By Gregory P. Magarian
Washington University School of Law
In December 2023, the U.S. public watched a powerful congressional committee try to browbeat four university presidents into punishing their students for expressing pro-Palestinian political views. The premise for this legislative ambush was that the slogans “Intifada” (Arabic for “uprising”) and “Palestine will be free from the river to the sea” constitute anti-Semitic hate speech.
Members of the congressional committee, and many commentators, loudly condemned the university presidents for asserting that the U.S. Constitution’s First Amendment (which private universities need not obey as a legal matter but to which they nearly all choose to adhere) bars official reprisals against political speech even if the speech is hateful. The university presidents were right. The First Amendment does let the government punish threats, harassment, and “fighting words” when a speaker directs any of those sorts of invective at a particular person or small group of people. Hate speech has proven more likely than other speech to take one of those proscribable forms. Absent such a convergence, however, the government may not punish hateful rhetoric about an identity group. For example, the First Amendment does not protect shouting “Armenian scum!” in an Armenian person’s face or sending several Armenians an email that says “I’m going to kill you because you’re Armenian,” but it does protect a social media post that states “All Armenians deserve to die.”
The E.U., Canada, and many other liberal democracies take a divergent view of hate speech. Their rights charters leave substantial latitude for legal restriction of speech that denies the dignity and humanity of identity groups, even if the speech does not directly assault any individual or discrete gathering. Debates about the relative merits of different legal approaches toward constitutional speech protection often focus on hate speech. U.S. civil libertarians claim that liberal democracy requires constitutional protection for hate speech. European communitarians counter that hate speech restrictions improve the social circumstances of identity minorities. This normative disagreement about hate speech regulation eludes any simple, broadly persuasive resolution.
However, even if we conclude that hate speech regulation is normatively appealing, the spectacle of the U.S. congressional hearing foregrounds one strong reason to favor the U.S. resistance to regulation: the danger that putative government speech regulators will, counterintuitively, use concerns about hate speech to promote powerful interests and suppress vulnerable dissidents’ political advocacy.
Representative Elise Stefanik, the far-right U.S. legislator who led the congressional inquisition of the university presidents, commanded the presidents to confess the hateful character of slogans like “Intifada” and “from the river to the sea.” Ironically, while Israel was pressing a bombing campaign against Gazans that South Africa has challenged as genocidal in the International Court of Justice, Rep. Stefanik insisted that virtually any full-throated call for Palestinian liberation amounted to genocidal rhetoric against Israeli Jews.
Rep. Stefanik’s broad rhetorical brush obscured a complicated and contentious semiotic reality. The Arabic word “Intifada,” meaning “uprising,” entered the western media lexicon during two Palestinian rebellions, one in the late 1980s and the second in the early 2000s, against Israel’s occupation of the West Bank and Gaza. No prominent commentary during those conflicts equated “Intifada” with genocide.
The phrase “Palestine will be free from the river to the sea” has a more fraught and fractured dossier.[1] Terrorist groups, notably Hamas, have indeed used that slogan to call for wiping out Israeli Jews. At the same time, other Palestinians and their supporters use the phrase to demand full equality for Palestinians alongside Jews in the whole of Israel / Palestine. Such equality would entail a right for Palestinian refugees to return to Israel, a political nonstarter for Israeli Jews who fear any compromise of political control over the country. Power sharing, however, is not genocide. Israel’s hard-right Likud party has itself adapted the slogan, declaring in its original 1977 platform that “between the Sea and the Jordan there will only be Israeli sovereignty.”[2]
In the context of the present Gaza War, condemning “Intifada” and “from the river to the sea” as hate speech serves a political strategy. Israel has long enjoyed the steadfast patronage of the U.S. government, leaders in both major national political parties, and most of American civil society. Some of those patrons, amid growing public disapproval of Israel’s actions, want to silence criticism of Israel and discredit advocacy of Palestinian interests. Coding potent pro-Palestinian political appeals as hateful and genocidal advances that effort. The First Amendment protects expression of dissenting political viewpoints. Accordingly, censorious stalwarts of the pro-Israel majority, such as Rep. Stefanik, seek to marginalize the First Amendment.
Hate speech does its harm when powerful speakers use hateful attacks to subordinate identity groups with less power. Powerful actors control government institutions. Why, then, should we expect governments to effectively, even honestly, protect underpowered communities from hate speech? Optimists about benign hate speech regulation try, sensibly, to leverage institutions that tend to resist concentrated power. Thus, U.S. proponents of hate speech regulation have focused their advocacy on colleges and universities. Those institutions’ limited power, however, ends up enabling official coercion. Too often, colleges and universities have failed to protect vulnerable minorities from hate speech, and now Rep. Stefanik is turning the hate speech tables to intimidate those institutions into suppressing political dissidents’ advocacy of a vulnerable minority’s interests.
Some expressions and symbols pass from public respectability into disfavor. Not long ago, many people viewed the battle flag of the Confederate States of America as a vague symbol of generalized rebellion against unjust authority. No longer. Most (though not all) people today recognize the Confederate flag as a willful emblem of violent racism.[3] In contrast, efforts to tar the slogan “Black Lives Matter” as insurrectionary and anti-white have failed to gain traction.[4]
Social mechanisms of political contestation are hardly immune from powerful influences. Even so, those mechanisms offer a more fluid, broadly accessible medium than government coercion for struggles over political meaning. Let diverse factions make their claims about “Intifada” and “from the river to the sea,” as factions have done over the Confederate flag and “Black Lives Matter.” Let political communities filter those claims through their many and varied prisms of understanding. Perhaps “Intifada” and “from the river to the sea” will someday meet the same rhetorical fate in our society as the Confederate flag. But any such outcome should result from public discourse, not government force.
[1] See Ellen Ioanes, The Controversial Phrase “From the River to the Sea,” Explained, Vox (Nov. 24, 2023), https://www.vox.com/world-politics/23972967/river-to-sea-palestine-israel-hamas.
[2] Likud Party: Original Party Platform (1977), American-Israeli Cooperative Enterprise, Jewish Virtual Library, https://www.jewishvirtuallibrary.org/original-party-platform-of-the-likud-party.
[3] See Clark Merrefield & John Wihbey, Research on the Confederate Flag, Divisive Politics and Enduring Meanings, The Journalist’s Resource (Jan. 15, 2021) (compiling studies), https://journalistsresource.org/home/confederate-flag-divisive-politics-and-enduring-meanings-2/.
[4] See Jenn Hatfield, 8 Facts About Black Lives Matter, Pew Research Center (July 12, 2023), https://www.pewresearch.org/short-reads/2023/07/12/8-facts-about-black-lives-matter/.
Biography
Gregory P. Magarian is the Thomas and Karole Green Professor of Law at the Washington University School of Law in St. Louis. He teaches and writes about U.S. constitutional law, focusing on expressive freedom. His first book, Managed Speech: The Roberts Court’s First Amendment, was published in 2017 by Oxford University Press. His writing also examines church and state, gun regulation, and regulations of the media and the political process. He received his B.A. from Yale and his law degree from the University of Michigan. He previously served as a law clerk for U.S. Supreme Court Justice John Paul Stevens.