Censorship and the First Amendment: Should We Shield Citizens from Unpopular Ideas, or Is ‘Sunshine the Best Disinfectant’?
by Richard F. Flaim & Harry Furman
The First Amendment to the U.S. Constitution in its entirety reads as follows:
Congress shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to assemble,
and to petition the Government for a redress of grievances.
Throughout our history, issues related to freedom of speech, or of the press, have been debated, and both judicial rulings and various laws of Congress have attempted to further refine the manner in which these freedoms can be exercised or restricted. Generally, the courts, including the U.S. Supreme Court, have interpreted the Constitution in a manner that protects all kinds of speech, including speech that is commonly considered hate speech.
With the advent of the Internet and tech platforms such as Facebook and Twitter, a virtual explosion of information and opinion-based comments inundate us on a daily basis. While much of what appears on the Internet is useful, allowing instantaneous access to information on virtually any topic of interest to us, it also is a source for a great deal of unfiltered, false and misleading information as well as downright hateful and potentially dangerous ideas. Unless citizens consciously apply the skills of critical thinking to what they access, their subsequent beliefs and actions can be guided by such false, misleading or hateful information.
Recently, the CEOs of Facebook and Twitter were among those who were asked to appear before a committee of Congress to explain and defend their platforms’ policies regarding what is allowed on their sites. These platforms have recently taken increasingly aggressive steps against posts that present false or misleading claims about the voting process, especially as they relate to voting-by-mail, which became, and continues to be, a politically-charged issue in regard to the 2020 Presidential election. Warning labels were actually posted by the platforms on some remarks that they considered inflammatory. On December 9, 2020, YouTube announced it would start removing newly updated material that falsely claims the outcome of the Presidential election was influenced by widespread voter fraud or errors. (Ortutay)
The law that applies to this issue is Section 230 of the Communications Act of 1996, which is currently being attacked by both Republicans and Democrats, but for different reasons. Republicans claim that platforms like Facebook and Twitter are using the law to stifle the views of conservatives. Democrats claim the platforms must assume more responsibility for false information, hate speech and other potentially harmful content that appear on their sites. Both President Trump and President-Elect Biden believe the law should be removed and replaced with updated legislation. House Democrats have introduced a bill that will hold the platforms liable if they amplify or recommend “harmful radicalizing content that leads to violence.” In their defense, the CEOs of Facebook and Twitter expressed their support for the current law, and reminded the Congressional Committee that the law provides First Amendment protection of free speech on the Internet. (Bond) In a small step toward dealing with the concerns, the Judiciary Committee in Congress passed a bill this year to amend Section 230, which would allow federal and state claims against social media platforms that allow content that sexually exploits children. However, as of this writing, the politicization of the issue has prevented any agreement on more substantial modifications of the law.
In recent years, controversies have occurred over decisions at a relative handful of college campuses to “disinvite,” or prohibit, certain speakers from appearing because of serious disagreement with their ideas, which were deemed offensive or dangerous. In some cases, such decisions followed demonstrations in support of and/or in opposition to the appearance of certain speakers. Some have viewed this with deep concern about restricting freedom of expression at our centers of learning that historically have been open to all ideas. Others fear that some ideas pose a danger to society and should be restricted. Interestingly, “…according to a Knight Foundation survey, 78 percent of college students reported they favor an open learning environment that includes offensive views….the U.S. adult population as a whole lags well behind, with only 66 percent of adults favoring uninhibited discourse.” (Bollinger)
The debate regarding whether further limitations on the guaranteed right of free speech are necessary or wise will likely outlive us all. Over the years, such debates have involved issues such as flag burning, athletes “taking a knee” during the playing of the National Anthem, and the denial of the Holocaust. At what point does one’s right of free speech violate the common good? Who decides what constitutes the common good? What are the dangers of allowing hate speech or hateful comments on the Internet or on college campuses? What are the dangers of suppressing such expressions? What are the limitations of suppressing free speech in a democracy? The debate is a healthy one for our democracy, as it represents an ongoing process that has enabled our country to continue to refine the meaning of the First Amendment and its importance to all of us.
These are questions that play out in real life. One such instance occurred in the Vineland (NJ) Pubic Schools in 1994, while this writer was assistant superintendent of schools. A community group approached the Vineland Board of Education with a request to rent the auditorium at Vineland High School for the purpose of having a controversial speaker, Khalid Abdul Muhammad, deliver an address to the public. Muhammad was a provocative Black Nationalist leader who espoused hateful ideas toward Jews and the white establishment, among others. He was a prominent leader in the Nation of Islam, and later the New Black Panther Party. In a speech at Kean University in New Jersey in 1993, Muhammad made inflammatory remarks toward Jews, the Pope, and even advocated the murder of South African whites. This address led to his removal from the Nation of Islam, and a resolution passed by both houses of the U.S. Congress condemning his speech. Muhammad died of a brain aneurysm in 2001 at age 53.
The issue in the Vineland case was complicated by the fact that the Board President at the time was Harry Furman, the son of Holocaust Survivors, a former history teacher at Vineland High School, and a practicing attorney in the community. Furman had to make the recommendation to the Board regarding whether to honor the community group’s request. Furman had to consider a range of issues: (1) the implications of the First Amendment right to free speech; (2) the existing Board policy that allowed the rental of the VHS auditorium to community groups; (3) the potential negative reaction from those in the community who supported the appearance of Muhammad, and from those who were vehemently opposed to the potentially hate-filled speech to be delivered in our community; and (4) whether the appearance of Muhammad could lead to violent confrontations. What was the Board President to do?
Years later, Furman and this writer collaborated on the writing of the book The Hitler Legacy: A Dilemma of Hate Speech and Hate Crime in a Post-Holocaust World (N.J. Commission on Holocaust Education, 2008, available free on the Commission’s website. See below for address.) The book, written for high school students, challenges students to confront the various dilemmas involved in reconciling the Constitutional right of free speech with the potential implications of allowing speech that is hateful and potentially dangerous. In addition to numerous articles that relate to different aspects of these issues, we wrote a number of “moral dilemma stories” that challenge students to deal with some very difficult issues regarding free speech, issues that pose a conflict of values. One such moral dilemma story was based upon Furman’s decision as Board President back in 1994. It is entitled Up Against the First Amendment: The School Board President’s Dilemma (Flaim and Furman). This dilemma story is presented below. While the dilemma story is fictionalized, it is loosely based upon the Vineland example. Thus, the names of individuals and school are not real.
Up Against the First Amendment: The School Board President’s Dilemma
by Harry Furman and Richard F. Flaim
Harry Sendin is the President of the Seneca School Board of Education. A former teacher and now an attorney, Sendin is sensitive to the needs of a very diverse school system in which almost one-half of the students are African-American and Latino. The community is also the home of approximately 200 families of Survivors of the Holocaust. Indeed, Sendin himself is the son of Holocaust Survivors. As a practicing lawyer, he is aware of the potential legal implications of Board of Education actions.
The Board maintains a policy that members of the public may rent a school facility such as an auditorium for the purpose of promoting a public or community interest. Sendin learns that a local organization has rented the high school auditorium and has invited Khalid Abdul Muhammad to be the featured speaker for an evening event. A fiery orator, Muhammad is known for his alleged anti-Semitic and anti-white positions as to the state of current American society.
After the invitation becomes public knowledge, some members of the community strongly suggest that what they describe as demagogues like Muhammad have no right to speak in the public schools. They argue that every legal step should be taken to block Muhammad from appearing at Seneca High School.
The Board’s solicitor advises Sendin that the Board President alone makes the decision as to whether the Board should take any action about Muhammad’s visit. Sendin knows that regardless of what he decides to do, there will be people who will be critical of his action or inaction. Sendin speaks with other members of the school board and many other persons in the community, but he realizes that he alone must make this decision.
Questions for Discussion (Revised 12-13-20)
- Why is Mr. Sendin’s decision a difficult one? What values come into conflict for him? What choices are available to him? What are the probable consequences of each of these choices?
- Should Sendin’s ethnic or religious heritage influence his decision?
- Should Sendin make this decision based upon the law, community response, personal interest or any other criteria?
- What should be the reaction of Muhammad if he is barred from speaking? Does Sendin have any sound reason for doing this? Is there any legal basis upon which Muhammad can be stopped from speaking?
- If the speaking engagement is not stopped, should Sendin and members of the school board attend the speech? Why or why not?
- How should the community respond to the presence of such a speaker in their community? What options are available?
- To protect the public peace at such an event, should the community provide additional security? Who should be responsible for the cost of such security?
- Explain whether or not your advice to Sendin would have been different if the intended speaker:
- was a neo-Nazi leader
- a national leader of a LGBTQ rights organization?
- a “right-to-life” speaker?
- a “pro-choice” advocate?
- a member of a militia group?
- a proponent of Black Lives Matter?
- a sympathizer with the Taliban?
- an advocate of QAnon?
9. Do you believe there should be restrictions on the expression of potentially dangerous ideas, misinformation, or lies on social media platforms, such as Facebook, Twitter, or Google? Explain. If so, who should decide? Could such restrictions be reconciled with the guarantees of freedom of speech in the First Amendment?
10. Several countries in Western Europe have passed laws prohibiting the display of the Nazi swastika and prohibiting the expression of ideas that claim the Holocaust did not occur. How do you view such prohibitions?
11.Would there be any change in your point of view if the issue is free speech involving a teacher in a public school classroom making anti-Jewish or anti-White comments similar to those of Muhammad? Is there a difference between speech in a classroom and speech in the “public square”? (For a recent federal case, in part about speech in the classroom, see Ali v. Woodbridge Township School District.)
12. To what extent does the desire to constrain speech under certain circumstances intersect with what has recently been labeled as “cancel culture”? Explore what is meant by this phrase and whether it has implications for the future expression of speech.
13. In 2014, Condoleezza Rice, the former U.S. Secretary of State, was invited to be the commencement speaker at Rutgers University. In the face of student protest, Rice declined the invitation. Conduct research into the nature of the objections to having Rice serve as commencement speaker and whether there is any merit to such objections.
14. Underlying the willingness to constrain speech in a democratic society, whether on Facebook, Twitter, Instagram or in the “public square”, is an assumption that many people are vulnerable to being manipulated by speech, and that such manipulation could have dire consequences. This is a very different point of view than that expressed by Justice Louis Brandeis when he asserted in 1913 that “sunlight is the best disinfectant”. Discuss.
15. Research: What restrictions on the freedom of speech have been upheld by the U.S. Supreme Court, or enacted into law? What rationales underlie such restrictions? Explore several recent issues related to the guarantee of freedom of speech and discuss how they are being resolved.
Furman’s Actual Decision, and Concluding Comments
As stated above, this dilemma story is loosely based upon the appearance of Khalid Abdul Muhammad at Vineland (NJ) High School in 1994, and co-author Harry Furman’s own involvement in the dilemma. Furman’s decision was to allow Muhammad to speak, and he and several other members of the Board of Education attended the event. While Muhammad’s speech was typical of his hate-filled blasts, there were no incidents before, during or after his appearance. Furman based his decision on numerous factors: (1) the Constitutional guarantee of free speech; (2) the Board policy that provided for the rental of school facilities by community groups which, if an exception were made for this particular community group, would have been deemed discriminatory; (3) his personal belief that in a democratic society, even unpopular ideas should be open for discussion.
In discussing issues related to free speech, Furman has often quoted the former U.S. Supreme Court Justice Louis Brandeis who, in defense of the protection of even hateful speech, proclaimed “…sunshine is the best disinfectant.” Brandeis believed that if we prohibit the expression of hateful speech, such views would simply go “underground” and fester out of public view, making it more difficult for citizens to become aware of them and work to challenge such views. The guarantee of free speech, even that which is unpopular or hateful, makes it incumbent upon all citizens to be critical consumers of the explosion of information and misinformation that bombards us daily. In the months and years ahead, citizens’ application of the skills of critical thinking may very well help determine the degree to which our democracy will either thrive, or decline.
Bollinger, Lee C. “Free Speech on Campus Is Doing Just Fine, Thank You.” The Atlantic. June 12, 2019.
Bond, Shannon. “Day Before Election, Tech CEOs Defend Themselves from GOP Accusations of Censorship.” NPR. October 18, 2020. https://www.npr.org/2020/928702931/days-before-the-election-tech-Ceos-defend-themselves-from-accusations-of-censorship
Flaim, Richard F. and Harry Furman, Co-Eds. The Hitler Legacy: A Dilemma of Hate Speech and Hate Crime in a Post-Holocaust World. N.J. Commission on Holocaust Education, Trenton, NJ. 2008. (Available free viewing: https://www.nj.gov/education/holocaust)
Ortutay, Barbara. “Weeks after election, YouTube cracks down on misinformation.” Associated Press. December 9, 2020. https://apnews.com/article/youtube-election-misinformation- removal-74ca3738e2774c9a4cf8fbd1e9771of
About the Authors
Richard F. Flaim is a Past-President of NJ Council for the Social Studies; former Executive Director of the N.J. Association for Supervision and Curriculum Development; and retired teacher of history, Social Studies Supervisor, and Assistant Superintendent for Curriculum and Instruction in the Vineland (NJ) Public Schools. He is co-editor of The Hitler Legacy: A Dilemma of Hate Speech and Hate Crime in a Post-Holocaust World; and The Holocaust and Genocide: A Search for Conscience. He served as Chairman of the Curriculum and Education Committee of the N.J. Commission on Holocaust Education.
Harry Furman is a practicing attorney in Vineland, NJ; former teacher of history in the Vineland Public Schools; Part Time Lecturer (PTL) at Rutgers University; Editor-in-Chief of The Holocaust and Genocide: A Search for Conscience; and co-editor of The Hitler Legacy: A Dilemma of Hate Speech and Hate Crime in a Post-Holocaust World. He serves as Chairman of the South Jersey Holocaust Coalition, and has spoken on topics related to the Holocaust and genocide and related issues of conscience throughout the United States and in Israel. He is a past member of the N.J. Commission on Holocaust Education.