Aaron E. Martinez / Austin American-Statesman / USA TODAY NETWORK
I was in Amsterdam last week while campus protests continued to erupt in the U.S. One of the highlights of my stay in Holland was a visit to the Resistance Museum, which is about the Dutch people’s response to the Nazi occupation. What a mind-opening and heart-wrenching experience it was to learn about that. The Nazi evil thrust upon the Netherlands began in May 1940. From the outset of the invasion, a courageous variety of people resisted — even unto death.
Resistance Museum
It is a lesson worthy of widespread attention.
The more I reflected on the idea of resistance, the more my mind turned to thoughts on its cousins: revolution and dissent. How are the three the same and how are they different? On the one hand, they all have a political component — as in opposition to some form of political (or religious) tyranny. On the other hand, they might be said to differ as to the character of their responses to such tyranny, and at whom those responses are directed.
In the case of resistance, as with wartime Holland, the opposition (typically violent) is directed at a foreign oppressor occupying one’s homeland. For example, there was the action taken by Willem Arondéus (1894-1943) — “the bombing of the Amsterdam public records office to hinder the Nazi German effort to identify Dutch Jews.” Then there was Geert Gosens (1915-1997) who, along with other resistance fighters, badly wounded a high-ranking Nazi officer (Hans Albin Rauter) in March 1945.
Frieda Belinfante
In the case of revolution, which is similar to resistance, the opposition is more open and warlike — as in the case of the American colonies in 1776 or Ukraine’s current response to Russia’s military aggression.
That leaves dissent. In the United States, such political opposition to one’s government enjoys a certain legitimacy. Yes, such opposition may be uninhibited, so long it remains within the boundaries of protected expression (e.g., it must be nonviolent and comport with time, place, and manner regulations). Think of such dissent as a peaceful and democratic alternative to revolution. (See: Collins and Skover, “On Dissent,” Cambridge University Press, 2012)
A final passing thought, one that would make for a good book — perhaps one titled “Profiles in Protest.” Such a book might profile those who courageously turned to peaceful dissent to advance worthy causes such as political and religious freedom, racial, gender, and LGBTQ justice, and economic justice and environmental protection. Such stories need not be confined to figures in Supreme Court cases. Remember: The First Amendment is not simply about what judges write or lawyers argue. It is also about what we the people do with the first freedom.
As in the case of Frieda Belinfante (the brave lesbian Dutch resistance activist, 1904-1995), we need their stories to remind us of their sacrifices and inspire us to follow in their footsteps.
Nationwide snapshot of student protests
Just as Israeli tanks enter Rafah, pro-Palestinian campus protests continue in no fewer than 44 states and the District of Columbia (such protests are also going global). Of course, the campus protests range from peaceful to violent, from democratic to anarchistic, and from humanitarian to bigoted. But they are indeed widespread:
“The last thing I want to do is put you in jail,” [Judge] Merchan said. “You are the former president of the United States and possibly the next president as well.”
[Judge Juan M.] found that Trump, the presumptive Republican nominee for president, repeatedly violated [his gag] order, fined him $9,000 and warning that jail could follow if he doesn’t comply. But the order doesn’t stop Trump from talking about the allegations against him or commenting on the judge or the elected top prosecutor. And despite a recent Trump remark, it doesn’t stop him from testifying in court if he chooses.
[T]he gag order bars Trump from making or directing others to make public statements about any juror and about any “reasonably foreseeable” witness’ participation in the investigation or the trial.
It also bars any statements about lawyers in the case, court staffers, prosecution aides and relatives of all of the above, to the extent that the statements are intended to “materially interfere with, or to cause others to materially interfere with” their work on the case “or with the knowledge that such interference is likely to result.”
[Judge] Merchan added that he “will not tolerate continued willful violations” of the gag order and that, if “necessary and appropriate,” he “will impose an incarceratory punishment,” meaning jail.
It’s unclear what would rise to the level of “necessary and appropriate.” Defense lawyer Todd Blanche indicated in court Friday that he plans to appeal the judge’s finding this past week that Trump violated the gag order.
To the extent that Trump was spending his own money in the 2016 presidential campaign, he had a First Amendment right to do that under Buckley v. Valeo. To the extent he was spending Trump organization money, Trump also had a First Amendment right to do that too because the campaign expenditure limits of Buckley v. Valeo are now, and have always been, unconstitutional. Buckley v. Valeo should be overruled insofar as it upheld as constitutional any limits on spending money by anyone or by any organization to influence the outcome of an election.
FIRE weighs in on proposed Antisemitism Awareness Act
To ensure students have equal access to educational opportunities, all schools covered by Title VI of the Civil Rights Act — public and private — are required to investigate and prohibit anti-Semitic discrimination in their programs. The Department of Education has the statutory authority to investigate and penalize schools for failure to comply with this requirement.
When deciding whether anti-Semitic discrimination is occurring on campus, H.R. 6090 requires the Department of Education to use a definition of anti-Semitism that is vague, overbroad, and includes criticism of Israeli government policy. Mandating this definition of anti-Semitism would not help schools address anti-Semitic discrimination, but it would pressure institutions to investigate and censor statements that fall under the definition — even when those statements are protected by the First Amendment.
Examples of anti-Semitism set forth in the definition include “[a]pplying double standards by requiring of [Israel] a behavior not expected or demanded of any other democratic nation,” and “[d]rawing comparisons of contemporary Israeli policy to that of the Nazis.”
The First Amendment does not allow Congress to dictate the permissible criticism of any country.
Known as the International Holocaust Remembrance Alliance definition, it was originally drafted solely for the purpose of collecting data on anti-Semitism in Europe. Its principal author stated that it should not be adopted for use in Title VI investigations or to punish campus expression.
Members of Congress have ample alternatives to help address anti-Semitic discrimination on campus. FIRE has long supported efforts to constitutionally and effectively address anti-Semitic discrimination on college campuses by passing legislation to:
Prohibit harassment based on religion.
Confirm that Title VI prohibits discrimination based on ethnic stereotypes.
Codify the Supreme Court’s definition of discriminatory harassment.
These options would better address anti-Semitic harassment and would do so without suppressing free speech.
FIRE urges senators to consider these alternatives and oppose the Antisemitism Awareness Act.
Even if you agree that all these things are signs of anti-Jewish animus, there are serious First Amendment problems with trying to classify them that way legally. That’s why, as I’ve written before, one of the lead drafters behind the IHRA definition of antisemitism, Ken Stern, has consistently opposed the Anti-Semitism Awareness Act.
The Supreme Court, starting in 1971, has lit upon a reckless path of protecting speech that is, by any reasonable measure, appallingly vulgar, emotionally hurtful, and dangerous. Against the wishes of the community, the Court has protected a roster of extremely offensive speech:
• a rageful repetition of the F-word uttered by a teacher before children in a school auditorium • a White skinhead’s cross burning on the front lawn of a Black family’s house • the public burning of the American flag by an avowed Communist who hated the United States and who cared nothing for the emotional pain that he would cause Americans across political persuasions • the commercial trafficking of videos that gleefully depict pit bulls who are fighting each other to death as they were trained by their malevolent owners to do.
In protecting such remarkably offensive speech, the Court has failed to take seriously the claims of the community in wanting to regulate speech which is violative of the community’s desire to create a public culture of civility, dignity, and mutual respect.
Going against the grain of scholarship which has celebrated the victories of the individual speaker against his community, this Article argues that the community’s right to regulate speech should be afforded far more deference by courts than the right has previously received. There has been a surfeit of theorization relating to why we need a right of speech. But there has been a dearth of such theorization for why the right of speech should be restricted in order to realize the collective aspirations of the community. The Article aspires to fill that gap. Specifically, the Article draws upon the insights afforded by originalism to fashion a jurisprudence that emphasizes the rights of the community to regulate extremely offensive speech.
Speech First, Inc. v. Sands (certiorari granted, judgment re the bias policy claims vacated, and case remanded to the Court of Appeals for the 4th Circuit with instructions to dismiss those claims as moot) (Thomas and Alito, dissenting)
Lindke v. Freed (Barrett, J., 9-0: “The state-action doctrine requires Lindke to show that Freed (1) had actual authority to speak on behalf of the State on a particular matter, and (2) purported to exercise that authority in the relevant posts. To the extent that this test differs from the one applied by the Sixth Circuit, we vacate its judgment and remand the case for further proceedings consistent with this opinion.”)
O’Connor-Ratcliff v. Garnier (Per Curiam: 9-0: “We granted certiorari in this case and in Lindke v. Freed (2024), to resolve a Circuit split about how to identify state action in the context of public officials using social media. Because the approach that the Ninth Circuit applied is different from the one we have elaborated in Lindke, we vacate the judgment below and remand the case to the Ninth Circuit for further proceedings consistent with our opinion in that case.”)
Tingley v. Ferguson (Justice Kavanaugh would grant the petition for a writ of certiorari. Justice Thomas, dissenting from the denial of certiorari. (separate opinion) Justice Alito, dissenting from the denial of certiorari. (separate opinion)
Miller v. United States (pending) (statutory interpretation of 18 U.S.C. § 1512(c) advocacy, lobbying and protest in connection with congressional proceedings) // See also Fischer v. United States (argued April 16)
This article is part of First Amendment News, an editorially independent publication edited by Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article’s author(s) and may not reflect the opinions of FIRE or Mr. Collins.
Woodrow Wilson or Franklin D. Roosevelt: which president was
worse for free speech? In August, FIRE posted a , arguing that
Woodrow Wilson may be America's worst-ever president for free
speech. Despite the growing recognition of Wilson's...
Amidst nearly a decade of culture wars and protests over the foundations of American civil society, Coates explains why history has never been more contentious and calls on writers to “save the world.”
