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.
To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.
COPYRIGHT 2024 ANDREW P. NAPOLITANO
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