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Newt Gingrich, America's New Majority Project Put Forth Constitutionally Perilous Ideas on Free Speech

AP Photo/Carolyn Kaster

On Saturday, former House Speaker Newt Gingrich wrote an op-ed about the results of a series of polls from his organization America's New Majority Project, and some of these poll results are not surprising -- but some of the actions one would think legislators may take in response to these polls will run afoul of the Constitution. Are we prepared to do that? I'm not. Gingrich begins: 

The American people are prepared to defend civilization and the rule of law from barbarism and terrorism with strong, specific government actions.  In some specific attacks on civilization, Americans are prepared to limit First Amendment protections for terrorists and their supporters. They agree with former Supreme Court Justice Robert Jackson’s observation that the Constitution is not “a suicide pact.”

We may agree that the Constitution is not a suicide pact, but neither is it endlessly elastic. What the Constitution is, is this: The most liberty-oriented, fairest, most effective governing document in human history. It may not be perfect; nothing produced by imperfect humans ever is. But it has stood as the highest law in the land, as our clear, abiding statement of the principle of limited government, government held in check by the rule of law, for 235 years. We disregard it - or treat it as conditional - at our peril.

Here are some of the poll results:

Americans overwhelmingly believe that activities designed to intimidate or frighten Jewish Americans can be punished legally (66 percent to 17 percent)

We also believe that expressing support for killing of Jews in America and abroad can be punished (60 percent to 23 percent).

There are some serious First Amendment concerns here. The principle of free speech applies to the contemptible as well as the laudable; a purely spoken expression of support for Hamas is protected by the First Amendment, just as it protects the speech of American Communist Party members, Ku Klux Klansmen, and any number of contemptible people and organizations. Can the government simply, at a stroke, outlaw this speech? No. Can they outlaw acting on that speech? Possibly. And here's the big thing: Can we revoke the visas and deport non-citizens who are organizing mass protests and riots? Hell, yes. Rioting, looting, attacking cops, vandalism, and assault, are not protected speech no matter the claims of ivory-tower academics; those acts are crimes and must be treated accordingly. 

There is a line here. Sometimes it may be thin -- but it's not invisible.

Here are some more bits from the survey:

Americans believe that calling for destruction of the state of Israel can be punished (51 percent to 27 percent).

By a smaller margin (45 percent to 36 percent) Americans believe expressing support for Hamas or other terrorist groups is not protected speech.

By 48 percent to 36 percent, Americans believe non-citizens do not have the same First Amendment protection as citizens. This would include many of the demonstrators on college campuses and the estimated 100,000 demonstrators in front of the White House who yelled “Allahu Akbar,” smeared the White House fence with red paint, and defaced statues.

By 66 percent to 22 percent, Americans would deport non-citizens who publicly support the killing of Jews or support Hamas or other terrorist organizations.

There can be little doubt that we have seen some ugly statements of antisemitism lately, including - intolerably - some from elected officials. But more to the point, there are organizations in the United States that are offering material support to Hamas; there are non-citizens in the country who, as Mr. Gingrich notes, are vandalizing public property, assaulting law enforcement, and so on.

We do, however, already have laws on the books that will allow us to deal with these things. As noted, vandalism is already illegal; assault is already illegal; many of these "protests" in the U.S. and elsewhere are rife with these things, and too many people are getting away with it. Arrests and prosecutions are expensive, and trials can be lengthy, but it is well within the authority of the Executive branch to identify non-citizens, many of whom are presumably here on student visas, who take part in these behaviors. They can have their visas revoked, and then they can be sent home. No new laws are required.

But if these same students are just standing on a street corner waving a sign, not impeding, intruding on, or interfering with anyone else, they are within their rights, no matter how detestable their message. If free speech doesn't apply to everyone, then it applies to no one. That's how principles work.

Gingrich concludes:

The American people have given Congress a clear road map for defending our civilization from terrorism and its allies.

Now it is up to the Congress to act.

Mr. Gingrich, we do not govern the country by poll results. We govern it by elections, by policy debate, and in accordance with the Constitution. That's not a subject for discussion. If we abandon our founding principles, where does that leave us? Proposals that tread on the Constitution should be looked at very, very closely -- and with great suspicion, lest they eventually, inevitably, be used against us. Especially when most of the issues mentioned within this survey can be dealt with using laws and policies already in place, if we would only apply them.

Principles. Not politics.

You can read the actual questions and results of this survey here.

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