AMERICA AT 250: THE FOUNDERS’ ANSWER TO HATEFUL SPEECH

With the 250th anniversary of American independence just about upon us, it is a propitious time to count our blessings.

In recent years this has been more challenging. With all of the divisiveness and the anger at a million and one things by frustrated Americans, blessing-counting is frequently off the table. But blessings they are, gifts to us from the Founders of our republic.

It was news from Britain that prompted me to think about them when its government banned entry to two Americans, Cenk Uygur and Hasan Piker, two of the (to put it politely) most illiberal figures on the left. Uygur is the founder and public face of The Young Turks. His nephew Piker hosts a livestream on the popular youth-oriented platform Twitch. Together they are two of the most widely viewed left-wing political commentators in the English-speaking world.

What they say is morally grotesque. And it's not just "criticism" of Israel (which American Jews and Israelis of all stripes do every day). No, these two take on the mere concept of a Jewish state. Piker has repeatedly crossed into justifications for terrorism, going so far as to lionize Hamas for its barbaric terrorism, calling it "a thousand times better" than Israel.

His bile goes well beyond Israel, flirting with propaganda on behalf of authoritarian regimes hostile to the United States and frequently calling into question liberal democracy itself. And he's made it clear that America "deserved September 11."

With that stipulated, you might assume that I support Britain's ban on entry. That would be incorrect. For while Britain can do what Britain wants, on July 4 I will be celebrating the birth of a nation dedicated to one of the most unusual and difficult freedoms ever embedded into a political system: freedom of speech. In one of my very first high holiday sermons, I talked about my appreciation for this. I pointed out then that what makes it difficult is that it protects vile and hateful speech.

Britain's decision to ban them was justified on the grounds that "their presence might not be conducive to the public good." That may well sound good to some Americans. I see ignorant social media complaints, from the left and the right, constantly demanding bans like this. Such an idea should trouble anyone who values liberty.

The centerpiece of the American approach is that we must never trust any political authority that decides what speech is "conducive to the public good." True, today the target may be one of those men. But tomorrow it might be one of—really any of—us.

Of all people, we Jews should understand the danger of giving governments broad authority to decide which ideas are too dangerous to hear. History offers too many examples of states suppressing "harmful" or "destabilizing" speech only to expand those powers far beyond their original targets. Our impetus to censor is to punish bad actors. The challenge is that once this comes into play, we will quickly discover that governments themselves are often bad judges of truth.

Britain is among the many democracies that claim to support freedom of expression. But that great gift of our Founders (ratified in 1791 as part of the very first amendment to our Constitution) went much further than any other nation in protecting even deeply offensive political speech. This was one of the defining choices of the American experiment.

The recent decision by the British government to deny entry to those men is an important reminder of how differently America traditionally approaches these questions. We may be outraged. We may be disgusted. We may believe, as I do, that positions taken by them and others like them are morally grotesque. I understand this. Whenever I hear the latest affront to decency dripping from their mouths, I am outraged. How else should I feel about men who, like many extremists on both sides, frame nearly every problem in the world as evidence of sinister Israeli or Jewish power?

How then should Americans and our leaders respond differently than Britain?

For starters, we must remember that this great American approach to freedom does not require neutrality toward extremism. In fact, the Constitution itself anticipated vigorous democratic argument. The Speech or Debate Clause explicitly protects members of Congress in carrying out robust public debate without fear of legal intimidation. The Founders expected public officials to answer dangerous ideas forcefully in the public square.

Their approach to toxic speech was not to remain passive or neutral. It was to argue back. As Justice Louis Brandeis put it in his famous concurring opinion in the case Whitney v. California (1927):

"Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty.... If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence."

Education and better speech. These are what the Constitution demands of us and our governments when our kishkes are telling us to stop hateful and dangerous speech.

Condemnation is also the right approach, and this is not the same thing as censorship. When Britain justifies barring Piker and Uygur on the grounds that "their presence might not be conducive to the public good," this must trouble anyone who values liberty. What Americans should ask is "Will I be next?" And this is precisely why The United States chose a different path.

The First Amendment does not exist because the Founders believed all speech is morally equal. They so clearly did not. They understood that a republic like ours was bound to be noisy, contentious, and frequently offensive at some times and places. They knew this because they themselves were often bitterly divided. There was even a small contingent that opposed the Bill of Rights. But even they were mostly concerned that explicitly listing freedoms in the Bill of Rights might paradoxically endanger liberty itself.

In the end, however, most Americans wanted those protections enshrined in the Constitution. It was ratified because a number of states firmly insisted upon a promise that those ten amendments would be added. Congress chose freedom of speech as one of the anchors for the very first of the ten, ultimately concluding that free speech was so central to the American experiment that it deserved constitutional protection from the very beginning of our national life.

They knew that every other existing government at the time was empowered to police opinion. It's the reason for the frustration we feel knowing that—with the exception of speech concerning direct threats, criminal conspiracies, or truly imminent incitement to violence—our Constitution even protects hateful speech.

It has always been frustrating. Americans have defended the speech rights of Nazis, Communists, racists, Jew-haters, religious extremists, and on and on it goes. But this was never because we believed that such ideas deserve admiration. It was and always has been because liberty itself requires restraint in the use of state power.

Jewish tradition teaches us to care deeply about ethical speech. We believe that words matter and that speech can degrade people by spreading hate, normalizing cruelty, and even, most dangerously, preparing societies for violence. The Rabbis coined the term lashon ha-ra, destructive speech, because they recognized the power of language.

But Justice Brandeis (who, for me, comfortably falls in the canon of Jewish tradition) also taught us that the answer to destructive speech cannot be through governmental suppression. He expressed the American answer beautifully when he reminded us that "The fitting remedy for evil counsels is good ones."

This remains one of the wisest formulations of democratic responsibility ever written. When we choose to refrain from silencing ugly ideas from above, we instead locate the moral confidence to be strong enough to confront them openly.

What has Britain's decision accomplished? Have they silenced Uygur or Piker? Hardly. In fact, they may have given them the great gift of elevating them. Now, armed with an official governmental edict, they can pose as persecuted truth-tellers rather than a couple of highly inflammatory entertainers thriving on outrage and attention. (And, naturally, they extend much of the blame to Israel, which is somehow controlling Britain.)

Whenever governments begin banning people for hateful rhetoric, the extremists quickly learn how to weaponize that censorship into publicity. Piker is already portraying himself as the victim of sinister forces seeking to silence him. He can thank the British government for handing him that narrative.

As we approach America's 250th birthday, we should remember the freedoms we inherited from the Founders that still make this country unusual. Among these are the liberty to disagree fiercely, passionately, and sometimes even offensively, free from governmental intrusion. And, of course, it quite obviously carries risks.

People like them, and they ideas they spread, should be feared. (And you probably have your own list that differs from the lists of others.) This makes it all the more crucial that they be challenged and argued against relentlessly. But never promoted into martyrs through state censorship.

The Founders understood something that other modern democracies increasingly forget:a free society does not prove its strength by silencing bad ideas.

It proves its strength by defeating them in the open.