‘It Feels Like the New McCarthyism’: How the Israel-Hamas War Is Redefining the Limits of Free Speech

War between Israel and Hamas has sparked extensive (mostly) online activism about the conflict — and led to a rash of firings or other workplace discipline from employers concerned about their employees’ views of the conflict.

Artforum’s top editor David Velasco was fired by his publisher, Penske Media, after posting an open letter on the site calling for a cease-fire and suggesting Israel is responsible for the beginning of a genocide; Michael Eisen was removed as editor-in-chief of the science journal eLife after retweeting a satirical article critical of Israel; and Maha Dakhil, a top executive at the Hollywood talent firm Creative Artists Agency, stepped back from leadership roles after reposting an Instagram story that implied Israel was committing genocide. That’s in addition to multiple law students who had job offers revoked after publicly criticizing Israeli actions. The statements range from expressions of sympathy for Palestinians to strident anti-Israel criticisms that seem to minimize Israeli loss of life.

The situation is making Genevieve Lakier, a professor of law at the University of Chicago whose work is focused on the changing meaning of freedom of speech in the United States, very nervous.

“It feels like the new McCarthyism,” said Lakier, who’s one of the leading legal scholars on matters of free speech.

So far, most of the firings appear to have been for expressing pro-Palestinian views — the U.S.-based advocacy organization Palestine Legal reports that they’ve responded to over 260 cases of people’s “livelihoods or careers” being targeted. But the fact that these firings have been due in large part to social media posts and the widespread broadcasting of personal political beliefs means that the trend may not stay on one issue or one side of a dispute for long; Lakier says that we are watching the relationship between free expression and employment shift in real time.

Currently, regulations concerning speech and private employment oscillate wildly from state to state — about half of states have no protections for private employees who express political beliefs, while others have laws that vary in terms of scope. Many of the employment laws that do exist find their roots in the 19th century and are little use in navigating the 21st century workplace. Meanwhile, ideas about protected speech are constantly shifting in the culture: After 9/11, for example, the war on terror brought with it new examinations into what kind of speech promulgates terrorism. More recently, debates over “cancel culture” on campuses and in the workplace have brought up similar questions of what speech is permissible — and when consequences are justified.

“The First Amendment has always had exceptions, but those exceptions can expand under pressure,” Lakier told me. Since the Israel-Hamas war began, “people are interpreting the category of hate speech or the incitement of violent speech very, very broadly to include speech that in my view is totally legitimate, often pro-peace speech.”

These battles are now playing out in public. After Velasco was fired from Artforum, multiple top editors quit and contributors insisted they would boycott the magazine. As acclaimed photographer Nan Goldin told The New York Times, “I have never lived through a more chilling period.”

This interview has been edited for length and clarity. 

Calder McHugh: As someone who’s studied freedom of speech, and in particular freedom of speech on social media platforms, has this recent spate of firings for expressing pro-Palestinian beliefs surprised you?

Genevieve Lakier: It has surprised me. The scale has surprised me and the intensity of it. It has seemed to me that the triggering conditions for firing or for sanction have been relatively modest.

This feels like a product of how profoundly polarized and fractious the conversation about the Israel-Gaza war is. I haven’t felt this intensity and anxiety about political speech or the extent to which private organizations have participated — it just feels like everyone is involved in this debate about what you can say about the conflict.

It feels like a new McCarthyism. We’ll see what happens, but the Anti-Defamation League writing letters to college presidents suggesting they look into student activists for engaging in the support of terrorism, the number of official or quasi-official letters expressing concern about speech and then the firings — it just all feels like a repression of speech that we haven’t seen for a while.

Now, to be fair, what the people who are advocating for these restrictions would say is that this is justified because the kind of speech that is at issue here is hate speech, or speech advocating violence. But the reason why I say it feels a bit like a second McCarthyism is that often, that’s just patently not true. The Artforum letter that led to Velasco’s firing was not promoting violence, it was calling for a cease-fire, though it was critical of Israel and argued we’re witnessing the unfolding of a genocide.

The First Amendment has always had exceptions, but those exceptions can expand under pressure. At a time of intense political disagreement and uncertainty and the anguish and grief produced by terrorism and mass violence, people are interpreting the category of hate speech or the incitement of violent speech very, very broadly to include speech that in my view is totally legitimate, often pro-peace speech. This issue doesn’t fit into our normal political categories. It’s not Republican vs. Democrat. It’s disrupting our ordinary political distinctions.

McHugh: Can you put these changes in historical context? For example, did we see employers behaving in a similar way during protests against the U.S. government’s wars in Iraq and Afghanistan? Or at any other time?

Lakier: We’ve seen plenty of attempts to use the threat of losing your job or similar kinds of private sanctions as a cudgel for regulating speech going back centuries.

With the wars in Iraq and Afghanistan, the situation was slightly different — there wasn’t exactly the same conflation of critique of the government and antisemitism or religious bigotry. But interestingly, the legal framework that, for example, the ADL is invoking today to try to go after student groups who are expressing pro-Palestinian views — the “material support for terrorism” — all of that comes out of the war on terror. Clearly, the language of terrorism as a particularly salient, powerful threat that we need to combat, and using that as a justification for restricting speech — that all comes out of the post-9/11 period.

McHugh: Do people who are fired for their political beliefs have any legal recourse?

Lakier: It depends where you live. Something like 25 states have some kind of regulation, often under-enforced, but nevertheless on the books, that prohibits employers from firing employees for politically related behavior outside of work. But these laws range tremendously in how broad they are. Connecticut, for example, has a very broad rule against being fired for your political beliefs and activities. In Illinois, it can only be applied if you’re fired for how you vote. The history of these regulations go back to the 19th century, and reflect a long tradition of employers using the cudgel of continued employment to try and affect or influence their employees’ political views.

There are only a few states, though, where regulations are broad enough that they could protect the kind of political speech we’ve seen in the past few weeks. And even then, in some of those states, there is an incitement [of violence] exception. So, even in those states, there will be arguments about why your political speech is not protected. But at least someone fired would be able to bring a claim.

Still, there’s no federal law, in half the states you have no protection, and in many of the other states, it’s going to be very, very limited protection.

McHugh: How much do these modern firings have to do with incentive structures that are changed by social media — people wanting to or feeling a need to express their political beliefs more directly online?

Lakier: Many of us are much more public actors in the world than we were in a pre-social media age. We’re addressing a broader audience. We can sound off to people we don’t know. So I think for sure, that is a part of it. I have been struck by this mania for letters and declarations. It feels like a new phenomenon where people feel compelled — if they have strong views on a matter — to make it public in some form. And although letters are not a typical form we associate with social media, some of these letters get picked up and circulated.

It’s notable that during the McCarthy era, there was a lot of effort to out communists or socialists or hippies or lefties; there was a lot of anxiety about not knowing who had those views. Now it’s easier. And precisely for that reason, when we’re thinking about speech and repression, it’s really important to also remember the very significant chilling effect this is having on the willingness of people to participate, to speak.

So even though we’re in a social media age, where more people are expressing their views openly, I think the message that these firings or the doxxing of students sends is chilling the willingness of people who otherwise would speak to speak.

McHugh: Do you think employment regulations need to change in response to the new ways that people publicly express themselves?

Lakier: Well, that is a really difficult question to answer. People are going to have significant disagreement about that, because it depends on what we think the rights of the employer are. Do employers get the right to say, ‘We only want people who have certain kinds of sympathies working for us’? There’s an intimacy often, with the people you’re working with every day. There’s the view that it would be an affront to some kind of basic freedom to be required to hire people even when they have objectionable political views.

However, I myself think that if you allow private people to discriminate however they want, it can do great harm to individuals and to the public at large. We learned that during the Civil Rights movement.

It’s really important for both employers and employees to have equal freedom to say whatever they want to say about politics — I think the employment relationship threatens to undermine that and threatens to impose too great a chilling effect on speech. But absent stronger regulations, it’s all going to be fought out in the social arena. And as we saw with Artforum","link":{"target":"NEW","attributes":[],"url":"https://www.artandobject.com/news/artforum-editors-resign-after-firing-david-velasco-over-gaza-letter#:~:text=Since%20the%20news%20broke%20of,have%20called%20for%20Velasco's%20reinstatement.","_id":"0000018b-9b6e-d5d7-a59f-dfef2be30000","_type":"33ac701a-72c1-316a-a3a5-13918cf384df"},"_id":"0000018b-9b6e-d5d7-a59f-dfef2be30001","_type":"02ec1f82-5e56-3b8c-af6e-6fc7c8772266"}">other top editors quitting Artforum, there are consequences when some employers fire employees for their beliefs.

McHugh: Where do we go from here? What’s next in the free speech fights?

Lakier: I’m really nervous. I worry about what the future brings. We do know that after the 9/11 attacks, this nation entered not only into a period of war, but also into a period of repression, and the infrastructure of that repression continues to this day. And so I’m alarmed not only for those historical reasons, but also because this is coming at a time when we’ve already seen serious threats to the institutions that safeguard and enable free speech from all directions.

Universities have been under threat for a long time. We have seen there are laws imposing sanctions on those who engage in boycott campaigns against Israel, some of which have been struck down, some of which have not. So this is coming on top of what feels like a lot of mobilizing and organizing and regulating in an effort to prevent people from expressing certain kinds of views, in many cases pro-Palestinian views.

I do wonder, though, if there might be a pushback and a response to the intensity and variety of firings and sanctions that have happened in the last three weeks. People are aware of it; the ACLU sent a letter this week to university administrators, cautioning them against investigating students for what is First Amendment-protected speech and trying to remind everyone of the free speech values that are at stake here. So on the other hand, maybe this will spur some kind of return to normal. But I really don’t know.