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Even Antisemites Deserve Free Speech Nadine Strossen

Published

9 months ago

October 19, 2023

Police officers arrest a protester in Trafalgar Square during a march for Palestine in London on October 14, 2023. (Press Association via AP Images)

We are living through the most horrific moment for the Jewish people in this century. It is also an especially crucial moment for the future of free speech.

On October 7, Israelis were raped, tortured, kidnapped, and massacred by invading Hamas terrorists. It was an attack on Jews on a scale not seen since the Holocaust. Instead of attempting to hide evidence of their evil, as the Nazis did, the terrorists posted it on social media, reveling in their sadism.

In response, on many American campuses, individuals and groups leapt to defend not Israelis—but the atrocities. A coalition of more than 30 Harvard student organizations quickly released an open letter stating they “hold the Israeli regime entirely responsible for all unfolding violence.”

At Columbia University, tenured professor Joseph Massad wrote that Hamas’s barbarism was “awesome.” A Cornell history professor, Russell Rickford, said at a rally about the attacks, “It was exhilarating. It was energizing. . . . I was exhilarated.” (Rickford has since issued an apology.) At the University of Pennsylvania, students shouted, “Israel, Israel, you can’t hide: We charge you with genocide.”

At a pro-Hamas demonstration at the University of Washington, students chanted “There is only one solution,” while a Jewish student pleaded with administrators, “They want us dead. How are you allowing this?”

Imagine if, days after the murder of black worshippers in a Charleston church by a white supremacist, Proud Boys marched across campuses celebrating their deaths. It’s difficult to envision such a scenario, but were it to take place, administrators, professors, and students would undoubtedly be fervent in their moral condemnation.

So it is easy to appreciate the rage over today’s blatantly antisemitic rhetoric, particularly when our society wouldn’t tolerate, much less celebrate, similar expressions of delight after the brutal slaughter of other minorities. We feel that anger personally. But when it comes to calls to silence, fire, or even deport those who express such noxious views, we are also clear: we must resist it.

Both of us advocate for robust protections of free speech, subject to the sensible limits provided by the First Amendment. This is why we disagree with the recent call by Arkansas senator Tom Cotton to empower Homeland Security to deport any foreign national on our soil who expresses support for Hamas—particularly foreign nationals on student visas.

The senator’s proposal is both misguided and unconstitutional. Since as far back as the 1940s, the Supreme Court has held that anyone lawfully in the United States in any capacity, including as a student, has the same speech rights as a U.S. citizen.

Importantly, the First Amendment protects not just the right to speak, but the right to hear. Punishing noncitizen speakers violates not only their rights but the rights of citizens to hear their views—even the most morally repugnant. We know, for example, what that Cornell professor had to say, because some students attended the rally for the purpose of listening to Hamas supporters. They came away feeling that the remarks crossed a line.

So a question for now is whether the grotesque displays on campus in recent days constitute punishable intimidation or incitement.

First Amendment jurisprudence does not protect all speech. Tearing down posters in order to prevent others from seeing them, as some did at NYU, does not fall under its protections. And the government is empowered to restrict expression that has a tight and direct causal connection to specific harm.

This “emergency” standard was first laid out by Justice Louis Brandeis, the Court’s first Jewish justice. As he wrote in 1927, “To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. . . . Only an emergency can justify repression.”

Applying this standard, the modern court has unanimously protected even hateful, racist speech and advocacy of violence. Speech cannot be punished solely because its content or message is loathsome, even if it is vaguely feared to potentially contribute to harm. So the rallying cry, “There is only one solution,” as painful and morally abhorrent as it is, is protected.

The Court has recognized several context-based categories of speech that do satisfy the emergency principle, including intentional incitement to imminent violence. In addition, speakers may not issue “true threats”—speech that directly targets specific individuals with hateful, violent rhetoric, intending to instill a reasonable fear that the targeted individuals will be subject to violence. But these concepts are highly fact-specific, depending on all the circumstances in a particular situation.

Palestinian activist Aitak Barani is led away by police officers after her arrest. According to the police, she had previously made inciting remarks at an impromptu press conference. (Boris Roessler via Getty Images)

Perhaps today, however, given the nature of the threat to Jews around the world and in this country, we should consider empowering the government to depart from these time-tested principles, and, at the least, crack down on speech that calls for the genocide of Jews.

We don’t think so. As Jews and as free-speech advocates, we believe that as painful as it is to hear speech that calls for our elimination, we must resist the impulse to silence it. For an object lesson, look to Europe.

In Germany’s Weimar Republic, Nazis rose to power despite their speech and publications repeatedly being suppressed under multiple laws. In fact, many historians and commentators believe that far from muting the Nazis’ messages, this censorship brought them attention and sympathy.

Just as Germany’s Weimar-era restrictions did not avert Nazism or genocide, its current strict censorial regime is not preventing virulent, violent antisemitism, nor discrimination or violence against other minorities. The European Parliament has acknowledged that hate speech and hate crimes have been increasing in the European Union despite strong hate speech laws, which have been in force since at least the 1980s. Despite its positive intent, such censorship not only stifles democratic discourse; it also fails to suppress repugnant views.

In London, where thousands recently turned out to protest against Israel, Home Secretary Suella Braverman called for police to “use the full force of the law” against demonstrations supporting Hamas. One man was detained for waving a Palestinian flag and shouting “free Palestine.”

In France, all pro-Palestinian demonstrations have been prohibited. In Vienna, a protest was banned because invitations used the phrase calling for the elimination of Israel, “from the river to the sea.” (Protesters defied both bans.)

The record of enforcing hate speech laws, including in Europe, shows that such censorship is at best ineffective and at worst counterproductive in quelling discrimination and violence.

French anti riot police (CRS) arrest a protestor holding a placard During an unauthorized demonstration in support of Palestinians in Nantes, western France on October 18, 2023. (Sebastien Salom-Gomis via AP Images)

None of this means speakers are, or should be, free from the consequences of their expression.

Major donors to U.S. universities are beginning to insist that the places they care enough about to fund must care enough about Jews to warrant their funding. Jon Huntsman, David Magerman, and Marc Rowan said they are stopping their donations to the University of Pennsylvania after it hosted an event featuring notable antisemites, and for its failure to robustly denounce Hamas. “UPenn is not alone in allowing this culture of hate to become mainstream. It is true for universities across the country. And it’s long past time for donors to take notice,” Rowan wrote in The Free Press.

The revolt of the donor class may be a clarifying watershed event. Universities may allow themselves to be overrun with Jew-hatred, but no one has to donate to such institutions.

In response to the statement by the coalition of Harvard student groups blaming Israelis for their own murders, billionaire Harvard graduate Bill Ackman encouraged employers to consider the unsuitability of hiring students who publicly professed such views. When a student leader at New York University School of Law released a statement declaring, “Israel bears full responsibility for this tremendous loss of life,” the heads of the law firm that intended to hire the student were exercising their prerogatives when they withdrew the offer.

Employers have every legal and professional right not to hire those who support officially designated terrorist organizations.

But there are important countervailing considerations, which weigh against imposing such adverse consequences for noxious expression. For one thing, as UCLA law professor Eugene Volokh concludes, some state and local laws may “provide legal protection for employees’ political speech,” even speech viewed as “highly offensive.”

We should also consider the cultural effects of such retribution. People say ill-conceived, stupid, even evil things all the time. Should they all be cast out into the wilderness? Their livelihoods jeopardized? If so, for how long? It seems unlikely that young people who find their career prospects thwarted for expressing hateful views will be more likely to change their minds as a result of their public shaming.

As Brandeis wrote: “the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and. . . the fitting remedy for evil counsels is good ones.”

Employers and other powerful private actors, including social media platforms, should not impose disproportionately harsh, punitive consequences for ugly speech—particularly when goaded by sanctimonious mobs.

Even as we defend the Israel we love, we must also defend freedom for the speech we detest. Why? Because dialogue is better at defeating cruelty than silence. Discouraged as we may be about the power of such goodwill, history leaves us no doubt: censorship is guaranteed to fail.

Nadine Strossen is a Senior Fellow at the Foundation for Individual Rights and Expression (FIRE); a past national president of the American Civil Liberties Union; John Marshall Harlan II Professor of Law, Emerita, New York Law School; and the author of HATE: Why We Should Resist it With Free Speech, Not Censorship and Free Speech: What Everyone Needs to Know. She is also featured in the documentary series Free to Speak.

Pamela Paresky is a social psychologist who writes about antisemitism and illiberalism. She has taught at Johns Hopkins, the University of Chicago, and the United States Air Force Academy. Her work has appeared in The New York Times, The Jewish Journal, Politico, Sapir, and Psychology Today, among others. She is on X, formerly Twitter, @PamelaParesky.

The Free Press earns a commission from any purchases made through Bookshop.org links in this article.

Substacks

July 25, 2024 Heather Cox Richardson

Published

11 hours ago

July 26, 2024

Substacks

TGIF: The Week Unburdened by the Week That Has Been Suzy Weiss

Published

18 hours ago

July 26, 2024

Pro-Palestinian protesters gather outside of Union Station to protest Israeli prime minister Benjamin Netanyahu’s visit to the United States. (Probal Rashid via Getty Images)

Oh, no, it’s the sister again, for another slow news week. Let’s get to it.

→ Biden dropped out: Six years ago emotionally, but technically this past Sunday, Joe Biden dropped out of the presidential race. He did it via X and promptly threw his support (and cash) behind Vice President Kamala Harris. Then he got Covid and hunkered down in Delaware—or depending on what hooch you’ve been drinking, died and was reanimated so he could appear before the cameras on Wednesday to address the nation. Joe’s family, including Hunter, sat along the wall of the Oval Office as he spoke. The president talked about the cancer moonshot, ending the war in Gaza, putting the party over himself, and Kamala’s tenacity, as Kamala’s pistol dug ever-so-slightly harder into his back. Right after, Jill, the First Lady of passive aggression, who apparently wanted to outdo her heart emoji, tweeted a handwritten note “to those who never wavered, to those who refused to doubt, to those who always believed.” I respect a First Lady who stands by her man and her energetic stepson. A First Lady who sees the high road way up there and says to herself, “If they want us out of here so bad, they can clean out the fridge and strip the beds themselves!”

→ Kamala is brat, Biden is boots, please God send the asteroid today: I’ve learned the hard way—and by that I mean my parents once asked me what “WAP” meant—that certain things should never be explained with words. It’s not that it’s impossible, it’s just that it embarrasses everyone.

That’s how I feel about the whole Kamala-is-brat thing. Brat is a good album about partying and getting older and having anxiety that was released earlier this summer by Charli XCX. But it’s since been adopted by too-online and very young people as a personality, and by Kamala Harris’s campaign as a mode to relate to those very young people. Her campaign is leaning into the whole green look of the album to try and win over Gen Z, and generally recasting her many viral moments—“You think you just fell out of a coconut tree?” “I love Venn diagrams” “What can be, unburdened but what has been”—as calling cards. It’s like when Hillary went on Broad City, only this time more cringe.

And now we have Jake Tapper and Greg Gutfeld grappling with the “essence” and the “aesthetic” and overall vibe of brat girl summer. We used to be a serious country. We used to make things.

Here’s the thing about Kamla: she is hilarious and campy, but unintentionally so. Any goodwill that her goofy dances or weird turns of phrase garner should be considered bonus points, not game play. Was there ever any doubt that Fire Island would go blue? We’ve been debating whether Kamala’s meme campaign is a good move for her prospects in the Free Press Slack, and here I’ll borrow from my older and wiser colleague Peter Savodnik: “There is nothing more pathetic than an older person who cares what a younger person thinks is cool.”

→ Boomer behavior: While Kamala’s campaign is being run by a 24-year-old twink with an Adderall prescription, J.D. Vance’s speechwriter seems to be a drunk Boomer who just got kicked out of a 7-11. Vance, appearing this week at a rally in Middletown, Ohio, riffed, “Democrats say that it is racist to believe. . . well, they say it’s racist to do anything. I had a Diet Mountain Dew yesterday and one today, and I’m sure they’re going to call that racist too.” Crickets. Horror. Major “Thanks, Obama” energy. There was also a bit on fried bologna sandwiches and a lot of “lemme tell you another story.” The guy is 39 but sounds older than Biden.

Fresher, 35-to-60-year-old blood is exactly what we’ve been begging for. Let the Boomers boom, let the Zoomers zoom. Kamala and J.D.: act your age.

Substacks

July 25, 2024 Heather Cox Richardson

Published

22 hours ago

July 26, 2024

Momentum continues to build behind Vice President Kamala Harris to become the Democratic Party’s presidential nominee, and the national narrative as a whole has shifted.

Democrats appear to be generating significant enthusiasm among younger Americans. Yesterday, for the first time in their history, the March for Our Lives organization endorsed a presidential candidate: Kamala Harris. Students from the Marjory Stoneman Douglas High School in Parkland, Florida, organized March for Our Lives after the shooting there in 2018. Executive director Natalie Fall said that the organization “will work to mobilize young people across the country to support Vice President Harris and other down-ballot candidates, with a particular focus on the states and races where we can make up the margin of victory—in Arizona, New York, Michigan, and Florida.”

Andrea Hailey of Vote.org announced that in the 48 hours after President Biden said he would not accept the Democratic nomination, nearly 40,000 people registered to vote. That meant a daily increase in new registrations of almost 700%.

People are turning out for Harris in impressive numbers. In the hours after she launched her campaign, Win With Black Women rallied 44,000 Black women on Zoom and raised $1.6 million. On Monday, around 20,000 Black men rallied to raise $1.2 million. Tonight, challenged to “answer the call,” 164,000 white women joined an event that “broke Zoom” and raised more than $2 million and tens of thousands of new volunteers.

Another significant endorsement for Harris came yesterday from Geoff Duncan, the Republican former lieutenant governor of Georgia, who wrote on social media: “I’m committed to beating Donald Trump. The only vehicle left for me to do that with is the Democratic Party. If that requires me to vote for, speak for, or endorse [Kamala Harris] then count me in!” Duncan’s public announcement offers permission for other Georgia Republicans to make a similar shift. In 1964, South Carolina senator Strom Thurmond similarly paved the way for southern Democrats to vote for Republican presidential candidate Barry Goldwater.

Harris’s appearances are generating such enthusiasm from audiences that when she delivered the keynote address this morning at the convention of the American Federation of Teachers in Houston, Texas, the applause delayed her ability to begin. After a speech defending education and calling out the cuts to it in Project 2025, Harris ended by demonstrating that after decades of Democrats being accused of being anti-American, Trump’s denigration of the country has enabled the party to claim the position of being America’s defenders.

“When we vote, we make our voices heard,” Harris said. “So today, I ask you, AFT, are you ready to make your voices heard? Do we believe in freedom? Do we believe in opportunity? Do we believe in the promise of America? And are we ready to fight for it? And when we fight, we win! God bless you and God bless the United States of America.”

Today the Commerce Department reported that economic growth in the second quarter was higher than expected, coming in at 2.8%, thanks to higher spending driven by higher wages. The country’s changing momentum is showing in media stories hyping the booming economy Biden’s team tried for years to get traction on. “Full Employment is Joe Biden’s True Legacy” was the title of a story by Zachary Carter that appeared yesterday in Slate; CNN responded to today’s good economic news with an article by Bryan Mena titled: “The US economy is pulling off something historic.”

With Harris appearing to have sewn up the nomination, the question has turned to her vice presidential pick. That question is fueling the sense of excitement as potential choices are in front of cameras and on social media advocating Democratic positions and defending the United States from Trump’s denigration. Pennsylvania governor Josh Shapiro listed the economic gains of the past years, and said: “Trump, you’ve got to stop sh*t talking America. We’ve got to start standing tall and being patriotic and showing how much we love this amazing nation.”

The vice presidential hopefuls appear to be having some fun with showcasing their personalities, as Minnesota governor Tim Walz did in his video from the Minnesota State Fair where he and his daughter went on an extreme ride. So are social media users who have dug up old videos of, for example, Transportation Secretary Pete Buttigieg explaining how he would pilot a small starfighter that had lost its auxiliary shields, or Arizona senator Mark Kelly’s identical twin brother Scott pranking a fellow astronaut on the Space Station with a gorilla suit Mark smuggled on board.

That sense of fun is an enormous relief after years of political weight, and it has spilled over into making fun of the Republican ticket, most notably with a false story that vice presidential candidate J.D. Vance wrote about—and I cannot believe I am typing this—having sex with a couch. The story is stupid, but worse are the denials of it, which have spread the story into populations that otherwise would likely not have seen it.

Just two weeks ago, Vance appeared to be the leader of the next generation of extremist MAGA Republicans, but now that calculation seems to have been hasty. Vance is a staunch opponent of abortion—the key issue in 2024—and he has been vocal in his disdain of women who have not given birth, saying in 2021, for example, that the U.S. was being run by “a bunch of childless cat ladies who are miserable at their own lives and the choices that they’ve made and so they want to make the rest of the country miserable, too.” He went on to say that people who don’t have children “don’t really have a direct stake” in the country.

Republican commentator Meghan McCain noted that Vance’s “comments are activating women across all sides, including my most conservative Trump supporting friends. These comments have caused real pain and are just innately unchristian.” Actor Jennifer Aniston, who tends to stay out of politics, posted: “I truly can’t believe this is coming from a potential VP of The United States.” Vance had called out Harris by name in those 2021 comments, and Second Gentleman Doug Emhoff’s ex-wife Kerstin Emhoff took to social media to defend Harris from Vance’s attacks on her as “childless,” calling her “a co-parent with Doug and I. She is loving, nurturing, fiercely protective and always present. I love our blended family and am grateful to have her in it.” Harris’s stepdaughter chimed in: “I love my three parents.”

Vance also ties the Republican ticket firmly to Project 2025. The Trump camp has worked to distance itself from Project 2025—not convincingly, since the two are obviously closely tied, but it turns out that Vance wrote the introduction for a forthcoming book by Heritage Foundation president Kevin Roberts, who was the lead author of Project 2025. The book appears to popularize that plan, right down to its endorsement of a “Second American Revolution,” and according to the book deal report, proceeds from the book will go to the Heritage Foundation “and aligned nonprofits.”

Now Vance’s words praising Project 2025 will be in print, just in time for the election. Yesterday, Trump posted: “I have nothing to do with, and know nothing about, Project 25 [sic]. The fact that I do is merely disinformation put out by the Radical Left Democrat Thugs. Do not believe them!”

Trump is clearly aware of, and concerned about, the changing narrative. This morning, he called in to Fox & Friends, saying, “We don’t need the votes. I have so many votes. I’m in Florida now…and every house has a Trump-Vance sign on it. Every single house…. It’s amazing the spirit…. This election has more spirit than I’ve ever seen ever before.” Tonight the Trump campaign proved their worry by backing out of debates with Harris, saying debates can’t be scheduled until she is the official nominee, although Biden was not the official nominee when they met in June.

The larger narrative shift has affected the media approach to Trump, who is accustomed to shaping perceptions as he wishes. Now, 12 days after the mass shooting at his rally in Butler, Pennsylvania, there is increasing media attention to the fact that there has still been no medical report on Trump’s injuries, although he wore a large bandage on his ear at the Republican National Convention and said at a rally in Grand Rapids, Michigan, on Saturday that he “took a bullet for democracy.”

Yesterday, FBI director Christopher Wray told Congress that it is not clear whether Trump was “grazed” by a bullet or by shrapnel, words that former federal prosecutor Joyce Vance called “FBI speak for, ‘it’s unlikely it was a bullet.’”

CNN chief medical consultant Dr. Sanjay Gupta noted last week that the people need a real medical evaluation of Trump’s injuries, explaining that “gunshot blasts near the head can cause injuries that aren’t immediately noticeable, such as bleeding in or on the brain, damage to the inner ear or even psychological trauma.” But, as Josh Marshall at Talking Points Memo has noted, much of the press has kept mum about the story.

Media outlets have reported Wray’s testimony, though, and in a social media post today, Trump called on Wray, whom he appointed to head the FBI, to resign from his post for “LYING TO CONGRESS.” Tonight, he reiterated that “it was…a bullet that hit my ear, and hit it hard.”

Perhaps eager to get back to their districts, House Republicans canceled their expected votes on appropriations bills scheduled for next week and left town today for their August recess. The House will not reconvene until early September. The government’s fiscal year 2025 begins on October 1.

—

Notes:

https://www.nytimes.com/2024/07/24/opinion/trump-lies-charts-data.html

https://marchforourlives.org/in-a-first-ever-endorsement-march-for-our-lives-endorses-kamala-harris-for-president/

https://www.reuters.com/markets/us/us-economic-growth-regains-steam-second-quarter-inflation-slows-2024-07-25/

https://slate.com/news-and-politics/2024/07/biden-economy-employment-inflation.html

https://www.cnn.com/2024/07/25/entertainment/jennifer-aniston-jd-vance/index.html

https://www.cnn.com/2024/07/25/economy/us-economy-gdp-second-quarter/index.html

https://www.mediamatters.org/heritage-foundation/jd-vance-wrote-foreword-book-project-2025-architect-kevin-roberts-and-proceeds

https://www.newsweek.com/donald-trump-might-not-shot-1930037

https://people.com/was-trump-struck-by-bullet-or-shrapnel-fbi-director-testifies-8683340

https://www.msnbc.com/rachel-maddow-show/maddowblog/trump-wants-fbi-director-resign-immediately-chris-wray-rcna163641