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I read about the leading case National Socialist Party of America v. Village of Skokie and got curious about the legality of having a Nazi party in the US. The Wikipedia article on that party says it was dissolved in 1981, but it doesn't mention any aspects of its legality. There is another article that shows there are multiple nazi-oriented parties in the US (implying they are indeed legal), but can they promote a candidate and hold, if elected, some public office?

I think this could be asked on Politics SE as well. But I'm interested in the legal aspect.

2 Answers 2

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Given the First Amendment, no matter how offensive you find the views of some ideology, that viewpoint can legally be expressed in the form of a political party.

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  • So, no legal problems in a Nazi party member elected mayor?
    – sourcream
    Feb 9, 2022 at 1:10
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    @sourcream no. People can vote for whomever they want. The mayor would be unable to do certain things that one might imagine a Nazi mayor would want to do, but nothing prevents the mayor from being elected or from being a member of any party or other group. In addition to freedom of speech, the constitution guarantees freedom of association.
    – phoog
    Feb 9, 2022 at 9:25
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To elaborate on user6726's answer, no activities of a political party can be outlawed unless those activities would be illegal even without such membership; or unless those activities would be illegal even if the organization were not a political party.

What would be some examples of when such membership would be punishable by law?

So, for example, an "American Nazi" party would have been illegal during the period of WW2 (from the moment the war was declared until the surrender was signed) because of how treason is defined the US Constitution (article 3.3):

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.

As another example, if any organization (including a political party) were to overtly adopt a platform inciting violence, its members could be reasonably suspected of inciting violence and its leadership would be guilty of inciting violence.

There are some laws which allow for "hate speech" "enhancements" to sentences. Which means that if someone were to be found guilty of committing a violent crime, and it was shown that they engaged in hateful rhetoric, believed to be contributing to their motivation for that crime, then they would receive a harsher prison sentence.

If a "Nazi" party formally adopts a rhetorical platform, which a court agrees to view as hate speech, then a politician running on the platform of that party could potentially receive a harsher sentence if they are convicted of a violent crime or of inciting violence. But such a criminal conviction would have to come first, before sentencing would be even considered.

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    The third paragraph is incorrect. Read it in light of the correct first paragraph: forming or joining a Nazi party in the US during the war would not have constituted treason by itself; associating oneself with the party would only have constituted adhering to the enemy if the party had been associated with Germany; and arguably "adhering" is not a sufficient element of treason; there must also be aid and comfort.
    – phoog
    Feb 9, 2022 at 9:41
  • @phoog SCOTUS generally doesn't stop the government from doing whatever it wants during times of war, see Schreck and Korematsu. I agree with you that it shouldn't be forbidden, but I doubt SCOTUS would have stepped up for an American Nazi party or especially a Japanese-American Imperialist Party during WWII. And for what it's worth the 4th paragraph is wrong too, Brandenburg specifically found that merely general statements advocating violence aren't enough, the party would have to be advocating imminent violent action. Feb 9, 2022 at 16:42
  • @IllusiveBrian no, "imminent" is not a component of 18 U.S.C. § 373(a) -- solicitation to commit a crime of violence. "Advocating" is different from incitement/solicitation.
    – grovkin
    Feb 9, 2022 at 18:19
  • @grovkin Incitement to "imminent, lawless action" being the minimum standard to lose First Amendment protection is from Brandenburg v Ohio, so any conviction under that statute would have to conform to the Supreme Court precedent. My point is that any statement inciting violence under the standard isn't really a party platform since it would require specificity of time and place. In hindsight I'm probably splitting hairs though. Feb 9, 2022 at 19:31
  • @IllusiveBrian and the 4th paragraph says "if any organization (including a political party) were to overtly adopt a platform inciting violence," It doesn't say "advocating." And just because party platforms are often (or even usually) phrased in general terms, it doesn't mean that a party of nutcases couldn't break with that tradition and use a different technique. You made a very strong statement (that the 4th paragraph is wrong). But it's not. It would be if it were worded slightly differently. But it isn't.
    – grovkin
    Feb 9, 2022 at 20:31

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