Musings on Individual Rights, Collectivism, and the Constitution

The current political races in the United States are tackling weighty, abstract, important issues – such as what economic theory should drive our laws and, more abstractly, whether society should revolve around individualism or collectivism. Our political leaders are addressing these issues head on. For example, in his New York City inaugural address, Mayor Zohran Mamdani said, “We will replace the frigidity of rugged individualism with the warmth of collectivism.” Last week, Secretary of State Marco Rubio made remarks regarding political terrorism where he delivered a rebuke of Communism (which is different, of course, than collectivism) that presented somewhat of the opposite perspective. According to Secretary Rubio, “The world [Communism] envisions is a world without courage, a world without creativity or ambition, a world without heroes or glory or great causes to strive towards, without – a world without miracles, without myths, without men who rise above the rest to do incredible and extraordinary things.” The big question that emerges is, should we incentivize individual will, distinction, and success or prioritize egalitarianism and social welfare.

The dichotomy is never as stark as it seems, however. All of our politicians, to some degree or another, support both individual rights and also serve the collective good. The Democrats and the Republicans both have positions that are more individualist and positions that are more collectivist – it just depends on what context. As examples, in general, Republicans favor their vision of the collective good when they discuss border security or public safety. Democrats favor their vision of collective good, in general, over individual rights when it comes to property rights. Regardless of whether you agree that these groups’ articulation of the collective good actually serves the public good, both parties frame some of their arguments in terms of the collective and some of their arguments in terms of the individual.

Our Constitution is generally an individualist document. Most apparently, the Bill of Rights is counter-majoritarian; it protects individual rights as against the collective will of the democracy. For example, the First Amendment protects freedom of speech for those with disagreeable, hateful, offensive, explicit, and what some might classify as dangerous opinions, so long as the speech doesn’t reach the high bar for incitement, true threats, defamation, or obscenity. No other country protects socially corrosive opinions to the same degree. The First Amendment also protects our ability to practice whatever religion we desire, or no religion. The combination of the Free Speech Clause, Free Exercise Clause, and the Establishment Clause means that, unlike many countries, blasphemy and apostacy cannot be punished.

The Constitution also protects criminal defendants’ due process rights. The Fourth Amendment means police generally need a warrant to search a home. The Fifth Amendment means individuals cannot be forced to confess to their crimes, and the Sixth Amendment means that the state must provide a lawyer for indigent defendants. These are all individual rights provided to us, sometimes at the expense of collective safety.

Reasonable people may disagree on how the courts safeguard these rights, but our constitutional republic was founded on a view that the rights of the individual often must prevail over the will of the collective. Of course, almost no one is an absolutist about this, and our jurisprudence reflects this. In moments of exigency, the police do not need a warrant. When national security is at risk, the courts are generally laxer about restrictions on speech or privacy. People are generally not entitled to practice their religion in a way that transgresses a neutral, generally appliable law – you cannot claim religious liberty, for example, to avoid paying your taxes or to assault others.

We live in a world where the left and the right increasingly polarize against each other, and social media inflames our divisions. There are real disagreements between politicians over when we deserve individual rights and when the needs of the collective should prevail. However, it is important to remember that, as long as we keep our constitutional safeguards, we can ensure some measure of individual rights as against tyranny. These individual rights can be safeguarded in a nonpartisan way, so long we do not cherry pick which constitutional rights should matter. This all may sound too idealistic, but, as Justice Oliver Wendell Holmes said about free speech and truth, “That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment.” In many instances, securing individual rights is the best way to protect the collective good.

Graham Platner’s Views on FDR’s Court Packing, Power, and Principles

[Edit: this post was published prior to Jenny Racicot’s and Lyndsey Fifield’s sexual assault allegations against Graham Platner, which led to Graham Platner’s dropping out of the race.]              

In an interview with Jon Stewart, Graham Platner, Maine Senatorial candidate, recounted a moment from Franklin Delano Roosevelt’s presidency that affected Platner’s own thoughts on power.  When the Supreme Court kept invalidating FDR’s economic reforms, FDR threatened to “pack the Court.”  Roosevelt wanted to add more Justices to dilute the votes of those deeming his economic measures and uses of federal power unconstitutional.  This threat alone may have led the Justices to start ruling in FDR’s favor and reverse course on their economic due process Lochner-style jurisprudence.  Politicians have to be creative, Platner said.  Surprisingly, after hearing Platner relate how FDR was successful in implementing his policies, Jon Stewart referred to Platner as having principles.  

In fact, Platner was exhibiting a lack of principles for favoring this Court-packing approach. The prioritization of pure power to achieve one’s political aims, by members of both parties, has led to the undermining of the Court’s legitimacy and independence.  Principles are about following rules designed to benefit everyone, including our political enemies, in the service of a larger, more abstract ideal.  Freedom of speech, even for speech we detest, is the ultimate expression of principle.  The principle here was an independent judiciary.  Roosevelt abandoned that principle; Platner praised FDR for it; and Stewart fawned over Platner.

Politicizing the judiciary and abandoning principles has led to a compromising of our constitutional order. Everyone recognizes in the abstract that it is wrong for politicians to influence judges’ interpretations of the Constitution, or for judges to rule based on their political preferences rather than honest readings of legal text and precedent.  Everyone condemns these behaviors when their political enemies do it.  What was surprising was the lack of recognition of how destructive abandoning this principle is when your own party wields that sort of power.  Graham Platner seemed to be taking cues about how to be a leader from FDR’s Court-packing strategy to implement the New Deal, which some argue helped get the United States out of the Great Depression and others argue prolonged the Great Depression.

—-

I first became aware of Graham Platner because of his past Internet activity and his Nazi tattoo. Platner, who said he didn’t know about the Nazi association with the tattoo while others dispute this, had the Totenkopf skull and bones for 18 years before covering it up when it came to light politically. Like his hero FDR, Platner may have progressive values with under- and over-tones of a certain type of bigotry. 

Roosevelt publicly condemned antisemitism while turning away boats of Jewish refugees back to their deaths during the Holocaust.  Roosevelt kept Jewish immigration way below quota for refugees trying to come to America, as the Nazis exterminated 66% of the Jewish population of Europe.  Roosevelt made private comments about how the economic dominance of Jews in Poland provoked the virulent antisemitism there. Roosevelt boasted to his own Jewish advisor about how he helped set quotas for Jews at Harvard when he was on Harvard’s Board of Overseers.  Jewish Americans were getting into Harvard based on academic excellence, even despite a lack of wealth, during a profoundly and tragically antisemitic time in the United States and abroad. Roosevelt did not approve of high concentrations of Jews at major universities. Roosevelt also, as one of the darkest aspects of his presidency, oversaw the repugnant internment of Japanese Americans and expressed xenophobia and suspicion towards Japanese people.

Perhaps a variation of Roosevelt is echoed in Platner. Platner has associated with antisemitic conspiracy theorists.  He also seems suspicious of achievement.  He told Jon Stewart that power is not just reserved for smart, special people.  The populist drive to redistribute social capital away from people who have earned it (in addition to those who have decidedly not earned it) has often seemed sinister to me. Both parties have, in their different ways, denigrated achievement and gained support by choosing in groups and out groups.  I find the different versions of populism on both the left and the right concerning.  The Platner/FDR implementation of this seems to lack awareness in how it contradicts their other stated ideals and principles.

And that’s just it. Graham Platner is Democrats’ hope for taking the Senate. People are willing to overlook his Nazi tattoo (it’s perhaps a plus for some). People are also willing to overlook his associations with and boosting of Holocaust-denying conspiracy theorists, his extramarital texts, and the fact that he claims to be working class while being born into money and attending prep school. Platner is also a military veteran who appears forthcoming, kind, articulate, and well read.  Maybe he is (although he doesn’t seem to have read sources that would dispute the narrative he’s built).

Platner’s discussions of creative uses of power may be necessary for some of the honorable goals he wishes to achieve.  But creative uses of power also have a sinister edge.  He was voted most likely to start a revolution in high school.  Because I study freedom, and law, and because I understand how lucky we are compared to much of the world to have the constitutional rights we do have, I understand that not all revolutions, or creative uses of power, are good.  Many are catastrophic. I think of the horrors wreaked by the revolution in Iran, bolstered by socialist ideals (although the socialists were killed once the revolution was a success) which has led to one of the most repressive, Holocaust-denying countries on the planet, a regime that represses its own wonderful people and shuts off the Internet to murder protesters. So it is important to elect leaders not just with values, but with principles about restraints on power.

The question is, how unprincipled have we all become, as a society. How much has the lack of principle of politicians on one side of the aisle created highly unprincipled people on the other, over and over again, throughout American history?  Can we ever get past a point where people mistakenly think they are being principled when they are actually willing to do whatever it takes in the service of their own political causes? Can we get to a principled place, or will this vicious cycle continue?

The Spokane 3, the First Amendment, and the Federal Conspiracy Statute

This blog post offers analysis on how the prosecutions and convictions of the Spokane 3, charged with conspiracy to impede federal law enforcement, intersect with the free speech rights guaranteed in the Constitution. Before I begin the analysis, I want to make a few notes. 1. Jac Archer, one of the three defendants in this case who did not take a plea deal and thus went to trial, is a graduate of Gonzaga Law School, where I teach. I never had Jac as a student in any of my classes and never knew them, but I have tremendous fondness for all Gonzaga Law students. 2. This blog aspires to objective legal analysis about important issues regarding what is and is not protected under the First Amendment, in addition to how prosecutorial decisions affect First Amendment rights.  3. I never attended this trial, so I am relying on media sources that describe the trial, in particular The Spokesman Review and Range Media.  To get a deeper dive into the trial, I recommend these sources.

Honest analysis of this issue requires a systematic look at the contours of the First Amendment, the motivations of prosecutors, and the implications of this trial on speech and protest. Ultimately, the Spokane 3 may have engaged in some conduct that was not protected under the First Amendment, and all three could potentially be criminally prosecuted.  However, their potential over-prosecution for federal conspiracy to impede or injure an officer has serious implications for future speech or protest. A skeptical look at whether defendants’ conduct meets the definitions of conspiracy and of force or threats in the charging statute is necessary.  United States District Court Judge Rebecca Pennell is considering a motion for acquittal in July, where she could potentially rule that neither a conspiracy nor the requisite amount of force were used by defendants to be convicted for federal conspiracy to impede law enforcement. My analysis is below:

————————————-

This federal prosecution stems from a protest inspired by former Spokane City Council Member Ben Stuckart (whose guilty plea for felony to impede law enforcement may be converted into a misdemeanor if he complies with supervised release conditions).  Stuckart posted in June 2025 on Facebook about a transfer of two Venezuelan immigrants to an ICE detention facility (Joswar Rodriguez Torres was later ruled illegally detained, Cesar Alvarez Perez has since self-deported). The Facebook post read:

“If you care at all about these illegal detainers you meet me at 411 West Cataldo by 2 p.m. I am going to sit in front of the bus. Feel free to join me,” he wrote. “The Latino community needs the rest of our community. Not tonight, not Saturday but right now!!!!

Some protesters who responded to the Facebook post blocked the ICE bus, joined hands to prevent the bus from moving, slashed the tire of a law enforcement vehicle, and, according to some testimony at the trial, engaged in aggressive and intimidating behavior towards law enforcement, sometimes blocking their pathways. Law enforcement unleashed cannisters of smoke and made arrests, some of which were described as violent and may have involved excessive force.  

The federal government tried the Spokane 3, “military combat veteran Bajun Mavalwalla II, activist Justice Forral and activist and Gonzaga Law School alum Jac Archer” under 18 U.S.C.§ 372:

 If two or more persons in any State, Territory, Possession, or District conspire to prevent, by force, intimidation, or threat, any person from  …  discharging any duties [ of the United States] thereof, or to induce by like means any officer of the United States to leave the place, where his duties as an officer are required to be performed, or to injure him in his person or property on account of his lawful discharge of the duties of his office, or while engaged in the lawful discharge thereof, or to injure his property so as to molest, interrupt, hinder, or impede him in the discharge of his official duties, each of such persons shall be fined under this title or imprisoned not more than six years, or both. 

There are two separate, but related, legal questions to analyze. The first legal question is whether the protesters were engaging in speech protected under the First Amendment; we cannot be prosecuted for protected speech. The second legal question is whether defendants in this case violated this particular federal conspiracy statute.

The behaviors described above are not protected speech. A protest may be deemed non-violent, but that does not make it “speech,” deserving of First Amendment protections. The First Amendment’s protections for speech distinguish speech from conduct.  Speech is communicative, not coercive.  Although speech may express dissenting, disagreeable, inflammatory, or even offensive views, speech does not prevent others from acting. Listeners are not coerced by speech, which is why speech is elevated above conduct. Blocking exits, preventing law enforcement from doing their jobs, and ignoring lawful dispersal orders when a crowd has become a danger are actions that can be legally punished. Protest often involves elements that are protected speech, including gathering legally, holding signs, even yelling expletives and phrases like “Fucking Nazis” at ICE Agents.  Protests can also involve elements that are not protected speech, including blocking roads, impeding law enforcement, blocking private property, vandalism, assaults, etc.

Of course, civil disobedience is an important part of the United States protest history and fights for justice. Civil disobedience, however, explicitly involves breaking the law and accepting punishment. Civil disobedience, by definition, does not involve protected speech – it involves unlawful conduct.  In a democracy, no individual or group can decide which laws are or are not just on issues like abortion, immigration, or environmental policy. Social and democratic dissolution – likely including erosion of our legally protected First Amendment rights – would ensue if everyone decided for themselves which laws we allow the government to enforce. If someone believes a law is unjust – and many of our laws have been unjust  — they cannot claim First Amendment protections for blocking enforcement of that law. Through the federal court process, Joswar Rodriguez Torres, one of the immigrants who inspired the protest, was later ruled to be detained illegally.

Despite the First Amendment not playing a direct role preventing the Spokane 3 from being charged under state law, federally overcharging protesters for conspiracy has great potential to chill protected speech. Specifically, the government should avoid creating definitions of “conspiracy” that would apply to any protest that later involves unlawful elements or parallel behavior.  Most protests involve some coordination; that does not make them conspiracies. The government should also avoid definitions of “force” that involve simply engaging in civil disobedience.  Prosecutors should use their discretion to ensure that our laws are respected while at the same time allowing robust breathing room for protest. Judges must be attuned to free speech implications. This case does not involve protesters blocking entrances to prevent others from exercising their speech rights, or protesters shouting down speakers, or any other clash of First Amendment values. Instead, this case involves protesters taking on the government, and the Spokane 3 may have been overcharged.

This charge, 18 U.S.C.§ 372, requires a conspiracy, or an agreement between two or more people, and “force, intimidation, or threat.”  A unanimous jury (some have reported the jury as all white, but this may not be accurate) convicted the Spokane 3 of different versions of this, although I believe Bajun Mavalwalla II was convicted only of aiding and abetting the conspiracy. For Judge Pennell to grant the motion for acquittal, she would have to find that, as a matter of law, the elements of this statute were not met. Specifically, she could find that there was no conspiracy or no force, intimidation, or threats. The judge is not permitted to re-weigh the evidence.  Jurors could go either way on many criminal cases. The judge can grant the motion for acquittal only if no reasonable juror could side with the prosecution, based on the evidence.

I did not watch the trial. Some evidence was presented of an agreement that technically could be a conspiracy, including using a bullhorn, linking arms, etc., although defense counsel presented this as parallel behavior. Parallel behavior is not conspiracy, but agreements and coordination can be. I am torn on this element.  Some evidence was also presented of force, including so-called aggressive stances by protesters. However, a jury would have to find force beyond a reasonable doubt.  Force, under this statute, cannot simply mean impeding law enforcement – otherwise the element of force in the criminal statute would be redundant. Criminal statutes are to be read in favor of defendants because of the risk of criminal punishment – this is termed the rule of lenity.

My hope is that Judge Pennell exhaustively reviews the evidence to ensure that there was enough evidence of conspiracy and of force to justify the extreme measure of a federal conspiracy charge, especially given the First Amendment implications. A judge cannot simply override the role of the jury, but there are important free speech and defendants’ rights reasons to not stretch the definitions of conspiracy and force beyond a formal interpretation.

Artificial Intelligence and Human Distortion

I gave a talk at UT-Austin as one of the non-resident fellows at the Bech-Loughlin First Amendment Center. The talk covers what AI is, how it differs from traditional algorithms, why it deserves First Amendment protection, and what we can do to prevent misinformation at scale. Those who came to the talk asked great questions! This will ultimately become a paper called Artificial Intelligence and Human Distortion, which also involves exploration of the First Amendment’s marketplace of ideas theory.

ICE and the Constitution: A moderate’s take on why the tactics of ICE have led to anti-American results 

I am not an alarmist. I do not like hyperbole, and I try to see issues from multiple perspectives.  Most issues are more complex than any given partisan framing. 

I love this country, and I love our constitutional rights. I tell my students that the United States has the most robust free speech protections in the world, and that is still true. I deeply object to the overuse of the word fascist, especially by those trying to shut down speech to which they object, or by those who disagree with legal government actions when their views are not supported by the democracy.  I object even more profoundly to comparisons to the Nazis, who intended to exterminate every Jew in Europe and succeeded in the millions (including murdering members of my family), and invaded other countries to kill their Jews.

And yet.  It is time for moderates to speak up about the erosion of our constitutional rights by ICE. It is time to take stock of the ways in which liberty, equality, and humanity have been degraded. It is time for people who disapprove of cynical comparisons to fascism to actually notice the similarities. It is time for lovers of this country to appreciate how un-American things have gotten. Candidly, it is past time.

For some context, I do not believe we will ever get to Nazi Germany, or even to Iran (who this year blacked out the Internet, murdered protesters, and then arrested the doctors who treated them). I do not believe we will get there in part due to people exercising their First Amendment rights to protest, speak out, and film ICE agents. President Trump has placed on leave the ICE agents involved in the killing of U.S. citizen Alex Pretti, likely due to public outcry. Greg Bovino has been removed as Border Patrol “commander at large.” The people keep the government accountable.  

The judiciary also keeps the executive branch accountable. A federal district court judge in Minnesota recently held that the President must release refugees admitted to this country legally whose cases are being re-examined. This will likely be appealed. The courts do not always issue rulings people prefer (disagreeing with a ruling politically or morally doesn’t make it legally incorrect), but the courts are processing ICE cases and blocking many of its illegal actions, such as placing children who turn 18 immediately into adult detention centers.

Of course, there is no right to block law enforcement from fulfilling its duties. A nation descends into lawlessness if individuals have unchecked ability to decide which laws they think are and are not acceptable, regardless of democratic will. Every country engages in immigration enforcement. ICE has a difficult job. Former Presidents have taken many of the same steps as President Trump, although with less pushback. There is also no First Amendment right to block traffic, to fail to comply with reasonable dispersal orders, or to assault officers. And there is no right to enter or remain in this country by evading immigration laws.

But it is how we treat even people who violate our laws that defines America’s character. It is the recognition that law enforcement must be fair, just, constitutional, and provide due process, even to potential lawbreakers, that should distinguish us.  It is the knowledge that most of our ancestors came here fleeing something, or looking for a better life, that should promote humanity of treatment. It is the awareness that we are a nation made stronger by immigrants that should help define us and even allow many who have built a life here and contributed greatly to stay. And it is the promise that First and Fourth Amendment rights supersede any political will that is that truly makes America great.

The following are examples of just a few alarming steps we have taken down the totalitarian path.

  • The Supreme Court, in a concurrence on a preliminary ruling on its emergency docket (not a final ruling) has cleared the way for ICE agents to, at least temporarily, use a combination of ethnic background, location, and place of employment to give agents “reasonable suspicion” to conduct a Terry-like stop and detain people, who must then alleviate that suspicion by proving they are citizens. If they cannot alleviate that suspicion, the officers use probable cause to arrest and detain people.
    • This has led to U.S. citizens, mostly non-white U.S. citizens, feeling like they must carry identification at all times (I remember a relative of mine, when I was a kid, jokingly doing an S.S. officer impersonation which went, “Mr. Goldberg, where are your papers…..”) My friends, who love this country, whose parents were immigrants, who are lawyers and law professors, fear having to prove their identity, and potentially not being believed, because they are not white. Imagine the fear of those who are not well versed in the law.
    • Indeed, U.S. citizens have not been believed and have been subjected to abusive tactics by ICE agents. This presents both Fourth Amendment unreasonable search and seizure and Fourteenth Amendment equal protection problems. The Supreme Court should retake this case when it is ripe for a final adjudication and prohibit this type of racial and ethnic profiling under the Fourth Amendment, especially where the bar seems to have been lowered on what is necessary to garner reasonable suspicion. Additionally, the Fourteenth Amendment guarantees equal protection under the laws, prohibiting explicit racial classifications, especially those based on animus.
  • Our public officials are making statements demeaning people based on their country of origin. President Trump called Somalis “garbage.” The President has free speech rights, and all of us should feel entitled to criticize a country or argue that we shouldn’t adopt its practices. Prosecuting people for financial crimes, like fraud, is also necessary (although it should be done even-handedly and not just against one’s political enemies, a sign of government corruption).  Criticisms of a country and its policies are very different than demeaning all of the people from that country, making sweeping generalizations, then turning extra law enforcement resources on that population.
  • ICE circulated a memo claiming that ICE can enter people’s homes, if there has been a final deportation order, without judicial warrants. Although this memo hasn’t been shared extensively within the department, it is being used to train new officers. If accepted by the courts, this practice would mark a major expansion into exceptions from the general requirement that judicial warrants are needed to arrest someone inside their home, unless the police can prove exigency like safety concerns or flight risk. Once law enforcement enters someone’s home, they can also seize evidence in plain view if there is probable cause to believe the evidence is connected to a crime (a lower standard than beyond a reasonable doubt). The home is considered sacred under the Fourth Amendment, and this expansion would have a dramatic impact on both non-citizens’ and citizens’ privacy.
  • Some ICE detention centers have conditions that are inhumane and over-capacity. People report, for example, sleeping standing up. If the government wants to treat immigration enforcement as civil, justifying not giving arrestees their Fifth Amendment rights against self incrimination, the conditions of confinement cannot be punitive and cruel.  
  • Targeted deportations based on speech may violate the First Amendment. There is wide discretion in decisions regarding visas and citizenship/removal under the Immigration and Nationality Act. There is also no free speech right to take over buildings or prevent others from exercising their free speech rights. Many governments in free countries deny visas to people based on views that country finds disfavorable. But our government may be purposely targeting people for deportation based on protected speech. Even if permissible under the broad, discretionary INA (although that may violate the First Amendment), it corrodes the pride we should all feel in living in the country with the most robust First Amendment protections. Our free speech jurisprudence is based on the “marketplace of ideas” metaphor, where, so long as everyone is permitted to speak freely without force or intimidation, the best ideas will emerge. The solution to offensive speech is more speech, not censorship.
  • Rogue officers exist in every legal and moral system. The way that an administration reacts to rogue officers –through investigation and perhaps prosecution if warranted – is what separates bad actors from a corrupt system. I have concerns that government actors, after ICE agents shoot and kill protesters or onlookers who are unarmed or have been disarmed –  distort the truth to impugn those who have been killed. (This is not a comment on whether the officers had a reasonable – even if mistaken – belief in imminent bodily harm, but every ICE shooting should be thoroughly investigated. If not, potentially rogue actors create a corrupt system.)
    • Truth is the antidote to authoritarianism, which is why authoritarian governments invariably engage in dramatic and often deadly censorship measures. Although both the left and the right, at various times and in different contexts, have spoken out against bringing guns to protests, our Second Amendment rights include, according to the Supreme Court, a right to individual gun ownership subject to some restrictions. The government’s first response to unarmed citizens who have been killed by our law enforcement, regardless of the circumstances, should not be to defame the victims.

Our country is premised upon the belief that “all men are created equal” and entitled to inalienable rights – this includes people accused of crimes, incarcerated people, non-citizens, and especially those who criticize the government.

To be clear, growing authoritarian tendencies are not the exclusive province of the right. I also fear the far left becoming more mainstream in the Democratic Party. Members of the Democratic Socialists, for example, also demonize groups they disapprove of and wish to expand state power in concerning ways. Left-leaning populism, if fully effectuated, will also lead to anti-American results, although it is not nearly as close to pulling on the levers of federal power at this point. This is not to create an equivalence, but to note that the farther President Trump’s administration takes us, the more he makes extreme left politicians look like heroes. The populist left and right are polarizing each other in ways that cannot be good for social welfare, public harmony, public order, or our constitutional protections for liberty and property (protected under the Fifth and Fourteenth Amendments).

It is time for moderates to speak up, for our Constitution, for our people, and for all people.

The Synagogue Protests Across the Country, Mamdani’s Response, and How to Ensure Constitutional Rights for All

On November 19, 200 protesters gathered outside the Park East Synagogue, which was hosting an event by a Jewish organization, Nefesh B’nefesh, dedicated to helping Jews immigrate to Israel. Anti-Israel protesters chanted slogans like “Death to the IDF [the Israeli army]” and “globalize the intifada.”  The latter phrase, “globalize the intifada,” could refer to a non-violent uprising of Palestinians against Israeli policies, occupation, or existence, but is often associated with the Second Intifada, a wave of attacks on Israeli civilians in the early 2000s that left over 1,000 men, women, and children dead.

Perhaps signaling the intent of this “No Settlers on Stolen Land” protest, someone described as an organizer shouted, “[i]t is our duty to make them think twice before holding these events. . . . We need to make them scared! We need to make them scared! We need to make them scared.”  The crowd amplified these statements by repeating them.

New York City Mayor-elect Zohran Mamdani’s spokesperson responded to the event by saying, “[t]he mayor-elect has discouraged the language used at last night’s protest and will continue to do so. He believes every New Yorker should be free to enter a house of worship without intimidation, and that these sacred spaces should not be used to promote activities in violation of international law.”

After examining this potential clash of free speech interests, I have concluded that: (1) the events inside the synagogue were clearly protected by freedom of speech, if not freedom of religion, (2) the anti-Israel protesters may also have been exercising their free speech rights, although they were closer to the line of unprotected incitement or threats, and their blocking of the synagogue entrance is not free speech, and (3) Mayor-elect Mamdani’s initial response undermines the reasons for the First Amendment  — that everyone deserves free speech and freedom to worship, regardless of their views.

First, those inside the Park East synagogue were engaging in First Amendment activity. Communicating about immigration to Israel is protected speech.  The organization, Nefesh B’nefesh, has no ties to any Israeli settlements in the West Bank. The organization helps with the logistics of Jews seeking, for safety or religious reasons, to move to Israel, which is legal under both United States and international law. Nefesh B’nefesh has previously showcased West Bank settlements, but does not assign anyone to a particular area within Israel.

Mamdani’s spokesperson later clarified that, by violations of international law, Mamdani meant promoting illegal settlements in the West Bank, but Nefesh b’Nefesh helps Jews generally move to Israel.

The United States and Israel do not consider West Bank settlements illegal under international law, although most of the world does. However, even advocacy for committing crimes, for example, doing illegal drugs, is still considered free speech unless it rises to the level of incitement, directed at and reasonably likely to produce imminent lawless action. The speech at the synagogue does not meet this incitement standard.

The protesters outside of the event are also permitted to peacefully express their dissatisfaction with the event. Chants of “Death to the IDF,” or “globalize the intifada,” however concerning, are protected speech in some contexts. However, these chants may rise to the level of incitement or true threats. Communications designed to make reasonable people fear imminent harm or incite violence can be punished, as with the organizers of the violent Unite the Right rally, who were charged with traveling across state lines with intent (a) to incite a riot, (b) to organize, promote, encourage, participate in, and carry on in a riot, and (c) as having ‘participated in violent encounters. . . .” 

In addition, protesters blocked the entrance, so that worshippers could not enter or exit. That is not an exercise of free speech.  New York Police Department Commissioner Jessica Tisch issued an apology to the congregants for the NYPD’s not doing a better job keeping the entrance clear.

Because the event at the synagogue was protected speech, the police have an obligation to protect those wanting to attend the event. Police cannot shut down speech because others may react to speech with violence. In fact, that would be an instance of the “heckler’s veto,” allowing angry mobs to decide who is permitted to exercise their free speech rights. The heckler’s veto is anathema to a healthy operation of the First Amendment. Chants designed to make people afraid of exercising their free speech rights should, for the same reason, be discouraged.

The rabbi at Park East Synagogue, Rabbi Arthur Schneier, watched his synagogue burn in 1938 as a child during Kristallnacht, a period when the Nazi-German government burned or vandalized over 1,000 synagogues and Jewish-owned businesses. He is a Holocaust survivor. Populist movements designed to demonize Jews and make them afraid of their identity are not hypothetical to him or his congregants. 

Worldwide, synagogues have become targets.  Within the last few weeks, arrests were made outside of a protest in Los Angeles for vandalism and assault at a pro-Palestine protest that included hateful language, a synagogue memorial in Rome dedicated to a 2-year-old child killed in a synagogue attack in 1982 was defaced after a pro-Palestine protest, and a few weeks ago, the rabbi at a synagogue in Canada spoke out after the synagogue was defaced for the tenth time.  Vandalism, assault, and blocking entrances are not free speech.

Mamdani is correct that federal and New York Law prohibits those seeking to obstruct or intimidate people exercising their rights in a place of worship. Besides free speech activity, there are freedom of religion elements, even when synagogue events relate to Israel. The connection to Israel is central in many practices of Judaism, which comes from the region of Judea, the ancient homeland of the Jews. For example, the Shema, a sacred prayer originating in 1300 BC, has worshippers saying in Hebrew, “hear o’Israel, Adonai is your God, Adonai is one.” Not all Jews support Israel’s policies or even its existence, but there is a longstanding connection, both genetically and religiously, of Jews to the land of Israel.  Jews – including Ashkenazi and Mizrahi Jews – and later Palestinians both have indigenous ties to the Levant.

Several days later, after backlash from some in the Jewish community, Mamdani said “[w]e will protect New Yorkers’ First Amendment rights while making it clear that nothing can justify calling for ‘death’ to anyone.”  It is ambiguous whose First Amendment rights he is talking about here. Mamdani seems to be referring to the protesters’ speech here, as he wants to secure their right to protest while also condemning their hateful language.  Mamdani is in a difficult position on that front, as he is often asked to condemn violent or hateful language that may also be protected speech.

Mamdani’s implication that the synagogue was promoting activities in violation of international law is immaterial. The Mayor-elect must respect the constitutional rights of all New Yorkers. The Constitution, and secondarily federal law, are the supreme law of the United States, not Mamdani’s perception of international law.

What city leaders should be doing is noting that everyone deserves their free speech rights. No one is permitted to intimidate others out of assembling or exercising their own rights, whether leaders agree with them or not.  Two out of every three Jewish New Yorkers voted for Cuomo or Silwa over Mamdani, and one third voted for Mamdani, likely in part because of Mamdani’s rhetoric that employs double standards in ways that many Jews perceive as harmful, but Mamdani must support the free speech rights of all New Yorkers equally. He has stated that he will do so.     

Criticism of Israel or its government is protected speech, and there must be breathing room to criticize any country, government, or institution.  But that criticism cannot shield intended violence or intimidation that prevents others from also exercising their protected opinions and free speech rights. In order to preserve our robust freedoms, federal and state officials must take a principled stance to free speech rights, regardless of who is exercising them.

Academic Freedom Undermined

My latest paper is up, forthcoming in the Maryland Law Review Online

Download the paper here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5393356

Here is the abstract: Academic freedom is both a constitutional right and a professional value that belongs to professors, students, and institutions.  These various dimensions of academic freedom may conflict with each other and with democratic will outside of the institution.  Resolving these conflicts must begin with an understanding of what it means to be academic. Views differ on what belongs in the academic enterprise, but the pursuit of truth and knowledge must be fundamental to any definition of what is academic.  The open-minded search for descriptive or philosophical understanding separates academics from other ideological groups, journalists, politicians, or others who do not merit academic freedom.  

Currently, threats to academic freedom from across the political spectrum are distorting the classroom environment, altering the scholarship produced by professors, and leaving students unexposed to the process of true academic inquiry. As a current example, attempts to both foster and dismantle policies related to diversity, equity, and inclusion by institutions and by the Biden and Trump administrations have placed universities in a partisan battle that threatens their legitimacy.  Restoring this legitimacy requires prioritizing values related to process-based intellectual exploration and negotiating the difference between protected speech and unprotected conduct. 

Huda Beauty, Sephora, and the Betrayal of Inclusivity Culture

Here is a quote by Huda Kattan, creator of Huda Beauty, in a video posted to her millions of followers.  TikTok says it took down the video for spreading harmful misinformation, although Huda says she took the video down herself because it was being misconstrued.

“All of the conspiracy theories coming out and a lot of evidence behind them — that Israel has been behind World War I, World War II, September 11, October 7 — they allowed all of this stuff to happen. Is this crazy?  Like, I had a feeling — I was like, ‘Are they behind every world war?’ Yes.”

(This goes on.)

Huda’s follow-up video claimed that she was being smeared due to her activism supporting Palestine. Neutral sources, like cosmetics blogs, are omitting what she said in the original video when discussing the issue.

Every country should be criticized, without fear of government reprisal, if you disagree with its policies or actions.  That is our First Amendment right in this country, and it is one of our most precious, and most exceptional, rights. But why are we allowing people to disguise hate as activism and profit off it by using private businesses who claim to value inclusivity?

What did Huda mean in claiming that Israel is behind WW2, where millions of Jews were systematically exterminated in countries across Europe. Jews living in Israel (which wasn’t an official state at the time) did fight in WW2 for the Allies, against the Nazis.

Jews in America were also committed to fighting the Nazis. My great-uncle, who is American, helped liberate a concentration camp. My grandfather fought in Normandy. They both received Purple Hearts for being wounded as soldiers.

And what did Huda mean that the state of Israel was behind WW1? The modern state of Israel did not exist, and accusing Jews of instigating WW1 is straight Nazi propaganda, and was in Hamas’s original 1988 Charter, which also contained tenets about killing all Jews, everywhere.

The idea that Israel or Jews were behind 9/11 is a globally repeated and false anti-Semitic conspiracy theory. The terrorist group Al Qaeda took full responsibility for the attacks, killing many Jews who worked in NYC. There is no evidence that anyone else is responsible besides Al Qaeda.

And, of course, blaming Israel for 10/7 is what people say to excuse the horrors filmed gleefully by so many who poured into Israel to murder families in their pajamas and take over 200 hostages (including children).  There are still hostages alive in Gaza now; Hamas has filmed some of them in order to make more propaganda and psychologically torture their families.

Whatever your views on Israel/Palestine, it’s alarming that Huda’s claims need to be disputed. So many people are still supporting her. Supporting Palestine in its fight for freedom cannot mean parroting dangerous anti-Semitic tropes or attempting to rewrite history.

Huda Beauty promotes inclusivity as part of its brand. Inclusivity culture is quite profitable, as is Huda Beauty.

Sephora, the popular beauty retailer that sells Huda Beauty, has been asked to drop Huda Beauty from its shelves. Sephora has ended relationships with other beauty brands for misconduct, including Olivia Jade. Sephora is now reviewing its relationship with Huda Beauty, but it is unclear why Sephora needs a multi-day investigation to suss out that Israel is not behind the Holocaust.

Sephora, which sells Huda Beauty, also prides itself on inclusivity, either because inclusivity culture is profitable or Sephora cares about the concept as a principle. Right now, Sephora seems to be putting profits over principles, as Huda, across her platforms, has many more followers than there are Jews in the world. Huda Kattan has not corrected her misstatements.

Inclusivity as a principle is a laudable goal. If you truly believe in inclusivity, in a principled not a partisan way, it means appreciating beauty in so many people. It means allowing many different voices to share their experiences, to be part of something, to care about and find the truth by making spaces welcoming to people of different backgrounds and perspectives. It is the sentiment behind Grutter (since overturned) that allowed universities to maintain affirmative action programs against equal protection challenges because diversity was an important goal in the classroom.

We learn better when exposed to different types of people. As a free speech scholar, I fully support this vision of inclusivity.

Inclusivity culture in practice is too often the opposite of how it should be in theory. Of course, some people still favor principle over ideology, but many who preach inclusivity rhetoric promote acceptance of their favored groups at the expense of other groups.

Many (not all) involved in inclusivity rhetoric also don’t care about truth – they begin with a particular ideology and then cherry-pick facts to fit that narrative. It’s been hard to watch people who profess tolerance twist themselves into hypocritical knots to justify the gross generalizations they make about anyone not in their preferred ingroups.

It is difficult to draw lines. Too much censorship happens when we claim that certain views are bigoted. We need to allow a wide range of views to be discussed so we can all be enlightened by different perspectives. But there are views that seem intolerant, and then there are false statements of fact that malign entire groups. And while we also have our First Amendment rights to utter those false statements, because the government cannot be trusted to fairly and accurately determine which accounts are sufficiently true or false, we as private individuals do not need to accept conspiracy theories and lies. These are the enemy of truth and enlightenment, and inclusivity.

Sephora has every right to keep Huda Beauty on its shelves.  That is part of the freedom we cherish. But if people profiting from messages of inclusivity promote millionaires parroting literal Nazi talking points, then inclusivity culture has fully jumped the shark.

Deporting People for Pure Speech is Likely Unconstitutional (even under Holder v. Humanitarian Law Project) and Undermines American Exceptionalism

I am a First Amendment scholar. I protect the right of all to protest in accordance with free speech values. I also have personal and professional reasons to be concerned about some of the protests that have overtaken some university campuses.

Taking over buildings, shouting down classes and speakers, and assaulting staff is not speech. Some of those protest tactics seek to shut down dialog or use coercive, non-expressive methods to make change. Federal laws like Title VI, which prohibits discrimination and harassment that deprives students of their ability to receive their education, should be employed against some of the illegal takeovers of universities.

That said, what I love about this country is our tolerance for a wide variety of views, from enlightened and open-minded to the un-nuanced, ignorant, crass, or hateful views. Our free speech tradition is second to none. We have not always been perfect, but we have upheld the First Amendment rights of the following diverse speakers: Jehovah’s witnesses who didn’t want to salute the flag or put “Live Free or Die” on their license plates, neo-Nazis who wanted to march in a town of recent Holocaust survivors, protesters who want to burn the American flag, professors who don’t want to have to follow the orthodoxy of their institutions or want to place controversial and offensive items on their final exams, Communist professors who do not want to share their lecture notes or associations, nonprofit corporations who want to amass funds to create political documentaries, advertisements by civil rights leaders criticizing the sheriff of Montgomery Alabama, artists who wish do not wish to be compelled to create things that undermine their religious beliefs, students who wear armbands to protest war, a man who put the F word on a jacket to a courthouse to protest the draft, and so many more.

The way that the Trump administration is pursuing the deportations of foreign students flies in the face of this grand tradition. I am profoundly troubled by this administration’s justifications for arresting and pursuing deportation of students on visas and green card holders.

The administration’s interpretation of the Immigration and Nationality Act is that it has full discretion to deport people deemed enemies of the state or those who assist terrorist groups like Hamas. An interpretation of the laws that allows deportations of people purely for expressing political views would likely be a violation of the First Amendment, even if we can originally deny visas to those who advocate for the overthrow of our country or have certain affiliations. As applied to pure speech, the law is vague and viewpoint discriminatory.

There is precedent where national security interests override free speech concerns. For example, in Holder v. Humanitarian Law Project, the Supreme Court upheld a federal statute that prohibited nonprofits from advising designated foreign terrorist organizations, even on how to conduct peaceful diplomacy. In that case, however, the meaning of “training” or “expert advice or assistance” was not considered vague by the Supreme Court. Those facts are in stark contrast to applying immigration law to a wide range of views about Israel and Palestinian rights.

In addition, the Supreme Court recently upheld the forced sale or ban of TikTok, partially on the grounds that the law did not implicate speech because it allowed for a divestiture and partially on the government’s stated national security concerns. The Supreme Court does give a great deal of deference to the government in articulating national security concerns. But this deference can only go so far. There was no notice in the Immigration and Nationality Act that merely writing an opinion piece, for example, would be equated with serving a terrorist organization.

But even if our Constitution would technically allow these deportations, because of the interaction between free speech rights and immigration discretion with national security interests, it is the wrong path to take. If Mahmoud Kahlil is being detained for assisting protesters in taking over a building, charge him with that. If Rumeysa Ozturk has done anything besides write an op ed in a student newspaper, please put forth this evidence. Currently, it appears that the administration is equating pure speech with illegal conduct. This flies in the face of our free speech doctrine and ultimately will erode speech for all of us and embolden illegal protests. If just text is outlawed, then people will also resort to the illegal methods we wish to curtail. Dialog, understanding, and knowledge is what we should be promoting.

In his seminal dissent in Abrams v. United States, Justice Holmes said that the American experiment, and the free speech experiment, was to let all ideas come to the surface for testing.

“But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment.”

Justice Jackson, in his remarkable Barnette opinion, held that “[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

This is the way. This is the way to show patriotism, and it is the best way to support Jewish constituents while honoring the free speech traditions that benefit us all. Arresting people for what appears to be pure, political speech leads only down the totalitarian path. The administration should pursue those who engage in illegal conduct, or seek to deprive the rest of us of our right to express our opinions. But targeting people living and studying in this country purely for the conclusions they have reached is wrong, unjust, un-American, and unwise.

The Conflict between Free Speech Rights and Federal Antidiscrimination Laws in the Gaza Protests

In light of President Trump’s tweet to deny federal funding to universities who fail to stop illegal protests, this blog addresses the lawsuits surrounding universities’ treatment of Gaza protests and discusses how to distinguish legal from illegal protests.

As a scholar of the First Amendment, I rarely encounter free speech issues as difficult as those presented by protests at universities following the October 2023 Hamas attacks on Israel, and Israel’s response in Gaza.  Issues surrounding recovery of the hostages, the civilian deaths and humanitarian issues in Palestine, and even whether Israel has a right to exist have elicited strong reactions from residents of the United States.  Universities have been sued multiple times, by students and organizations on both sides of the issue, for mishandling the student protests.     

As examples, a court issued a preliminary ruling that the University of California, Los Angeles cannot allow protesters to block Jewish students’ access to classes.  A lawsuit against the University of California Berkeley alleges that the university allowed “unchecked spread of antisemitism” and physical violence by failing to police encampments that the plaintiffs believe harassed Jewish students.  Berkeley also permitted student groups to adopt bylaws banning speakers who support Zionism.  There are also lawsuits alleging that pro-Israel speech has been effectively censored, disrupted, and shut down by campus protesters.    

Pro-Palestinian students and organizations have sued colleges over infringements on free speech, including banning vigils based on safety concerns.  A Texas lawsuit focuses on a state executive order that adopted a narrow definition of anti-Semitism.  The order would prevent the groups from criticizing Israel’s actions using certain language, such as comparing the state of Israel’s policies to the Nazi regime.  

  Courts tasked with addressing these lawsuits will also have to contend with the fact that universities’ free speech obligations are complex and often uncertain.  The Supreme Court hasn’t fully fleshed out the free speech rights of students on public college campuses.  Private universities do not have to comply with the First Amendment, but many profess to safeguard students’ free speech and academic freedom rights. 

Creating tension with these free speech obligations are universities’ civil rights obligations.  Any university that receives federal funding must comply with Title VI of the Civil Rights Act, which ensures that students are not discriminated against based on national origin, race, shared ancestry, or citizenship in a country with a predominant religious identity.  If Jewish or Israeli students are subjected to a hostile environment that is so severe and pervasive that it prevents the students from having equal access to their education, universities can be sued for violating federal law. 

There is no monolithic solution to approaching these varied protests.  Universities must separate protected speech from unprotected conduct to safeguard free speech and academic freedom rights for all of their students.

Some of these protests involve purely protected speech, and universities cannot ban students from having vigils.  Some protests involve unprotected and illegal conduct, like having weeks-long encampments where students cannot access certain parts of campus unless they agree with the protesters.  Universities, such as Berkeley, had been loathe to send police in to arrest student protesters, even if their protests involve unprotected conduct. 

As an extreme example, students at Barnard College disrupted a history of modern Israel class on its first day, shouted over students, and refused to partake in dialog.  The class was discussing the origins of Israel from multiple perspectives.  This sort of intrusion into the learning environment is not only not protected speech, but it undermines the academic freedom of the professor and the students in that class.  Protecting the sanctity of the learning environment, the students were expelled – protests of the expulsion have led to other instances of illegal protests, where (sometimes encouraged by professors) students have taken over buildings and put a security guard in the hospital.  This is an easy case of an illegal protest that actually undermines speech.  If Barnard’s administration hadn’t acted, students would likely feel intimidated out of taking certain classes.  Free speech does not protect shouting over other voices in settings organized for particular speech.  The United States free speech regime understands that coordinated efforts to disrupt speech allow a heckler’s veto that is inconsistent with the purposes of freedom of speech.

  A major problem in determining how universities should approach the Gaza protests is that some of the speech is ambiguously discriminatory, such as when students and professors denounce Zionism.  To some, Zionism is a political belief, supporters believe Jews have a right to self-determination in the ancient land of Judea and opponents believe that Zionism allows for Jewish supremacy and subversion of the rights of Palestinians.  However, Zionism can also be used as a slur or a way to discriminate against Jews, or only question Jews about their views regarding Israel.  Allowing students and professors to make discriminatory remarks about Zionists can be viewed as either pure political speech, like generalizing Republicans or vegans, or it may be seen as allowing discrimination based on ethnicity, religion, or national origin, like when protesters chanted that Zionists should “go back to Europe.”  Courts will have to use context to determine whether comments targeting “Zionists” creates a hostile environment for Jews or Israelis.

Other views expressed by protesters are more easily considered protected speech, even if the speech is inflammatory.  For the most part, those describing what Israel is doing as a genocide are engaging in protected speech even though these views may intentionally undermine the Holocaust or be designed to invert what has happened to Jews to delegitimize the Jewish state.  These students may be holding Israel – the world’s only Jewish state — to a double standard compared to other countries’ responses to attacks on civilians or wartime casualty rates caused by other countries.  The same goes for a term like ethnic cleansing, which may be seen as either bringing awareness to settlements in the West Bank and Gaza or may be attempts to invert the fact that Jews have been cleansed from basically all of the neighboring countries and have, as a result, often emigrated to Israel.  Even if speech is intentionally or subconsciously discriminatory, it may still be protected speech.  There is no exception to the First Amendment for hateful, ignorant, or unnuanced speech.  Dialog must happen around these topics, and Israel cannot be above scrutiny. 

Some speech of the protesters is likely protected speech but may, in the aggregate, create a hostile environment under Title VI.  For example, chanting “globalize the intifada,” which is used by some to glorify violent uprisings and deadly attacks against Israelis may, in some instances, rise to the level of unprotected incitement.  “From the river to the sea, Palestine will be free,” may be referring to driving all of the Jews out of Israel or may be referring to giving Palestinians sovereignty in a way that eradicates the state of Israel but allows Jews to remain there.  Praising Hamas, who has in its founding charter to kill Jews, may be a protected viewpoint in single instances but will create environments of fear in certain contexts. 

Universities should be incentivized to create protest policies divorced from this situation, that do not curb free speech but also ensure that students are protected against disruptive protests that block access to buildings and render them afraid to share their views.  An approval process for the content of speeches and slogans is an unconstitutional prior restraint at public universities, although private universities can experiment with different speech policies (private universities that promise their students free speech should steer clear of this type of content-based prior restraint). The essence of free speech is that it is not coercive, so a robust free speech regime allows pure speech while protecting students from disruptive or violent conduct that coerces agreement on an issue.  President Trump is correct that some illegal protests have created a hostile environment, but he is wrong if his tweet implies that all of these protests are illegal.  In addition, disproportionate responses to illegal protests may chill too much speech.  That said, universities who fail to disincentivize illegal protests undermine free speech and academic freedom rights for all of their students and allow a heckler’s veto to be placed over actual learning.