Antisemitism and the Limits of Free Speech

We have to distinguish between speech and conduct, know what speech isn't constitutionally protected, and understand time/place/manner restrictions.

Continuing my series of lectures as part of the Ludovika Fellowship in Budapest, I gave students an American perspective on antisemitism and free speech. These lecture notes are based on my Free Press essay from last fall, and also draws on my previous presentation here, on the crisis in higher education. —IS

The October 7 massacre revealed big problems with our institutions of higher education, particularly the so-called elite ones. It’s amazing that the heart of antisemitism in America lies on campus, among the most educated and progressive people in the country. And yet that’s where calls for the annihilation of Israel began even before the IDF went into Gaza—which has exposed the deep rot in academia.

As Bill Ackman put it in a revelatory essay the day Harvard president Claudine Gay resigned, antisemitism is the “canary in the coal mine,” a warning about larger issues. This “oldest hatred” is always a leading indicator of assorted underlying pathologies, and in this case that means everything from cancel culture to ideological indoctrination, intellectual corruption to moral decay. We’ve seen a subversion of the core mission of universities to seek truth and develop human knowledge, and of classical liberal values like free speech, due process, and equality under the law. It’s been a shift from education to activism.

The root cause of antisemitism on campus is a noxious postmodern ideology that contends that truth is subjective and must be viewed through lenses of race, gender, and other identity categories, according to some privilege hierarchy. Your rights and freedoms depend on whether you’re part of a class deemed oppressor or oppressed. There’s also a false narrative of decolonization. All of that provides the intellectual bulwark behind the anti-Israel and anti-Jewish machinations.

But even antisemites have the freedom of speech—and they’ve taken full advantage of it. Pro-Palestinian groups harassed/assaulted Jewish students; protesters disrupted classes and taken over buildings; Ivy League professors called Hamas’s attack “exhilarating” and “awesome”; students tore down hostage posters; others chanted slogans like “from the river to the sea” and “globalize the intifada.”

Those who care about free speech are asking what we should make of the calls to punish Hamas apologists? After all, this is America, where you have the right to say even the vilest things. Yes, many of the same students who on October 6 called for harsh punishment for “microaggressions” are now chanting for the elimination of the world’s only Jewish state. But Americans are entitled to be hypocrites.

I would put my free speech bona fides up against anyone. I’m also a lawyer who recognizes that not all speech-related questions can be resolved by invoking the words First Amendment. And indeed there are three buckets to think about here:

1. Much of what we’ve seen on campuses is not, in fact, speech, but conduct designed specifically to harass, intimidate, and terrorize Jews.

2. Then there are exceptions for speech protections under the First Amendment, which universities largely parallel.

3. Yet other examples involve disruptive speech that can properly be regulated by school rules.

Opposing such behavior in no way violates the core constitutional principle that the government can’t punish you for expressing your beliefs.