Speech we don’t like needs most protection

By William H. Freivogel

The tricky thing about the First Amendment is that you have to protect the speech you hate as fiercely as the speech you love.  

You have to protect leftist speech as much as rightist speech. Communists as much as fascists. Religious fundamentalists as much as atheists. Calls for war as much as calls for peace. Back the Blue protests as much as Antifa. Donald Trump’s lies about the 2020 election as much as the truth about Joe Biden winning.

The First Amendment isn’t Red or Blue, liberal or conservative. It isn’t even truth vs. falsity. It simply postulates that if people speak freely, society will somehow find its way to the truth.  

In fact, the speech we hate needs the most protecting because it makes people so mad that they want to ban it.

Burning the American flag. Burning the Bible or the Koran.  KKK protesters burning a cross at a hate-filled rally In Ohio. Nazis marching down the streets of Skokie, Il. in front of Holocaust survivors. A Vietnam War protester walking into a courthouse with an “F the draft” jacket. A high school cheerleader posting the F-bomb to social media after she didn’t make the varsity cheer squad. A politician lying about winning the Congressional Medal of Honor when he hadn’t even served. Religious zealots protesting at the burial of U.S. soldiers they think were killed by god’s wrath at a country with gay soldiers.

All of these hateful or at least vulgar displays have been protected by the First Amendment.

Who gets canceled?

In this historical moment of December 2023, defining and defending the boundaries of free speech is difficult, especially on college campuses. 

This month the heads of three Ivy League universities – Harvard, Penn and MIT – attempted to voice nuanced defenses of free speech on campus. The result was that one lost her job and one barely hung on.

The problem wasn’t that they were wrong; it was that they were too legalistic – especially for a committee hearing room where the inquisitors may have wanted to push them out of their jobs. (Rep. Elise Stefanick, the inquisitor, lost her place on a Harvard policy board because of her election denials.)

When Stefanick suggested that “intifada” is a call for “genocide” against Jewish people and asked if advocacy of genocide was against Penn’s speech code, president Elizabeth Magill should have said one word. “Yes.” Instead, the former dean of Stanford Law School, responded by saying it depends on the context.

She was right. It does require context. But members of Congress looking for a televised victory don’t take the time to listen to context. Nor are parents or alums looking for hedged responses when it sounds like students are threatening to kill other students.

No absolutes

Free speech is not absolute. Some speech is illegal – obscenity, fighting words, true threats, conspiring to break the law, defamation, falsely crying fire in a crowded theater.  

Other kinds of speech are sometimes protected and sometimes not. Advocacy of revolution, for example. Mere advocacy of revolution is protected unless the lawlessness is imminent in which case it isn’t protected.

Take Klansman Clarence Brandenburg. He invited a Cincinnati TV reporter to cover a KKK rally in a Hamilton, Ohio farm field in August 1964. The small Klan crowd dressed up in the obligatory sheets and even had a goose-stepping Nazi there giving a Heil Hitler salute. Brandenburg promised “revengeance” (sic) if the federal government and courts continued to  “suppress the white, Caucasian race.” 

The Supreme Court threw out Brandenburg’s conviction for criminal syndicalism. It said that advocacy of violent overthrow of the government is protected speech unless “such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Nothing was imminent in a farm field outside Cincinnati.

That’s the kind of context that Magill was trying to get at. Stefanik asked if “calling for the genocide of Jews violate Penn’s rules or code of conduct, yes or no.” Magill replied, “if the speech turns into harassment, it can be harassment, yes.” Harvard’s President Claudine Gay provided more context saying that speech advocating genocide would violate the student code if “targeted at an individual” because it would be crossing over into  “bullying, harassment, intimidation.”  

Stefanik expressed her dismay and immediately told Gay she should resign. A critic of cancel culture and “Wokeism,” Stefanik was ready to cancel Magill and Gay.

River to the sea

A few days before the Ivy League presidents testified, Washington University Chancellor Andrew Martin issued a statement in which he said, “we condemn the use of antisemitic phrases, Islamophobic rhetoric, the endorsement of criminal activity, or other language that is seemingly deployed in order to incite.”

Martin then went on to single out the phrase “from the river to the sea” as an example of unacceptable rhetoric, saying,  “To use that phrase, particularly in circumstances where we know it will have a harmful impact, is well beneath the dignity of every member of our community. This type of language does not build understanding; its contribution to the community is ill will, anger, distress, and sadness.” 

Greg Magarian, a First Amendment expert at the law school, said that Martin’s policy was admirably balanced until he got to the river to the sea phrase. There it went awry and undercut the balance, he said.

“Divergent Palestinian and pro-Palestinian speakers, from terrorist groups to peace activists, have used the slogan to call for different political outcomes,” Magarian wrote in an email to the Student Life newspaper. “Interestingly, the political party that leads Israel’s government has used a parallel phrase: ‘[B]etween the sea and the Jordan there will only be Israeli sovereignty.

“Selecting only that single pro-Palestinian slogan for condemnation also belies the statement’s rhetorical neutrality, particularly its admirably conjoined stand against anti-Semitism and Islamophobia.”

Hostile environment

One additional complexity in the college free speech discussion is that Wash U, Penn, Harvard and MIT are private universities, so the First Amendment doesn’t  apply to them. The First Amendment, which starts, “Congress shall make no law,” applies only to the government, not private entities.

That said, all of these private universities have committed themselves to academic freedom and the First Amendment. In addition, Title VI of the Civil Rights Act of 1964 requires all universities receiving federal funds to guard against a learning environment tainted by hostility based on race, sex, national origin or religion.

This kind of a hostile environment can be created by advocacy of genocide that creates a fear that Palestinians will force Israelis into the sea or that Israelis will kill the next generation of Palestinians while destroying Hamas in Gaza.

That’s what the college presidents were trying to explain.

The First Amendment was ratified in 1791 but didn’t come to life until a century ago in the time of Justices Oliver Wendell Holmes and Louis Brandeis.  “The best test of truth is the power of the thought to get itself accepted in the competition of the market,” wrote Holmes. Brandeis added, “the freedom to think as you will and to speak as you think are indispensable to the discovery and spread of political truth.”

Today’s America is pressure testing this belief that the people will be able to discern the facts amidst the cacophony of a democratic society where lies sometimes outrun truths. 

William H. Freivogel is a former editorial page deputy editor for the St. Louis Post-Dispatch and contributes to St. Louis Public Radio. He is a member of the Missouri Bar.