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.


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


Can You Stand Another “Re-run”?

The current wave of book banning efforts I referenced a few days ago reminded me of an essay I wrote about the importance of intellectual freedom some twenty-five years ago, for an ALA publication. I dug it out, and decided the observations were still valid–and, unfortunately, even more relevant. So– with apologies for both the length and self-citation– I’m sharing it.


Not too long ago, I had a conversation with a librarian involved professionally with issues of intellectual freedom. “Sometimes,” she said, “I get so tired of it. I wonder why I continue to fight.” I’ve thought about that conversation several times; if I could do an instant replay, I think I would tell her that I know why she keeps at it. It’s because it is so important.
I spent six years as Executive Director of the Indiana affiliate of the American Civil Liberties Union, and of all the lessons I learned during that time, the most profound was this: the future of western liberal democracy rests on the preservation of intellectual freedom.
If that statement seems extravagant, consider both the ideological basis of liberal democracy and the nature of contemporary threats to that tradition.
Our national history would have been impossible without the Enlightenment concept of the individual as a rights-bearing, autonomous being. That concept is integral to our legal system; it is the foundation upon which our forbears erected the Bill of Rights. The Founders envisioned the good society as one composed of morally independent citizens whose rights in certain important circumstances “trumped” both the dictates of the state and the desires of the majority.
Current assaults on that worldview come primarily, although certainly not exclusively, from communitarians of both left and right. Michael Sandel, Mary Ann Glendon and others complain that the American emphasis on individual rights has gone too far, that it is time to readjust the balance between individual liberty and the “common good.” The “common good” is presumably to be defined collectively; that is, by the majority.
There is enormous appeal to this argument. In a world that seems increasingly complex, impersonal, and litigious, a world over which individuals have less and less control, the notion of “community,” like “family,” offers nourishment and empowerment. Who does not long, in some part of her psyche, for a warm family, friendly neighborhood and supportive tribe, where one is valued and/or unconditionally accepted, and where everyone shares the same life goals and values? Freud suggested that the need to lose oneself in a collective identity is the most ancient, persistent and universal force operating on the human species. The problem, of course, is that majorities can be every bit as tyrannical as solitary despots, and there is no guarantee that my family’s values will be the ones that prevail, or that my tribes’ folkways will be the ones that are followed. The fundamental issue in every society is where to strike the balance between human liberty and communal norms. Ultimately, the debate comes down to a conflict between libertarian and collectivist visions of the good life.
In this war over competing worldviews, intellectual freedom is the battlefront. Discussions of the First Amendment often proceed as if the expressive freedom provisions are separate from the religious liberty clauses. They aren’t. In fact, the First Amendment rests upon a magnificent unifying premise: the integrity and inviolability of the individual conscience. The First Amendment is really an integrated whole, protecting our individual rights to receive and disseminate information and ideas, to consider arguments and theories, to form our own beliefs and craft our own consciences. It answers the fundamental social question– who shall decide? — by vesting that authority in each individual, subject to and consistent with the equal rights of others.
Our whole experiment with democratic governance rests on that foundation. As Alexander Mieklejohn famously observed, a nation that is afraid of an idea–any idea–is unfit for self-government. Implicit in the First Amendment is the legal system’s concept of personal responsibility, the University’s commitment to academic freedom, the moral authority of the clergy, the independence of the media, and the legitimacy of the political process.
Those who oppose free expression rarely, if ever, see themselves in opposition to the western liberal democratic tradition. Most of the people who want to ban the book or painting, who want to protect the flag or the Virgin Mary from desecration, are simply acting on their belief in the nature of the public good. Censors see unrestrained freedom as a threat to the social fabric, while civil libertarians believe the greater danger consists in empowering the state to suppress “dangerous” or “offensive” ideas. Censors see no reason to protect expression of low value–no point in protecting the marketplace for the exchange of shoddy goods. They have enormous difficulty understanding the difference between protection of the principle of free speech and an implicit endorsement of the offensive material at hand. And they have little or no appreciation for the argument that once one hands over to the state the authority to decide which ideas have value, no ideas are safe.
I spent my years at the ACLU battling the usual, recurring attempts to control what others might read, hear or download. I attended a public meeting in Valparaiso, Indiana, where an angry proponent of an ordinance to “clean up” local video stores called me “a whore.” I was accused of abetting racism for upholding the right of the KKK to demonstrate at the Statehouse. I was criticized for failure to care about children when I objected to a proposal restricting minors’ access to library materials. In each of these cases, and dozens of others, the people who wanted to suppress materials generally had the best of motives: they wanted to protect others from ideas they believed to be dangerous. To them, I appeared oblivious to the potential for evil. At best, they considered me a naïve First Amendment “purist;” at worst, a moral degenerate.
My introduction to the politics of free speech really came several years before my stint at the ACLU, when I was retained as local counsel to the plaintiffs in American Booksellers v. Hudnut. The case involved a challenge to an ordinance drafted by Catherine MacKinnon, a law professor, and Andrea Dworkin, a feminist author. Both are well known crusaders against pornography, which they define quite differently than the law defines obscenity, and which they argue is more harmful to women than to men. Their ordinance attempted to define as action (rather than expression) sexually explicit materials depicting the “subordination of women.” Such “action” was then treated for legal purposes as sex discrimination. (“When I use a word,” said Humpty Dumpty, “it means exactly what I say it means!”) MacKinnon and Dworkin had shopped their proposal around the country without much success before they found eager proponents in Indianapolis.
While the Courts would make short work of the ordinance, the politics of its passage was an eye-opening experience. Bill Hudnut was, and remains, a close personal friend; I had been the Corporation Counsel (chief lawyer) in his administration. To this day, despite lengthy conversations, he does not see the implications of the ordinance he signed. Bill had been an active Presbyterian minister before assuming office, and simply was appalled by materials that he felt degraded women. When MacKinnon and Dworkin enlisted a local female Councilor on behalf of their pet project to “protect” women, he was supportive. The Councilor has not been identified with women’s causes either before or after her sponsorship of the ordinance. She has, however, been supportive of efforts to restrict children’s access to videos in the public libraries, and has generally been an ally of the religious right. Her alliance with MacKinnon and Dworkin, widely considered to be “radical feminists,” was surreal.
On the evening the vote was taken, busloads of people from fundamentalist churches filled the Council chambers. To the eternal credit of Indianapolis’ women’s organizations, there was no support from local feminists. Only three people had been given permission to speak against passage–me, as a courtesy shown to a former member of the administration; Bill Marsh, a professor of Constitutional law who was then Vice-President of Indiana’s ACLU; and Sam Jones, the Executive Director of the Urban League. Even Councilors who had great qualms about the ordinance were unwilling to stand against the sea of faces from area churches. (The trouble with representative government, as a friend once bitterly remarked, is that it is representative.) One after another, uncomfortable Councilors rose to “explain” their votes; my favorite came from a longtime friend, who said that —while he had “great respect for Mrs. Kennedy’s legal opinion”–he wanted the record to show that he was “against pornography.” The crowd cheered approvingly.
Most of those who voted for the ordinance knew it stood virtually no chance in court. They were willing to spend some tax dollars to defend it, in order to avoid the pain of opposing the righteous folks who had taken the time and trouble to attend the meeting. And the courts did as expected; Judge Sarah Evans Barker issued an eloquent, ringing endorsement of the principles of free speech in her District Court opinion striking down the measure. The Seventh Circuit and Supreme Court each affirmed, and the case has since become a staple in courses on Free Speech and Constitutional Law.
In many ways, American Booksellers v. Hudnut is a perfect example of what the Founders feared when they warned of “the tyranny of the majority” and the need to guard against popular passions. The majority of citizens saw the debate in very simple terms, as did my Councilor friend: one is either for or against “pornography.” Quibbles about what pornography is, concerns about vagueness or over-breadth, were dismissed as lawyer weaseling; like Potter Stewart, they might not be able to define pornography, but they knew it when they saw it.
For civil libertarians, of course, the issue was very different. We were not arguing for the value of pornographic speech–although we were more open to the possibility that pornographic expression might, in fact, have some value. The issue was–and is–our right to decide for ourselves what books we shall read, what ideas we shall consider, what opinions we shall hold, free of government interference. Once the state asserts a prerogative to determine which ideas we may entertain, the balance has shifted from the right of the individual to the power of the government. At that point, citizens no longer have rights, but privileges that may be revoked whenever the political winds shift. For me as a civil libertarian, the issue is not which books I read; the issue is who decides which books I read?
The western democratic tradition literally depends upon the answer to that question.
Those of us who understand the nature of the debate over intellectual freedom in this way must contend with a formidable deficit in citizenship education. Both at the ACLU and at IUPUI, where I currently teach law and public policy, I have encountered widespread ignorance of the most basic elements of the American constitutional system. We desperately need to improve understanding of the theory of limited government and individual rights –not so that people will necessarily come to the same conclusions I reach, but so that we can at least argue about the same issues.
People try to remove materials from library shelves or the corner video store because they find the materials offensive. They try to prevent Klan marches because they disagree strongly with the hateful message of the Klan. Their arguments are against these particular ideas. They are not generally trying to strengthen the power of the state, nor intending to circumscribe the exercise of personal moral autonomy. Civil libertarians see those outcomes as inevitable consequences of censorship, however, and so those are the issues we address. In a very real sense, it is a case of culture warriors talking past each other.
People like my librarian friend, who see the fundamental relationship between the marketplace of ideas and self-government, who recognize the holistic nature of individual rights, simply must keep trying to make those connections visible to the general public. We must all work to raise the level of familiarity with the underlying principles of the Constitution and the Bill of Rights. We must agitate for more and better government instruction in our schools, and we must insist on more honest discourse from our political leaders and the media. We must constantly reinforce the lesson that the proper response to a bad message is not government censorship, but free citizens offering a better message.
Somehow, we must get the general public to understand that when we use the power of the state to decide what citizens may read or view, we aren’t censoring smut, or protecting children, or prohibiting blasphemy, or respecting the flag. We are undermining the values that lie at the very core of our national identity.

Hard Cases…

As I used to tell my students, cases rarely make it to the Supreme Court unless they’re difficult–unless there are persuasive arguments on both (or several) sides of the issue or issues involved. That admonition has actually become debatable as the current Court, dominated by religious “originalists,” has accepted cases that previous Courts wouldn’t have agreed to hear, but it remains largely true.

And hard cases, as the old legal precept warns, make bad law.

Which brings me to a First Amendment Free Speech case currently pending at the U.S. Supreme Court.

The question before the Court is the constitutionality of laws passed by Florida and Texas that restrict social media giants from removing certain political or controversial posts–in other words, from moderating the content posted to their platforms. As the Washington Post reported,

During almost four hours of argument Monday, the Supreme Court justices considered whether state governments can set the rules for how social media platforms curate content in a major First Amendment case with implications for the future of free speech online.

The laws being litigated are an effort to prevent social media companies from removing “conservative” viewpoints. The laws would impose strict limits on whether and when firms can block or take down content on their platforms.
At the heart of the matter is the issue highlighted by an exchange between Justice Alito and lawyer Paul Clement.
Justice Samuel Alito pressed NetChoice — a group representing the tech industry — to define the term “content moderation,” asking whether the term was “anything more than a euphemism for censorship.” “If the government’s doing it, then content moderation might be a euphemism for censorship,” said Paul Clement, an attorney representing NetChoice. “If a private party is doing it, content moderation is a euphemism for editorial discretion.”
I’ve frequently posted about Americans’ widespread lack of civic literacy–especially about censorship and freedom of speech. It is depressing how few citizens understand that the Bill of Rights is essentially a list of things that government is forbidden to do. Government is prohibited from dictating our beliefs, censoring our communications, searching or seizing us without probable cause, etc. Those restrictions do not apply to private actors, and for many years, courts have recognized the right of newspapers and other print media to decide what they will, and will not, print, in the exercise of their Free Speech rights.
Perhaps the most important question posed by the recent First Amendment challenges to Texas and Florida’s new social media laws is whether platforms exercise a constitutionally protected right to “editorial discretion” when they moderate speech. The platform’s central challenge to both laws is that their must-carry and transparency obligations infringe on that right by interfering with the platforms’ ability to pick and choose what speech they host on their sites. It’s the same right, they argue, that newspapers exercise when they pick and choose what speech appears in their pages.
In other words, whose First Amendment rights will we protect? Or to put it another way, does the First Amendment give all of us a right to have our opinions disseminated by the social media platform of our choice? Or, to ask that in a different way, if the First Amendment protects speech, does it also protect the right of powerful social media companies to suppress the speech of some number of people who use their platforms?
The Knight Foundation argues
The First Amendment is not concerned solely—or perhaps even primarily—with the maximization of speech per se. Instead, what it protects and facilitates is the kind of information ecosystem in which free speech values can flourish. Courts have recognized that protecting the right of speech intermediaries to choose what they do and do not publish—in other words, protecting their right to editorial discretion—is a necessary means of creating that kind of environment.
Most of us have concerns about the content moderation policies of these enormously influential and powerful sites. The question before the Court is–once again–who decides? Are those who run those sites entitled to decide what appears on them, or can government control their decisions?
Elon Musk’s takeover of Twitter (now ridiculous “X”) and his idiosyncratic definition of “free speech” has turned that site into a cesspool of anti-Semitism and conspiracy theories. The First Amendment currently gives him the right to make the site odious, just as Facebook has the right to remove racist and other objectionable posts. We the People decide which platforms we will patronize.
As I used to tell my students, the Bill of Rights addresses a deceptively simple question: who has the right to make this decision?

Defining Free Speech

When I taught about the First Amendment’s Free Speech protections, I would sometimes ask students to differentiate between a person pontificating that “Someone should lead a revolt against the government,” and a person at the head of an angry crowd moving toward a government official and yelling “We’re coming for you.”

The first of those is protected speech–it’s the utterance of an opinion. We might dislike the opinion, we might find it infuriating (much like burning a flag, which is the expression of a similar opinion), but it is an opinion, and protected by the First Amendment. The second, however, is a threat. To the extent that words constitute a credible threat, they are not within the protection of the First Amendment. Granted, it isn’t always easy to tell the difference between an angry exhortation and a genuine threat, but legally, they are different.

A recent article in the New York Times considered the rise of anti-Semitic incidents on the nation’s campuses, and drew that distinction.

Free speech, open debate and heterodox views lie at the core of academic life. They are fundamental to educating future leaders to think and act morally. The reality on some college campuses today is the opposite: open intimidation of Jewish students. Mob harassment must not be confused with free speech.

Fareed Zakaria made much the same point in an essay in The Week.

I have strongly condemned the attacks of Oct. 7. I think that those who praise Hamas in any way are blind to the reality that it has been the principal opponent of a two-state solution to the Israeli-Palestinian question. But the question to grapple with is how to handle views that either side finds deeply offensive. And of course, speech and assembly are not the same as physical intimidation and harassment, which prevent civil discourse…

The basic argument for free speech… is that it is better to hear those you violently disagree with than to ban or silence them. That way, debate happens out in the open and points are matched with counterpoints. The alternative is to drive discourse into the shadows and gutters of political life where it festers, turns into conspiracy theories, and often erupts into violence.

David French –a noted expert on the First Amendment–underlined the point that– just as there are international rules that apply to shooting wars, there are constitutional rules that apply to our nation’s culture wars. As he explained, “applying those rules properly is one way that a continent-size, multi-faith, multicultural society peacefully perseveres through profound division.”

Our civilization is intended to be a rights-based liberal democracy, where people who possess diametrically opposed points of view cannot just survive but also thrive without compromising their most fundamental beliefs — so long as they don’t interfere with the rights of others.

As French reminds his readers, freedom of speech includes freedom to be offensive and provocative–even freedom to advocate violence, but not to “incite or produce” lawless action.

Under this construct, public support for Hamas — or public support for carpet bombing Gaza — is constitutionally protected, even if it’s gross and immoral, and public institutions that suppress such speech violate the First Amendment….


The right to speak does not include a right to silence others. Putting up a poster is an act of protected speech. Tearing down that poster is not, even if the person destroying the poster is trying to make his or her own statement. Tearing down a poster is akin to shouting down a public speaker. Your protest cannot trump the speaker’s own right to free speech. The answer to a poster is another poster, not destroying the expression you hate, by tearing it down or defacing it any way…

The right to speak does not include a right to harass. This last concept is perhaps the most difficult to understand and apply consistently. The right to speak, as I said, absolutely includes a right to offend. The government cannot silence your speech simply because it makes people angry or upset…

This is a strict standard but certainly one that applies to threats and to acts of physical intimidation. If anti-harassment laws mean anything, they mean that students shouldn’t have to fear for their safety from fellow students simply because of their race, color or national origin. 

The prohibition of harassment includes actions prompted by antisemitism and Islamophobia that “detract from the victims’ educational experience.” 

I strongly recommend clicking through and reading French’s essay in its entirety, because it is an excellent primer on the constitutional interpretation and critical importance of  America’s Free Speech doctrine.

Bottom line: In America, people with defensible points of view express them through speech, not through vandalism, intimidation or thuggery.