What Antisemitism Is Revealing About the First Amendment

Tucker Carlson speaking with attendees at the 2018 Student Action Summit hosted by Turning Point USA at the Palm Beach County Convention Center in West Palm Beach, Florida. Photo Credit: Gage Skidmore

​The rise of virulent, occasionally violent, antisemitism at the extremes of the political spectrum is testing the meaning and durability of the First Amendment.
 
High-Profile Antisemitism on the Right
Let’s start with Tucker Carlson’s recent softball promotion of antisemite and Hitler fan Nick Fuentes, as well as Carlson’s equally promotional interview with Darryl Cooper – who identified Winston Churchill, not Adolf Hitler, as the villain who started World War Two.
 
Victor Davis Hanson has incisively critiqued Carlson for conducting these interviews of two extremists “without cross-examination.” Carlson introduced Cooper as “the best and most honest popular historian in the United States,” though Cooper has no history books or academic articles to his name. When Cooper described the Holocaust as a botched humanitarian response rather than a deliberate act of mass murder, Carlson let that comment slide by without challenge.
Antisemitism on the Left
It was only months ago that left-wing antisemitism was testing the limits of a tolerant society. At UCLA, anti-Israel protesters enforced what they called “Jew-Free Zones.” At Columbia, Jewish students and faculty were physically and verbally harassed. It wasn’t until the Trump Administration dropped the hammer on these institutions of higher learning that administrators began to adequately protect students and faculty from attack.
 
So where does the law actually come down? Under the U.S. Supreme Court’s standard in Brandenburg v. Ohio (1969) speech that incites “imminent lawless action” is prohibited. “True threats” were later proscribed. Ideological thugs who spout true threats at Jews on college campuses are acting outside the law. Their harassment and threats could hardly be excused as mere “speech.”
 
Even speech that is protected by the First Amendment can be limited by reasonable time, place, and manner restrictions. Protesters can shout on the quad at 3 p.m., but at 3 a.m. they cannot bang on dorm room doors or awaken the campus with megaphones. Title VI of the Civil Rights Act prohibits speakers from denying members of one religion equal access to a college campus, as happened at UCLA.
 
So What About Carlson, Cooper, and Fuentes?
They are clearly spreading hate speech. As scholar Richard Weaver famously wrote, “ideas have consequences.” Nazi propagandist Julius Streicher – though he never personally killed anyone – was justly sentenced to death at the Nuremberg tribunal and hanged in 1946 for directly inciting the Holocaust. He espoused true threats and, indeed, violence that had a huge consequence – the deaths of millions.
 
As galling as it may be, however, Fuentes and Cooper so far cannot and should not be punished for their speech. Yes, Fuentes says he’s on “Team Hitler” and that “Hitler was right.” Yes, Cooper has managed to be something worse than a Holocaust denier – he’s a Holocaust rationalizer. Unlike Streicher, neither man is on record calling for violence. Also legal in many circumstances is the widespread chant of campus demonstrators, “from the river to the sea,” which could be taken to mean the replacement, if not the eradication, of Israel. Hate speech might flirt with violence, but the Supreme Court chose – wisely in our estimation – to reject the path of many European governments today that attempt to police speech.
 
Again, hate speech crosses the line only with “true threats” and calls for “imminent lawless action.” This is admittedly an unsatisfactory solution. Perhaps the line between a Fuentes and a Streicher, or many campus protesters and Hamas, is a thin one. But observing that line provides maximum room for freedom of speech for all of us. It prevents travesties like the arrest of a comedian in the UK for tasteless jokes. A government that asserts a right to scrutinize every uttered or posted word for hate is a government that will inevitably become a threat itself.
 
Is Carlson Facing Cancel Culture?
Just because speech is legal, however, does not mean its speaker has a right to be platformed by private parties or to not be criticized by others. Heritage President Kevin Roberts, in his heavily panned defense of Carlson’s interview with Fuentes, said: “I don’t participate in cancel culture.” This is a profound misunderstanding of what free speech is all about.
 
Carlson, Fuentes, and Cooper – the Three Stooges of Antisemitism – have as much right to speak as any other American. But the First Amendment also expresses a right to free association. Think about it – how free would the speech of any organization be if it had to sponsor speakers with views inimical to its own? It is not cancel culture if the Roman Catholic Church chooses not to sponsor an atheist. And it would not be cancel culture if Heritage drops its association with Tucker Carlson.
 
Though not a matter of law, a culture of free speech imposes on us the moral obligation to call out truly bad speech – and to name names.
 
Sen. Ted Cruz made this point before a Federalist Society convention:
“My colleagues, almost to a person, think what is happening is horrible, but a great many of them are frightened, because he [Tucker Carlson] has one hell of a big megaphone,” Cruz said.
“It’s easy right now to denounce Fuentes,” Cruz later said at the convention. “Are you willing to say Tucker’s name?”
 
Sen. Cruz reminds us that timid criticism of bad speech that avoids mentioning the source is insufficient. We have a moral obligation to confront really bad speech – and to name the speakers.
 
Princeton University scholar Robert George, who on Monday announced that he had resigned from the Heritage Foundation board, set out foundational principles on X that liberals, as well as conservatives, should adopt.
 
“… I believe that the conservative movement, though it can and should be a broad tent, simply cannot include or accommodate white supremacists or racists of any type, antisemites, eugenicists, or others whose ideologies are incompatible with belief in the inherent and equal dignity of all. As a conservative, I say that there is no place for such people in our movement …
 
“Is this a call for ‘cancelation’? No. It’s a reminder that we conservatives stand for something – or should stand for something. We have core principles that are not negotiable … I am – notoriously, for some of my fellow conservatives – committed to the principle of free speech for everybody, including people with whom I profoundly disagree on even the most important issues, indeed, including racists and other bigots. But defending their rights does not mean allying with them, welcoming them into our movement, or treating them as representing legitimate forms of conservatism.”
 
Dr. George’s hygienic standard for conservatism is a good guide for people on all sides of the political spectrum and for universities as well.

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