Linda Coulombe is a healthcare attorney and constitutional law enthusiast.
ST. ALBANS-On Sept. 29, The Commons published an op-ed on the front page of the Voices section with a provocative headline, "Ever more dangerous to speak up" - a tale of diminishing civil liberties leading to imminent peril, clearly designed to strike fear in the hearts of the reader.
It would be horrific if it were true - except it's not.
Dan DeWalt claims that it is becoming "increasingly illegal" to assert that Israel is committing a genocide on Palestinians and that the "reactionary right" would have you thrown into prison for the mere assertion. He contends that laws are being enacted to effect these outcomes.
The problem is, he conflates administrative action with criminality and severely misrepresents university campus discipline and employment law. His premise implies that under Oklahoma law, gathering in groups of three or more to "express views" constitutes an unlawful assembly and that uttering "Free Palestine" will result in loss of federal funding to universities and one's livelihood.
This is a rhetorical distortion.
The Oklahoma statute §21-1314 defines an unlawful assembly as when three or more individuals assemble with intent or with means and preparations to do an unlawful act, which would be a riot if actually committed.
An unlawful assembly requires far more than just offensive or provocative speech, which remains protected by the First Amendment. It requires an explicit intent to commit an unlawful act, backed by the actual means and preparation to follow through.
In other words, individuals remain free under the First Amendment to shout highly controversial political slogans; the state only steps in when an unlawful act is committed, such as property vandalism, blocking access to public spaces, targeted harassment, or violence.
Additionally, in 2021 Oklahoma did not alter the standard of peaceful assembly. Rather, Oklahoma House Bill 1674 was drafted in response to disruptive highway-blocking protests.
While controversial, its provisions were narrow: making an unlawful obstruction of a public street or highway a misdemeanor, granting civil liability immunity to drivers who unintentionally injure or kill a pedestrian while attempting to flee a riot, and creating organizational liability for groups acting as co-conspirators in riot-related crimes.
Furthermore, when challenged in court, a federal district judge narrowed the application and issued a preliminary injunction, blocking key parts of the law to ensure it could not be used to chill peaceful protest.
* * *
DeWalt also paints the dystopian picture of a totalitarian law designed purely to silence pro-Palestinian opinions when he references bills like the Antisemitism Awareness Act and similar legislation.
In reality, the bill provides a statutory framework for the Department of Education Office for Civil Rights to use the International Holocaust Remembrance Alliance's (IHRA) working definition of antisemitism when investigating complaints of discrimination based on the protected classes - race, color, or national origin - in federally assisted programs.
DeWalt's true grievance appears to be the fact IHRA's definition includes demonizing the Jewish people for their right to self-determination in their ancestral homeland of Israel, applying a double standard to Israel, drawing comparisons to contemporary Israeli policy to that of the Nazis (something he does repeatedly in his own text) and holding Jews collectively responsible for the state of Israel. Oh, the audacity of Jews to define what antisemitism is to them!
The reality is much more simple: There is a major difference between the state passing a criminal statute to outlaw speech and the federal government placing compliance conditions on the receipt of public taxpayer funding.
Title VI of the Civil Rights Act of 1964 already places such conditions on universities, which risk the loss of federal funds if they allow a hostile, discriminatory environment against protected groups, including Jewish students.
Furthermore, public universities are state actors strictly bound by the First Amendment. The legislation merely provides a framework for what constitutes discrimination against Jews, clearly a necessity as shown by the unlawful acts committed at campus encampments.
In fact, the landmark Title VI settlement at the University of Vermont demonstrates how the Biden administration actively enforces these federal frameworks to counter antisemitism and to protect students on campus. What the legislation explicitly does not do is mandate the suppression of political speech, an overreach that would be fundamentally unconstitutional.
* * *
DeWalt also uses hyperbole in his warning that "you risk losing your job if you say 'Free Palestine.'" Here he confuses the actions of private employers with actions of the government. While government actors are expressly bound by the Constitution and are prohibited from suppressing political speech, private employers are bound by different legal standards.
Most American workers are subject to the at-will employment doctrine, which simply means an employee may quit at any time and that a private employer may hire and fire an employee at will, for any reason or no reason at all, so long as it does not violate federal anti-discrimination laws (i.e., race, religion, gender, national origin, etc.).
The First Amendment protects citizens from government censorship; it does not protect them from workplace consequences of their speech at a private company. Therefore, if an employee publicly advocates for positions their employer determines damages their brand, disrupts the workplace, or alienates clients, the employer may terminate them - as is their right. Individuals remain free to say whatever they want; they just cannot expect an exemption from professional consequences.
* * *
Finally, DeWalt describes the U.S. government as a puppet where the "tail is wagging the dog" because of AIPAC's campaign contributions. Never mind the fact that AIPAC is an American Jewish lobby group exercising their First Amendment rights to petition the government, just like thousands of other interest groups. The fact remains, he undermines his own argument by conceding that "AIPAC millions are not buying success at every election."
If a lobby group's financial backing cannot secure a specific, guaranteed outcome, then the system cannot be characterized as totalitarian. By his own admission, the democratic pushback exists and is working as intended.
* * *
The irony of DeWalt's piece is encapsulated in his author bio, which notes his status as a co-founder and frequent contributor to The Commons, along with his position that he writes from a desire to see the country live up to "its purported principles."
What a testimony of American principles when a citizen can compare modern democratic policies to those of Nazi Germany, while claiming he lives under a fascist, surveillance state, in the pages of a widely circulated newspaper.
DeWalt's panic is detached from reality because he is free to shout his rhetoric without the slightest threat of a prison cell - as evidenced by the very publication of his unredacted op-ed. He is not a silenced dissident, he is a beneficiary of the full constitutional protections he claims no longer exist, choosing to let fear-mongering get in the way of the facts.
This Voices Response was submitted to The Commons.
This piece, published in print in the Voices section or as a column in the news sections, represents the opinion of the writer. In the newspaper and on this website, we strive to ensure that opinions are based on fair expression of established fact. In the spirit of transparency and accountability, The Commons is reviewing and developing more precise policies about editing of opinions and our role and our responsibility and standards in fact-checking our own work and the contributions to the newspaper. In the meantime, we heartily encourage civil and productive responses at voices@commonsnews.org.