"The Massacre in Israel and the War in Gaza Have Led to a Misguided Clampdown on Free Expression"

Prof. Jacob Mchangama (Vanderbilt) has an excellent article on the subject; an excerpt:

The bans against pro-Palestinian demonstrations in Germany and France are particularly problematic. A blanket prohibition on the right to assembly targeted specifically against supporters of one side of a conflict dividing world opinion sets a dangerous precedent, allowing democratic governments to discriminate against particular viewpoints. Such a ban also fails to distinguish between protesters critical of Israel's response to Hamas' attack—a perfectly legitimate point of view—and those who call for the death and destruction of Jews and Israel. Moreover, cracking down on protests may act as a pressure cooker that can lead to explosions of pent-up anger. Illegal demonstrations in Germany have already led to riots when police sought to break them up. Free speech, on the other hand, can act as a safety valve that permits grievances to be aired and channeled towards political rather than violent ends.

Bigoted opinions may be of little social value, but knowing that someone is a bigot can be of great practical value. However disturbing to Jews around the world, the groundswell of outright antisemitism in open democracies has revealed the depth of Jew hatred still persisting in the 21st century. This phenomenon cannot be effectively countered if hidden from view and lurking in the dark. Those who support silencing "dangerous" opinions coercively have failed to answer the question: Are we really safer when we know less about what motivates our neighbors?

The bans against pro-Palestinian demonstrations also undermine efforts to resist the increasingly vocal demands for prohibitions against "islamophobia" and the expansion of "hate speech" laws to cover blasphemy. This is an agenda advanced by Muslim minorities in Europe and Muslim-majority states at the United Nations.

Muslim majority states and some Danish Muslims have enthusiastically backed the Danish government's proposed ban against burning the Quran, a deeply misguided policy of appeasement towards states like Saudi Arabia, Iran, and Pakistan, as well as jihadist terrorist groups like Al Qaeda, which has threatened to punish Denmark for tolerating the desecration of the Quran. It will be difficult to argue why it is an unacceptable abridgment of free speech to punish the burning of Qurans if Muslims are punished for burning the Israeli flag, or even protesting against Israeli policies.

The European Commission's claim—that the Israel-Palestine conflict coupled with the war in Ukraine has created "an unprecedented increase in illegal and harmful content being disseminated online" that requires social media platforms to act as privatized censors—is also counterproductive. Anyone shielded from the outpouring of extreme polarization and competing narratives accompanying October 7 would risk missing the bigger picture of how the conflict shapes opinion around the world. It would also rob the public of deeply disturbing but necessary information and facts. The videos released by the Hamas operatives who carried out the terrorist attack are essential to documenting the scale and brutality of what took place and pushing back against the many October 7 Truthers who claim that the pogrom didn't happen, that if it happened it was a legitimate military operation targeting Israeli soldiers, or that if civilians died it must have been carried out by Israel….

Defining the limits of free speech is often more difficult when it comes to cultural and academic institutions rather than government officials. Nonetheless, as institutions like FIRE have documented, cancel culture is a real phenomenon with wide-ranging consequences for the broader ecosystem of free speech. It might be tempting to argue that many of those now facing cancellations for opinions ranging from sympathy towards the Palestinian cause to outright support for Hamas are merely reaping what they've sowed. After all, they represent various strands of progressive ideology that have long demanded the silencing of voices dissenting from very expansive definitions of racial and social justice. But while such hypocrisy should be called out, one cannot fight back against cancel culture at universities and simultaneously demand that students and members of faculty be punished for controversial speech protected by the First Amendment. If one believes that free speech is the first freedom of democracy, hypocrisy must be fought with principles, not tit for tat.

Comments

[John F. Carr]

Is there any legal principle in the European Union or its member states that prohibits the government from favoring pro-Israel speech over pro-Palestine speech?

[Martinned]

You mean other than art. 10 ECHR and its equivalent in individual countries' constitutions?

[charliehall]

"A blanket prohibition on the right to assembly targeted specifically against supporters of one side of a conflict dividing world opinion sets a dangerous precedent"

No, it allows you to win wars against evil. No less a figure than Winston Churchill pointed out that a major reason for France's defeat in 1940 was eight months of nonstop agitprop by Nazi and Communist sympathizers even after France had declared war on Nazi Germany. Today we have agitprop both from Useful Idiots who do the dirty work for Putin, and the clueless fools who equate Hamas with Israel. Putin now has a very large part of the Republican Party doing his bidding. and the Democratic Party now has a significant pro-Hamas wing. Russia, Iran, and Hamas are today's Berlin-Rome-Tokyo Axis. And just as in 1940 the America Firsters are supporting an anti-freedom Axis.

[ObviouslyNotSpam]

Handing that kind of power to government couldn't possibly have any drawbacks...

[Martinned]

Here is a useful post on the German position, on the brilliant Verfassungsblog: https://verfassungsblog.de/special-law/

For good reason the German constitutional court has taken the view that, in Germany, approval, glorification or justification of the historical Nazi regime was an opinion that the state was entitled to single out and prosecute. But as Maximilian Steinbeis explains, in practice it can be difficult to stick to just that one exception.

[Martinned]

This is the basic logic of the Constitutional Court.

The basic idea is the same as in the US. Advocating for violating or amending the constitution is constitutionally protected speech.

Das Grundgesetz baut zwar auf der Erwartung auf, dass die Bürger die allgemeinen Werte der Verfassung akzeptieren und verwirklichen, erzwingt die Werteloyalität aber nicht. (...)

Geschützt sind damit von Art. 5 Abs. 1 GG auch Meinungen, die auf eine grundlegende Änderung der politischen Ordnung zielen, unabhängig davon, ob und wie weit sie im Rahmen der grundgesetzlichen Ordnung durchsetzbar sind. Das Grundgesetz vertraut auf die Kraft der freien Auseinandersetzung als wirksamste Waffe auch gegen die Verbreitung totalitärer und menschenverachtender Ideologien. Dementsprechend fällt selbst die Verbreitung nationalsozialistischen Gedankenguts als radikale Infragestellung der geltenden Ordnung nicht von vornherein aus dem Schutzbereich des Art. 5 Abs. 1 GG heraus. Den hierin begründeten Gefahren entgegenzutreten, weist die freiheitliche Ordnung des Grundgesetzes primär bürgerschaftlichem Engagement im freien politischen Diskurs sowie der staatlichen Aufklärung und Erziehung in den Schulen gemäß Art. 7 GG zu.

But the rejection of the evils of the Third Reich was one of the central objectives of the Constitution (Basic Law). As such, glorification of the Nazi regime is uniquely abhorrent to the Constitution.

Von dem Erfordernis der Allgemeinheit meinungsbeschränkender Gesetze gemäß Art. 5 Abs. 2 GG ist eine Ausnahme anzuerkennen für Vorschriften, die auf die Verhinderung einer propagandistischen Affirmation der nationalsozialistischen Gewalt- und Willkürherrschaft zwischen den Jahren 1933 und 1945 zielen. Das menschenverachtende Regime dieser Zeit, das über Europa und die Welt in unermesslichem Ausmaß Leid, Tod und Unterdrückung gebracht hat, hat für die verfassungsrechtliche Ordnung der Bundesrepublik Deutschland eine gegenbildlich identitätsprägende Bedeutung, die einzigartig ist und allein auf der Grundlage allgemeiner gesetzlicher Bestimmungen nicht eingefangen werden kann. Das bewusste Absetzen von der Unrechtsherrschaft des Nationalsozialismus war historisch zentrales Anliegen aller an der Entstehung wie Inkraftsetzung des Grundgesetzes beteiligten Kräfte.

But this does not extend to neo-Nazi's and their opinions more generally.

Die Offenheit des Art. 5 Abs. 1 und 2 GG für derartige Sonderbestimmungen, die sich auf Äußerungen zum Nationalsozialismus in den Jahren zwischen 1933 und 1945 beziehen, nimmt den materiellen Gehalt der Meinungsfreiheit nicht zurück. Insbesondere kennt das Grundgesetz kein allgemeines antinationalsozialistisches Grundprinzip.

https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/DE/2009/11/rs20091104_1bvr215008.html

[Martinned]

Because there's always someone who asks why: https://static.dw.com/image/18397627_1004.webp

[Sam Bankman-Fried]

Stick it up your Fahrvergnügen!

[Brett Bellmore]

"A blanket prohibition on the right to assembly targeted specifically against supporters of one side of a conflict dividing world opinion sets a dangerous precedent,"

Pretty sure that precedent got set, oh, some time in pre-history?

[David Welker]

True.

Pretty sure that historically, it is actually pretty common for people to be killed for differences in opinion.

[Sam Bankman-Fried]

I personally believe ʿAlī ibn Abī Ṭālib was the first Imam and the true heir of Muhammad.

[charliehall]

Probably before the very first war ever.

[Commenter_XY]

But while such hypocrisy should be called out, one cannot fight back against cancel culture at universities and simultaneously demand that students and members of faculty be punished for controversial speech protected by the First Amendment. If one believes that free speech is the first freedom of democracy, hypocrisy must be fought with principles, not tit for tat.

Professor Volokh, following this train of thought. The little pro-Hamas darlings at Columbia who have held rallies calling for Judeocide...when they apply for internships at a company and are told: NFW you work here, and here is why [insert relevant social media post]. Is that punishment, prosecutable in a legal sense?

If the little pro-Hamas darlings want to express themselves, hey, they can knock themselves out. Scream all you want. My only ask of the pro-Hamas darlings: Please be sure to record the moment and post it on social media. We would all love to know who you are.

It is their 1A right, granted. Just don't ask the rest of us to look the other way and ignore it, or condone it.

[Don Nico]

Exactly.
Say what you want, but be prepared to live with the consequences.

[Randal]

I’ve been saying this to you whiners for years. Glad you finally figured it out. Now don't get mad when you get fired for misgendering somebody.

[Rev. Arthur L. Kirkland]

Conservatives say it but evidence indicates they do not mean it.

[Krayt]

That’s all it ever has been. For decades, centuries, gay people pleaded just for tolerance, stop jailing us.

Now the shoe is on the other foot, and those who want them jailed, some around here even, lament they can no longer do so. And they are shocked at the zero tolerance for themselves over mere speech, when they’d return to jailing gays in a heartbeat.

Really, gentlemen? And that is a misnomer because that is not the behavior of gentle men.

[Don Nico]

"misgendering somebody.'
You mean by castrating your antagonizer?

[Randal]

Har dee har bleh.

[David Welker]

Say what you want, but be prepared to suffer?

Dumb.

People are entitled to their political opinions without first putting a finger into the air to see which way the wind is blowing.

Your logic is toxic to democracy.

[Ed Grinberg]

As long as it itsn't the government imposing the "suffering" (and, of course, as long as no criminal laws are broken), I don't see how Don Nico's logic is "toxic to democracy." I'd say it's the opposite: you're free to speak your mind, I'm free to criticize (and, if I feel strongly enough about what you said, not associate with you).

[David Welker]

Ed Grinberg:

For democracy to work, people have to be free to deliberate.

Just because intimidation comes from a private place, that doesn't mean it won't ruin democracy.

These PRIVATE campaigns to silence and scare people into not sharing their political opinions are toxic and dangerous to democracy.

"BUT BUT BUT the opinion is really wrong!" Deal with it. We have all had wrong opinions. Including me. Including you.

[Brett Bellmore]

It's always been the case that extreme outlier viewpoints brought with them serious negative social consequences. Essentially the problem with left-wing cancel culture is that it's been leveraging strategic positions to impose such consequences for majority, not extreme outlier, viewpoints.

Brendan Eich, for instance, was fired for his support for a winning ballot initiative. Not a losing one, let alone a position so outrageous that very few people wouldn't be offended by it.

Support for Hamas' genocidal actions IS such an extreme outlier position. Only a tiny fraction of the population approve of the things they did.

[jb156]

Brendan Eich was fired for a position that a narrow majority of the _general public_ supported but it was a position that was an extreme outlier within Mozilla (apparently).

Most “cancellations” occur within a smaller sub-community, like the American Family Association’s boycott of Disney for giving benefits to same-sex employees in domestic partnerships. These are perfectly appropriate, even if the majority disagrees.

As for pro-genocide speech and actions, those are exceedingly rare in the US, where most of the protests are either anti-Israel (not antisemitic) or in some cases excusing Hamas terrorist strikes as the last remaining tool of the oppressed. Very few are explicitly defending the intentional killing of Israeli children or the kidnapping of innocent civilians as hostages.

[Brett Bellmore]

"Apparently" is doing a lot of work there, you know. It's not like they ran a poll at Mozilla. They just up and fired him, and then after demonstrating the consequences of agreeing with him, surprisingly few people at Mozilla defended him. Go figure.

Basically, cancel culture is an effort, often successful, to induce preference falsification. Use over the top penalties against expression of popular viewpoints to create the illusion that the viewpoints aren't popular, and it becomes somewhat self-sustaining, because people don't see others expressing those viewpoints, and wrongly conclude that they ARE unpopular. If you're really lucky, the popular viewpoint will actually extinguish on account of not being publicly defended.

[Randal]

Essentially the problem with left-wing cancel culture is that it’s been leveraging strategic positions to impose such consequences for majority, not extreme outlier, viewpoints.

Why does this matter? If someone gets canceled, it doesn't matter to them how popular their viewpoint is. Why do you think it's more acceptable to cancel unpopular viewpoints than popular ones? This actually seems particularly dangerous and groupthinky to me.

[Michael P]

Now reprising the part of the South in the Civil War: Randal and his leftist buddies.

[David Welker]

Brett:

It doesn’t matter if the view is an outlier. People need to be able to THINK through their opinions.

If someone is open about their outlier views, we can talk to them about why it doesn’t make sense.

Furthermore, your view is unworkable. Are we supposed to engage in polling to see if we should cancel people or not? That doesn't seem very principled. Support for slavery used to be a majority view. Racism used to be a majority view. Just because a view is an outlier doesn't make it wrong.

Also, the most DANGEROUS views are those held by majorities, not extreme outliers.

Overall, we are moving to a society where people are not allowed to think. It is all about walking on thin ice. The view that was OK yesterday may not be OK tomorrow. You can support that if you want, but I won’t.

I think the idea that other people get to tell me or you or whomever what to think and say is contrary to the idea that we are equal. The person who tells us to “shut up” is positioning themselves as superior.

Every single oppressive society is built on censorship. The Soviet Union, Communist China, the South before the Civil War.

I am not going to make exceptions. I can think of plenty of people that it would make me feel very good to cancel. I am not always above being outraged by the views of others. But I am going to restrain myself, because I think that impulse is very very dangerous. It is one of the few ways I could see for our otherwise nearly invincible or at least quite powerful society to fall apart completely. Turning on itself.

[Brett Bellmore]

I'm not defending it here, I'm explaining why cancel culture, despite superficially looking like something that goes on all the time in all societies, is so controversial. Attacks on the majority are, trivially, going to be less popular than attacks on the minority.

It does have extra negative consequences, though, because normal majority viewpoint driven cancelation enforces social cohesion, while this aberrant minority driven cancelation reduces social cohesion and drives polarization. The majority does NOT take well to cancelation, and you can't really hide that it's majority viewpoints being suppressed.

[Randal]

normal majority viewpoint driven cancelation enforces social cohesion

Ew! What a sickeningly chauvinistic thing to say.

But you have nailed a pretty major distinction between left and right. The left prefers open-mindedness and new ideas. The right prefers groupthink and oldthink. I know you think you don't, but you just admitted it.

[Brett Bellmore]

I think that's a major difference between you and me, anyway: I try not to let my personal emotions interfere with my evaluation of what's going on. If something I don't like has positive consequences, that I don't like it doesn't make them go away.

I used to be a member of the Libertarian party, and I'm still something of a libertarian. I've been on the wrong side of that enforced social cohesion plenty of the time. But I'm still capable of noticing what's going on.

When the majority enforces agreement with the majority via social consequences, it drives social cohesion, by lowering the level of disagreement. That's not always a good thing, but it's still a thing.

OTOH, when a minority faction achieve strategic positions, and use them to enforce agreement with their minority viewpoint via social consequences, (AKA "cancel culture") it erodes social cohesion by driving society away from agreement. It also raises the general temperature of society, because the majority, knowing damn well they ARE the majority, don't like one bit being subject to social sanctions for expressing majority viewpoints.

There's no reason to expect the majority to just suck it up, the way you generally can expect the minority to.

So cancel culture really drives polarization sky high, and that's utterly independent of whether you agree or disagree with a particular side in any of these conflicts.

[Don Nico]

David,
Who said anything about intimidation?
Only you.

Do you actually believe that people should not be prepared to deal with the consequences of their actions, good or bad?

Or are you just reading into comments ideas that are not there but only in what you imagine?

Action without regard to consequence is not democracy; it is anarchy.

[David Welker]

Cancel culture is intimidation. A big part of the goal is to make an example out of the person that is canceled.

Cancel culture is all about intimidation.

I am glad you brought up actions. We should distinguish between speech and actions. Between thinking and doing.

There must be an ability to think things through. Otherwise, we may all end up worshipping some great leader, because to think otherwise is a cancelable offense.

Your view is simply dangerous. We have seen where it goes, and that is straight to totalitarianism. Everyone will want to get in on the cancel culture action. It makes people feel powerful.

[charliehall]

Some views need to be canceled. Like those of the Hamas apologists.

[Randal]

Everyone's got someone to cancel.

[Michael P]

Not all cancellations are morally equivalent.

[Randal]

Hey I'm with you. I'm all about cancelling the morally repugnant.

[Commenter_XY]

The flaw in your argument is no one is preventing the little pro-Hamas darlings from expressing their opinion. They are not only free to deliberate IMHO, I also want them to loudly and proudly proclaim their beliefs in the public square.

Your 'private campaign' is otherwise known as 'having a human conscience'. You know, there are many people who just want nothing to do with pro-Hamas Judeocide supporters because they know those views are abhorrent. That is not 'cancel culture'.

So let the little pro-Hamas darlings protest loudly and proudly. And
I do hope they record their 'special moment in the sun' on social media. I know that Canary Mission will vacuum the social media data and add them to their growing list of disgusting anti-semites I will never hire or personally associate with.

Since it is approaching tax time, I want to let my fellow Tribe Members know that Canary Mission is a registered 503b charity, and contributions are fully tax deductible. They help the little pro-Hamas darlings by collating all their social media posts relevant to their Judeocidal beliefs in one nice place, replete with a helpful picture, too. Their link is below.

https://canarymission.org/

A worthy cause, notable for helping people own their words. 🙂

[Sam Bankman-Fried]

I would have killed baby Hitler.

[Frank Drackman]

With you BO maybe

[Rev. Arthur L. Kirkland]

Just don’t ask the rest of us to look the other way and ignore it, or condone it.

Is that your position on the incessant bigotry that infests this white, male, right-wing blog? Do you have the same animus toward gay-bashers (regardless of whether a bigot associates that bigotry with old-timey religion), Islamophobes, misogynists, xenophobes, transphobes (a fixation at this blog), slur-hurling racists, other bigots, and a blog that attracts, flatters, and defends those bigots?

[Josh R]

The spirit of the First Amendment is we protect valueless speech from government sanction because such sanctions ruin lives and we don't trust the government to distinguish between valued and valueless speech. Perhaps the same ought to apply to the ability to get a job because being denied a job is a punishment on par with a government sanction and we don't trust businesses either. On the other hand, perhaps the power of business to affect lives is spread across enough actors not to ruin people's lives (but, see historical examples of blacklists for the opposite viewpoint).

[charliehall]

Was Eugene Debs' speech protected by the First Amendment? A unanimous Supreme Court said no.

[Krayt]

and we don’t trust the government to distinguish between valued and valueless speech

The benefit to the First Amendment is not that there's value in every last mumble drooled from some goober's mouth. It's in forbidding the king from swinging the driver in his golf bag of tyrant tricks at all.

If you don't build it, it can't be abused.

[Jason Cavanaugh]

"Please be sure to record the moment and post it on social media. We would love to know who you are."

Pretty rich coming from the anonymous coward who thinks any number of women and children casualties are perfectly acceptable as long as they aren't Jewish.

If you're so proud of your hateful viewpoints, why are you hiding behind a false name? We'd love to know who you are.

[Life of Brian]

If you’re so proud of your hateful viewpoints, why are you hiding behind a false name? We’d love to know who you are.

Even if Jason Cavanaugh isn't a pseudonym, there are scores of people with that name. Which one are you? We'd love to know who you are.

[Rossami]

I'm not sure why the author is picking on Germany. They've never had freedom of speech as a value or goal. I think that's a bad social choice but they are very consistent in their choice.

The article is on far stronger grounds calling out France, a country that espouses respect for freedom of speech but then acts entirely contrary to their alleged goals.

[Social Justice is neither]

Yup, no Islamic terror attacks in France to be concerned with...

[Armchair]

I mean, Germany may have certain historic reasons for wanting to be careful about large rallies that appear to be calling for the death or punishment of Jews...

[Martinned]

I’m not sure why the author is picking on Germany. They’ve never had freedom of speech as a value or goal.

Are you completely insane?

[Nameless But Highly Opinionated]

"When fascism returns to Germany, it will be in the name of anti-fascism."

[Michael P]

It is "one of the great unexplained phenomena of modern astronomy: namely, that the dark night of fascism is always descending in the United States and yet lands only in Europe." (Apologies to Tom Wolfe and Jean-Francois Revel.)

[David Bernstein]

FWIW, it's not at all clear as an *empirical* matter whether the way to fight back against cancel culture as unleashed initially by progressives is to (a) take a consistent stance against cancel culture; or (b) force progressives to live by the rules they have imposed on the other side, such that they rethink their commitments. One can still be against cancel culture on principal, but I don't think this empirical question on the practical aspect can just be waived away.

[Sarcastr0]

This rationalization doesn’t leave much principle to stand on at all.

[Krayt]

Fighting fire with fire? Or learning your opponents’ tricks and using them against them?

“You go ahead and keep one hand tied behind your back.”

I recall when Trump won, there was panic for about a week, what if he does to us what we’ve been doing to them? Meaning wield some cancel culture framework on twitter or something. Nothing came of it, but the espoused terror spoke volumes.

[Sarcastr0]

criticize everything he left does, but do it yourself to them….yes I fail to see any actual principles.

I don’t recall whatever you do about after Trump won. Sounds like the usual narrative strawmanning the right made up.

[Michael P]

Saul Alinsky rule 4: "Make the enemy live up to its own book of rules."

[Sarcastr0]

Oh noes I gotta love Alinsly!

Dude the right quotes that guy way more than the left does.

[Randal]

Queen and Sarcastr0 already pointed out the dishonesty, so let me just add: "waived away" barf! Who do you think you are, a law professor?

[Steven Howard]

Somewhat naive article that fails to take into account the violence, trespass, and intimidation factor. Many of these "protests" include removal of posters with opposing viewpoints, and the spray painting of slogans and hateful symbols on businesses or homes with suspected ties to Jews. They express the desire and intent to kill, murder, or eradicate Jews. Would Mr. Volokh consider it appropriate for Klan members to carry signs calling for the death and hanging of black people as a valid expression of free speech? I hope not.

[Martinned]

Based on past experience, I'd anticipate that prof. Volokh would consider that "Klan members [who] carry signs calling for the death and hanging of black people" are engaging in constitutionally protected speech as long as they're not calling for the death and hanging of specific black people.

https://en.wikipedia.org/wiki/Brandenburg_v._Ohio

[Michael Ejercito]

How were the Dixie Chicks canceled?

[Rev. Arthur L. Kirkland]

Ahistorical amnesia is a euphemism for partisan bullshit.

[Randal]

https://en.m.wikipedia.org/wiki/Dixie_Chicks_comments_on_George_W._Bush

[Commenter_XY]

ahistorical amnesia...LOL. Ok, that was pretty funny.

[VinniUSMC]

Dixie Chicks are entertainers who make a living by being popular enough that other people want to pay to see them perform. If they alienate their fans who then no longer want to pay to see them perform, how is that cancel culture? They cancelled themselves? Dumb Nazi Randal.

[Randal]

How dumb can you get? Oh it’s you.

Ok well, cancel culture has been all about celebrities, entertainers, and politicians. Nobody cares about cancelling your fat ass. And you just made the exact same point that everyone makes when they work to cancel someone. “If [Roseanne] [Dave Chappelle] [Stephen Colbert] alienates their fans who then no longer want to see them perform, how is that cancel culture? They cancelled themselves.”

I know you’re far too thick to understand and far too partisan to care, but there it is.