When proponents of the Constitution were trying to persuade the American people to adopt it, they said that the only powers that the federal government could exercise were the powers that were expressly enumerated in the document itself. Since there was no power to infringe freedom of speech, for example, the federal government could not suppress speech.
However, our American ancestors were not satisfied with that assurance. Immediately after the Constitution was enacted, they demanded that it be amended to read in part as follows: “Congress shall make no law … abridging the freedom of speech.”
Our ancestors wanted that provision because they were certain that Congress would attract the type of people who would abridge freedom of speech. Our ancestors wanted to make it clear that Congress would have no such power.
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The Antisemitism Awareness Act, which the U.S. House of Representatives just passed by a vote of 320-91, demonstrates the wisdom of our ancestors. One would have a difficult time finding a better example of a law that abridges freedom of speech than that.
Keep in mind that freedom of speech, like other fundamental rights, does not come from the government or from the document that called the federal government into existence. As Thomas Jefferson noted in the Declaration of Independence, our rights to life, liberty, and the pursuit of happiness come from nature and God. As such, they preexist government. It is the purpose of government to protect, not abridge or destroy, our natural, God-given rights.
The purpose of the Antisemitism Awareness Act is to make illegal such things as expressing antisemitism or prejudice toward Jews, questioning the Holocaust, opposing the existence of Israel, or challenging the Israeli government’s actions in Gaza.
There is an important point to note about the right of freedom of speech: It does not simply protect “acceptable” speech. On the contrary, freedom of speech protects speech that might be considered by some to be despicable, irresponsible, hateful, prejudicial, or hurtful.
If people are free to say only things that are “acceptable,” then there is no freedom of speech in that society. After all, by that warped definition of free speech, people in North Korea, China, and Cuba have freedom of speech. It is only a society in which people are free to express “unacceptable” things that freedom of speech is being protected.
Thus, in a genuinely free society, people are free to be antisemitic, anti-Catholic, anti-Protestant, anti-Muslim, anti-Mormon, anti-black, anti-white, anti-Asian, anti-Mexican, and anti-anything else. They are also free to express their prejudicial sentiments to their heart’s content. They are also free to refuse to associate with anyone they want for whatever reason they want, including religious and racial prejudice.
Thus, under freedom of speech, a person is free to say that he hates Jews, that the Holocaust is a myth, that the Israeli state doesn’t deserve to exist, and that the Israeli government is committing genocide in Gaza. No matter how much some people object to the expression of those types of sentiments, people have the right to express them based on the right of freedom of speech.
By the same token, people have the right to condemn such sentiments. They also have the right not to associate with people who have or express them. They have the right not to hire such people. They have the right to boycott businesses who express such sentiments.
Moreover, people have the right to claim that people who oppose the Israeli government’s actions in Gaza are antisemitic or “pro-Hamas,” even if such a claim is meritless and is simply a strategic device to suppress criticism of the Israeli government. (Of course, if one makes that claim by mentioning a particular person, the speaker could be subject to a lawsuit for defamation.)
It should not surprise us that Congress would enact laws that suppress freedom of speech. By its express terms, the First Amendment reminds us that this will always be the case. It is up to us — the American people, as well as the federal judiciary whose job it is to declare invalid laws unconstitutional — to ensure that the members of Congress and other U.S. officials don’t get away with it.