OPINION:
Can an idea be dangerous? Can a dangerous idea be expressed? Can the government punish ideas it deems 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 expression of ideas.
Here is the backstory.
The Hamas assault on Israeli civilians and military forces on Oct. 7 prompted a ferocious Israeli response on Hamas fighters and Palestinian civilians, 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 United States the articulation of deeply held and strongly worded ideas.
Some people here believe that the Israeli military has intentionally engaged in the genocide of Palestinian civilians to expand the borders of Israel 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 Israeli forces have engaged in war crimes, and others believe they are doing what is necessary.
Some believe that only the obliteration of Hamas will bring peace to Israel. Some fear that a strident anti-Israeli military or anti-Israeli government and pro-Palestinian rights verbal campaign in the U.S. will lead to violence against Jews 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 existence of the freedom of speech that predates the government 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 human beings by virtue of our humanity.
They crafted the congressional prohibition on infringing upon those rights in 1791 to ensure that the federal government in succeeding generations, as well as Congress in the then-present generation, would keep its hands off 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 that have dedicated it to public use. Thus, a public sidewalk, a public square, a 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 “Make America Great Again” hat or out of your living room for criticizing President Biden, but the government and owners of private property dedicated to 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 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 teachers, professors or students, and tolerated by the schools. They may withhold federal funds from the offending school if they find it.
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 lecture hall discussion addresses the history of Zionism, it must also address the history of other racial and religious movements. If it criticizes Zionism, it must also criticize others.
This violates the corollary to freedom of speech, 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 nonassertion 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 the killing of Jews in the United States. Do they think that a crazy person intent on killing will abide by 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 the fear of others, can trigger the loss of federal funds.
One practical aspect of the First Amendment’s protection of hate speech is keeping the haters visible rather than driving them underground. In addressing the broad principles underlying 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 government.
If members of Congress fear what people 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.
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