking."

McCalden's opponents asked the high court to take the case and decide whether political and religious organizations can be sued for threatening a counter demonstration that does not constitute "incitement to imminent lawless action."

The Anti-Defamation League, joined by a diverse group including the National Association of Evangelicals in a friend-of-the-court brief, said the case centers on "exactly what speech interfering with contractual relations is protected by the First Amendment."