Is there an emerging Israel-Palestine exception to the First Amendment? The Constitution’s protection of expressive freedom serves in part to ensure that democratic decision-making is based on informed, rigorous, and inclusive debate — a function as crucial to the development of foreign policy as to domestic affairs. In this symposium, we will examine several contexts in which the boundaries of freedom of speech are being tested by the regulation of expression implicating the State of Israel and advocacy for Palestinian rights.
First, we will consider federal and state legislation constraining Americans’ right to boycott Israel (and Israeli settlements in the occupied Palestinian territory). Enacted in response to the global movement advocating boycotts, divestment and sanctions (BDS) to pressure Israel (and entities involved in its military occupation of Palestinian territory) to comply with international law, this legislation is defended as a means of supporting Israel and combatting antisemitism. It has provoked constitutional challenges in a number of states. The divergent outcomes in these cases could lead to U.S. Supreme Court review, with implications not only for the fate of political boycotts, but also for the future of anti-discrimination law. In addition, the debate about the constitutionality and propriety of these laws touches questions that run across all three contexts we are examining: how should antisemitism be defined? What are the implications of defining antisemitism to encompass advocacy of Palestinian human rights, or opposition to Zionism? Does defining antisemitism in these ways undermine Palestinians’ ability to draw attention to their experiences of dispossession, disenfranchisement, and occupation as a consequence of Zionism? To what extent are these appropriate questions for American lawmakers to decide?
Next, we will explore how universities have managed the sometimes clamorous debate on their campuses about Israel-Palestine amidst increasing scrutiny by government, donors, and the media. In several highly-publicized cases, faculty members have been denied employment, tenure, or both because of expression critical of Israel, and students advocating Palestinian rights report discrimination, censorship, and harassment. At the same time, as antisemitic threats and violence are on the rise in the United States, openly Jewish students report feeling unsafe on university campuses on account of their identity or support for Israel. In light of these dynamics, we will discuss to what extent, for what purposes, and through what means it is appropriate for universities to regulate expression related to Israel-Palestine on campus. In addition to illuminating the constitutional limits on university actions, we will engage broader questions of policy: how universities can facilitate robust debate about issues of pressing public concern while at the same time protecting members of their community from hate and discrimination; what the boundaries of acceptable discourse are in a context where rights, identity, and power converge; how universities can promote, and signal commitment to, values without infringing upon academic freedom; and how learning and discourse about polarizing issues can be encouraged.
Finally, we will turn to efforts by digital platforms to address similar questions, in a space where expression has tended to be treated as outside the boundaries of First Amendment protection. Platforms like Facebook, Twitter, TikTok, and YouTube have been criticized for failing to do enough to respond to the proliferation of hateful expression, including antisemitic, Islamophobic, and anti-Palestinian speech. Their attempts at moderating content, however, have sometimes reflected bias, resulting in the censorship of pro-Palestinian voices, among others. In this context, as well, both the standards and the processes devised by these platforms raise urgent questions of both law and policy.
At a time when efforts by the United States to facilitate a negotiated peace in Israel-Palestine have stalled, and some prominent American, Israeli, and Palestinian human rights organizations have characterized the legal regime in the territory governed by Israel as apartheid, ensuring Americans are able to talk about Israel-Palestine is as important as what we say.
