December 10, 2019

The Right to Punish Free Speech

Virginia Governor Ralph Northam, accompanied by his wife Pamela Northam announces he will not resign during a news conference Richmond, Virginia, U.S. February 2, 2019. REUTERS/ Jay Paul

Should a company owned by someone who performs in blackface receive a government contract? How about a corporation whose CEO defends white supremacy?

Ralph Northam, the Democratic governor of Virginia as of this writing, and Steve King, a Republican congressman from Iowa, have behaved in reprehensible and racially offensive ways that violated important standards of human decency: Northam, through his youthful but indefensible decision to pose for a photograph in a racist costume many years ago; and King, with his more recent use of vile, racist language.

Both have offered defenses for their behavior that have been uncompelling and unconvincing at best, and offensive and appalling at worst. Both face withering political pressure to leave their respective offices. But it does not appear that either has violated the law. Much like the infamous neo-Nazi march in Skokie, Ill., in 1978, both men have obnoxiously exercised their First Amendment rights to free speech. They can be prosecuted for their transgressions in the public square, but not in a court of law.

After Northam and King have left their elected offices, any companies they run will technically be eligible to be awarded contracts for work with their local or state governments. But no governing body will be obligated to provide them a contract. In fact, it’s worth assuming that good women and men elected to office would refuse without hesitation to enter into any type of professional relationship with businesses whose leaders are either unconscionably insensitive or outright bigots.

Which is as it should be. Both men have abused the cultural and social norms of our society, which prohibit the intentional defiling of another person or persons for their racial, ethnic or religious heritage.

“Northam and King possess the constitutional privilege to use vile language or imagery to defile others … but their right to free speech would not be violated by withholding government contracts from them or their allies.” 

Similarly, there is no obligation for any government to offer contracts to businesses that employ similarly discriminatory language against the Jewish people or the Jewish state. That’s why bipartisan legislation sponsored by Sen. Joe Manchin (D-W.Va.) and Sen. Marco Rubio (D-Fla.)is not only constitutional but necessary.

The Rubio-Manchin bill that allows local and state governments to choose not to give money to those who advocate for the destruction of Israel is simply protecting those government entities from the angry retribution of would-be boycotters. Yet, the advocates of the boycott, divestment and sanctions (BDS) movement, which is now gaining a foothold in Congress to match the one it has established on many college campuses, argue that prohibiting those who discriminate against the state of Israel from being rewarded for their anti-Zionist and/or anti-Semitic activity somehow violates their First Amendment rights. 

Northam and King possess the constitutional privilege to use vile language or imagery to vilify others — as do Rashida Tlaib, Ilhan Omar, Tamika Mallory and David Duke — but their right to free speech would not be violated by withholding government contracts from them or their allies. 

It was encouraging that more than three-quarters of the Senate voted to give local governments that protection. But every Democratic presidential candidate, with the laudable exception of Amy Klobuchar of Minnesota, voted against Rubio and Manchin’s legislation. It is even more troubling that similarly intentional misapplication of the First Amendment dooms the bill in the House.

Those who advocate for economic boycotts of Israel are wrong, but they are entitled to be wrong and to voice their wrong opinions as frequently and as virulently as they like. But elected officials who disagree with their animosity for Israel are just as entitled to express their disagreement — in writing, in speeches, and in votes for anti-BDS legislation. Which is what courageous pro-Israel leaders will continue to do.

Dan Schnur teaches political communications and leadership at USC, UC Berkeley and Pepperdine University. He is the founder of the USC-L.A. Times statewide political survey and a board member of the Los Angeles Museum of the Holocaust.