Why Protecting the Constitutional Right to Express Vile Pro-Hamas Hate Speech is Critical to Protecting Jewish Americans and the State of Israel
Pro-Hamas Hate Speech Cannot be Prohibited or Punished by the United States Government and That's Actually not a bad Thing
In the aftermath of the horrifying and evil attacks against innocent Israeli civilians by the terrorist group Hamas, which is the elected government of the Gaza Strip, the overwhelming majority of Americans have demonstrated our support for Israel and the Jewish people as well as our absolute contempt for Hamas.1
However, some Americans felt differently. In reaction to images of murdered Israeli civilians, a number of pseudo-intellectuals, including many who attend our nation’s top-ranked universities and serve in the leadership of the Democratic Socialists of America and Black Lives Matter organizations, condemned Israel and praised Hamas.
At Democratic Socialists of America rallies in New York City and Chicago, speakers spoke excitedly of the actions of Hamas slaughtering hundreds of concert goers and praised the perpetrators as freedom fighters. Many pro-Hamas protests have included images glorifying the Hamas killers including favorable depictions of those who hang-glided into Israel to kill civilians.
The protests are jarring given the context.
Israel unilaterally withdrew from the Gaza Strip in 2005. If one is calling for Israel to “end the occupation”, one is either ignorant or calling for the removal of Jews from the State of Israel since Hamas continues to consider the very existence of the State of Israel to be an “occupation”. Hamas’s stated goal is the removal of all Jews from Israel and shouts to “end the occupation” is agreement with their calls to genocide.
Hamas is not just some turbocharged street gang but is the duly elected government of the Gaza Strip. Having been in power since 2006, when Palestinians elected them, Hamas has devoted all of its time, energy, and resources into one goal: finding new and creative ways to kill Israelis. On October 7, 2023, Hamas slaughtered over 1300 innocent Israelis in a completely unprovoked attack.
Yet, for those rallying for Hamas, this is completely justified behavior. The message sent by these protests is one of anti-Semitism; to them, Jewish lives do not matter.
The glorified images of Hamas killers, which have been proudly displayed at pro-Hamas rallies, and the anti-Semitic slogans loudly chanted at them are deeply disturbing. Upon witnessing the images depicting the killing of innocent Jews at an on-campus protest, a few Jewish students at the University of Wisconsin broke down into tears over this at a university sited protest. “How can you allow this to happen?”
It’s a question that many supporters of Israel in the United States are asking right now of this hate speech. How can this be allowed in the United States?
After all, in France, the government as temporarily banned pro-Palestinian protests given how offensive they are to the Jewish French population.2 In Austria, the City of Vienna banned a protest march in favor of Palestine because the invitations contained the phrase “From the River to the Sea, Palestine shall be free!”.3 In Germany, the Berlin public prosecutor’s office has agreed, announcing it will prosecute anyone for saying “From the River to the Sea, Palestine shall be Free!” as the office considers the slogan to be anti-Semitic.4
Last Thursday, hundreds of UCLA students protested in favor of Hamas, marching around campus, shouting for an “Intifada!”.5 One Los Angeles City Commissioner demanded to know why UCLA had not suspended these students for what is patently offensive and outrageous behavior.
The answer to that question is the First Amendment of the United States Constitution.6 For good measure, the free speech provisions of the California Constitution also protect the students at UCLA.7
Now, I’m certain I will be questioned as to whether I disagree with the assessment that the speech at pro-Hamas rallies is offensive, violent, crude, a celebration of war crimes, ignorant, hateful, ignorant, anti-Semitic, and racist speech.
I don’t disagree.
It’s disgusting. However, what you and I and good decent people with half an ounce of education find disgusting isn’t the criteria for what constitutes protected speech. A review of some legal principles is helpful. Under the First Amendment:
Offensive speech is protected free speech.8
Violent speech is protected free speech.9
Vulgarity and crude speech is protected free speech.10
Speech celebrating violence against others is protected free speech.11
Speech that can be interpreted as promising illegal violence at a future time is protected free speech.12
Speech where one publicly threatens to take the life of the President of the United States if they ever get the opportunity is protected free speech.13
Hateful and bigoted speech is protected free speech.14
Anti-Semitic speech is protected free speech.15
Racist speech is protected free speech.16
Under our Constitution, the act of UCLA students cheering on Hamas’s actions does not make them guilty of Hamas’s war crimes against the Israelis.17 Even if one argues that their speech has the tendency to encourage violence against the Jews, it remains constitutionally protected.18 And even if the act of the UCLA students enrages other students, staff, and faculty at UCLA, it remains protected free speech.19
This may seem confusing and even frustrating. The sight of people celebrating Hamas’s attacks can be absolutely infuriating. For many, it is further enraging to learn that our Constitution protects this vile garbage.
Should it be this way? In order to protect our system of law and our free society, it must be.20
As Justice Anthony Kennedy once so eloquently wrote for the Supreme Court:
When a student first encounters our free speech jurisprudence, he or she might think it is influenced by the philosophy that one idea is as good as any other, and that in art and literature objective standards of style, taste, decorum, beauty, and esthetics are deemed by the Constitution to be inappropriate, indeed unattainable. Quite the opposite is true. The Constitution no more enforces a relativistic philosophy or moral nihilism than it does any other point of view. The Constitution exists precisely so that opinions and judgments, including esthetic and moral judgments about art and literature, can be formed, tested, and expressed. What the Constitution says is that these judgments are for the individual to make, not for the Government to decree, even with the mandate or approval of a majority. Technology expands the capacity to choose; and it denies the potential of this revolution if we assume the Government is best positioned to make these choices for us.21
Is the pro-Hamas speech outrageous? Absolutely. However, under the First Amendment, protection for free speech does not lessen simply because one can decide that the speech in question is outrageous.22
Although small in number, there are elected officials who have taken a pro-Hamas line.
Representative Cori Bush (D-MO) used the opportunity of Hamas’s butchery to call for the United States to end support for Israel and falsely labeled Israel an “apartheid state”. This is false and insulting to those who lived under apartheid in South Africa.
Representative Rashida Tlaib (D-MI) reiterated her support for Hamas, blaming Israel as the root cause of this slaughter. She condemned violence on “both sides”. Even though only one side is intentionally targeting civilians.
Representative Ilhan Omar (D-MN) condemned the violence of Hamas but once more took the opportunity to condemn Israel.
Representative Alexandria Ocasio-Cortez (D-NY) condemned the Hamas attacks but then on social media quoted video of some of pro-Israeli demonstrators in New York City calling for the genocide of Palestinians (something that’s abhorrent) and decried both sides. As though what some random people on the streets of New York City say in the heat of the moment is equal to Hamas intentionally killing Israeli civilians.
Imagine that we could prohibit speech based upon what personally offends us. Or what is deemed offensive to society’s values? If that was all it took, speech that spoke truth to power in favor of Israel could just as equally be banned. Those who speak at these pro-Hamas protests would just as easily claim that our speech is “racist”, “violent”, “hateful”, “outrageous”, “triggering”, and “offensive to society’s sensibilities.”
You would argue that it’s not. However, if the government is in charge of determining what speech is allowed based upon what they believe offends society, would your arguments persuade the likes of Cori Bush, Rashida Tlaib, Ilhan Omar, or Alexandria Ocasio-Cortez?
Probably not. Just yesterday, numerous American politicians, world powers, and other assorted social media activists condemned Israel for blowing up a hospital in Gaza. As it turns out, Hamas, which admits to firing rockets out of hospitals (a war crime in and of itself), accidentally blew up the hospital themselves.
Israel has provided strong evidence of this. But has that changed the mind of any of the anti-Israel people? Have the likes of Congresswoman Tlaib rescinded their condemnation of Israel for blowing up the hospital?
No. Of course not. Why let facts and evidence contradict personal narrative?
Why today, Congresswoman Tlaib repeated the false claim that Israel had blown up a hospital in the Gaza Strip even though the United States has now confirmed Israel’s account that Hamas is responsible.
I cite the California Constitution’s free speech provisions as well as the First Amendment because it not only protects the right of UCLA students to call for an Intifada but also demonstrates the very real possibility of censorship against pro-Israel speech and organizing.
California’s free speech provision provides more protection than the First Amendment does in certain instances, including, quite famously, the right to free speech in privately owned commercial shopping centers.23
This dates back to a controversial 1979 California Supreme Court decision stemming from a case involving a group of high school students who decided one Saturday afternoon to collect signatures for a petition at a privately owned shopping center only to be kicked out by mall security.24
What petition were those high school students circulating?
They were collecting signatures for a petition to the President urging him to oppose and condemn the United Nations Resolution that Zionism was racism.25 Those high school students were engaging in speech and assembly in favor of Israel. This should serve as a reminder that speech restrictions could just as easily be used against those of us who support Israel.
Imagine that the government could ban racist speech under the First Amendment. If Zionism is “racism”, advocacy for Zionism could be banned. Certainly, one would disagree with that assessment. But if Congresswoman Ocasio-Cortez or Congresswoman Tlaib is allowed to decide what is “racist”, it won’t matter that they’re wrong. What will matter is only that they’re in charge.
It serves as a broader reminder that it is strategically unsound to look to opportunities to weaken the First Amendment. Jews have received unparalleled historical protections and opportunity in the United States because of the First Amendment, guaranteeing the freedom of religion and freedom of speech. The strength of Jewry in the United States has in turn helped assist the State of Israel.
As five thousand plus years of governmental oppression of the Jews teaches, Jews must always be wary of those who wish to not only discriminate against us but get rid of us altogether. Even in places where Jews historically have been granted religious freedom, we have witnessed that such protections can be taken away.
What is critical to protecting us in the United States? The key to keeping the United States a place of safety and opportunity for Jews is ensuring the strong enforcement of the First Amendment. Weakening the First Amendment’s protections, thus placing Jews at greater risk of persecution, is not something that should ever be embraced or encouraged by Jewish Americans.
What can those in power do then to support Israel and call out pro-Hamas hate speech? And what should Jewish Americans support to combat these displays of grotesque anti-Semitism?
This:
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