Category Archives: Free Speech

Why The ADL Is Wrong

Mahmoud Khalil, a Columbia University graduate student, is an activist who participated in last year’s pro-Palestinian campus protests. He was arrested by U.S. immigration agents on March 8 as part of the Trump administration’s pledge to deport anti-Israel student activists. Khalil is of Palestinian descent; he grew up in Syria, and is a permanent resident of the United States. He is married to an American.

His arrest was hailed by some sectors of the American Jewish community, including the Anti-Defamation League, an organization that fights antisemitism. The ADL released a statement applauding the “swift and severe consequences for those who provide material support to foreign terrorists”–this, despite the fact that there is no evidence whatsoever that Khalil provided such support.

Other Jews understand what the ADL does not– that “defending” Jews and other minorities requires support for an open society where individuals are free to voice any and all opinions, even those we may find offensive. Jews are far less safe when those in authority are free to punish people who express ideas with which they disagree. And that is clearly what this Trumpian assault on the First Amendment is all about. 

As Rolling Stone has reported,

The Trump administration has provided no evidence supporting a link between Khalil and Hamas — which is a U.S.-designated a foreign terrorist group — or documentation of Khalil advocating violence. Khalil has not been charged with any crime. Trump and his administration are nevertheless openly bragging that the activist was being forcibly deported and separated from his pregnant wife because of his pro-Palestinian advocacy, and that more arrests will follow.

As I’ve previously noted, the sudden concern over anti-Semitism being expressed by far-Right politicians is jarring to anyone with even a cursory knowledge of the GOP fringe’s historic hatred. When Christian Nationalists suddenly express a desire to “protect” their Jewish neighbors, it’s not just disconcerting–it’s ominous. MAGA’s sudden, pious concerns over anti-Semitism are anything but good-faith. Large numbers of the prominent Republicans who have labeled campus protests “Leftist anti-Semitism” have, like Trump, mainstreamed anti-Jewish rhetoric for years.

And by the way– those pious folks claiming to “protect” us are evidently unable to distinguish between opposition to Israeli policy and anti-Semitism. Plenty of Jews–including the one who writes this blog–oppose Netanyahu and his horrific actions in Gaza. We also oppose the arrest of Mahmoud Khalil.

As an in-depth article in The Guardian documented, “Campus protest crackdowns claim to be about anti-Semitism – but they’re part of a rightwing plan.” The article acknowledged the legitimate discomfort of Jewish students on campus, but noted that it has been used to justify “a powerful attack on academic freedom and First Amendment rights that long predates the student encampments – part of a longstanding rightwing project to curb speech and reshape the public sphere.”

The arrest is a flagrant and unprecedented attack on the First Amendment. Trump’s version of the federal government is claiming the authority to deport people–to revoke their green cards– for the “crime” of advocating positions that the government opposes, actions that are very obviously intended to intimidate and chill speech on one side of a public debate.

Amy Pitalnick of the Jewish Council for Public Affairs–who identifies as a Zionist–understands why the ADL is on the wrong side of this debate. The New York Times quoted her as saying “Any Jew who thinks this is going to start and stop with a few Palestinian activists is fooling themselves, Our community should not be used as an excuse to upend democracy and the rule of law.”

This is not the first time the ADL has failed to understand that Jews ultimately depend for our safety and well-being on the  protection of an open society that honors and respects the civil liberties of all its citizens. 

There’s a great adage I once heard from Ira Glasser, who led the national ACLU for many years. It is particularly pertinent here: Poison gas is a great weapon–until the wind shifts.

The government that can shut down Mr. Khalil today can shut down the ADL tomorrow–and given the documented anti-Semitic background of Trump and his base, it wouldn’t take much of a wind shift. 

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The Politics Of Lying

When I was teaching, Free Speech discussions would frequently evoke a question from students appalled by the massive amounts of disinformation enabled by the Internet and social media: “Can’t we at least outlaw lying?” I would have to explain that courts would have great difficulty determining the difference between what is a lie and what is a mistake, etc. The practical problems of such an effort would be insurmountable.

More to the point, the First Amendment rests on reliance upon the “marketplace of ideas.” Bad ideas and lies are to be countered by better ideas and facts. It is a theory that depends upon the participation of We the People.

It isn’t working very well right now, and I see no simple solutions. Neither does Bill Adair, who founded Politifact. In a recent essay for the Atlantic, he explored the failure of that fact-checking site to combat the firehose of propaganda and lies that  distort our political lives.

For American politicians, this is a golden age of lying. Social media allows them to spread mendacity with speed and efficiency, while supporters amplify any falsehood that serves their cause. When I launched PolitiFact in 2007, I thought we were going to raise the cost of lying. I didn’t expect to change people’s votes just by calling out candidates, but I was hopeful that our journalism would at least nudge them to be more truthful.

I was wrong. More than 15 years of fact-checking has done little or nothing to stem the flow of lies. I underestimated the strength of the partisan media on both sides, particularly conservative outlets, which relentlessly smeared our work. (A typical insult: “The fact-checkers are basically just a P.R. arm of the Democrats at this point.”) PolitiFact and other media organizations published thousands of checks, but as time went on, Republican representatives and voters alike ignored our journalism more and more, or dismissed it. Democrats sometimes did too, of course, but they were more often mindful of our work and occasionally issued corrections when they were caught in a falsehood.

After exploring some theories about why politicians lie–the calculus that they apparently apply to determine the ratio of risk to reward– Adair notes that today’s extreme political polarization encourages them to do little else.

Now that many politicians speak primarily to their supporters, lying has become both less dangerous and more rewarding. “They gain political favor or, ultimately, they gain election,” said Mike McCurry, who served as White House press secretary under President Bill Clinton. As former Democratic Senator Bob Kerrey told me, “It’s human nature to want to get a standing ovation.” Lies also provide easy ammunition for attacking opponents—no opposition research required. They “take points off the board for other candidates,” said Damon Circosta, a Democrat who recently served as the chair of North Carolina’s Board of Elections.

Adair notes that partisan media, especially on the right, fosters lying by degrading our shared sense of what’s real. These outlets expect politicians to repeat favored falsehoods as the price of admission. If you’re not willing to participate in the twisting of facts, you simply won’t get to speak to the echo chamber.

Tim Miller, a former Republican operative who left the party in 2020, pointed out that gerrymandering, particularly in red states, has made it so “most of the voters in your district are getting their information from Fox, conservative talk radio … and so you just have this whole bubble of protection around your lies in a way that wouldn’t have been true before, 15 years ago.”

Adair uses Mike Pence as an example of the way today’s political incentives change people. They had been neighbors when Pence was in Congress, and Adair saw him then as “a typical politician who would occasionally shade the truth.” When he was Indiana governor, Adair watched his lies grow. “By the time he became Donald Trump’s vice president, he was almost unrecognizable to me.”

The question, of course, is “what can we do?” Here are Adair’s closing paragraphs:

If politicians lie because they believe they’ll score more points than they’ll lose, we have to change the calculus. Tech and media companies need to create incentives for truth-telling and deterrents for lying. Platforms of all kinds could charge higher ad rates to candidates who have the worst records among fact-checkers. Television networks could take away candidates’ talking time during debates if they’re caught lying.

But these reforms will demand more than just benign corporate intervention. They’ll need broad, sustained public support. Voters may not be willing to place truthfulness over partisan preference in every case. But more will have to start caring about lies, even when their candidate is the culprit.

Amen.

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No More Sun In The Sunshine State

When I taught the First Amendment, I sometimes shared what I called my “refrigerator theory” of free speech. I analogized bad ideas to those leftovers that migrate to the back of the fridge and begin to smell, and noted that–if those same leftovers had been placed in strong sunlight– they would be bleached of their ability to smell up the place.

The “marketplace of ideas” envisioned by the Founders was intended to ensure that ideas would be subjected to the strong sunlight of public debate, where they believed that bad ideas would lose their negative odors.

I thought about that (admittedly silly) analogy when I read that–ironically–the “Sunshine state” was trying to turn off the sunlight.

Hundreds of New College of Florida library books, including many on LGBTQ+ topics and religious studies, are headed to a landfill.

A dumpster in the parking lot of Jane Bancroft Cook Library on the campus of New College overflowed with books and collections from the now-defunct Gender and Diversity Center on Tuesday afternoon. Video captured in the afternoon showed a vehicle driving away with the books before students were notified. In the past, students were given an opportunity to purchase books that were leaving the college’s library collection.

This purging of disfavored ideas was part of Ron DeSantis’ continued assault on New College and its “liberal” ideas–an assault that has prompted the departure of over a quarter of its students and large numbers of its most respected faculty.

As usual, Heather Cox Richardson provided an excellent commentary on the situation.

The New College of Florida is in the news today for illustrating the logical progression of the idea that Republicans must protect the nation from those who would destroy it. The New College of Florida was at the center of Republican governor Ron DeSantis’s program to get rid of traditional academic freedom. He stripped the New College of its independence and replaced officials with Christian loyalists who tried to build a school modeled after those that Viktor Orbán’s loyalists took over in Hungary. New College officials painted over student murals celebrating diversity, suppressed student support for civil rights, and voted to eliminate the diversity, equity, and inclusion office and the gender studies program. Faculty fled the New College, and more than a quarter of the students dropped out. To keep its numbers up, the school dropped its admission standards. 

Yesterday, Steven Walker of the Sarasota Herald-Tribune reported that the school cleared out the Gender and Diversity Center, throwing the books it had accumulated into a dumpster. Officials said the books are no longer serving the needs of the college: “gender studies has been discontinued as an area of concentration at New College and the books are not part of any official college collection or inventory.” 

Republicans predictably sneer at those who increasingly compare such efforts of MAGA officials to events in Germany in the years leading up to the Nazi takeover, but the parallels are striking. The Holocaust Encyclopedia, among other histories, has reported on these purges of “unacceptable” ideas.

Beginning on May 10, 1933, Nazi-dominated student groups carried out public burnings of books they claimed were “un-German.” The book burnings took place in 34 university towns and cities. Works of prominent Jewish, liberal, and leftist writers ended up in the bonfires. The book burnings stood as a powerful symbol of Nazi intolerance and censorship.

“Intolerance and censorship” certainly characterize Ron DeSantis and his cohort–but I have to believe that contemporary efforts to suppress those who our neo-fascists disfavor will fail, and rather spectacularly. DeSantis may succeed in destroying a once-highly-regarded institution of higher education, but in a country with many other states and universities–not to mention the Internet– his destructive idiocy is simply unequal to the task.

To return to my analogy: when you leave leftovers in the back of your refrigerator too long, they smell up the whole place. Those who crafted the Free Speech clauses of the First Amendment understood that, when ideas are suppressed, they take on an odiferous life of their own. Deprived of the “sunlight” that is provided by robust public discussion and analysis, they fester below the surface, distorting and poisoning civil discourse. 

If the perspectives advanced in the books being discarded are harmful or incorrect or incompatible with America’s philosophy, DeSantis and his fellow censors should be able to make that argument in public. Clearly, they can’t.

Ultimately, censorship is an admission that those suppressing ideas are unable to counter them. They have no “sunlight” to offer.

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Using The Jews

The sudden concern over anti-Semitism being expressed by far-Right politicians is jarring to anyone with even a cursory knowledge of the GOP fringe’s historic hatred. When Christian Nationalists suddenly express a desire to “protect” their Jewish neighbors, it’s not just disconcerting–it’s ominous.

Granted, there has been a sharp and troubling rise in anti-Jewish incidents, and there are good-faith efforts to address that phenomenon. Even those good-faith efforts can be misplaced; as Congressman Jerry Nadler explained in the Washington Post, despite being an observant Jew, a strong supporter of Israel and a member of Congress who has spent a career fighting antisemitism, he voted against the recent Anti-Semitism Awareness Act.

I voted against it, as did several other Jewish members of Congress. While I support the sentiment expressed by its sponsors, this bill does nothing to fight antisemitism in any meaningful way. Instead, it merely tinkers with definitions and could ultimately make investigating antisemitism on campuses more difficult in the future. In addition to trampling the free-speech rights of students and professors, this bill was disingenuously designed to split the Democratic caucus and score cheap political points.

Nadler’s final sentence refers to the fact that the far Right’s sudden, pious concerns over anti-Semitism are anything but good-faith. As the New York Times recently reported, several of the prominent Republicans who have labeled campus protests “Leftist anti-Semitism” have mainstreamed anti-Jewish rhetoric for years.

Debate rages over the extent to which the protests on the political left constitute coded or even direct attacks on Jews. But far less attention has been paid to a trend on the right: For all of their rhetoric of the moment, increasingly through the Trump era many Republicans have helped inject into the mainstream thinly veiled anti-Jewish messages with deep historical roots.

The conspiracy theory taking on fresh currency is one that dates back hundreds of years and has perennially bubbled into view: that a shady cabal of wealthy Jews secretly controls events and institutions contrary to the national interest of whatever country it is operating in.

The current formulation of the trope taps into the populist loathing of an elite “ruling class.” “Globalists” or “globalist elites” are blamed for everything from Black Lives Matter to the influx of migrants across the southern border, often described as a plot to replace native-born Americans with foreigners who will vote for Democrats. The favored personification of the globalist enemy is George Soros, the 93-year-old Hungarian American Jewish financier and Holocaust survivor who has spent billions in support of liberal causes and democratic institutions.

The linked article provided a number of examples, including Trump’s 2023 email to supporters containing “an image that bears striking resemblance to Nazi-era cartoons of hook-nosed puppet masters manipulating world figures.” The Times review found that just in the last year some 790 emails from Trump to his supporters invoked Mr. Soros or “globalists” conspiratorially, a meteoric rise from prior years, and that House and Senate Republicans increasingly used “Soros” and “globalist” to evoke anti-Semitism, “from just a handful of messages in 2013 to more than 300 messages from 79 members in 2023.”

The lengthy Times article provides numerous other examples. An equally in-depth article in The Guardian is titled “Campus protest crackdowns claim to be about antisemitism – but they’re part of a rightwing plan.” The article acknowledged the legitimate discomfort of Jewish students on campus, but noted that it has been used to justify “a powerful attack on academic freedom and First Amendment rights that long predates the student encampments – part of a longstanding rightwing project to curb speech and reshape the public sphere.”

The pro-Palestine movement has also provided cover for the right to expand its attack on protest – a project advanced significantly after the Black Lives Matter protests in 2020….Alongside this effort to tar protest as terrorism, the right is seizing on the emotions inflamed by Israel’s war to make headway in a longstanding offensive on education. Over the past several years, the GOP has sought to meddle in the academic freedom of universities, which they allege are indoctrinating students into “woke”, leftwing ideology. This is perhaps most dramatic in Florida, where, in a bid to control access to history and information, Governor Ron DeSantis has all but remade the public liberal arts college New College in his image, and has introduced the Stop Woke Act, curtailing what teachers can teach on topics of race and gender.

I’d love to believe that Rightwing politicians like Indiana’s Jim Banks have suddenly awakened to the dishonesty and danger of anti-Semitism, but Jews are clearly being used as a convenient tool in their ongoing attack on an open society–and like most Jews, I know that I am only safe in a truly open society.

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What Is The Comstock Act?

During the recent Supreme Court argument over Mifepristone, Justices Alito and Thomas both raised the possibility that a case brought under the Comstock Act would be stronger than the one being argued. (Legal scholars have noted the multiple deficiencies in the current case, which–had Trump not appointed an intellectually-dishonest extremist to a Texas federal judgeship–would never have reached the Supreme Court.)

What, you may ask, is the Comstock Act?

Back in 1999, I edited “Free Expression in America: A Documentary History” for Greenwood Press. Producing the book required me to identify, reprint and explain documents that told the evolving story of America’s free speech jurisprudence. I began with “Foundations of Liberty”–the Magna Carta, Areopagitica and Cato’s Letters–proceeded through Common Sense, the Virginia Declaration of Rights, the First Amendment and several others, and on through America’s various battles with censorship to the late 1990s.

In a section titled “1900-1950: A Half-Century of Paternalism” I included “Birth Control and Public Morals: An Interview with Anthony Comstock.” I introduced the interview by noting that contemporary readers might come away considering Comstock a caricature. (Even at his most influential, he was widely ridiculed.) Comstock founded the Society for the Suppression of Vice, and he saw vice pretty much everywhere he looked. He campaigned against the publication of “vile books,” which he argued were responsible for “debauching” young men, and it isn’t an exaggeration to say that he considered any publication dealing in any way with sex to be “vile.” He was particularly offended by then-current efforts to provide women with birth control information.

The Act reads as follows:

Every article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion, or for any indecent or immoral purpose; and

Every written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, or how, or from whom, or by what means any of such mentioned matters, articles, or things may be obtained or made, or where or by whom any act or operation of any kind for the procuring or producing of abortion will be done or performed, or how or by what means abortion may be produced, whether sealed or unsealed; and

Every paper, writing, advertisement, or representation that any article, instrument, substance, drug, medicine, or thing may, or can, be used or applied for producing abortion, or for any indecent or immoral purpose; and

Every description calculated to induce or incite a person to so use or apply any such article, instrument, substance, drug, medicine, or thing—

Is declared to be non-mailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier.” 

The Comstock Act was passed in 1873, and although it hasn’t been explicitly repealed, most lawyers believe that intervening case law has rendered it unenforceable. 

Justices Alito and Thomas are so intent upon banning abortion they have evidently overlooked the sweep of the Act, which would go far, far beyond preventing abortifacients from being mailed. Comstock was intent upon preventing the dissemination of anything and everything he found “vile,” including, in his own words “intemperance, gambling and evil reading.” He classed contraceptives with pornography, and when questioned about that, replied that “If you open the door to anything, the filth will pour in and the degradation of youth will follow.”

Even during his lifetime, Comstock was widely regarded as an unbalanced anti-sex zealot; his Society for the Suppression of Vice was intent upon censoring books, magazines or other materials describing or touching on sex, very much including medical information and information about contraception. (The Comstock Act at one time prevented the mailing of anatomy textbooks to medical students.)

In Comstock’s fanatic view, “Any indecent or immoral use” covered a lot of ground, much of it misogynistic. There’s a reason a recent biography of him is titled “The Man Who Hated Women.”

Trying to resuscitate Comstock’s “zombie law” will raise some interesting legal questions. Can the anti-abortion provisions be severed from the clearly unconstitutional censorship provisions of the Act? Does the prohibition against use of the U.S. mail extend to Federal Express and other private carriers? 

Are Alito and Thomas so desperate to control the lives and reproductive liberties of American women–so desperate to take us back to a time when women were breeding property– that they’re willing to revive Comstockery? 

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