Even Hateful Protests Are Protected, Free Speech Group Reminds Congress

Respecting free speech defends individual rights and lets people show us who they are.

If you know the history of Israel, that the country was created after one-third of the world's Jewish population was murdered by Nazis (it has yet to fully recover), it's difficult to stomach protesters who often slip from supporting the Palestinian cause to gloating over Hamas's terrorism and the prospect of destroying the Jewish state. There's not a lot of good will in projecting "Glory to Our Martyrs" on buildings or chanting "from the river to the sea"—let alone explicit endorsements of the attack.

But even assholes have speech rights. That's because all individuals have rights, however they use them, and because free expression only works if it's available to everybody, not reserved as privilege for the "right" ideas. And, importantly, respecting free speech lets people show us who they are.

Unfortunately, political officials' natural distaste for dissent can combine with honest revulsion at despicable sentiments to produce a reaction that would violate the right to free expression.

Fighting Hate with Authoritarianism

"Today, Congressman Mike Lawler (NY-17) announced that the House passed two amendments he put forward to the House's appropriations bill for Labor, Health and Human Services, and Education (LHHS) to combat antisemitism on college campuses," the New York Republican announced November 15. "His second LHHS amendment, rescinding federal funding for college campuses that give a platform to antisemitism hate, was adopted with broad, bipartisan support."

One reaction to this is that the federal government shouldn't be funding colleges to begin with. I agree. But so long as it is handing out cash, those funds shouldn't be used to bypass legal protections for individual rights. And no, just deciding to reject federal money might not be enough; Hillsdale College did that to escape federal regulation and now faces efforts to subject the school to control just because it has tax-exempt status enjoyed by many institutions.

The only way to keep authoritarians from getting a foot in the door is to defend liberty as a principle.

Unconstitutionally Targeting a Viewpoint

The amendment, now appended to the appropriations bill, "is too vague and overbroad to constitutionally serve as a basis for whether campus administrators must forbid expression," objects the Foundation for Individual Rights and Expression (FIRE) in a letter to Congress.

"If Congress enacts this provision into law, colleges and universities will be highly motivated to stamp out speech on one side of a hotly debated issue," FIRE Legislative and Policy Director Joseph Cohn and Legislative Counsel Greg Y. Gonzalez add. "The policies that institutions will adopt to avoid losing federal dollars will be viewpoint-based prior restraints — and they will likely be draconian. These policies will chill constitutionally protected speech as students and professors will rationally choose to alter what they say (but, importantly, not necessarily what they think) to avoid harsh penalties."

Among the problems of legislation that would (already problematically) suppress disfavored speech is that the definition of "antisemitism" the amendment uses is that of the International Holocaust Remembrance Alliance, an organization based in Germany where speech standards are different than in the United States. As working examples of antisemitism, the definition includes "applying double standards by requiring of [Israel] a behavior not expected or demanded of any other democratic nation," and "drawing comparisons of contemporary Israeli policy to that of the Nazis."

"Applying double standards may be worthy of criticism, but the First Amendment protects speakers from liability for hypocrisy. And to be perfectly clear, the First Amendment allows comparing every country in the world's policies to those of Nazis," point out Cohn and Gonzalez.

The terms "Nazi" and "literally Hitler" have been so overused as part of political discourse in recent years that Americans might appreciate a break. But that break can't be applied by declaring one target off-limits. It's one thing to regard the use of such language with contempt, but the government can't impose legal sanctions on people who throw around such terms.

Suppressing Speech Doesn't Erase Ideas

Cohn and Gonzalez also make a strong point when they write that government action "will chill constitutionally protected speech … (but, importantly, not necessarily what they think)." A protest full of people chanting hateful slogans isn't just an expression of free speech rights, it's a live-action advisory to people disgusted by such ideas of who they might want to avoid.

When some students at my son's college walked out of class and staged a pro-Palestinian protest that crossed over into support for Hamas, my son dropped by to look over the crowd for familiar faces. He didn't have to wonder who among the people he knew should be added to his personal shit list for future reference (thankfully few, it turned out).

He was also happy to see Jewish organizations free to exercise their own free-speech rights in the form of a vigil for the hostages held by terrorists.

When free-speech rights are respected and protected, they're available for everybody to use out in the open. If one side is suppressed, its supporters may not be able to publicly air their views, but they still hold them and share them in private—and may feel that much more justified because of state action.

Open, loud, and peaceful speech—no matter how objectionable—is far preferable to the alternative. The killing of Paul Kessler in California and the shootings of Kinnan Abdalhamid, Tahseen Ali Ahmad, and Hisham Awartani in Vermont remind us that there are far worse forms of expressing strongly held sentiments than harsh words.

Target Actions, Protect Speech

"Rather than try to define 'antisemitism,' Congress should help institutions consistently recognize and apply the distinctions between protected expression, categorically unprotected speech, and non-expressive conduct that lies beyond the First Amendment's protection," FIRE's Cohn and Gonzalez remind Congress. They recommend that lawmakers focus their efforts on ethnic and religious discrimination at educational institutions, and on actual cases of harassment.

That may not be satisfactory to people outraged by sometimes hateful protesters and the sentiments they express. But this moment will pass, and other disagreements will emerge. If we protect speech rights now, free expression will remain available and unconstrained for use in those disputes.

And if hateful sentiments once again emerge in those debates to come, the people expressing such ideas will be on public display, like those among us now, to tell us who they are so we don't have to wonder.