By: Daniel Gamberg
"Goebbels was in favor of free speech for views he liked. So was Stalin. If you're in favor of free speech, then you're in favor of freedom of speech precisely for views you despise. Otherwise, you're not in favor of free speech." - Noam Chomsky
It's a long-running debate: Should there be limits to freedom of speech? Are there boundaries to the First Amendment? Is it okay for a person to yell "Fire!" in a crowded theater?
In Oct. 2006, the San Francisco State University chapter of the College Republicans held an anti-terrorism rally where chapter members stepped on fabricated Hamas and Hezbollah flags that included the word "Allah" in Arabic. Finding their actions offensive, a Muslim student at SFSU complained to the college administration, which launched an investigation to determine whether the rally was suitably "civil," as prescribed in the California State University Student Code of Conduct.
Fortunately, SFSU officials soon dropped the investigation and, after being sued by a conservative Christian group defending the College Republicans, the CSU system agreed to amend its Code of Conduct. Whether or not the actions of the College Republicans were offensive is immaterial; the question here is whether documents that attempt to regulate any type of speech should be considered anemic to a democratic society and to the spirit of higher education.
If we begin to censor "offensive" speech on college campuses, just who will be to choose what can and cannot be said? College officials? State lawmakers? Will they be Democrats or Republicans, liberals or conservatives?
In practice, there is simply no equitable way to determine the appropriateness of a person's speech. Does this mean students should not be held accountable for what they say? Of course not, but accounts should be settled by society in the court of public opinion, not by college administrators in closed hearing rooms.
Granted, there must be some limits to free speech, such as when a person's words or actions constitute an immediate threat to the physical wellbeing of another person. This is where the famous "Yelling 'fire' in a crowded movie theater" scenario comes into play. But how are these limits determined? And who decides what cases fit their criteria?
Currently, the litmus test used by the U.S. Supreme Court is to ask whether or not the speech or actions in question constitute the expression of a political or religious belief. If so, they are protected. If not, then it comes down to the justices' discretion.
For example, on June 25 of last year, the Supreme Court ruled in favor of Juneau-Douglas High School Principal Deborah Morse, determining that she did not violate student Joseph Frederick's first amendment rights when she suspended Frederick for holding a banner that read "BONG HiTS 4 JESUS" while attending an off-campus school event in January 2002.
The court decided that, although Frederick was not on campus at the time of the incident, the event was school-sanctioned and therefore the student code of conduct was in effect. As his banner did not express any particular religious or political statement, his speech was not protected.
Nevertheless, we must be extraordinarily cautious when deciding the boundaries of the First Amendment. Freedom of speech is an essential adhesive to any functioning democracy, promoting the diversity necessary to maintain equality and individuality without fear of restraint.
Free speech in a Democracy
Daily Camera, September, 1985
In the Daily Camera (Aug. 25), Professor Howard Smokler, responding to a column by Nat Hentoff (June 30), writes that I have "hurt and offended" him by two actions concerning Robert Faurisson, who in 1980 published a book entitled Memoir in Defense Against Those Who Accuse Me of Falsifying History in which, according to Smokler, "he charged that 'the myth of the gas chambers' originated in certain American Zionist circles around 1942 ... "The two actions are: 1) that I "defended Faurisson's right to publish these falsehoods," and 2) that "in a letter to the historian Lucy Dawidowicz, (I) expressed complete agnosticism on the subject of whether Faurisson's views were 'horrendous." I will return to the first point. As for the second, it is not clear on what grounds Professor Smokler might be hurt or offended by a personal letter, which I presume he has never seen, written to a third party, but the question is academic, since he has grossly misinterpreted its contents.
The relevant facts are as follows. Faurisson was a professor of French literature at the University of Lyon. After he published some items in which he denied the existence of gas chambers, he was suspended from teaching on the grounds that the university could not protect him from violence. He was then brought to trial for "falsification of history," and condemned -- the first time in the West, to my knowledge, that the courts have affirmed the familiar Stalinist-fascist doctrine that the State has the right to determine historical truth and to punish deviation from it. I was one of 500 foreign signers of a petition urging that Faurisson's civil rights be respected. Shortly after, in a letter of Sept. 10, 1980, Ms. Dawidowicz wrote me asking whether I "had signed a statement defending Robert Faurisson's right to speak his views," and if so, "what reason compelled me to sign it." On Sept. 18, I wrote her that I had indeed signed a statement defending Faurisson's right to speak his views. As for my reasons, I wrote that "I signed the appeal because I believe that people have the right of freedom and expression whatever their views, that the importance of defending these rights is all the greater when the person expresses views that are abhorrent to virtually everyone (as in this case), and that this becomes particularly important when the person in question is thrown out of his academic position," and subjected to other ill-treatment. I did not know then about the "falsification of history" trial, and had never heard of Faurisson's book, which appeared three months later; this book, as the title indicates, was a defense against the scandalous charges for which he was later sentenced, dealing specifically with the charge that he had falsified the diaries of Nazi doctor Johann Paul Kremer.*
[*Faurisson was not convicted of falsifying history; the Paris Court of Appeals upheld a guilty verdict based on "personal damages" likely to arise from "passionately aggressive actions against all those ... implicitly accused of lying and deception" by the results of Faurisson's research. (Ed. note)]
I also wrote to Ms. Dawidowicz that I was shocked by her query as to why one should defend freedom of speech. I remain shocked today. I might add that no question has ever been raised on the innumerable occasions when I have signed similar petitions for people with all sorts of views, often views of which I know nothing or which I know to be horrendous, or when I have taken far stronger and more controversial stands in support of civil liberties, for example, when I supported the right of American war criminals not only to speak and teach but also to conduct their research, on grounds of academic freedom, at a time when their work was being used to murder and destroy (no one accuses Faurisson of being a war criminal or claims that his work is contributing to massive ongoing crimes). I might note that the utter hypocrisy of Smokler, Dawidowicz and their circles more generally is very clearly demonstrated by the fact that they are "hurt and offended" by my defense of the right of free expression in the Faurisson case, but not by far more controversial and extreme actions of mine in defense of the same rights for people they find more congenial.
I went on to inform Ms. Dawidowicz that I knew very little about Faurisson's work, so that while it may be "horrendous," as claimed by his critics, I obviously could not comment. This is what Smokler reports as an expression of "complete agnosticism." Apparently, he is willing to pass judgment on matters of which he knows nothing, but I am not, and the fact that a person is universally denounced does not suffice for me to join in the parade without at least looking at what he has to say, which I had not done in this case and had no particular interest in doing: I am willing to wager that Smokler has never read a word by Faurisson, nor is there any reason why he should. Furthermore, as I wrote to Ms. Dawidowicz, the nature of his views is, plainly, completely irrelevant to the issue of his right to express them, a truism among civil libertarians that those of a Stalinist-fascist persuasion find quite shocking.
I have discussed Smokler's second charge, based on his distortion of the personal letter to Dawidowicz to which he alludes. Let us consider the first charge. Here he is correct. I do defend the right of Faurisson to publish falsehoods, as I defend the right of anyone else to do so, including Professor Smokler. As I wrote to Ms. Dawidowicz in the letter that Smokler misrepresents, "I thought that all of this had been settled in the 18th century, but apparently others do not agree," including Professor Smokler. He states that my support for familiar Enlightenment principles and my rejection of the Stalinist-fascist doctrine that he advocates hurts and offends him. I am afraid I have no apologies to offer about that. Smokler goes on to deny at length a claim that was never made, either by me or by Nat Hentoff: namely, that my "political rights," including the right of freedom of speech, were denied in the three incidents mentioned by Hentoff: namely, 1) a request by students at Cornell Medical School that I withdraw as commencement speaker (as I did) because my views on Zionism so offended them that the occasion would be spoiled for them no matter what I spoke on; 2) the withdrawal of an invitation by the Middle East Center at the University of Michigan after pressure by faculty members who demanded that I not be permitted to speak on the Middle East at the Cleveland City Club, evidently under some form of pressure. Smokler is quite right to say that there is no issue of freedom of speech in these cases, nor has anyone so alleged.
The issue, as Hentoff clearly stated, is an entirely different one. It is as stated in my letter to the Cornell Medical students, which Hentoff quoted: "As you may know, Israeli doves have bitterly deplored the chauvinist fanaticism among sectors of the American Jewish community that they consider -- rightly in my view -- to be driving their country to disaster." I have taken many highly controversial positions on many matters, but incidents of the kind Hentoff describes have never occurred except on this issue, and then only in the United States; my only comparable experience is in the Soviet sphere, where not a word of mine on any political topic is allowed expression. Many others have had the same experience, including prominent Israelis: for example, (General) Mattityahu Peled, who bitterly denounced the American Jewish community, after a visit here when he was subjected to the kind of abuse familiar among those who do not toe the Party Line with sufficient precision, for their "state of near hysteria" and their "blindly chauvinistic and narrow-minded" support for the most reactionary policies within Israel, which poses "the danger of prodding Israel once more toward a posture of calloused intransigence." Other well-known Israeli doves have condemned what they correctly describe as the "Stalinist" practices in these circles. The issue is a serious one, but it is not one of freedom of speech in the technical sense that Smokler irrelevantly debates with no opponent.
Smokler states that it is my responsibility to "make publicly available the evidence which leads (me) to assert that (I am) systematically excluded from the expression of (my) ideas." The assertion is his, not mine, but apart from that, I do not accept such responsibility. The ridiculous antics of Smokler's friends and associates are not my concern. If Nat Hentoff or others ask me for information about these matters, I will provide it, but I recognize no duty beyond that. The Michigan affair was discussed extensively in the University and Ann Arbor press, and by Michigan historian Alan Wald in several articles. It was regarded as scandalous quite rightly, but I have never mentioned it except in response to queries. The same is true of the other two incidents, and of many others.
Suppression of critical comment on Israel of a sort that is easily expressed in Israel itself is readily demonstrable. To mention only one case, my book Fateful Triangle (1983) was reviewed in major (and minor) newspapers and news weeklies in Canada, Britain, Australia (even on national TV), and in exactly two local newspapers in the United States (and in the New York Review of Books, after a long review had appeared in its sister journal in London, which is widely read here), though its contents are far more relevant to U.S. concerns. This is quite typical, for others as well. While I am asked to write regularly on the Middle East in major journals in Israel, Europe and elsewhere, that is virtually inconceivable here. My experience is not all that unusual in this regard. It should be noted that the U.S. is a highly ideological society in which dissenting opinion is effectively marginalized as compared with other industrial democracies, but nevertheless, the case of the Middle East is unique. As has been observed in press commentary in Israel -- a more democratic society than ours, at least for its Jewish majority -- this is a serious danger for American democracy, for the Middle East, and indeed for world peace.
Again let me stress that no one is raising an issue of the "political rights" of critics of Israeli policies. To take another case, my "political rights" are not violated when the Anti-Defamation League of B'nai B'rith keeps a 150-page file on my activities, including surveillance of my talks and grossly falsified accounts of these talks and other matters, which the League then circulates to people with whom I am to have debates (e.g., Harvard Law Professor Alan Dershowitz) or to groups in universities where I am to speak so that they can extract defamatory and slanderous lies from this material. The issues, rather, are quite different. I have agreed to provide these files (leaked to me from the ADL office) to the people who find the Stalinist-style mentality and behavior of the ADL scandalous, and who question whether a tax-exempt organization should devote itself to surveillance and defamation of critics of the state it serves, but I accept no further responsibility to concern myself with the matter, contrary to Smokler's absurd claim, any more than I waste time over the behavior of Communist Party hacks. For those who may be interested in the disreputable and dangerous activities of these groups, there is ample evidence in Paul Findley's recent book, They Dare to Speak Out, Naseer Aruri's "The Middle East on the U.S. Campus," (Link, published by Americans for Middle East Understanding), and other works.
Smokler also presents his private version of my views, claiming that I have given no evidence for them and that an unnamed Africanist interprets the facts differently. No comment appears necessary. Those who may be interested in what my views actually are and whether I have given evidence for them can easily consult available literature, for example, Fateful Triangle. To my knowledge, only one competent Zionist historian has reviewed this book, Dr. Noah Lucas, in the Jewish Quarterly, London, Nos. 3-4, 1984. I will simply quote his concluding words: "Good luck to the reader who may succeed in refuting any of the facts or assumptions or conclusions presented by Chomsky. It will not be accomplished by anyone who approaches the matter as an issue of propaganda or public relations for Israel, but only by the student who matches research with research." Not by Professor Smokler, plainly.