Free speech must not be a victim of the Israel-Hamas war
Tom Rogan
Video Embed
Many conservatives have been aggravated and alarmed by the large anti-Israel protests that have erupted on college campuses and in major cities. The intimidation of those expressing pro-Israeli views, the stripping down of hostage posters, and the widespread use of genocidal slogans such as “From the river to the sea, Palestine will be free” has only added to these concerns.
Still, it is critical that America’s free speech traditions be protected.
BIDEN CAMPAIGN TAKES VICTORY LAP ON DEMOCRATIC WINS AFTER POOR POLLING
True, the utter hypocrisy with which college administrators punish speech related to cultural issues but tolerate overt antisemitism is unacceptable. Such double standards undermine the “content-neutral” principles that define First Amendment case law. Jewish students are rightly pursuing civil rights lawsuits. And wherever Jewish students or citizens are attacked or otherwise restricted from their own free assembly and speech, expulsions and criminal sanctions should follow. Nevertheless, the legal protection of hateful speech, such as statements of support for Hamas, or calls to annihilate Gaza, must not be sacrificed.
A concerning chorus of conservatives disagrees.
Adopting the left-wing sentiment that undesirable speech should be silenced, Republicans such as Gov. Ron DeSantis (R-FL) are engaged in unconstitutional efforts to silence pro-Palestinian/anti-Israeli groups. DeSantis has now banned the Students for Justice in Palestine groups from operating on state college campuses. He claims his restrictions are lawful because the groups in question are providing “material support” for a proscribed terrorist organization, Hamas. DeSantis is wrong. The Supreme Court has made clear that material support for terrorism cannot alone consist of endorsements of terrorism. To make his actions legal, DeSantis would have to show direct liaison between Students for Palestine and Hamas and an effort by the former to provide expertise, financing, or physical support to Hamas.
Writing the opinion for the court in the operative case of Holder v. Humanitarian Law Project, Chief Justice John Roberts noted that a finding of unlawful material support for a terrorist group must include the provision of specific services falling under “only a narrow category of speech to, under the direction of, or in coordination with foreign groups that the speaker knows to be terrorist organizations.” While the court found that provision had occurred in Holder v. Humanitarian Law Project, Roberts added that the court in “no way suggest that a regulation of independent speech would pass constitutional muster, even if the Government were to show that such speech benefits foreign terrorist organizations.”
Fellow GOP presidential nominee Chris Christie has similarly misinterpreted the law in a recent call for restricting pro-Hamas speech. Christie has claimed that “there is a difference between free speech and hate speech” and that “there is a difference between incitement and free speech.” He concluded that “what is going on in our college campuses today is not free speech. It is hate speech.” Christie is also wrong.
Criminal intimidation is unlawful, and those responsible for it should be punished. But hate speech is explicitly protected under the Constitution. Again, ask the chief justice. As Roberts opined in Snyder v. Phelps, when it comes to the choice of whether or not to ban hate speech, “As a nation we have chosen a different course — to protect even hurtful speech on public issues to ensure that we do not stifle public debate.” First Amendment law is also clear that a finding of unlawful incitement requires the proven intent of a speaker to cause violence and the likelihood that violence will imminently follow said speech.
It is both entirely understandable and positive that so many so detest speech that so hurtfully singles out a historically oppressed Jewish people for hate. It is entirely understandable that Israeli President Isaac Herzog suggests that “calls for the elimination of a whole country, Israel, are unacceptable on campus and should not be tolerated.” But it is also understandable why the founders and successive Supreme Courts have charted such a path in favor of speech over government-enforced silence. It is because speech restrictions risk our slip down an uncontrollable subjective slope.
CLICK HERE TO READ MORE FROM THE WASHINGTON EXAMINER
A slope as in Europe, as with new laws against Koran burning, that plays to the conveniences of the moment. A slope as in the United Kingdom, where a chief of police is now the only guardrail against a government that wishes a major protest march banned. A slope that bans entire groups and marches under the impossible expectation that all involved share all the same views. A slope, most critically, that risks chilling robust discourse on matters of exigent public interest. A slope that ultimately risks undermining that sacred American belief in being able to speak one’s mind free of persecution.
Free speech requires our protection of great minds and empowering views. But also of those minds that are embroiled with stupidity and hate.