Free Speech For Me But Not For Thee
Can an idea be dangerous? Can a dangerous idea be expressed? Can the government punish ideas it deems to be dangerous?
These are not questions one regularly asks in America because of our rich tradition of protecting the freedom of speech from infringement by the government. Yet, we appear to be on the cusp of the mass suppression of public speech.
Nothing would be more unnatural and un-American than the prohibition of the expressions of ideas.
Here is the back story.
The Hamas assault on Israeli civilians and military on Oct. 7 prompted a ferocious Israeli response on Palestinian civilians and Hamas fighters, the latter of which has been the subject of intense international debate and even litigation in the International Court of Justice. Both the initial assault and the response in turn have prompted in the U.S. the articulation of deeply held and strongly worded ideas.
Some folks here believe that the Israeli Defense Force has intentionally engaged in the genocide of Palestinian civilians in order to expand the borders of the current State of Israel so as to include what is today the Gaza Strip and the West Bank. Some believe that this land was destined by God to be the Israeli homeland. Some believe that the IDF has engaged in war crimes, and others believe it is doing what is necessary.
Some believe that only the total obliteration of Hamas will bring peace to Israel. And some fear that a strident anti-IDF or anti-Israeli government and pro-Palestinian rights verbal campaign in the U.S. will lead to violence against the Jewish people here and even to another Holocaust.
Let’s start with the basics. The First Amendment to the U.S. Constitution prohibits Congress from infringing upon the freedom of speech. It doesn’t command that Congress grant the freedom of speech. Rather it recognizes the pre-governmental existence of the freedom of speech and commands that Congress leave it alone. The framers and ratifiers of the Bill of Rights recognized that speech, along with thought, assembly, information gathering, publishing and allied expressive activities were natural rights that belong to all persons by virtue of our humanity.
They crafted the congressional prohibition on infringing upon those rights in 1791 in order to assure that the federal government in succeeding generations, as well as Congress in the then-present generation, would keep its hands off of speech. It was not until the ratification of the 14th Amendment in 1868 that the courts even contemplated applying the congressional prohibitions in the First Amendment to the states as well – which they soon did.
Today, the law of public free speech is clear and unambiguous. All innocuous speech is absolutely protected. And all speech is innocuous when there is time for more speech to counter it. This applies, of course, only against the government or against the owners of private property who have dedicated it to public use. Thus, a public sidewalk, a public square, the Post Office, a college campus’s public areas and Yankee Stadium, for example, are all places where the freedom of speech may not be infringed upon by the government.
You can toss me out of your garden party for wearing a MAGA hat or out of your living room for criticizing Joe Biden, but the government and owners of private property dedicated to the public use may never do so.
That’s because under the values protected by the First Amendment, all persons may evaluate the content of speech and decide what to listen to and what to reject – and if they own the property on which the speech they reject is taking place, they may exclude the speaker from the property.
The government, however, may never evaluate the content of speech or punish, deter or silence it.
Nevertheless, two weeks ago, in defiance of the basic principles of the freedom of speech, the House of Representatives passed and sent to the Senate the Antisemitism Awareness Act. It profoundly infringes upon the freedom of speech, as it prefers authoritarianism to antisemitism.
As passed by the House, this bill empowers bureaucrats in the U.S. Department of Education – put aside the fact that education is reserved to the states in the Constitution – to police speech in public and private schools, colleges, and universities looking for antisemitic language, whether from the school administration or from teachers, professors or students, and tolerated by the schools. If they find it, they may withhold federal funds from the offending school.
It gets worse. Under this bill, if any person affiliated with any educational institution criticizes the government of Israel, the person must also criticize another government. If a discussion in a lecture hall addresses the history of Zionism, it must also address the history of other racial and religious movements. If it criticizes Zionism, it must criticize others also.
All this violates the corollary to the freedom of speech, which is the right to remain silent. The same First Amendment that prohibits the government from infringing upon speech also prohibits it from compelling speech.
Moreover, this bill directly violates the doctrine against unconstitutional conditions. That doctrine prohibits the government from conditioning the receipt of a governmental benefit upon the non-assertion of a fundamental liberty. Congress knows this.
Members of Congress who support this bill, who have taken the same oath that I have – to uphold the First Amendment – say that some speech can lead to killing Jews in America. Do they think that a crazy person intent on killing will abide the restrictions on free speech? The very Bible used by members of Congress to swear allegiance to the Constitution contains New Testament language about Jesus’ disciples fear of the Jews, which, if articulated in a school setting without mentioning fear of others, can trigger the loss of federal funds.
One of the practical aspects of the First Amendment’s protection of hate speech keeps the haters visible, rather than driving them underground. In addressing the broad principles underlying the freedom of speech, the Supreme Court has consistently held that its whole purpose is to keep the government out of the business of speech. It has also held that without free speech, we cannot pursue happiness or have a democratic form of government.
If members of Congress fear what folks are saying, they should use their bully pulpits to challenge it. By voting instead for a bill that burdens free speech, they reveal their attitude of free speech for me but not for thee.
Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the US Constitution. The most recent is Suicide Pact: The Radical Expansion of Presidential Powers and the Lethal Threat to American Liberty. To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.
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