Why new tests for free speech are challenging
Vocal support for Hamas is troublesome, but the First Amendment applies to immigrants.
Summary: New threats to freedom of expression are happening as tensions flare over the Israel-Gaza conflict. Calls for deportations may be justified as a means to stop potential violence, but First Amendment principles should not be abandoned.
From every angle, free speech is facing new tests as passions to continue to flare over the ongoing Israel-Gaza conflict. Rallies across the globe in favor of Palestine, some done immediately after the atrocities on Oct. 7 in total disregard (and seeming support) for that tragedy, are leading to new calls for censorship on demonstrations seen as signaling animosity toward Israel and Jewish people.
Thought to have found a new home among conservatives after being by spurned by the radical progressive left, free speech is now seriously being challenged on the right. Leaders in the Senate like Tom Cotton and Marco Rubio are calling for the expulsion of foreign nationals for expressing support for Hamas. In Florida, Ron DeSantis ordered the dissolution of a pro-Palestinian group at the University of Florida on the grounds it was providing material support to the terrorist group.
Meanwhile, Republican presidential candidates, most prominently Nikki Haley, are calling for the use of government force to combat anti-semitism on college campuses. The sole exception is Vivek Ramaswamy, who has maintained conservatives would be hypocrites by calling themselves champions of free speech only to turn around and seek to ban anti-Israel speech they don't like.
I've often written about free speech as a declining institution, but I use the words "test" and "challenge" here for a reason: I don't know where exactly I would come down on these calls as a matter of free speech principles.
I know it's fashionable in some circles to describe oneself as a free-speech extremist, but I consider myself more of a free-speech traditionalist. That is, someone who has an expansive view of free speech as important to pluralism in public dialogue, but also aware of realities of the need for limitations in certain categories, like pornography or libel and slander.
If a foreign national were to declare support for Hamas, that person would essentially be alleging themselves with violence. If that person were later to act with violence in accordance with that group's principles, there would be a lot of soul-searching over why nothing was done to prevent it when everyone knew the person's ideology. As for anti-semitism on college campuses, I could understand why Jewish students — or any other students for that matter — would be threatened by calls to support Palestine "from the river to the sea." There's an inherent threat of violence in someone wanting to make the entire nation of Israel disappear.
And yet, it's a slippery slope. As columnist Brad Polumbo points out, there's a distinction between declaring support for Palestine and support for Hamas. The latter of the two seems exceedingly rare in comparison. That distinction should definitely be taken into account. How many of these potential deportees are actually out there and how would they be identified?
If we start making rules enabling government force against pro-Palestinian protesters, that force could more easily by applied to other discourse on uncomfortable topics, or to control speech altogether. If student visas were cancelled as a result of support for Palestine, it would make a different standard for the First Amendment for citizens and non-citizens, which could lead to unforeseen problems. The Supreme Court has ruled the First Amendment applies to immigrants legally in the United States, although it has also allowed deportations based on political activity.
So I don't have a firm conclusion on this issue. My guiding light, however, has always been to have faith in the free speech system and its ability to police itself. We don't need to have the government step in to help when free speech has consequences, especially those who would voice their support for terrorists. Many activists are finding that out now after posh offers as lawyers and other professional careers are now rescinded or barred from being offered to them.
The calls for deportation are a turn around for many of these Republican candidates. As The New York Times points out, the calls for Tim Scott to deport foreign nationals engaged in anti-Israel conduct stands in contrast to a resolution he introduced in the Senate urging colleges and universities to “facilitate and recommit themselves to protecting the free and open exchange of ideas. The same resolution calls on the schools to reject “restrictive speech codes are inherently at odds with the freedom of speech guaranteed by the First Amendment.”
Meanwhile, we continue to have the same battles over free speech from the left. Sen. Amy Klobuchar is pressuring Amazon to censor the popular voice-activated device Alexa out of belief its responses spread incorrect information about the results of the 2020 election. Last week, the U.S. Supreme Court issued a stay on an injunction against the federal government in a lawsuit against the Biden administration's attempts to coerce speech on social media platforms. That coercion is now free to resume thanks to that order as the high court considers the litigation.
So the fog of war is making things challenging in upholding free speech. Disagreements will likely continue about finding appropriate guardrails. The uncomfortable truth is we may suffer setbacks in the name of public safety as the Israel-Gaza conflict continues.