HE WAS A Massachusetts liberal of the old school, a patriot who joined the Army after graduating from Melrose High School in 1947 and a believer in individual freedom who protested against racial segregation in the 1950s. He put himself through law school, then gradually built up a legal practice. In those early decades, when he was representing clients in personal injury or family law disputes, it surely never occurred to him that he would play a key role in the history of First Amendment jurisprudence.
The case that made Chester Darling's reputation was a 1995 Supreme Court landmark, Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston. He represented the South Boston Allied War Veterans Council, the longtime organizers of the city's St. Patrick's Day parade. The council had turned down an Irish gay-pride organization, known by its acronym GLIB, that wanted to carry a banner celebrating their Irish heritage as gay, lesbian, and bisexual individuals. GLIB sued, arguing that the parade's organizers had no right to exclude them.
Darling argued that the parade's organizers had every right to exclude GLIB — or anyone else whose message they didn't favor. For a long while, he appeared to be the only one saying so. Massachusetts courts up to and including the Supreme Judicial Court, ruled in GLIB's favor, repeatedly holding that under the state antidiscrimination law, the parade could not exclude anyone on account of sexual orientation. Darling maintained that his clients weren't excluding anyone on the basis of a personal characteristic — it was only GLIB's message they wanted to block.
So strongly did Darling believe in the correctness of his client's position that he tapped his own retirement savings to help defray the cost of an appeal to the US Supreme Court, which agreed to consider an appeal from the SJC ruling. When the oral argument took place on April 25, 1995, I was in the Supreme Court to see it.
 Chester Darling argued a landmark First Amendment case before the US Supreme Court and won a 9-0 victory. |
By then I had gotten to know Darling a little. He was clearly nervous and his presentation wasn't especially eloquent or polished. But he doggedly pressed a single point: The organizers of a private parade have carte blanche under the First Amendment to include or exclude any message they wish.
He came in for some tough questioning.
"Mr. Darling, I understood your brief to say this is your parade and you can do with it what you will," Justice Ruth Bader Ginsburg challenged him. "That's the essence of your argument? It's your parade to make it do whatever you want it to do?"
His replied unhesitatingly.
"That's correct, Justice Ginsburg," he said. "My clients define the scope and content of the parade. They vote to include or exclude people and groups with messages that they approve of in their parade."
Suppose, asked Justice Stephen Breyer, "their actual reason was that the sign calls attention to a fact that makes them feel uncomfortable" — in other words, they simply didn't want to see any reference to homosexuality. "Where does that stand under First Amendment law?"
Darling stuck to the principle he wanted the court to endorse. "My clients can exclude it. They can exclude any message in any parade that they deem inappropriate."
Two months later, the court unanimously agreed with him. All nine justices concluded that Massachusetts had been wrong. Fundamental to "the principle of free speech is that one who chooses to speak may also decide what not to say," wrote Justice David Souter and Massachusetts "is not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one." (It was not the last time that the Supreme Court would rebuke Boston and Massachusetts, 9-0, for abusing the law to suppress unpopular expression.)
The parade controversy wasn't the only unpopular cause into which Darling threw himself. To mention one other example: In 2010, the Boston City Council voted to expel one of its members, Chuck Turner, after he was sent to prison on a federal bribery conviction. Turner was as liberal as the Saint Patrick's Day parade organizers were conservative. But that made no difference to Darling, who represented Turner and argued that the City Council has no power to expel a member. Once again Darling was arguing against popular opinion and the political establishment. Once again he prevailed.
Throughout his legal career, Darling told the Globe's Sacha Pfeiffer when encroaching blindness forced him to retire, he had been animated by a deep aversion to government intrusion into people's lives and by a concern for "people who get squashed by the system." A client once likened him to St. Jude, the patron saint of hopeless causes. Some of the battles he waged did indeed prove hopeless. But in my encounters with him, Chet Darling, who passed away this month at 94, was invariably upbeat, bighearted, and optimistic. He was not only a happy warrior but a principled one. Cover lightly, gentle earth.
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Holland's political bombshell
As Americans prepared for Thanksgiving last week, voters in the Netherlands were turning their country's politics inside out. In elections on Nov. 22, they awarded 37 of Parliament's 150 seats to the Party for Freedom, or PVV, led by Geert Wilders. In Dutch terms, that is a landslide and no one saw it coming. Wilders now controls the largest faction in parliament. He may or may not become the country's next prime minister — that will depend on who can assemble a governing coalition, which may take months to sort out — but there is no denying that voters have draped him with considerably more influence than he has had since rising to prominence in 2006 as one of Europe's first outspoken anti-Muslim populists.
Wilders is an odd political hybrid. His economic views are generally libertarian and free-market oriented; he is a strong supporter of gender equality and gay rights; and he admires Israel, a country he has visited dozens of times. He considers himself a right-of-center liberal, cites Winston Churchill and Margaret Thatcher as role models, and is adamant that he will "never join up with the fascists."
 Geert Wilders, leader of the Party for Freedom, known as PVV, won a plurality of votes in the Dutch general elections on November 22. |
Yet he has also been conspicuously friendly toward Russian dictator Vladimir Putin and has in the past denounced European "Russophobia." The PVV's campaign platform does call Russia's invasion of Ukraine "illegitimate." But it expresses no support for anti-Moscow sanctions and Wilders was one of just three politicians who declined to attend when Ukrainian President Volodymyr Zelensky visited the Dutch Parliament in May. Perhaps that explains why Putin's propagandists were quick to cheer his victory.
Above all, however, Wilders is utterly illiberal and intolerant on the subject of Islam. He has called for closing all immigration to the Netherlands from Muslim countries, and wants to ban the Koran, mosques, and Islamic schools. During the campaign just ended, Wilders downplayed such rhetoric and said he is willing to put his anti-Muslim policies "in the refrigerator" in order to join the government. But his views on the subject are hardly a secret.
It is true that European elites have been unwilling to seriously crack down on radical Islamism on their continent, even in the wake of multiple terrorist atrocities in which hundreds have been killed. But Wilders makes no distinction between Islam the religion and Islamism the tyrannical political movement, nor between Muslims who are peaceful and moderate and those who are hostile and dangerous. In 2008 he released "Fitna," a short, graphic, intensely controversial film about the Koran and jihadist violence. In response, Al-Qaeda issued a fatwa calling for Wilders to be assassinated, while a Dutch court simultaneously ordered his prosecution for religious incitement. (He was eventually acquitted).
I met Wilders soon after the furor generated by the release of his film. In an interview, I pressed him on his views about Islam. An excerpt:
Q: You say: "I don't hate Muslims; I hate Islam." Is there really any difference?
A: I have nothing against the people. I don't hate Muslims. But Islam is a totalitarian ideology. It rules every aspect of life — economics, family law, whatever. It has religious symbols, it has a God, it has a book — but it's not a religion. It can be compared with totalitarian ideologies like Communism or fascism. There is no country where Islam is dominant where you have a real democracy, a real separation between church and state. Islam is totally contrary to our values.
Q: What do you say to scholars of Islam like Daniel Pipes, who argues that radical Islam is the problem and moderate Islam is the solution. Here's a quote: "Islam is subject to a number of interpretations. . . . The terroristic jihad against the West is one reading of Islam, but it is not the eternal essence of Islam." Why should one accept what Geert Wilders says about Islam, rather than someone like Pipes?
A: I respect Daniel Pipes, but I fully disagree. There is no moderate Islam. It's like the [prime minister] of Turkey, Mr. Erdogan, said himself recently: There is only one taste of Islam, and that is the taste of the Koran.
Q: But he's an Islamist. You would expect him to say that. What about anti-Islamist Muslims, Muslims who reject the radicals?
A: Listen, the Koran is seen by Muslims, unlike all the other religions, as the word of God that can never be criticized. If you criticize the Koran, you are a renegade, an apostate. There are people who are moderate and call themselves Muslim. But moderate Islam is totally nonexistent. It will never have an Enlightenment as happened with Christianity.
Q: Why not?
A: Because unlike the interpretations of other holy books, Muslims believe that the Koran is the word of God and can never be changed.
Q: Hold on — the New Testament today is the same New Testament as a thousand years ago. What's different is the way that book is read and understood. A thousand years ago, one could have said Christianity was a violent, militant religion; today one wouldn't.
A: Yes, there was a change in Christianity. It was possible because Christians don't believe that the Bible is literally the word of God — not like the Koran. If you really believe that [the Koran] is the word of God, it will never have room to change.
Q: But why couldn't there be a movement within Islam that would say, "Yes, the Koran says X, Y, and Z, and it has been interpreted violently by violent people, but we give it a different interpretation."
A: Then they are not Muslims anymore.
Q: How do you decide whether they are Muslims anymore?
A: I am not deciding. It's the Koran that's saying it.
Q: What Christians did at the time of the Inquisition was what Christianity was then; Christianity today has become something different.
A: Your premises are totally wrong. Islam is not a religion. Islam is an ideology. You keep comparing it to Christianity, Judaism. It's not. It's an ideology that wants to dominate every aspect of society. I know billions of people believe it's a religion. I don't.
Q: Is there any difference in your view between Islam and Islamism?
A: Islam and Islamism, it's exactly the same.
Wilders's views on the subject appear not to have changed since then and it's a pity that someone with such obvious political talents and the courage to challenge the received wisdom of the European establishment should be so blinded by bigotry on this topic. His claim that Islam and Islamism are "exactly the same" and that moderate Islam is "totally nonexistent" is simply false.
Like every great faith, Islam is what its adherents make of it. Many of those adherents today are influenced by Islamism, the fascist version of the religion reflected in the brutal misogyny of the Taliban, the apocalyptic hostility of the Iranian regime, and the grisly terrorism of Hamas. But countless millions of Muslims are peaceable and tolerant and repelled by violent jihadists, and always have been.
Radical Islam — not Islam itself — is the menace that Europe and the West must defeat. In that battle, the most invaluable allies are moderate Muslims. By refusing to acknowledge that such people exist, Wilders undermines the very cause he champions. Islam-bashing may be good populist politics, as the latest Dutch election results suggest. But ultimately it helps no one but the Islamists.
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Jews survive. Is that a problem?
The volcano of antisemitism unleashed by the Oct. 7 Hamas terrorist pogrom is not subsiding.
On dozens of elite college campuses, Jewish students have been taunted, threatened, cursed, and even assaulted. In a Queens, N.Y., high school last week, a veteran teacher had to barricade herself in a locked office for two hours as a rampaging mob of screaming teens came after her for posting a picture of herself on Facebook attending a pro-Israel rally. At the Los Angeles home of the president of the American Israel Public Affairs Committee on Thanksgiving, protesters unfurled a banner reading "F--k your holiday baby killer," while vandals ignited smoke bombs and threw red paint onto his property. In Montreal, two Jewish schools were hit by gunfire and a synagogue and community center were firebombed.
In the words of Boston Red Sox Hall of Famer Kevin Youkilis, "The amount of hatred being shown toward Jewish people is astronomical."
Amid this ongoing wave of antisemitic hatred, intimidation, and violence, The Orange County Register thought it would be a good idea to throw shade at "Am Yisrael Chai" — a Hebrew phrase that means "the people of Israel live."
On Nov. 15 the paper headlined a story "Why chants like 'Free Palestine,' 'Am Yisrael Chai' and 'From the river to the sea' are divisive." It would be hard to improve on such a perfect demonstration of clueless bothsidesism. As "Sesame Street" might put it, one of those three is not like the others. In fact it is so utterly unlike the others that to yoke them together in a newspaper story is moral and journalistic malpractice.
There is nothing remotely "divisive" about the words "Am Yisrael Chai" or the sentiment they express. They do not imply the extermination of another nation — unlike "From the River to the Sea," an antisemitic chant routinely used by those who seek Israel's destruction. Nor are they chanted by people reveling in terrorist atrocities or threatening Jews — unlike "Free, Free Palestine." The phrase is used by Jews, Israelis, and their allies as a statement of faith and gratitude for the survival of the tiny Jewish people against history's steepest and most crushing odds.
Thus Britain's Prime Minister Rishi Sunak, addressing British Jews in the wake of the Oct. 7 slaughter, ended his remarks by promising to stand with them "not just today, not just tomorrow, but always. Am Yisrael Chai." Senate Democratic Leader Chuck Schumer tweeted last month: "Am Yisrael Chai! The people of Israel live, and America stands in solidarity with them."
Jews chant or sing "Am Yisrael Chai" because for 33 centuries genocidal villains have repeatedly sought to wipe out the Jewish nation. Again and again — from Haman to Hitler to Hamas — fanatical antisemites have tried everything to ensure that the people of Israel should not live. At a time when Israel confronts an enemy whose charter expressly calls for serving Allah by "killing the Jews," the Jewish people proclaim to themselves and the world: "Am Yisrael Chai."
The phrase came into use following the Holocaust. After the Allies liberated the Bergen-Belsen concentration camp in 1945, a Friday night Shabbat service was organized for the emaciated and tortured Jewish survivors. The service ended with the singing of "Hatikvah" — the Zionist anthem — and as the last notes ended, a Jewish army chaplain cried out: "Am Yisrael Chai!"
Decades later, during the movement to rescue Soviet refuseniks, the simple, moving words were put to music by the Jewish troubadour Shlomo Carlebach. "The song swiftly made its way around the Jewish world — including into the USSR," the former Soviet Jewry activist Glenn Richter told The Forward. By now it has become a worldwide Jewish hymn; it is invariably invoked when Jews are in danger. As a college student many years ago, finding myself in the midst of a group of strutting, chanting neo-Nazis, I instinctively responded by singing "Am Yisrael Chai" at the top of my lungs. (I told the story in this Twitter (now X) thread six years ago.)
The Orange County Register is dead wrong. Except to antisemites, the words "Am Yisrael Chai" are not in the least "divisive." They are uplifting and inspiring and reassuring.
And true.
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What I Wrote Then
25 years ago on the op-ed page
From "Inmates on death row are more likely to walk than die," Nov. 30, 1998:
No aspect of US criminal law is as relentless and obsessive as the search for grounds to set aside a death sentence. In the past quarter-century, fewer than 500 death row inmates have been executed, while more than 2,000 have had their sentences vacated. A prisoner under sentence of death is much less likely to die than to have his conviction overturned (often on a technicality), his sentence commuted, a new trial ordered, or a pardon granted. Vast amounts of time, money, and judicial attention are spent on efforts to save death row inmates.
In short, of all the punishments meted out to American criminals, none is less arbitrary and capricious than the death penalty.
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The Last Line
"I be down directly." — Lorraine Hansberry, A Raisin in the Sun (1959)
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(Jeff Jacoby is a columnist for The Boston Globe).
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