F. Scott Fitzgerald once quipped that the “test of a first-rate intelligence is the ability to hold two opposed ideas in mind at the same time and still retain the ability to function.”
The protests over the war between Israel and Hamas that have roiled university campuses across the nation are testing our collective intelligence when it comes to the First Amendment.
Americans today enjoy a remarkable degree of freedom to communicate their ideas and beliefs. That freedom is a legacy of careful cultivation of social and legal norms that hold government has no business telling citizens what to say or believe, an ethos captured by Evelyn Beatrice Hall’s famous statement, “I disapprove of what you say, but I will defend to the death your right to say it.”
Running alongside this deep-seated commitment to freedom, however, is a complementary understanding that, to quote Russell Kirk, “Order is the first need of the commonwealth.” Without a “civil social order,” in Kirk’s telling, freedom cannot be “anything better than violence.”
The First Amendment, which allows for regulation of unlawful conduct and even narrow categories of harmful speech, accounts for this need to harmonize freedom with order.
As the campus protests have revealed, however, we struggle to hold these two concepts—freedom and order—in mind at the same time.
Claiming the mantle of free speech, students protesting Israel’s military operation in Gaza have engaged in jarring exhibitions of antisemitism. Pro-Palestinian students have been heard chanting the slogan “From the river to the sea, Palestine will be free.” A leader of the student protests at Columbia University was caught on video saying that Zionists “deserved to die” and that they should be “grateful that I’m not just going out and murdering” them.
Many have gone beyond speaking to building tent encampments on campus grounds, occupying buildings, engaging in acts of vandalism, and even stoking violence. Protesting students at UCLA blocked others, including Jewish students, from entering parts of the campus, including the library.
Clashes with police later took place after hours of violent encounters between the protesters and students supporting Israel. Protesters at Columbia smashed windows, overturned furniture, and built barricades as they occupied a campus building.
Reactions from university officials have run the gamut. Several universities have summoned law enforcement to restore order, resulting in the arrest of hundreds of individuals. Others have chosen to “negotiate” with the protesters, whose demands include divestment of university funds from companies that work with Israel and granting amnesty to students whose actions have broken the law.
These mixed reactions come after high-profile resignations by university leaders, including Liz Magill at the University of Pennsylvania and Claudine Gay at Harvard, after they failed to condemn antisemitism on their campuses in the wake of the Oct. 7 attack by Hamas militants on Israel.
Congress, too, is reacting to these events. The House recently passed a bill called the Antisemitism Awareness Act, which requires the Department of Education to use a definition of antisemitism developed by an international organization when assessing Title VI violations.
However, the definition covers several examples of vile, but legally protected, speech—a highly concerning precedent.
The campus protests arrive at a time when basic respect for, and understanding of, freedom of speech is receding. Large percentages of students express a willingness to ban controversial speakers from campus, and equally large percentages of adults are willing to use the government to restrict what they deem misinformation.
This moment of confusion creates a generational opportunity to reinvigorate a robust national understanding of the First Amendment and respect for our rich heritage of freedom of speech within a context of ordered liberty.
But for that to happen, we must clearly articulate and explain, in plain terms, how that heritage applies to our current challenges.
First, the government should not prohibit speech unless it falls within narrowly defined, and well-accepted, categories of unprotected speech. That includes even speech that most civilized people would consider reprehensible, but that protection stops short at statements intended and likely to incite imminent violence or statements conveying a serious intent to physically harm a person or group.
Most, but certainly not all, of the protesters’ speech is protected under that framework.
Second, speech goes both ways. When vile and false ideas are expressed, we must respond with truth. And make no mistake, the antisemitism that has erupted on campuses across this nation deserves every ounce of condemnation that can be mustered. People of goodwill of every faith, race, and nationality should firmly and unequivocally reject this cancerous ideology that has led to some of the worst atrocities ever witnessed. Freedom of speech means we are free—indeed, morally obligated—to resist evil speech with truth.
Third, trespassing, vandalism, and violence in the name of ideology are merely lawless conduct, not protected speech. Removing students who are violating speech-neutral rules against such activities doesn’t violate the First Amendment. Indeed, refusing to do so risks compromising the rights and freedoms of others.
George Will once quipped that “the most important four words in politics are: ‘up to a point.’” That commonsense attitude would serve us well today. We will protect speech, but not when it incites violence or threatens others. We will vigorously contest false speech, but we will not call on the government to shut it down lest that power be turned on us. And we will tolerate protest, but not when it devolves into rank lawlessness and disorder.
After all, common sense is what allows us to hold opposing concepts in mind while continuing to function.
The Daily Signal publishes a variety of perspectives. Nothing written here is to be construed as representing the views of The Heritage Foundation.
