Roundtable on Antisemitism: Free Speech and Group Libel

Thanks to my colleagues for raising such provocative questions about American anti-Semitism, the state, and the “marketplace of ideas.” Given the increasingly open expressions of hatred currently coming not only from the margins but from public figures, and a national dialogue driven largely by polemics and ad hominem attacks, might scholarship have something useful to offer us? So I am grateful to be having this discussion about the history of American anti-Semitism at this moment in time.

There are many issues here but I’d like to focus on three: Is there slippage between targets of hatred? What has the role of the state been in facilitating or confronting anti-Semitism, given that its expression comes not only from private actors but from state-affiliated groups or political office holders? And finally, how do we understand free speech when expressions of bigotry stray too often into violence?

If there was any question earlier, there is no longer any doubt that when one group is singled out as the enemy, no matter who that group is, Jews are the next target. Protesting the removal of Confederate symbols from public spaces and other threats to white supremacy by people of color, tiki-torch bearing white people marched through the streets shouting, “Jews will not replace us” (although some of them were fine people).  Rants about the Rothschilds, Soros, and international bankers, and political ads and tweets using anti-Semitic tropes, have now become disturbingly commonplace, even when the ostensible target – immigrants, people of color, Chinese expansion, ISIS – has nothing to do with Jews. And when some of that rhetoric is coming from public officials, there is no question that the state is implicated in how these dialogues play out.

And, of course, there was no question about this slippage into anti-Semitism in the past either. None of this is new. During the civil rights movement, for example, Jews were often blamed for “stirring up” African Americans, and several southern synagogues were bombed. During one of the trials of the “Scottsboro boys,” in which 9 black youths were (falsely) accused of raping two white women in 1933, the prosecutor wondered, “Is justice in the case going to be bought and sold in Alabama with Jew money from New York?”

None of this is to suggest that hatred of Jews in the United States has ever come close to matching the virulence of anti-black racism, or that the state is always complicit in anti-Semitic or racist expressions. But it does help dislodge the “progressive narrative of American history” Victoria described that has considered anti-Semitism an increasingly marginal phenomenon.

If anti-Semitism has indeed come back from the margins, if its perpetuation is at least in part advanced (or not hindered) by state actors, a logical reaction might be to call for a return to some form of restriction of hateful speech, or what is called “group libel,” which both Victoria and Kirsten mentioned. Many European and Latin American countries have legal protections against expressions of bigotry toward vulnerable groups, and in the U.S., Catholic, African American, Jewish and Italian and many other groups fought hard for decades to restrict offensive materials from reaching the public. Black church and political organizations picketed showings of “Birth of a Nation” when that film first opened in 1915; Jewish groups challenged the portrayal of Fagin in the 1948 film “Oliver Twist.” Less well known were ethnic, religious and racial political organizations’ challenges to offensive books, advertisements, movies, and textbook passages. These groups called for boycotts, censorship boards, mass protests, publication restrictions and mailing prohibitions. But, with the exception of the mail, these strategies of suppression all operated privately, outside of any governmental framework.

And so, over and over in the first half of the 20^th century, these groups also debated whether they should advocate for group-libel legislation, which would formally prohibit such bigoted expressions in the public sphere. The American Jewish Congress even drafted such legislation, which was introduced in the U.S. Congress several times between 1949 and 1959.

But in the end, after long debates over the advantages and constitutional challenges of such a bill, every Jewish civil rights agency (and every African American one as well) elected to defend the rights of free speech over protection against expressions of bigotry. They made the expected arguments raised by free speech advocates – that hate speech would best be countered by more speech. But they also made two other arguments, both peculiar to the American experience, that are worth considering today, as debates over group libel protections have resurfaced. First, they argued that in a society so deeply racist and anti-Semitic, it was far more likely that their own speech would become the target of group libel legislation than those of bigots. Arguments in favor of civil rights were routinely attacked as un-American; Jewish criticism of Christian anti-Semitic films was challenged as made by those unwilling to accept “the truth.” In any case, could courts be relied upon to acknowledge that claims of black inferiority, Jewish greed, or Japanese inscrutability were bigoted rather than generally true?

The second reason related directly to this first one: not only were protests against bigotry looked upon with suspicion by the broader population, they were considered by many in government to be potentially – and dangerously — disloyal. During the heyday of McCarthyism, workers were dismissed from federal and state jobs (as well as private ones) as possible communists when they argued for civil rights or criticized current civil liberties restrictions. Both black and Jewish organizations challenged hundreds of these cases of workers charged by the state with disloyalty. In some places, membership in the NAACP was itself grounds for firing (and worse). All this served to suppress the free speech of those who expressed support for liberal or egalitarian political views or criticized government policies. And it was sanctioned – and advanced – by the state apparatus. Advocating for any laws limiting political expression in such an atmosphere was unthinkable. As the ADL concluded in 1955, “particularly in view of the danger of aggravating the current climate of repression,… advocacy of a group libel statute would play into the hands of those who seek to repress and curtail individual freedoms.”

In other words, the hysteria of the Red Scare led them to conclude that any move to constrain speech could be used by state operators to target vulnerable groups, or indeed any critics of government policies. Today, President Trump’s labeling the media “the enemy of the people,” the curtailing of press conferences and added legal scrutiny placed on specific journalists covering the immigration controversy at our southern border, all suggest this fear may still be legitimate. On the other hand, the mainstreaming of anti-Semitism (and other forms of bigotry) and the steadily growing number of anti-Semitic hate crime incidents over the past two years suggests the danger that bigotry poses is real. How to balance these two concerns is the challenge for us all.