Free Speech in the Public Square

I have been a free speech absolutist since I was a teenager and first read Free Speech for Me, But Not For Thee–How the American Left and Right Relentlessly Censor Each Other by noted civil libertarian Nat Hentoff. I did not think then, and don’t think now, that all speech deserves a hearing or is equally valid (to say nothing of equally true). I just don’t trust government to decide what speech gets heard. The only alternative, then, is to punish and restrict speech as little as possible.

For Hentoff, this meant defending the right of the American Nazi Party to march through Skokie, Illinois, a suburb of Chicago home to numerous Holocaust survivors, in the 1970s. Free speech means free speech–for the hateful, the hurtful, the unpopular. Once we start to shut down ideas for being unpleasant, can we be certain that our determination of unpleasantness rather than someone else’s will carry the day?

As an American history and government teacher, I spent years teaching about the Constitution and free speech. While I was clear that there were other, equally plausible and valid ways to think about these issues, I shared my perspective with my classes, always quoting Hentoff. The only way to ensure that I will have the freedom to say what I think is to make sure that everyone else has the freedom to say what they think, too.

But only a few months after Hentoff’s death in January 2017, my belief in these principles was shaken for the first time in decades. Listening to the radio on motzaei Shabbat August 12, 2017, hearing the marchers at the “Unite the Right” rally in Charlottesville chant “Jews! Will Not! Replace Us!” and reading about the experience of the Jews of Charlottesville afraid to gather for prayer on that Shabbat, I wondered if my principles were right. Is this the hard moment in which it is even more important to hold fast to one’s beliefs, despite the difficulty and the personal discomfort? Or is it the time to let one’s personal discomfort challenge one’s intellectual commitments, to realize that abstract ideas need be rethought in the face of the harm they can cause?

The ACLU defended the organizers’ right to hold that rally in Charlottesville, as they had the Nazis in Skokie decades before, a stance that at least some ACLU chapters came to regret after the violence by the rallygoers and the murder of Heather Heyer. Legal commentators Dahlia Lithwick and Mark Joseph Stern made what I found to be the most persuasive argument about how to think of the events of that day, one that aligned with the harrowing testimony of Alan Zimmerman, the president of Congregation Beth Israel of Charlottesville about his community’s experience. The First Amendment, argued Lithwick and and Stern, should be understood very broadly–protecting nasty speech, hurtful speech, hateful speech–until the speakers are armed. Once there are guns in the mix, that speech becomes implicitly, if not explicitly, threatening, and the right to hateful speech must be assessed differently.

And there I found myself, my principled beliefs more-or-less comfortably reconciled with my visceral unease at the marchers’ chants, until the past two months. Jews all over the United States have found ourselves somewhere between discomfited and aghast at what is being chanted at rallies and declared from podia at campus events. Interestingly, many who have spent the past few years decrying what they called “cancel culture” on campus and the silencing, shutting down, and sanctioning of speech on campus are now ardently advocating for silencing, shutting down, and sanctioning of anti-Israel speech. Were they right the first time? Wrong the first time but right now? Can both positions be correct?

When three college presidents confronted aggressive congressional questioning, equivocating about whether calling for Jewish genocide would be a violation of campus speech codes, stammering or smirking their way through invocations of “context” and then facing the firestorm their responses provoked, I found myself in a very odd position. The college presidents sounded morally obtuse, unfeeling, overlawyered and undersouled. They were also, for the most part, reflecting the consensus view of the First Amendment’s protections. Setting aside how poorly they acquitted themselves before the cameras, their answers again demanded a reconsideration of how free speech should be; who is harmed by very broad latitude in permitted speech; and who can be trusted to police speech anyway.

These are, and always have been, very difficult questions about the law’s priorities and the Constitution’s protection. But we might feel their difficulty more acutely now that this is not a thought exercise, but our lives and our students’ lives on campuses. If my principles were the right ones all along, this difficult, painful situation spotlights just how important it is to hold onto them, even when it’s hard. Or perhaps this difficult, painful situation illuminates that my principles were too detached from the lived experiences of the victims of hateful speech, and that it’s time to consider more broad-based restrictions on what ideas can be expressed, where and how. We are asked to revisit our most deeply-held values, as Jews and American citizens.

As part of Machon Siach, I oversee the Siach Graduate Fellowship, which meets in Lincoln Square Synagogue on Manhattan’s Upper West Side. Some weeks ago, driving to SGF on a Monday night, I passed a commotion on 10th Avenue. At first, hearing the noise of the crowd, I expected to see a labor strike accompanied by the standard giant inflatable rat. But as I approached, I could hear “There is only one solution! Intifada Revolution!” I live in the city with the world’s largest Jewish population, a testament to Jewish political, cultural and financial power. There was a line of police officers between the marchers and the street–indeed, there may have been more police than marchers. I was safely ensconced in my Honda Odyssey. And I am, and have been for decades, an ardent supporter of the freedom to express ideas–hateful ideas,controversial ideas, all ideas–without government interference. And yet I felt deeply uneasy.

But in revisiting and rethinking this issue, even in the intensity of the moment, I think that Nat Hentoff was right. The safety of Jewish Americans is paramount and not negotiable. Threats of violence must be handled as a law-enforcement matter. But chanting slogans–even slogans whose content supporters of Israel might find offensive, or hateful? Even as I have found myself on the receiving end of those words, and not much liking the experience, I cannot believe that we would be better off if government officials at any level would be handed the explicit authority to decide which speech is too offensive for the public square. Writing for the Supreme Court’s majority in Texas v. Johnson, the case affirming the right to burn an American flag as a matter of free speech, Justice William Brennan reminded us: “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

As a teacher, I want to model for my students rigorous thinking, an ability to weigh competing values, and an openness to reconsideration in the face of new evidence and new experiences. And sometimes, when I work through all of that, I end up back where I started, persuaded anew by the arguments that persuaded my sixteen-year-old self.