Expert: Michael Troy - 2/13/2011

Question
I am a journalist living in Israel. Are delegitimization campaigns against Israel that use public facilities, like buses, university campuses, etc protected as free speech? Could they be considered as hate speech? Would this also apply to BDS campaigns?
Thanks,

Answer
Hi Moshe,

Generally speaking the First Amendment in the US protects virtually all speech, regardless of how hateful or prejudiced some may consider it to be.  Unprotected speech is generally limited to threats of actual violence, or criminal conspiracy.  Condemnations of entire ethnic groups or other countries, however wrong-headed, are protected.  Many countries do have hate speech laws that prevent such speech, but the First Amendment as interpreted by the Supreme Court has held that such laws are unconstitutional in the US.  In short, the US considers hate speech to be protected speech.  The theory behind this is that controversial views are best debated out in the open where they can be attacked by opposing views, rather than suppressed by government restriction.

Further, the government may not restrict use of public facilities as a way of suppressing such speech.  Under the public forum doctrine, once a forum is open to allow private parties to speak, the State may not discriminate based on the views expressed in that speech.  Even general advocacy of illegal activity is protected, as long as it is not a direct incitement to such activity.  Boycott movements have long been considered legitimate and protected.  They played a major roll in the US colonial struggle against Britain that eventually led to the American revolution.  Courts have repeatedly upheld legal attacks against such movements.

I hope this helps!
- Mike