Israel, Hamas, and the Need for Neutral Free Speech Principles

The Israel-Hamas war has sparked ideological swaps in many places regarding freedom of speech, confirming more than ever why we need neutral free speech principles.

With the launch of my new book Habits of a Peacemaker: Ten Habits to Change Our Potentially Toxic Conversations into Healthy Dialogues, I will be guest blogging here on some themes from the book. Its aim is to provide practical skills to help readers become the type of people who can use their free speech rights effectively to have productive conversations about hard topics.

One of those skills peacemakers engage in regularly is searching for the best argument against their position on any issue. They may not find that argument persuasive, but learning it and knowing it helps them nuance and strengthen their views.

Sadly, the Israel-Hamas conflict, and government and university reactions to speech around it, serve as a stark reminder that too often, too many are not committed to that norm. Rather, for certain topics they hold most dear, most people prefer to silence opposing views, instead of grappling with them. And that instinct is why we need neutral principles for the freedom of speech.

I want to be very clear that I am not referring in this post to the occupy-campus protests that erupted at the end of the last academic year. Those events and the responses to them deserve a separate analysis. I am talking here about the peaceful speech related to Israel, Hamas, Palestinians and related issues.

Prior to October 7, 2023, the common narrative from the political right was that left-wing academics and administrators were silencing speech on university campuses. And there was some truth to these accusations. Repeatedly, left-wing actors expressed skepticism of the First Amendment and its related freedoms. It seemed to be getting in the way of their desired goals and policy choices. They labeled defenses based upon it as mere "weaponization" of traditional First Amendment freedoms to allow oppressors to continue oppressing. In their effort to combat this, they tried to compel speech, to silence those who disagreed with their aims, or to force campuses to restrict what they deemed as "hate" or "discriminatory" speech.

Their methodologies were straightforward. Consider LGBT+ rights and race, although we could explore other examples as well. To silence anyone who disagreed with their proposals, leftwing actors attempted to label speech rather than deal with its substance. They labeled as "racist" any argument against their race-related proposals. Any proposals related to the LGBT+ community with which they did not agree, they labeled "homophobic" or "transphobic" or "anti-LGBT." They tried to label all of this speech as "hate" or "harassment."

Once they had applied the labels, it was easy for them to try to silence the speech or cancel speakers. After all, most reasonable people of good will do not want "hate" or "harassment" on campuses.

But critics, especially those on the political right, rightly pointed out that the definitions of the labels were doing all the work. If the labels were defined too broadly, or left undefined, they could be used to stifle all sorts of speech on any number of important topics. If a university administrator wanted to punish someone for certain content or viewpoints, they needed only say they were not regulating speech; they were merely preventing "racism" or "homophobia" or "harassment" or "hate."

Until recently, these were the dynamics, and they defined many of the disputes around freedom of speech in institutions of higher education. In the past year, however, since the October 7 attacks, we have journeyed into a mirror dimension. The groups and their positions have swapped. We have seen right-wing lawmakers, journalists, and some university administrators engaging in the very same tactics they have been deriding for years. And we have seen actors on the left become newborn champions of free speech fundamentals.

Republican actors have pushed for the silencing of speech they deem "hateful," "bigoted," "genocidal," or "antisemitic." Some have expressed worry that students don't "feel safe" on campus. But the words doing most of the work are "antisemitic" and "genocidal." Using those labels, universities have cancelled Pro-Palestinian events with speakers wanting to highlight the plight of Palestinian civilians or criticize the nation-state of Israel. Universities have silenced graduation speakers who would have criticized Israel's government. Pro-Palestinian student groups have seen their designations as official student groups stripped.

One of the more public acts along these lines came from Texas Governor Gregg Abbott. In an executive order dated March 27, 2024, Abbott ordered "all Texas higher education institutions" to:

"1. Review and update free speech policies to address the sharp rise in antisemitic speech and acts on university campuses and establish appropriate punishments, including expulsion from the institution.

"2. Ensure that these policies are being enforced on campuses and that groups such as the Palestine Solidarity Committee and Students for Justice in Palestine are disciplined for violating these policies.

"3. Include the definition of antisemitism, adopted by the State of Texas in Section 448.001 of the Texas Government Code, in university free speech policies to guide university personnel and students on what constitutes antisemitic speech."

As with all the examples I gave from the political left, all the work in this executive order is being done by the definition of "antisemitism." If too broad, it will silence all sorts of speech related to some of the most salient political questions in the world today. And it will guarantee that the strongest arguments will go unheard on college campuses. This paternalistic use of government power likely violates First Amendment precedent, but, more importantly, it will stifle speech in the exact same way the banishment of "harassing," "racist," or "hate" speech would.

But the ideological flipping is not one sided. Many faculty and political actors who can see the problem of banning "antisemitism" and "genocidal" speech if those terms are defined too broadly are the same people who previously pushed for speech codes that banned "harassment" and "hate" speech. They have suddenly become champions of free speech when they were previously hostile to it.

In short, both sides of the political spectrum flip their position based on which speech they want to protect and which they want to suppress.

This is nothing new. That instinct has persisted perhaps as long as there has been speech and a government to regulate it. But the Israel-Hamas conflict and the flip-flopping it has spurred has proven, once again, why we need neutral principles of law to govern speech regardless of which speech it is. None of this is to suggest we want hate or antisemitism or racism on college campuses. Of course we do not. But we do want to hear and explore the most sophisticated arguments surrounding the critical issues of the day, from all viewpoints. Neutral principles of free speech doctrine, applied to all regardless of the issue, will allow that to happen.

If universities and lawmakers can put such principles into place, then we will be able to engage in one habit critical to having productive discourse about hard topics: hunting for, processing, and responding to the strongest arguments against our beliefs.