First Amendment Protects Offensive Speech. Even by This Anti-Israel Movement.

COMMENTARY The Constitution

First Amendment Protects Offensive Speech. Even by This Anti-Israel Movement.

Jun 18th, 2019 3 min read
GianCarlo Canaparo

Legal Fellow

GianCarlo is a Legal Fellow at The Heritage Foundation.
The Constitution protects a person’s right to say offensive things. makyzz/Getty Images

Sen. Marco Rubio last week criticized the anti-Israel movement known as Boycott, Divestment, and Sanctions, calling it “anti-Semitism disguised as economic policy and disguised as a free speech argument.”

The Florida Republican also called on Congress to pass a bill allowing the states to “go after” the movement, which considers Israel an “apartheid state” and argues in favor of various economic sanctions against Israel.

Rubio sets up a false dichotomy by saying the Boycott, Divestment, and Sanctions movement is masquerading as free speech. The movement may be anti-Semitic, economically wrongheaded, and offensive, but it’s still protected by the First Amendment.  

The Constitution protects a person’s right to say offensive things. In Snyder v. Phelps, the Supreme Court held that speech on a matter of public concern is protected speech, even if that speech is offensive or outrageous.

The speech in Snyder was as offensive as it gets. The Westboro Baptist Church of Topeka, Kansas, protested at the March 2006 funeral for U.S. Marine Lance Cpl. Matthew Snyder in Westminster, Maryland, holding up signs that read “God Hates the USA/Thank God for 9/11,” “Thank God for IEDs,” and “God Hates You,” among others.  

The court explained that, although the speech fell short of “refined social or political commentary,” the First Amendment protected it because it was made in a public forum and addressed issues of public concern—namely, the political and moral conduct of the country. 

So, too, with the Boycott, Divestment, and Sanctions movement.  

The Supreme Court has exempted some forms of speech (for instance, obscenity, libel, and speech inciting violence) from First Amendment protection, but unless the movement crosses one of those lines, it should be protected.

After all, public opinion, James Madison wrote, is the sovereign of a free government. For the people to rule legitimately, public opinion must be freely and easily ascertained. And for the people to rule wisely, they must exchange and debate their ideas. 

If we exclude offensive ideas from this dialogue, we distort public opinion. We also run immediately into practical problems.

Who, for instance, should determine what constitutes offensive speech? The government? The majority? The loudest minority? If we’re asking who gets to police speech, then we’ve already lost our way. 

The purpose of the First Amendment’s guarantee of free speech is to ensure that nobody gets to be the censor. The temptation to abuse that power is too great. 

We don’t have to look far to see that played out in real life. Today, colleges ban conservative groups from forming on campus. A Democratic presidential candidate calls pro-life opinions “unacceptable” in our society, and senators try to discredit well-qualified judicial nominees because they hold Christian beliefs.   

A loud and radical group has discovered that it can effectively suppress opposing viewpoints by labeling them “outside the mainstream.”

And it works. Time and time again, people fall silent before the mob. 

Simply put, that’s not the American way. For many, the quote “I disapprove of what you say, but I will defend to the death your right to say it” (attributed variously to François-Marie Voltaire, Evelyn Beatrice Hall, and others) springs to mind when we think about the First Amendment’s guarantee of free speech.  

It’s a noble sentiment, which we should uphold even in the face of offensive speech.  

That doesn’t mean, however, that we should let offensive speech go unanswered. As Supreme Court Justice Louis Brandeis presciently wrote, more than 90 years ago, “the remedy to be applied is more speech, not enforced silence.” 

If we ban speech that we don’t like, what defense do we have when someone tries to ban ours?

This piece originally appeared in The Daily Signal