The Free Press
We are living through the most horrific moment for the Jewish people in this century. It is also an especially crucial moment for the future of free speech.
On October 7, Israelis were raped, tortured, kidnapped, and massacred by invading Hamas terrorists. It was an attack on Jews on a scale not seen since the Holocaust. Instead of attempting to hide evidence of their evil, as the Nazis did, the terrorists posted it on social media, reveling in their sadism.
In response, on many American campuses, individuals and groups leapt to defend not Israelis—but the atrocities. A coalition of more than 30 Harvard student organizations quickly released an open letter stating they “hold the Israeli regime entirely responsible for all unfolding violence.”
At Columbia University, tenured professor Joseph Massad wrote that Hamas’s barbarism was “awesome.” A Cornell history professor, Russell Rickford, said at a rally about the attacks, “It was exhilarating. It was energizing. . . . I was exhilarated.” (Rickford has since issued an apology.) At the University of Pennsylvania, students shouted, “Israel, Israel, you can’t hide: We charge you with genocide.”
At a pro-Hamas demonstration at the University of Washington, students chanted “There is only one solution,” while a Jewish student pleaded with administrators, “They want us dead. How are you allowing this?”
Imagine if, days after the murder of black worshippers in a Charleston church by a white supremacist, Proud Boys marched across campuses celebrating their deaths. It’s difficult to envision such a scenario, but were it to take place, administrators, professors, and students would undoubtedly be fervent in their moral condemnation.
So it is easy to appreciate the rage over today’s blatantly antisemitic rhetoric, particularly when our society wouldn’t tolerate, much less celebrate, similar expressions of delight after the brutal slaughter of other minorities. We feel that anger personally. But when it comes to calls to silence, fire, or even deport those who express such noxious views, we are also clear: we must resist it.
Both of us advocate for robust protections of free speech, subject to the sensible limits provided by the First Amendment. This is why we disagree with the recent call by Arkansas senator Tom Cotton to empower Homeland Security to deport any foreign national on our soil who expresses support for Hamas—particularly foreign nationals on student visas.
The senator’s proposal is both misguided and unconstitutional. Since as far back as the 1940s, the Supreme Court has held that anyone lawfully in the United States in any capacity, including as a student, has the same speech rights as a U.S. citizen.
Importantly, the First Amendment protects not just the right to speak, but the right to hear. Punishing noncitizen speakers violates not only their rights but the rights of citizens to hear their views—even the most morally repugnant. We know, for example, what that Cornell professor had to say, because some students attended the rally for the purpose of listening to Hamas supporters. They came away feeling that the remarks crossed a line.
So a question for now is whether the grotesque displays on campus in recent days constitute punishable intimidation or incitement.
First Amendment jurisprudence does not protect all speech. Tearing down posters in order to prevent others from seeing them, as some did at NYU, does not fall under its protections. And the government is empowered to restrict expression that has a tight and direct causal connection to specific harm.
This “emergency” standard was first laid out by Justice Louis Brandeis, the Court’s first Jewish justice. As he wrote in 1927, “To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. . . . Only an emergency can justify repression.”
Applying this standard, the modern court has unanimously protected even hateful, racist speech and advocacy of violence. Speech cannot be punished solely because its content or message is loathsome, even if it is vaguely feared to potentially contribute to harm. So the rallying cry, “There is only one solution,” as painful and morally abhorrent as it is, is protected.
The Court has recognized several context-based categories of speech that do satisfy the emergency principle, including intentional incitement to imminent violence. In addition, speakers may not issue “true threats”—speech that directly targets specific individuals with hateful, violent rhetoric, intending to instill a reasonable fear that the targeted individuals will be subject to violence. But these concepts are highly fact-specific, depending on all the circumstances in a particular situation.
Perhaps today, however, given the nature of the threat to Jews around the world and in this country, we should consider empowering the government to depart from these time-tested principles, and, at the least, crack down on speech that calls for the genocide of Jews.
We don’t think so. As Jews and as free-speech advocates, we believe that as painful as it is to hear speech that calls for our elimination, we must resist the impulse to silence it. For an object lesson, look to Europe.
In Germany’s Weimar Republic, Nazis rose to power despite the repeated suppression of their speech and publications under multiple laws. In fact, many historians and commentators believe that far from muting the Nazis’ messages, this censorship brought them attention and sympathy.
Just as Germany’s Weimar-era restrictions did not avert Nazism or genocide, its current strict censorial regime is not preventing virulent, violent antisemitism, nor discrimination or violence against other minorities. The European Parliament has acknowledged that hate speech and hate crimes have been increasing in the European Union despite strong hate speech laws, which have been in force since at least the 1980s. Despite its positive intent, such censorship not only stifles democratic discourse; it also fails to suppress repugnant views.
In London, where thousands recently turned out to protest against Israel, Home Secretary Suella Braverman called for police to “use the full force of the law” against demonstrations supporting Hamas. One man was detained for waving a Palestinian flag and shouting “free Palestine.”
In France, all pro-Palestinian demonstrations have been prohibited. In Vienna, a protest was banned because invitations used the phrase calling for the elimination of Israel, “from the river to the sea.” (Protesters defied both bans.)
The record of enforcing hate speech laws, including in Europe, shows that such censorship is at best ineffective and at worst counterproductive in quelling discrimination and violence.
None of this means speakers are, or should be, free from the consequences of their expression.
Major donors to U.S. universities are beginning to insist that the places they care enough about to fund must care enough about Jews to warrant their funding. Jon Huntsman, David Magerman, and Marc Rowan said they are stopping their donations to the University of Pennsylvania after it hosted an event featuring notable antisemites, and for its failure to robustly denounce Hamas. “UPenn is not alone in allowing this culture of hate to become mainstream. It is true for universities across the country. And it’s long past time for donors to take notice,” Rowan wrote in The Free Press.
The revolt of the donor class may be a clarifying watershed event. Universities may allow themselves to be overrun with Jew-hatred, but no one has to donate to such institutions.
In response to the statement by the coalition of Harvard student groups blaming Israelis for their own murders, billionaire Harvard graduate Bill Ackman encouraged employers to consider the unsuitability of hiring students who publicly professed such views. When a student leader at New York University School of Law released a statement declaring, “Israel bears full responsibility for this tremendous loss of life,” the heads of the law firm that intended to hire the student were exercising their prerogatives when they withdrew the offer.
Employers have every legal and professional right not to hire those who support officially designated terrorist organizations.
But there are important countervailing considerations that weigh against imposing such adverse consequences for noxious expression. For one thing, as UCLA law professor Eugene Volokh concludes, some state and local laws may “provide legal protection for employees’ political speech,” even speech viewed as “highly offensive.”
We should also consider the cultural effects of such retribution. People say ill-conceived, stupid, even evil things all the time. Should they all be cast out into the wilderness? Their livelihoods jeopardized? If so, for how long? It seems unlikely that young people who find their career prospects thwarted for expressing hateful views will be more likely to change their minds as a result of their public shaming.
As Brandeis wrote: “the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and. . . the fitting remedy for evil counsels is good ones.”
Employers and other powerful private actors, including social media platforms, should not impose disproportionately harsh, punitive consequences for ugly speech—particularly when goaded by sanctimonious mobs.
Even as we defend the Israel we love, we must also defend freedom for the speech we detest. Why? Because dialogue is better at defeating cruelty than silence. Discouraged as we may be about the power of such goodwill, history leaves us no doubt: censorship is guaranteed to fail.
Nadine Strossen is a Senior Fellow at the Foundation for Individual Rights and Expression (FIRE); a past national president of the American Civil Liberties Union; John Marshall Harlan II Professor of Law, Emerita, New York Law School; and the author of HATE: Why We Should Resist It with Free Speech, Not Censorship and Free Speech: What Everyone Needs to Know. She is also featured in the documentary series Free to Speak.
Pamela Paresky is a social psychologist who writes about antisemitism and illiberalism. She has taught at Johns Hopkins, the University of Chicago, and the United States Air Force Academy. Her work has appeared in The New York Times, The Jewish Journal, Politico, Sapir, and Psychology Today. Follow her Substack here. She is on X, formerly Twitter, @PamelaParesky. Follow Pamela’s writing on her Substack.
How very generous of you, to say that "even the antisemites deserve free speech." Wow, that's mighty white of you.
I completely agree about free speech absolutism, but is is very hard to extend this to people who don’t believe in free speech at all. We extend free speech in the direction of speech we find abhorrent, they on the other hand will end you for a perceived micro aggression. We need to do a better job of ensuring an even playing field. Free speech for all.