Photograph by Nathaniel St. Clair
Fact… like the Israeli law that criminalizes speech which “minimalizes” the events of October 7th or challenges the government recitation of what occurred on that day, but do not incite violence, under Article 24 of the Israeli Anti-Terrorism Law, Palestinians can be imprisoned for 5 years for merely saying “from the river to the sea” under a theory that words, and words alone, are an incitement to violence, an exaltation of terror, or a threat to state security.
Fact … according to the Euro-Med Human Rights Monitor and the Israeli human rights organization B’Tselem, over the years, “Israeli prisons continue to function as a network of torture camps for Palestinians, with the systematic abuse even more extensive than before. This includes physical and psychological abuse, inhuman conditions, deliberate starvation and denial of medical care, all of which have led to numerous deaths. Some witnesses also described undergoing or witnessing sexual violence and abuse.”
Fact … numerous human rights and media organizations, including Israeli outlets, have been witness to, indeed video recorded, mobs of “Jewish Israeli extremists marching through [the] Damascus Gate into the Old City of Jerusalem “chant[ing] “death to Arabs,” “Muhammad is dead,” and “may your village burn.”
Against this established independent fact-based record, recently on LinkedIn, I posted a 50-word overview that drew comparisons of the disparate treatment of mobs of Israeli Jews who for decades have been permitted to violently march and scream death to Arabs in occupied Palestine with no consequence whatsoever, with instances of where Palestinians have been arrested and severely punished for merely saying “from the river to the sea.”
Following a complaint, no doubt by a Zionist or blanket Israeli apologist, LinkedIn censored and removed my post, finding that “it constituted hateful speech.” Although it provided me with an opportunity to appeal its automated censorship, I have no intention of doing so, for to argue with Algorithmic content control where AI systems and not humans delete or demonize subject matter is little more than a mindless exercise in form over substance. Moreover, even if the “appeal” is ultimately directed to humans and not mechanical toys programmed by majoritarian values and economic ends, I have no interest in arguing issues of constitutional law and free speech with those who essentially get wages to monitor and dictate the reach of the marketplace of ideas.
Though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously by licensing and prohibiting to misdoubt her strength. Let her and Falsehood grapple, whoever knew Truth put to the worse in a free open encounter?
– John Milton, Milton’s Areopagitica: A Speech for the Liberty of Unlicensed Printing.
With these sage words, more than 500 years ago, John Milton laid the idyllic cornerstone for a marketplace of ideas built of dissent and disobedience. Very much a square of verbal clash, by design, this wall-less platform of words is intended to challenge majoritarian values and scheming edicts, be they those of governments or quasi-government entities such as LinkedIn. After all, if left to their own devices, these monitors of debate would gleefully take us all in silence down the pathway of a perilous authoritarian journey.
In the United States, open and robust debate has long been a crucial liberty recognized by the philosophical framers of the American Constitution and protected by America’s founders. The marketplace of ideas metaphor was introduced into Supreme Court doctrine by Justice Holmes in his 1919 dissent in Abrams v. United States, 250 U.S. 616, 630 (1919), where he said society’s ultimate good “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.”
The marketplace metaphor is routinely used by the Supreme Court in the resolution of free-expression cases. Justices have used it to protect expression in virtually every area of First Amendment jurisprudence: prior restraint, libel, invasion of privacy, pornography, access, advertising, picketing, expressive conduct, broadcasting, and cable regulation. The Court has repeatedly said the primary purpose of the First Amendment is to protect an uninhibited marketplace where differing ideas can clash. In pursuit and protection of that clash stands the First Amendment.
While not an absolute ban on governmental restriction of speech, there are important interpretive nuances in how the First Amendment has been applied to specific situations. One point, however, is crystal clear – in matters of public concern the government may not regulate speech based on its content and, more importantly, based on the viewpoint of the speaker. See, e.g., R.A.V. v. City of St. Paul. Minn., 505 U.S. 377 (1992); Regan v. Time, 468 U.S. 641 (1984). In America, there are no “grand truths” protected by governmental sanctions. And there is certainly no governmentally proscribed historical “fact” unassailable by scholars and crackpots alike. See, e.g., Freedom of Speech and Holocaust Denial, 8 Cardozo L. Rev. 559, 566-72 (1986-87).
Government regulation of historical analysis is so fundamentally foreign to First Amendment jurisprudence in the United States, it is difficult to cite any American precedent or to place my comments within an established exception to First Amendment protection. Indeed, some 15 years ago, international reaction to the recent defaming film “Innocence of Muslims” focused on this precise point. To the many calls for the American government to simply ban the film, then U.S. Secretary of State Clinton responded:
Now, I know it is hard for some people to understand why the United States cannot or does not just prevent these kinds of reprehensible videos from ever seeing the light of day. Now, I would note that in today’s world with today’s technologies that is impossible. But even if it were possible, our country does have a long tradition of free expression, which is enshrined in our Constitution and our law, and we do not stop individual citizens from expressing their views no matter how distasteful they may be. There are, of course, different views around the world about the outer limits of free speech and free expression, but there should be no debate about the simple proposition that violence in response to speech is not acceptable. We all, whether we are leaders in government, leaders in civil society or religious leaders, must draw the line at violence. And any responsible leader should be standing up now and drawing that line.
No matter how scandalous or dubious its content, there was no attempt by the United States government to ban the film. Nor was there any attempt by those who were offended, even outraged, by it to seek judicial prohibition against its publication or to punish its creators or distributors (for example, YouTube) after its release. Indeed, any attempt to censor the film or to prohibit its release no matter how offensive or disturbing its content, whether by the government or a private citizen, would simply have failed under well-settled U.S. law.
Another case, American Freedom Defense Initiative v. M.T.A., provides particular insight into how “hate speech” regulations would fare in the United States. No. 11 Civ. 6774(PAE), 2012 WL 2958178 (S.D.N.Y. July 20, 2012) aff’d No. 11 Civ. 6774(PAE) 2012 WL 3756270, at *1. Ironically, at issue in American Freedom was an offensive anti-Muslim advertisement and the question of whether a government-run transit authority could refuse the ad on the ground that it “demean[ed] an individual or group on account of race, color, religion, national origin, ancestry, gender, age, disability, or sexual orientation.” (M.T.A. 1997 Advertising Standards). Id., at *3.
The advertisement at issue in American Freedom paraphrased Ayn Rand and stated, “In any war between the civilized man and the savage, support the civilized man. Support Israel; Defeat Jihad.” Id., at *5. The district court determined that, read in context, the ad equated Muslims with savages and on that basis ruled that it ran afoul of the government’s anti-demeaning standard. Id., at *17-18. Nevertheless, the court held that enforcement of the MTA’s advertising standards violated the First Amendment because it was not content-neutral Id., at *18. And though the ad was a paid advertisement, the court nonetheless found it to be “not only protected speech [but] – core political speech.” Id., at *17. In noting that the ad expressed a pro-Israel perspective on the Israeli/Palestinian “conflict” in the Middle East, and implicitly calls for a pro-Israel U.S. foreign policy with regard to the conflict [Id., at *8] the Court applied the highest level of First Amendment scrutiny to the MTA regulation. In siding with American Freedom, the court rejected the notion the restrictions were “necessary to serve a compelling state interest and [were] narrowly drawn to achieve that end.” Id., at *16. Consistent with several Supreme Court decisions, the court concluded that the regulation’s content-based discrimination required that it be struck down. See, also Reed v. Town of Gilbert, 576 U.S. 155 (2015) (content-based laws presumptively unconstitutional); Turner Broad. Sys. v. FCC, 512 U.S. 622 (1994) (“Government action that stifles speech on account of its message, or that requires the utterance of a particular message favored by the Government, contravenes this essential right [of] the First Amendment principle that each person should decide the ideas and beliefs deserving of expression, consideration, and adherence”); Hajur El-Haggan v. Bd. of Educ. for Montgomery Cnty., 2025 U.S. Dist. LEXIS 135025 (D. Md. 2025) (holding punishment of teacher on the basis of internal email signature containing “From the river to the sea, Palestine will be free” a palpable First Amendment violation).
Since 1983, I have spent a significant amount of time in state, federal and international courts litigating speech issues … be they challenges to the efforts of government or quasi-government entities such as LinkedIn to legislate against free speech or to criminalize those who wish to exercise that fundamental human right. Though LinkedIn may claim … uhhhh … no … private, and thus beyond the reach of the First Amendment, given the presence of its corporate headquarters in California [see, Hertz Corp. v. Friend, 559 U.S. 77 (2010)(holding a company’s “principal place of business” is its “nerve center”)] and its numerous contracts and services provided over the years to the U.S. government including to the Department of the Interior, Treasury Department, Department of Veterans Affairs, Department of Defense and its enrollment in the U.S. Department of Homeland Security’s E-Verify program, LinkedIn cannot escape the sweep of First Amendment protections on the basis of the defense of “private” or due to speech laws elsewhere that are less solicitous of free speech protections,
Or is it cynical of me to believe that the billion-dollar investment and service plan that LinkedIn’s parent company of Microsoft, has reaped through contracts with the Israeli Ministry of Defense or the presence of its three global strategic centers employing thousands in Herzliya, Tel Aviv, Haifa, and Nazareth, has helped to shape LinkedIn’s approach to free speech when it comes to all things Israeli. Given these factors, LinkedIn may just want to ask its attorneys how best to get around the holding of Pruneyard Shopping Center v. Robins, 447 U.S. 74, 83, 87-88 (1980).
In Pruneyard and its numerous offspring since applying the “state action doctrine,” the Supreme Court recognized First Amendment protections apply to “quasi-governmental” entities—private entities exercising traditional, exclusive public functions or acting as a “virtual arm” of the government. In law that still generally controls, the Supreme Court held a mall could be required to host third-party speech (i.e., to admit individuals who wanted to distribute handbills or solicit signatures on petitions) because the mall’s admission policy did not express any message, and because the mall was “open to the public at large.” Of importance in Pruneyard, the high Court noted because “there was little likelihood that the views of those engaging in the expressive activities would be identified with the owner, who remained free to disassociate himself from those views and who was not . . . being compelled to affirm [a] belief in any governmentally prescribed position or view.” See, Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 65 (2006).
Some fifteen years ago in a free speech case in South Africa I successfully represented a Muslim Radio Station, Radio 786, against an attempt by the South African Jewish Board of Deputies (SAJBOD) — a private self-admitted Zionist organization– to have the station’s broadcasting license removed because of the tens of thousands shows that it had aired, one was an interview with a so-called “holocaust denier” and another an expose on the crimes of Israel and its Zionist backers.
Not at all an isolated attack on free speech and its cornerstone role in furtherance of self-determination, by its own admission, SAJBOD did not take a stand against apartheid in South Africa until the very end of the liberation struggle. Recently, it targeted the Nelson Mandela Foundation (NMF) for hosting the United Nations Special Rapporteur on the occupied Palestinian territories, Francesca Albanese, for its annual lecture because in her report to the UN she accused Israel of the commission of genocide.
Although the recent finding by LinkedIn that my post was “hateful” was surely not triggered by SAJBOD, nevertheless, it was obviously framed by a fellow traveler … be it a Zionist or denialist supporter of Israel who felt “hurt” not by any threat of violence, but by the sting of my post and the echo of its truth. Wrapped, no doubt, in the cheap petty talisman of anti-Semitic, or self-hating, there is a certain paradox in the attack on my words given the identity of one of the strongest supporters of free speech in the history of the United States.
Justice Louis Brandeis, who was the first Jewish U.S. Supreme Court Justice, served as head of the Provisional Executive Committee for General Zionist Affairs (1914–1918) and later as president of the Zionist Organization of America (ZOA) from 1918 to 1921 and was a prime influencer of the deadly 1917 Balfour Declaration. In matters of pure speech, Brandeis was a prime mover in its absolute protection. In his concurring opinion in Whitney v. California, 274 U.S. 357, 375 (1927), he penned:
Those who won our independence believed that the final end of the State was to make men free to develop their faculties; and that in its government, the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law – the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.
Public speech is not without its limits- nor is there an absence of any controlling case law that addresses its limits. To be sure, in the early through mid-twentieth century, the Supreme Court carved out and developed an exception to First Amendment protection for speech that incites violence. The culmination of that line of reasoning was Brandenburg v. Ohio, 395 U.S. 444 (1969), where the Court stated that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of violation of law except where such advocacy is directed to inciting imminent lawless action and is likely to incite or produce such action.
In its unanimous 1969 decision in Brandenburg, the Supreme Court set aside a Ku Klux Klan leader’s criminal conviction on the ground that his remarks were protected by the First Amendment. The leader had staged a rally for several television reporters where he made derogatory remarks against Blacks and Jews, suggesting that the government should return Blacks to Africa and Jews to Israel. Importantly for First Amendment purposes, the speaker stated that if the Blacks and Jews did not leave, the Klan would take matters into their own hands to force the removal. The Court ruled that the mere advocacy of violence did not forfeit First Amendment protection. Id. at 449. Instead, the Court stated that speech lost such protection only if it incited imminent lawless activity and was likely to produce such activity. Id. at 448-49. No such claim can be made with regard to the 50 words I posted on LinkedIn contrasting the reality of Palestinians and pro-Palestinian speech with the truth and double standard of Israeli violence.
I could go on and on citing state, federal and international constitutional and statutory law and litigation, which provide complete protection for my words deemed to be hateful by LinkedIn, but I will not. That my pen of fact reveals that in Israel and elsewhere, protestors are imprisoned for the mere words from the “river to the sea” and where many of them have subsequently been the victims of sexual assault, or lost their lives in prison … is fact. No less important, that these words, whether fact or not, upset a pro-Israeli member of LinkedIn or its cash fueled corporate headquarters is inconsequential in the search for truth.
Words convey thought; words have meaning; words are important. But words are not deeds. In the United States, hatred is tolerated – even hateful speech; violence is not. And violence fueled by hatred can be more severely punished. It would be wrong to conclude that America and most Americans care less about collective equality and human dignity than they do about individual freedom of expression.
That the person who challenged my 50 words as hateful to a sympathetic corporate Algorithmic censor is of no personal moment. In a “free” society, that these few simple words caused the reader immature discomfort, even anguish, matters not. Unbridled speech is the ultimate linchpin of the marketplace of ideas … the necessary village of jarring thoughts essential to the uncovering of truth. Speech is not measured by either pain or cheer. It is only through the competition of ideas, free of government or quasi-government intervention, that the best or truest ideas will ultimately prevail.
Most Americans have concluded, and their jurisprudence reflects, that human dignity and equality are not only not hampered by unrestricted expression but that those important goals can only be achieved by unrestricted expression. It is equally wrong to conclude that the American model denies the pain caused by speech. Speech in need of First Amendment protection is by its very nature controversial—in other words, it insults and outrages some persons; in most cases, many. There is no question that the clash of ideas causes pain; the suppression of ideas causes greater harm.
Like so much a drumbeat of systemic regularity, it cannot be denied that countless numbers of Palestinians of all ages and genders have been arrested and stolen away into Israeli military custody for little more than their mere existence and words. This palpable breach of fundamental international law has long been attested to by Israeli human rights groups, independent international tribunals and NGOs across the globe. That tens of thousands of these political prisoners have sat chained indefinitely in military custody uncharged, untried, unconvicted, and unsentenced cannot be denied. So, too, no longer can the world flee the established reality that most of these political prisoners have suffered rampant abuses that take them from deliberate isolation to calculated emotional trauma to physical and sexual assault and, at times, death.
This abuse can no longer be simply swallowed away and ignored by what has been a long, highly financed and successful Israeli and Zionist campaign of deflection, typically led by the glaring petty mantra of anti-Semite.
Can it be that today we have reached a point in the marketplace of ideas that the sheer horror of these palpable truths to anyone with open eyes and a warm heart has, of necessity, moved the defense of these outrages from rank denialism to empty chants of hate speech, with the loudest megaphone of this invention being social media platforms driven by the dishonest algorithm of cash?
