As the Israeli-Palestinian conflict escalates, so must our commitment to free speech

Supreme Court Justice Oliver Wendell Holmes famously wrote, “if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought — not free thought for those who agree with us but freedom for the thought that we hate.” 

As events this month suggest, it’s a sentiment that is easier to agree with in the abstract than when confronted with speech one deeply abhors in the wake of a tragedy. Following Hamas’s deadly terrorist attack on Israel, college students, faculty, protesters, and others have made statements supporting or justifying the attack — even in some cases celebrating Hamas’s atrocities — that have unsurprisingly elicited outrage from many corners. 

Any commentary on Hamas’s attack or Israel’s response is, of course, fair game for criticism and condemnation. That exchange of views is what the First Amendment protects. FIRE has long defended the free speech rights of speakers on all sides of the Israeli-Palestinian conflict. 

The mere expression of an opinion — however repugnant — is always protected.

But some reactions to opinions about the latest escalation of the conflict have gone beyond counterspeech: 

• FIRE just wrote to New York University over its apparent investigation of a student who reacted to Hamas’s attack by saying, “Israel bears full responsibility for this tremendous loss of life.” 
• NYU students ripped down posters of missing Israeli hostages.
• Government officials are threatening to defund colleges over student statements blaming Israel for Hamas’s attack and demanding expulsion of students and termination of faculty who have justified or excused Hamas’s actions. 
• The State University System of Florida incorrectly warned that calls for Israel “to be wiped off the map” are “criminal activity.” 
• Former President Donald Trump, the leading Republican candidate for the 2024 presidential election, proposed banning those who express “open hatred against Israel and America” from college campuses. 
• Officials are leaning on social media platforms to stem the spread of “violent rhetoric.” 

The list will no doubt grow in the coming weeks.

The First Amendment protects all viewpoints equally, no matter how much they offend

When politicians and institutions attempt to curb discussion on a prominent political issue over which Americans have intense disagreements, they threaten constitutionally protected speech. 

The government has no authority under the First Amendment to censor, punish, or retaliate against speakers based on the views they express, even if 99% of society finds those views offensive or utterly abhorrent. (While NYU is not a public institution bound by the First Amendment, it guarantees free speech to both students and faculty — promises it must uphold.)

True threats, incitement to imminent unlawful action, and harassment are not protected. But the recent calls to punish speech about the Israel-Hamas conflict extend well beyond expression that falls into one of those narrow categories. 

The mere expression of an opinion — however repugnant — is always protected.

The authority to regulate “hate speech” — an inherently vague and subjective label — is a gift to those who want an excuse to stamp out views they personally detest. FIRE knows from its long history defending free speech on campus how often both sides of the Israeli-Palestinian debate face censorship under this rationale. The target simply depends on who holds power at a given time and place. 

Once we abandon the principle of viewpoint neutrality, all bets are off. 

It’s even more important to stick to free speech principles during times of crisis, when rising passions create a heightened risk of authoritarian overreach.

For further evidence, look at what’s happening abroad. Israel’s communications minister proposed emergency regulations that would allow police to arrest citizens and journalists who publish content that would “harm national morale.” Indian officials are threatening censorship of views opposed to the government’s stance on the Israel-Hamas war and of expressions of support for Palestinians. 

France, for its part, outright banned all pro-Palestinian protests because they are “likely to generate disturbances to the public order.” Never mind whether a particular protest is peaceful or not. 

Fordham’s Students for Justice in Palestine group should be celebrating its sixth anniversary. Instead, it’s still fighting to be recognized.

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FIRE has written extensively about Fordham’s shameful decision to ban the student group because of its political beliefs.

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Banning peaceful demonstrations for the ostensible purpose of preserving public order has an ugly history in the United States, where state and local governments frequently used this tactic to shut down civil rights protests, citing the potential for violence to break out because of fierce opposition to the protesters’ support for racial equality. Fortunately, the Supreme Court would affirm that “constitutional rights may not be denied simply because of hostility to their assertion or exercise.” 

In times of crisis or upheaval, this principle faces its greatest test. When tragic events stir understandably intense feelings of grief and anger, people tend to have little patience for speech that inflames those emotions. That’s human nature. But we cannot let outrage at speech we find reprehensible blind us to the wisdom of the First Amendment and the danger of empowering the government to police what we say. It’s even more important to stick to free speech principles during times of crisis, when rising passions create a heightened risk of authoritarian overreach.

More speech is still the answer

Let every participant in the debate over the Israeli-Palestinian conflict show their cards, even those with the most extreme views. And let others marshal arguments and evidence to refute or discredit those views. Let it all happen out in the open. 

At the end of the day, we’re not better off knowing less about what our fellow Americans actually think. As FIRE co-founder Harvey Silverglate has said, “I want to know who the Nazi in the room is so I know not to turn my back to them.”

In Snyder v. Phelps, the Supreme Court upheld the right of the Westboro Baptist Church to picket soldiers’ funerals with signs bearing messages like “Fags Doom Nations” and “Thank God for Dead Soldiers.” It’s hard to find a case involving speech that draws less public sympathy. But as the Court said in an 8-1 decision uniting justices across the ideological spectrum:

Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate.

Free speech comes at a price. But it’s nothing compared to the price we will pay if we abandon it.