THE FIRST AMENDMENT AND GENOCIDE

by Vijaya Chandrasoma

The first ten Amendments to the Constitution of the United States of America, the Bill of Rights, were ratified on December 15, 1791. The First Amendment to the Constitution stipulates that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances”.

The Presidents of Harvard (Claudine Gay), MIT, the Massachusetts Institute of Technology (Sally Kornbluth) and the University of Pennsylvania (Liz Magill) were summoned, on December 5, before a Congressional hearing relating to anti-Semitism protests on college campuses. Mass protests and counter protests held since the October 7 Hamas attacks on Israelis and the Israelis’ subsequent airstrikes, bombings and ground invasions on Gaza in response.

First, anti-Muslim protests after the atrocities against an estimated 1,200Israeli civilians, men, women and children, tortured, beheaded and burnt by Hamas terrorists on October 7. The terrorists also kidnapped over 240 hostages, Israeli, American and civilians of other nationalities during the attack.

Second, anti-Israel protests, when the Hamas’ acts of terrorism were immediately followed by indiscriminate airstrikes and bombings in Northern Gaza by the Israeli Defense Force (IDF). In addition, IDF ground forces have begun flooding the tunnels of Gaza in an attempt to flush out the terrorists. These attacks have been continuing relentlessly for over two months, so far claiming the lives of nearly 20,000 Palestinian civilians, mostly women and children, and seriously wounding a further 35,000, while ravaging the infrastructure of Gaza City and its environs, including hospitals, schools and refugee camps.

The savage attack by Hamas on Israeli civilians on October 7 was a war crime which ended that day, though the terrorists are still holding about 135 of the originally kidnapped 240 hostages in inhumane conditions in the tunnels of Northern Gaza. But the inexorable airstrikes and bombings on Gaza by the IDF against Palestinian civilians, most of whom were not complicit in the October 7 atrocity by Hamas, constitute a never-ending series of war crimes, fast approaching levels of genocide.

Although members of the Security Council of the United Nations, bar the USA (and a non-committal UK) have been repeatedly calling for a ceasefire, Israel has not complied; but for a seven-day “humanitarian pause” to conduct an exchange of hostages. The truce fell through when the Israelis accused Hamas of not honoring their side of the bargain. The attacks resumed immediately thereafter.

Netanyahu, the Israeli Prime Minister, has since resisted all such calls for a ceasefire. He is determined to continue the war against Gaza until all Hamas terrorists are killed and all hostages returned, unharmed. How many more murders of Palestinian civilians will satisfy the blood thirst of Netanyahu and the members of his hardline Likud Party, as revenge for the atrocities of that one day in October?

Actually, Netanyahu has already answered this question, when he stated last month: “The war will continue until we have achieved complete victory”, by which he means the elimination, by displacement, genocide or any other means, of the entire race of Palestinians, and the establishment of the Jewish State of Israel.

The Congressional hearing on December 5 featured fourth ranking Republican in the House, Elise Stefanik. Her question to the Presidents of these prestigious universities demanded a Yes or No answer, with neither qualification nor prevarication. A question of the “Gotcha” variety, which ensured that the response of the interviewee will be detrimental and humiliating to herself, however she responds.

The loaded question to the lady Presidents of three of the most famous universities in the world was: “Does calling for the genocide of Jews violate – Upenn’s, Harvard’s, MIT’s – rules of bullying and harassment in its Code of Conduct? Yes or No?”

Loaded because the question would be impossible to answer with a simple Yes or No. The answer would have to be qualified on two counts.

First, the omission the words “of Jews”, if genocide of all stripes would have so violated the universities’ Codes of Conduct, may have tempered the political flavor of the original question. However, even the answer to that question would prove impossible to answer with a simple Yes or No, as it would have to be qualified as to whether “calling for genocide”, which in itself constitutes free speech within First Amendment rights, had led to violence or criminal activity.

Protests and the freedom of assembly are protected by the First Amendment. However, there is a grey area, subject to interpretation, when such protests, combined with hate speech, result in violence or the commission of criminal activity.

Hate speech, though, is not a First Amendment term, and there is no defined line at which free speech crosses onto hate speech. Indeed, there is doubt whether such a line exists at all. The general consensus of constitutional scholars is that the line would be crossed only if speech leads to, or is designed to incite, criminal activity.

All three Presidents of these universities refused to give the easy answer, to take the easy way out, as could be expected of ladies of high intelligence, education and integrity. They are above the need, unlike Ms. Stefanik, to seek sensational publicity, or to score cheap political points.

They all went by a strict interpretation of the First Amendment, that the Universities’ Code of Conduct would be violated only depending on the context, whether such student protests had led to or incited violence or criminal behavior. As the President of Harvard, Ms. Claudine Gay said, the answer would be context-dependent on the interpretation of the aforementioned grey area of the First Amendment.

Congresswoman Stefanik expressed indignation at what she opined was an equivocal response, which sidestepped the question and did not condemn strongly enough the anti-Semitic furore at these universities. Though she did succeed in achieving the backlash she sought, protests from the general public, including the powerful Jewish lobby and threats of withdrawal of donations. And probably more importantly, earned herself brownie points with Trump, who had probably initiated the question with the political motive of earning the approval of the Jewish community.

After the initial reaction of horror by the Jewish community and the radical right subsided, many constitutional scholars have now recognized that Stefanik’s question was a political hit job, designed to elicit pro-Israel sentiments from the presidents of these prestigious universities. These learned lawyers agreed that the university presidents’ qualified response was perfectly in keeping with the US constitution and the Codes of Conduct of Harvard, MIT, UPenn and other universities.

However, under intense pressure as a result of the turmoil caused after the hearings, Liz Magill, President of UPenn, resigned her post; and the Presidents of Harvard and MIT tendered their apologies after condemnation of their response by the Jewish community, members of Congress and even the White House.

The statement by the White House spokesman, Andrew Bates, signifies the hitherto blind support of Israel by the USA. He said, “Any statements that advocate the systematic murder of Jews are dangerous and revolting – and we should all stand firmly against them, on the side of human dignity and the most basic values that unite us as Americans”. Completely ignoring the fact that the systematic, dangerous and revolting murder under current reference is being executed by the Jews against Palestinian civilians, and the human dignity under attack is that of defenseless Palestinian men, women and children.

The First Amendment is one of the main lines of defense exploited by the twice impeached, four times indicted former President of the United States, in many of the 91 felonies with which he has been charged, arrested and is on bail.

Trump’s speech at the Ellipse on January 6, 2021, inciting a mob of white supremacist terrorists he had assembled to attack the Capitol, was considered to be protected under the free speech clause of the First Amendment, by Ms. Stefanik and the Republican Party. In spite of the fact that Trump’s speech incited those insurrectionists to attack the Seat of Democracy of the nation, to kill and maim hundreds of police officers defending the Capitol, and to threaten the lives of lawmakers who had convened to perform their constitutional duty of certifying Joe Biden’s presidency. An insurrection that nearly brought America’s democracy to its knees.

So, according to the legal expertise of Elise Stefanik and the Republican Party, the First Amendment protects the free speech of a criminal president, although it directly resulted in the worst political violence in the nation since the Civil War.

This while protests by university students, expressing condemnation against the ongoing genocide of Palestinian civilians, violate the same free speech clause of the First Amendment, on grounds that they may result in the unlawful harassment of Jewish students.

No such congressional hearings were deemed necessary to question the constitutional validity of anti-Hamas protests after October 7, when innocent Muslim students were violently harassed. A double standard of hypocrisy, the classic hallmark of the Party of Trump.

We have been inured over the years against all kinds of lying and treachery of Trump and the radical, white supremacist cult that is the Republican Party. But to see President Biden recently approving a supply of $106 million worth of ammunition for tanks to enable Netanyahu continue the massacre at Gaza was deeply distressing. As was the lame response of Secretary of State Blinken when asked about the administration’s motive for the supply of this ammunition:

“Washington remains committed to supporting Israel’s right to self-defense, but has stepped up calls for Israel to comply with international law and protect civilians”. No explanation as to how this call for Israel’s compliance with international law is being monitored. Also, how Israel’s relentless onslaught on Gaza for over two months could possibly be construed as “Israel’s right to self-defense” is beyond comprehension.

However, at long last, American complicity in the current Israeli war crimes in Gaza seems to be cooling, in the face of global outrage. The Biden administration is openly criticizing Israel’s continuing genocide against Palestinians in North Gaza. In fact, just last Tuesday, Biden said that “Israel is losing international support over the indiscriminate bombing of Gaza”, expressing concern that the “most conservative government in Israeli’s history” is making progress in the resolution of the conflict “difficult”. Netanyahu responded that there was “disagreement with Biden over how a post-conflict Gaza would be governed”.

This exchange seems to indicate a rift in Biden/Netanyahu relations, providing stark contrast to Biden’s literal and political embrace of the Israeli Prime Minister in Tel Aviv days after the October 7 attacks.

The Americans may have finally realized that Netanyahu and the majority of the Israelis have never had any interest in a two-state solution. They will not stop the war in Gaza until all Palestinians are eliminated, one way or another, so successfully completing the genocide that has been in progress over the past 75 years. The Final One State Solution. The Promised Land.