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Even Antisemites Deserve Free Speech Nadine Strossen

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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.

 

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TGIF: WWIII May Come Tomorrow, But. . . Nellie Bowles

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Google employees protesting at the office. They were later fired. (Via X)

Welcome back. World War III watch over here continues. The Axis of Resistance seemed ready to kick off a major war, but then our Ayatollah stood down. The Houthi Youth at Columbia University camped out in solidarity, but the rebellion was short. Then, at press time, Israel struck back against Iran, so World War Watch resumed. You know what helps my stress? A good book. This one, by your faithful soldier, is out May 14.

→ Trump’s Gettysburg Address: Before Trump hit the campaign trail, I’d forgotten a little what he sounds like. In the amber of my mind, he was just “MAGA” and “Shithole countries” on a loop. Now, thanks to a campaign speech Saturday in Schnecksville, PA, we are back in the game with the craziest American orator who’s ever been in the game. The topic was Gettysburg. And our former president gave an impromptu slam poetry interpretation that left me snapping. 

Gettysburg, what an unbelievable battle that was. I mean, it was so much and so interesting and so vicious and horrible and so beautiful in so many different ways. It represented such a big portion of the success of this country. Gettysburg, wow. I go to Gettysburg, Pennsylvania, to look and to watch. And the statement of Robert E. Lee—who’s no longer in favor—did you ever notice that? He’s no longer in favor. “Never fight uphill, me boys, never fight uphill.” They were fighting uphill. He said, “Wow, that was a big mistake.” He lost his great general. They were fighting, “Never fight uphill, me boys,” but it was too late.

Vicious and horrible and beautiful. And the sun that blazes over the October sky. Who will watch the watcher? Who will sing the song of the lonely? Check out my self-published novel in the back, Trump says. 

→ Biden continues paying off successful young voters: Sorry, I mean “forgiving student debt.” Biden this week paid off another $7.4 billion in student loans, making his total student loan cancellation something like $153 billion. And by cancellation, I mean tax dollars were used to make the ledger go to zero. How much exactly? From Penn Wharton’s analysis: “We estimate that President Biden’s recently announced ‘New Plans’ to provide relief to student borrowers will cost $84 billion, in addition to the $475 billion that we previously estimated for President Biden’s SAVE plan.” But that goes to really needy people, right? Well, actually, at least 750,000 of those households are “making over $312,000 in average household income.” Meanwhile, to anyone who questions this allocation of resources, the White House answer is to shame them from official White House accounts by listing how much in pandemic loans were forgiven for House Republicans who own individual small business, which is weird because the reason businesses needed pandemic relief was because the White House banned them from operating. It’s a trap! And the only answer is to pay off every Media Studies PhD student’s loan. Colleges, for their part, are now charging up to $100,000 a year. Yes, literally. And since that’s ultimately going to be paid for by the taxpayers, why work to make it less expensive? Why cut corners when you need to remodel the cafeteria?

→ Oh, RFK’s running mate: For a flash I was thinking, Am I an RFK voter? I’m a mom who worries about plastics, and no, I don’t like how our national conversation is getting so divisive these days. And those steely blue eyes. It just felt right. But this week, my love affair hit a snag. Here’s RFK’s new vice-presidential pick, Nicole Shanahan, arguing that the Covid vaccine is not just bad, that it’s not just something she personally doesn’t want and should have the freedom to choose not to take, but that it should be banned. Over to Nicole: “Here is the devastating reality: it is not a safe vaccine, and must be recalled immediately. Many people are suffering who took it.” I guess this is really the agenda: RFK Jr. might be just asking questions, but if Nicole is chief executive, it sounds like she’s going to be executing. And that looks like legally required sound baths and astrology readings. The government understands that you want to take antibiotics, but you haven’t even tried rubbing yourself in honey yet. 

→ Wow, Kari Lake comes out as really pro-choice: Kari Lake, the Republican running for Senate in Arizona, has released a video about how she disagrees with Arizona’s total abortion ban, a ban she previously supported. I’m all for mind-changing. I actually want our politicians to put their finger to the wind every once in a while. Here’s Lake: “We as American people don’t agree on everything all of the time. But if you look at where the population is on this—a full ban on abortion is not where the people are.” 

She says, “I chose life, but I’m not every woman.” She pivots to Europe, which has all those annoyingly sensible abortion laws, and which is my exact same move: “I had the opportunity to visit Hungary, and it completely changed my view of how we should deal with this complicated, difficult issue.”

Is this Kari Lake sounding normal? In case you need to be reminded of the old Kari, here she is shaking hands with a statue. 

→ Oh no, “get out the vote” helps. . . Trump? Now that young people are for Trump and old people are for Biden, there’s another switcheroo: those who vote less or have never voted are more likely to be Trumpers. Call off the Rock the Vote campaigners! Return the blue t-shirts! The new message for Democrats to win needs to be: do not register new voters. Keep on keeping on. Stay home, save lives.


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April 18, 2024 Heather Cox Richardson

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I will not spend the rest of 2024 focusing on Trump and the chaos in the Republican Party, but today it has been impossible to look away.

In Trump’s election interference trial in Manhattan, Judge Juan Merchan this morning dismissed one of the selected jurors after she expressed concern for her anonymity and thus for her safety. All of the reporters in the courtroom have shared so much information about the jurors that they seemed at risk of being identified, but Fox News Channel host Jesse Watters not only ran a video segment about a juror, he suggested she was “concerning.” Trump shared the video on social media.

The juror told the judge that so much information about her had become public that her friends and family had begun to ask her if she was one of the jurors. Legal analyst Joyce White Vance noted jurors’ fear for their safety was a concern normally seen only “in a case involving violent organized crime.”

Nonetheless, by the end of the day, twelve people had been chosen to serve as jurors. Tomorrow the process will continue in order to find six alternate jurors. 

It is a courtesy for the two sides at a trial to share with each other the names of their next witnesses so the other team can prepare for them. Today the prosecution declined to provide the names of their first three witnesses to the defense lawyers out of concern that Trump would broadcast them on social media. “Mr. Trump has been tweeting about the witnesses. We’re not telling them who the witnesses are,” prosecutor Joshua Steinglass said. 

Merchan said he “can’t blame them.” Trump’s defense attorney Todd Blanche offered to “commit to the court and the [prosecution] that President Trump will not [post] about any witness” on social media. “I don’t think you can make that representation,” Merchan said, in a recognition that Trump cannot be trusted, even by his own lawyers.

An article in the New York Times today confirmed that the trial will give Trump plenty of publicity, but not the kind that he prefers. Lawyer Norman L. Eisen walked through questions about what a prison sentence for Trump could look like.

Trump’s popular image is taking a hit in other ways, as well. Zac Anderson and Erin Mansfield of USA Today reported that Trump is funneling money from his campaign fundraising directly into his businesses. According to a new report filed with the Federal Election Commission, in February and March the campaign wrote checks totaling $411,287 to Mar-a-Lago and in March a check for $62,337 to Trump National Doral Miami.

Experts say it is legal for candidates to pay their own businesses for services used by the campaign so long as they pay fair market value. At the same time, they note that since Trump appears to be desperate for money, “it looks bad.”

Astonishingly, Trump’s trial was not the biggest domestic story today. Republicans in Congress were in chaos as members of the extremist Freedom Caucus worked to derail the national security supplemental bills that House Speaker Mike Johnson (R-LA) has introduced in place of the Senate bill, although they track that bill closely. 

The House Rules Committee spent the day debating the foreign aid package, which appropriates aid for Ukraine, Israel, and Taiwan separately. The Israel bill also contains $9.1 billion in humanitarian aid for Gaza and other countries. A fourth bill focuses on forcing the Chinese owners of TikTok to sell the company, as well as on imposing sanctions on Russia and Iran. 

At stake in the House Rules Committee was Johnson’s plan to allow the House to debate and vote on each measure separately, and then recombine them all into a single measure if they all pass. This would allow extremist Republicans to vote against aid to Ukraine, while still tying the pieces all together to send to the Senate. As Robert Jimison outlined in the New York Times, this complicated plan meant that the Rules Committee vote to allow such a maneuver was crucial to the bill’s passage.

The extremist House Republicans were adamantly opposed to the plan because of their staunch opposition to aid for Ukraine. They wrote in a memo on Wednesday: “This tactic allows Johnson to pass priorities favored by President Biden, the swamp and the Ukraine war machine with a supermajority of House members, leaving conservatives out to dry.”

Extremists Marjorie Taylor Greene (R-GA) and Thomas Massie (R-KY) vowed to throw House speaker Mike Johnson (R-LA) out of the speakership, but Democrats Tom Suozzi of New York and Jared Moskowitz of Florida have said they would vote to keep him in his seat, thereby defanging the attack on his leadership.

So the extremists instead tried to load the measures up with amendments prohibiting funds from being used for abortion, removing humanitarian aid for Gaza, opposing a two-state solution to the Hamas-Israel war, calling for a wall at the southern border of the U.S., defunding the Federal Emergency Management Agency (FEMA), and so on.

Greene was especially active in opposition to aid to Ukraine. She tried to amend the bill to direct the president to withdraw the U.S. from NATO and demanded that any members of Congress voting for aid to Ukraine be conscripted into the Ukraine army as well as have their salaries taken to offset funding. She wanted to stop funding until Ukraine “turns over all information related to Hunter Biden and Burisma,” and to require Ukrainian president Volodymyr Zelensky to resign. More curiously, she suggested amending the Ukraine bill so that funding would require “restrictions on ethnic minorities’, including Hungarians in Transcarpathia, right to use their native languages in schools are lifted.” This language echoes a very specific piece of Russian propaganda.

Finally, Moskowitz proposed “that Representative Marjorie Taylor Greene…should be appointed as Vladimir Putin’s Special Envoy to the United States Congress.” 

Many congress members have left Washington, D.C., since Friday was to be the first day of a planned recess. This meant the partisan majority on the floor fluctuated. Olivia Beavers of Politico reported that that instability made Freedom Caucus members nervous enough to put together a Floor Action Response Team (FART—I am not making this up) to make sure other Republicans didn’t limit the power of the extremists when they were off the floor.

The name of their response team seems likely to be their way to signal their disrespect for the entire Congress. Their fellow Republicans are returning the heat. Today Mike Turner (R-OH) referred to the extremists as the Bully Caucus on MSNBC and said, “We need to get back to professionalism, we need to get back to governing, we need to get back to legislating.” Derrick Van Orden (R-WI) told Juliegrace Brufke of Axios:  “The vast majority of the Republican Party in the House of Representatives…are sick and tired of having people who…constantly blackmail the speaker of the House.”

Another Republican representative, Jake LaTurner of Kansas, announced today he will not run for reelection. He joins more than 20 other Republican representatives heading for the exits.

After all the drama, the House Rules Committee voted 6–3 tonight to advance the foreign aid package to the House floor. Three Republicans voted nay. While it is customary for the opposition party to vote against advancing bills out of the committee, the Democrats broke with tradition and voted in favor.

Notes:

https://www.nytimes.com/2024/04/18/opinion/donald-trump-trial-prison.html

https://www.politico.com/live-updates/2024/04/18/congress/hfc-on-alert-00153097

https://www.jns.org/house-rules-committee-debates-israel-aid-package-as-house-speaker-confronts-right-flank/

https://www.cbsnews.com/news/donald-trump-new-york-court-criminal-trial/

https://www.thedailybeast.com/jesse-watters-goes-juror-by-juror-to-sow-doubt-in-trump-hush-money-case

https://www.salon.com/2024/04/18/juror-quits-over-fear-of-being-outed-after-fox-news-host-singled-her-out/

https://www.rawstory.com/jake-laturner/#cxrecs_s

https://www.cnn.com/2024/04/18/politics/mike-johnson-speakership-rules

https://www.rawstory.com/freedom-caucus-2667810851/

https://rules.house.gov/bill/118/hr-8034

https://rules.house.gov/bill/118/hr-8035

https://www.usatoday.com/story/news/politics/elections/2024/04/18/trump-campaign-funnels-money-to-his-businesses/73344744007/

https://www.axios.com/2024/04/18/mike-johnson-gaetz-motion-to-vacate-ukraine

https://www.axios.com/2024/04/18/jake-laturner-retire-house-gop-kansas

https://www.axios.com/2024/03/27/house-members-retiring-quitting-productivity

https://www.nytimes.com/2024/04/18/us/politics/house-israel-ukraine-aid-package-explainer.html

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April 17, 2024 Heather Cox Richardson

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