Offensive Speech Is Still Free Speech (That’s a Good Thing)

My local newspaper told its readers a politician’s criticisms of Israel were unprotected hate speech. But it’s the freedom to express “bad” speech that protects us all.

I’ve practiced First Amendment law for more than a decade — first in Washington, D.C. and now in New York. I’ve represented newspapers from New York to Australia. I teach media law at Fordham Law School and regularly publish scholarship on the history of the First Amendment.

I believe deeply in that amendment and in the historical role of newspapers as a bulwark against intrusions on the rights protected by it.

So I was surprised to see my local New Jersey newspaper, The Westfield Leader, argue that some speech with which it disagrees is not “free speech.” The editorial, “Free Speech Does Not Include Freedom to Incite Violence,” takes a familiar and unfortunate form: “I believe in free speech, but…”

This small-town controversy centers on the local school board and one member in particular, Sahar Aziz, but has its roots in the Israel-Hamas War a world away. Ms. Aziz is a law professor at Rutgers Law School where she researches the intersection of national security, religion, and civil rights. She is also an outspoken critic of Israel’s military response to the Oct. 7 Hamas attacks.

She has been criticized for employing the controversial (if disputed) phrase, “from the river to the sea,” and for her commentary on X (formerly Twitter), including writing: “People all over my town in New Jersey are posting ‘I Stand With Israel’ signs on their lawns. I read them as ‘I Stand With Israel’s #genocide of #Palestinians.’”

As a result of her speech, she has been targeted with multiple petitions (one signed by nearly 5,000 people) demanding that she resign or be removed from the school board. Last week, even The Westfield Leader joined the fight against Ms. Aziz. But rather than engage in counter speech or contest her ideas on the merits, the newspaper argued that her speech is not even free speech.

Under the First Amendment, we are to expect, in the words of the U.S. Supreme Court, that “debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks.” Unsurprisingly, in a country of hundreds of millions, we’re not all going to agree with what each other says but by and large we get to say what we want.

Read the rest of this article at the Daily Beast here.