In a time of significant political polarization, how do the first amendment’s free speech protections inform civil discourse?
Assistant Professor David Schraub is a constitutional law expert and an authority on the legal definitions of hate speech and antisemitism. Schraub, who joined Lewis & Clark Law School in 2021, has always been fascinated by legal and philosophical questions, such as “What is freedom of expression?” Here, he delves deeper into issues of free expression and what the law can—and cannot—do to challenge hate speech in the United States.
David Schraub, JD, PhD
Assistant Professor of Law, Lewis & Clark Law School
- BA, Carleton College (2008)
- JD, University of Chicago Law School (2011)
- MA and PhD in political science, University of California at Berkeley (2020)
AREAS OF EXPERTISE
Antidiscrimination law, constitutional law, energy law, law and religion, political theory, Jewish studies and antisemitism
- Antidiscrimination Law
- Constitutional Law I and II
LEGAL CAREER HIGHLIGHTS
- Inaugural Darling Fellow in Public Law, UC Berkeley School of Law
- Clerk, Judge Diana E. Murphy, 8th Circuit U.S. Court of Appeals
- Associate, Covington & Burling (Washington, D.C.)
L&C Magazine: Freedom of expression is one concept embedded in the First Amendment, along with freedom of religion and the rights to peaceably assemble and petition the government. What was the impetus behind the First Amendment’s creation?
David Schraub: There are two parallel stories. The first relates to abuses by the British crown, including overuse of libel prosecutions to criminalize the act of insulting British officials. The second pertains to fleeing religious oppression in Britain. As a result, the importance of establishing the rights of free subjects was very much on the minds of early Americans. When the Bill of Rights was initially enacted, it was a restriction only on the federal government. It was specifically designed to constrain the distant, faraway U.S. federal government in favor of the states, which were thought to be more reliable guardians of individual liberties. That changed after the Civil War, when the prospect of state threats to civil liberties began to loom larger in the public mind.
Exceptions to the First Amendment include threats, defamation of character, and incitement to violence. How often do those come into play?
The United States is on the very far end of the spectrum in terms of being extremely free speech permissive. Even the exceptions we have for threats, defamation, and incitement are quite narrowly drawn. When I’m teaching constitutional law, much of what I’m doing is disabusing students of the notion that a lot of the things they assume might be captured under these exceptions probably aren’t. For example, incitement is a very narrow exception. It refers to “imminent situations,” where speech happens and then lawlessness immediately occurs without any significant time for reflection or counter-speech.
What about the private sphere? Does banning someone from Twitter, for example, violate their constitutional rights?
I always stress this: The First Amendment only applies to government. It’s a mistake for anybody to say, “Twitter is violating my First Amendment rights.” The First Amendment is about the government and not about what we might call free speech culture, which refers more broadly to the ability to speak and debate a broad range of issues without a significant amount of interference.
So private companies can censor speech as they see fit?
Here’s an example. Let’s say I write a book manuscript. If the government gets a copy of it and says, “You’re not allowed to publish this book; this is an offensive, illegitimate book,” that’s a First Amendment problem … that’s censorship. But if a publisher reads the book and says, “We think this is an offensive, poorly conceived book; we’re not publishing it,” that’s being a publisher. We can still have concerns, in that ideas that are considered dissident or are from unpopular groups or minorities have trouble breaking into the public view, but the hard-and-fast rules that make sense when applied to a government body can’t be intelligibly extended to private actors.
How should nongovernmental entities go about determining what is inappropriate speech?
It’s a complex issue. On the one hand, nobody thinks that private actors can or should be obligated to hold open-mic nights. It’s entirely appropriate for a newspaper to decline to publish the column of a Holocaust denier; indeed, we’d think it was very troublesome if they didn’t make that editorial choice. On the other hand, we don’t want publishing decisions to completely reduce down to accepting only the views we agree with. There’s inevitably going to be a fair amount of subjectivity, which is an uncomfortable space to be in. In the absence of clear rules, we are left with trying to cultivate virtues and develop a collective ethos that strongly predisposes us towards toleration of a range of different views, so that in close cases we lean in favor of forcing ourselves to consider challenging or dissident opinions.
My view is that governmental censorship is not necessarily likely to result in good outcomes, because the big question is, ‘Who’s going to be the one enforcing it, and why do we think they’ll do a good job of it?’”
Are media and free speech issues more complicated when they involve public figures like politicians?
When we’re talking about the media and politicians, there are two different ambitions that are sometimes in tension with one another. On one hand, when politicians engage in peddling misinformation— whether it be related to election results, public health, or something else—it can have serious negative social consequences. If you are a media figure, you’re under no obligation to promote those ideas. On the other hand, helping the public gain access to what high-level government officials believe is useful information. As members of a democratic society, part of the way that we exercise oversight and engage in the process of self-governance is by making sure people are aware of politicians’ views and that they are not covered up. Figuring out that balance between not wanting to amplify political misinformation in terms of signaling approval of it but also making sure people know the real lay of the land is something that I think a lot of media companies struggle with.
Are antisemitic remarks protected speech?
In the United States, the answer is yes. Our constitutional law doctrine is emphatically clear that hate speech is protected speech. Antisemitic speech, racist speech, Islamophobic speech, misogynistic speech—it’s absolutely protected by the First Amendment. And, by the same token, just because something is protected by the First Amendment doesn’t mean it isn’t bigoted or hateful. Something can be both protected speech free of government censorship and antisemitic or racist or Islamophobic.
How do we strike a balance between free speech and protecting historically oppressed groups?
That’s a really important debate to have. When I teach constitutional law, I make sure people know that there are alternatives to the American system. Other countries that have more restrictive notions about hate speech haven’t collapsed into authoritarian censorship, so it’s not that it’s “our model or bust.” But I think there is a lot in favor of the American model, primarily because I don’t have a lot of trust that government institutions—which typically are going to be dominated by social in-groups—will do a particularly good job of determining what is hateful to social out-groups.
So you do not believe that banning hate speech is the way to protect Jewish communities?
My view is that governmental censorship is not necessarily likely to result in good outcomes, because the big question is, “Who’s going to be the one enforcing it, and why do we think they’ll do a good job of it?” In a society that has serious and deep-seated patterns of racism, antisemitism, and misogyny, why would we believe that the people who hold power should be given the relatively awesome task of determining what is hateful? We’ve got a lot of politicians right now who are very vocal about saying how much they hate and oppose antisemitism, but who, in the next breath, spin lies about a conspiracy of Jewish globalists against “real” Americans. We need to take a bit more seriously the notion that our better angels aren’t always, or even typically, in charge.
What do you see as a better solution?
I think that private remedies—like encouraging broad discussion and, where appropriate, widespread condemnation—are more likely to lead to superior outcomes. We make it clear that the reason these opinions are not allowable isn’t because of a global Jewish conspiracy, but rather because the people in our social circle all agree that this is unacceptable nonsense. That’s going to do far more to make these ideas wither than a direct government ban or criminalization.
Open antisemitism and antisemitic violence have been on the rise in recent years. Why do you think that is?
It’s very hard to figure out the answer to that. Historically speaking— and in Western societies, in particular—when things start to get uncomfortable or people are discontent, the path of least resistance has often been to blame the Jews. There’s a long history of telling stories about a malign Jewish conspiracy of outsiders that is preventing us from pursuing what’s good, right, and true. I think there’s certainly been a deep normalization of some of those views among significantly influential persons in a way that many Jewish people had, perhaps, naively thought was a thing of the past. The other thing is the degree to which, during discussions of antisemitism in the United States, Jews are seen as “optional” voices. We’ll have these big debates with people purporting to be Jewish allies, but, ironically, they evince quite a bit of contempt for what American Jews actually find worrisome or dangerous.
What are some examples of this?
Well, I can’t count the number of situations where somebody will proudly talk about what a great ally they are to the Jewish community for taking positions that most American Jews don’t agree with. For instance, people can be really surprised to find out that American Jews are overwhelmingly pro-choice or that they still have an affinity to the state of Israel. The way some people view it is if Jews are supportive of these positions, then it means Jews are doing Judaism wrong! It’s a form of self-proclaimed “allyship” with Jews that paradoxically seems to coexist with palpable disdain for how actual Jews live out being Jewish.
Just because something is protected by the First Amendment doesn’t mean it isn’t bigoted or hateful.”
What role does legislation play in tackling antisemitism?
There are roles for law to play. Sometimes, we’re not talking about speech. Sometimes we’re talking about people firebombing a synagogue, and law has a very significant role to play in those sorts of situations. Law has an important role to play when people refuse to hire Jews or people refuse to let them into their clubs or their societies. But I don’t think we can just slough off our obligations and say, “Government will handle this.” We have responsibility in a free democratic society to decide what is and isn’t permissible. As a law professor, I’m very cognizant that it’s easy for law students to feel like we are training them in the use of hammers, and so they become tempted to think of every problem as a nail. A hammer is a very important part of your tool kit; however, it’s just one tool and not a substitute for everything else.
That sounds like a very liberal arts approach to teaching law.
That was one of the reasons I really wanted to come to Lewis &Clark. It’s one of the very few law schools in the country that’s attached to a liberal arts college. The law school’s liberal arts orientation means that when students learn about the law, they’re learning about it as one facet of a particular problem. My students are not just going to become lawyers, they’re going to become counselors. They need to be able to adopt a broader perspective. It’s not just about “What case can I win in the courtroom?” or “What law can I get passed in the legislature?”
I’m sure that helps your students critically engage with divisive legal issues, too.
In my experience, if you’re showing a basic respect and acknowledgment of the seriousness of these issues, and not just provoking debate or being a contrarian, students today will walk pretty far with you, even down some precarious terrain. The vast majority of my students, for instance, probably disagree with the jurisprudence of U.S. Supreme Court Justice Clarence Thomas. But I dedicate an entire unit in my antidiscrimination seminar to reading his work and thinking seriously about his jurisprudence and his overall philosophy on race. Students don’t necessarily come out of it becoming converts to Justice Thomas, and that’s not my ambition. But they find it really interesting, and they say they learned a lot and were forced to confront and grapple with things they hadn’t necessarily thought about.