Steinbach's Revenge

My next law review article is on academic speech issues and the regulation of campus protest. You know, taking a break from the fraught topic of antisemitism and shifting over to something placid and uncontroversial. The article was accepted for publication in March, but I did ask my editors if I could make some revisions before we started the editing process due to, er, recent developments (they've been very supportive).

The framing device for my article was the student protests of a talk by Fifth Circuit Judge Kyle Duncan at Stanford Law last year (remember that?). Much of the attention surrounding that incident focused on the behavior of the Stanford administrator on-site, Tirien Steinbach. Steinbach was widely pilloried for her performance, which critics said was insufficiently protective of Judge Duncan's free speech rights and too accommodating towards the protesters. My view was that Dean Steinbach was being unfairly maligned -- she actually did a decent (not perfect, but who is?) job and that people were underestimating the difficult position she was in and the tough cross-cutting pressures that make superficially "easy" free speech issues hard.

I wonder if Steinbach is laughing, just a bit, right now.

A particular claim one saw coming out of the Stanford incident was that the disruptive behavior of the students was attributable to past and present failures by the Stanford administration to respond to illicit protest with a stern hand. Administrative indulgence was akin to tacit support, which emboldened the students to behave even more brazenly later on, and so the cycle went. If the university stopped mollycoddling and just crushed policy-violating protests with an iron fist, the argument went, then they'd send a message to the students that such activities were not okay, successfully deter future disruptions, and restore calm and campus order. Dean Steinbach's relatively conciliatory approach towards the Duncan protest was easily slotted into a villainous role under this narrative: it was a symbol of the limp and weak-willed administrative cowering that was ultimately responsible for "bad" protests.

When one looks at what is happening on campuses today, it's hard not to feel like that argument has been pretty decisively falsified. The current wave of protests and encampments really can be traced back to Columbia, and in particular Columbia President Minouche Shafik's decision to essentially immediately respond to largely peaceful encampments on her campus with a hyper-aggressive police intervention. The result, it turns out, was not that the students were duly chastened and slunk back to their dorms; the result was a cascading series of escalations and counter-escalations at Columbia and the emergence of copycat solidarity protest encampments at universities across the country. Even if one did believe that Shafik had the formal "right" to enact her decisions, it's hard for me to imagine that anyone can call these policies success stories, regardless of whether your metric is protecting free speech, preserving campus order, defending Jewish students, or anything else.

So with the benefit of now getting to see the road-not-taken, maybe Steinbach's choice to take a more conciliatory, non-confrontational approach toward the disruption at Stanford and not immediately resort to "am I formally allowed to call in the police to drag people away" didn't emanate from some personal disdain for freedom of speech. Maybe she was actually a professional who knew what she was doing.  Maybe there are lessons we can learn from her. Maybe the prevailing administrative value in responding to protests should not be reflexive insistence on asserting yourself as the boss.

There's very little for anyone to feel good about regarding what's happening on campus right now (I share Robert Farley's worry that we're rapidly constructing a social framing where "no one can be serious about protesting the war (or countering protests of the war) unless windows are broken and billy clubs bared"), but if anyone deserves to feel the slightest bit of schadenfreudean satisfaction, its Tirien Steinbach.

Campus Antisemitism Monitors Will Fail in Extraordinarily Predictable Fashion

Trying to capitalize on the latest headlines, a bipartisan group of legislators is seeking to create government "antisemitism monitors" that will be dispatched to colleges and universities across the country. Fail to meet their scrutiny, and colleges could lose gobs of federal funding.

If enacted, this policy will fail in spectacular fashion. How do I know? Because we have a template in state anti-BDS laws, which backfire in similarly predictable ways. The problem is that while it's conceptually possible to craft valid and legitimat anti-BDS legislation, in practice the laws will be enforced by some mixture of apathetic mid-level bureaucrats, terrified associate deans, and hotshot headline-chasing politicians. Put that cocktail together, and the result is such lovely headlines like "homeless hurricane victims can't get disaster relief until they sign anti-BDS pledge."

Indeed, if the antisemitism monitors do come into play, I can predict exactly the scenario that will go down shortly thereafter at Any College, USA.

1. A student group invites some Palestinian poet to give a talk;
2. Canary Mission or similar digs through the poet's instagram and finds a post where they say something that many people might find troublesome: "from the river to the sea" or "the Zionist state will be dismantled" or something of that ilk.
3. They shriek that this is a violation of IHRA and federal law and the university risks losing all its federal funding unless it acts.
4. Some associate dean for student affairs panics and cancels the talk.
5. There's a massive backlash from the students (possibly including protests) as well as various academic freedom/civil liberties watchdogs who call the cancellation out as censorial bullshit.
6. Pro-Israel/Jewish groups make surprised-Pikachu face at how they once again somehow became the poster child for heavy-handed campus censorship. Who could have predicted? (Answer: Everyone. Everyone could have predicted).

And for all the grousing about "only the Jews don't get ..." X Y or Z protections on campus, it's worth noting that no other campus minority currently has a monitoring program like this. A good rule of thumb for whether one is advisable here is if one also would support a similarly empowered and emboldened "anti-racism" or "anti-Islamophobia" monitoring program. If your answer is something along the lines of "while racism and Islamophobia are serious problems, I don't trust the implementation and I'm worried about the possibility of abuse and/or chilling free speech" -- congratulations! You've identified the exact reasons why such a program is inadvisable for antisemitism as well.

Assorted Thoughts on the Chemerinsky Incident

If you're in my neck of the internet woods, you've no doubt heard about the incident in Berkeley where a small group of students conducted a pro-Palestinian protest in the backyard of the Dean Erwin Chemerinsky's house. 

To make a long story short, Dean Chemerinsky had invited the 3L class over to his home to celebrate their impending graduation (he normally invites the 1L class at the start of their law school journey, but since this crop of graduating students spent their 1L year mid-pandemic and so wasn't able to come, he invited them before graduation instead). The local SJP chapter issued a demand that Chemerinsky cancel the dinner, distributing a poster showing a caricatured image of the Dean with a bloody knife and fork over the message "No dinner with Zionist Chem while Gaza starves." Chemerinsky refused to cancel the dinner; so some of the students RSVP'd and, once they arrived at his home and were welcomed into his backyard, stood up with a microphone and began delivering a speech about Gaza. Chemerinsky and his wife (Prof. Catherine Fisk) asked that they stop and leave, as guests in their home; the student with the microphone initially declined, asserting she had a "First Amendment right" to engage in her conduct. At one point, Prof. Fisk placed her hand over the shoulder of the student to try and take her microphone away (the student has characterized this as an assault -- even going so far to imply it was a sexual assault -- and has indicated she wants to file legal action against the law school). Eventually the students left, the Dean released a statement, and the internet was set ablaze.

From my vantage point, the students' behavior was abhorrent and very possibly a violation of the university's code of conduct (and the notion that they are the victims here is farcical). Beyond that bottom line, my emotional reaction to this story has been stronger than I might have anticipated, and it's worth talking through why. I do have a Berkeley connection, and though I've never met Chemerinsky personally, his reputation for both kindness and brilliance is unrivaled in the academy. I also have former students currently at Berkeley Law, and while I cannot imagine they participated in this fiasco, I would be disappointed and crushed if I found out otherwise.

On a more personal level, I suspect my views on Israel are quite similar to Chemerinsky (two-stater, sharply anti-Bibi but pro-Israel existing), and I also have been known to host students at my house for dinner (typically my small-group seminar students at the end of the semester). I view the dinners as a nice way to cultivate an environment of care and welcoming in the often-impersonal environs of the law school, and as a way of pay forward the sort of collegiate community I was lucky enough to enjoy as an undergraduate to another generation of students. If that gesture of welcoming students into my home were to be exploited in a manner akin to what the students did here, I'd be devastated. Protests like this are exploitations of trust, they rely on and take advantage of the host's unguarded openness and welcoming. We're not screening people based on ideology, we're not making people fill out political questionnaires, we just -- welcome students into our homes, without reservation. To take advantage of that, to extract costs on that openness, invariably leads to more closedness, more guardedness, and more cloisteredness -- a loss for everyone, and one that can and should be mourned (I saw someone argue on social media that if the Dean didn't want to be protested in his own backyard, he shouldn't have invited these students in the first place and instead tried to screen out whichever students he thought might be likely to protest him. That to me bespeaks an almost impossibly short-sighted and narrow attitude that is utterly toxic to the sort of university community anybody should want to cultivate).

Meanwhile, there's the question of "why was Chemerinsky picked for this protest?" That question has two related dimensions: why Chemerinsky, and why this protest (since virtually everyone seems to think that something as extreme as protesting in your host's own household should be reserved only for the most malign and irredeemable actors). Chemerinsky very much views himself as being targeted as a Jew, citing the bloody fork caricature and its resonance with the classically antisemitic blood libel. The immediate demand of the protesters is for Berkeley to divest from Israel; but the law school dean doesn't make investment/divestment decisions, so they're limply left arguing that Chemerinsky doesn't personally support divestment -- true, but a feature he shares with thousands of other members of the Berkeley community who also don't make investment decisions on behalf of the university. He also has beliefs on Israel that, while anathemas to the SJP crowd insofar as he rejects Israel being wiped off the map, are by no means some sort of Israeli maximalist/anti-Palestinian eliminationism and are entirely mainstream amongst both liberals and Jews (and are again widely present in the Berkeley community and beyond). Again, even if one opposes that stance, there is (or should be) a gap between "what we oppose" and "what we deem protest-worthy", and even among those who are protest-worthy, there is (or should be) differentiation as to when and where a protest is justified.

The most specific thing I've seen people point to in justification of "why Chemerinsky" is an editorial he wrote this past October -- just a few weeks after 10/7 -- recounting the antisemitism he's experienced as a Jew at Berkeley in the wake of the Hamas attack. The usual suspects make the usual claims in response: that Chemerinsky's claims about antisemitism are wrong, unfair, smears, conflations of anti-Zionism and antisemitism, and those sins justify what might otherwise seem an obviously abusive overreach of a protest. On that point, one thing I haven't seen commented on much is the deep and dangerous chilling effect this sort of position has (and is intended to have) on Jewish faculty speaking on the subject of antisemitism. I've written on this in the context of academic freedom, but there is a very significant contingent in American and global society who deeply believe that if you are a Jew and you speak on antisemitism in a way that they don't approve of, it is open season -- you have removed yourself from any and all protections (certainly norm-based, possibly law-based) one might enjoy in a liberal, tolerant society. Needless to say, as a Jew whose academic work centers in large part on antisemitism, this is a tremendously dangerous trend for me personally, and so of course I notice when it rears its head in such an explicit fashion.

Those are the more personal reflections I have. But there are a few more scattered issues I've seen that I might as well address here as well.

• One area where I think the internet breaks our brains is how it interferes with our sense of proportion -- literally, in terms of "how many people are doing/believe in this thing we're upset out, compared to how many don't." The protesters appeared to number about ten students. That's not negligible, but it's also a very small percentage of Berkeley Law's total enrollment. Online, the consensus view from what I'm seeing is pretty strongly that the protesters were out of line here -- and while my internet circles are of course not perfectly representative, my read has been that one has to go pretty far out towards the fringes and randos before one starts seeing folks defending what the students did. But the thing is, even if the breakdown is, say, 80/20 against the protesters, if I'm reading one hundred posts about this event, that means I'm reading twenty people announce they support it. That feels like a lot, even though objectively an 80/20 split is actually extremely lop-sided!

• The students' claim that her conduct was First Amendment protected is ludicrous save for the sheer moxie of lecturing Erwin Chemerinsky on First Amendment doctrine in his own house. One issue some people have flagged is this dinner being an "official" Berkeley Law event, and asking whether that changes thing insofar as Berkeley Law is of course bound by the First Amendment. But there's less here than meets the eye, because even if we view this as a "government" event, not all government events or property are public forums. Even on the Berkeley campus, areas like the administrative back offices or the classroom when classes are in session are not public forums (hence why a professor could remove a heckler from her classroom without it being a First Amendment violation even where that same speech would be protected from sanction on the campus quad). A professor's personal domicile is, if anything, a clearer case -- if public forum analysis applies at all, it is clearly a non-public forum and so the student's protest is not First Amendment protected once she is asked to leave.

• Many people have criticized the protest against Chemerinsky in terms of it being "counterproductive". Who is this supposed to persuade? Don't they realize the protesters are the ones who look bad here? Antisemitism discredits the cause! I understand where this sentiment comes from, but I think it is at least partially misguided. First of all, whether it's "counterproductive" depends on what it's trying to produce. If the immediate goal is sympathy from either Chemerinsky himself or even the public at large, maybe it's ineffective. But if the goal is just "make an enemy miserable", then it may be perfectly effective. Second, there are many theories of protest whose model of change does not depend on the protest immediately swaying popular opinion in their favor. Without overstating comparisons to disanalogous contemporary events, we should all at this point understand how a shocking breach of basic social rules and norms can, even where it's immediately the subject of revulsion, generate a series of events that may ultimately redound to the violator's benefit. Ultimately, while it may be that this protest is counterproductive (though again, that depends on what one is trying to produce), I think the immediate declaration of counterproductivity, insofar as it is paired with a more moralistic condemnation of this sort of protest, is a means of eliding a more worrisome possibility: what if morally-contemptible norms violations are in fact quite productive means for certain social groups to achieve their goals? I've said it before and I'll say it again: antisemitism is a productive ideology. It builds things, engenders alliances, and motivates action. And so opposition to antisemitism, or other norm-violative behaviors, must be willing to oppose such actions even when they're productive -- because they often are.

• Joe Patrice at Above the Law makes clear that he thinks this sort of protest is unjustified, but mentions in passing the "authoritarian" free speech position coming out of the right whereby it is a "free speech violation" if, say, a social media platform blocks or bans you. In many ways, the incident at Chemerinsky's house is the meatspace version of this: Chemerinsky is literally hosting, and a speaker is claiming a First Amendment entitlement to retain access to Chemerinsky's space in defiance of the wishes of the host. It's a bad First Amendment argument as applied to Twitter, and it's a worse First Amendment argument as applied to someone's backyard.

• I'm certainly not the first person to say this, but part of civil disobedience is accepting consequences. While it's true that a good protest will often be disruptive and a breach of the normal rules of operation, it's also the case that the reason a protest is disruptive and a breach is that it violates normal, enforceable rules. To engage in that sort of breach, but then to act scandalized that the relevant authorities treat it as a breach, is to have one's cake and eat it too. And so I get someone feeling strong enough about a particular issue to say "it's worth it to me to violate this rule and face these consequences." I do not get -- or at least don't respect -- someone simultaneously expecting plaudits for being so bold as to defy the rules and demanding exemption from having those rules enforced.

• Finally, I'm increasingly tired of the way these sorts of student protesters weaponize their status to act as if it's unreasonable to hold them to basic norms of conduct, or some sort of authoritarian imposition to subject them to consequences that can be wholly anticipated. It's true that, as we age, it's easy for professors to forget that young students are young and are still learning, and are going to make some foolish choices and say some foolish things because they haven't learned better yet. But it's also the case that as we age and our students seem ever-younger relative to us, we can also forget that the students are in fact adults and are perfectly capable of understanding how to behave as well as eminently-predictable consequences of their actions. I am not someone who thinks student discipline has to be overly punitive, and I respect that student conduct officials often find themselves in difficult spots. But unlike other recent Berkeley events, here we know who the perpetrators are; there does not seem to be much reason for why a conduct investigation shouldn't be opened here other than the administration either not wanting to or being scared to. Formal disciplinary responses are not always the first resort or the best resort, but they are a valid resort, particularly in cases where student behavior seems to be at least partially encouraged by a culture where the very idea of facing consequences for breaking rules is viewed as a form of oppression. There are people who basically immediately say student conduct violation related to speech warrants expulsion and anything short of expulsion tacitly assents to the violation. I don't agree with that, but I also don't agree with the view that every student conduct violation should be assessed solely as a "learning experience". Law and graduate students, in particular, are not smol, they are adults, and adults on the precipice of exercising significant political and social authority -- and part of entering into that latter role is accepting their status as responsible actors who can be held responsible.

Jewish Protests at Berkeley, a Follow Up and Victory Lap

UC-Berkeley Political Science professor Ron Hassner has ended his sleep-in protest, stating that the university administration has agreed to all of his requests. In particular he flagged the following:

(1) First, he asked that "all students, even the ones wearing Stars of David, should be free to pass through [Sather Gate] unobstructed. The right of protestors to express their views must be defended. It does not extend to blocking or threatening fellow students." The university has since "posted observers from the Division of Student Affairs to monitor bullying at the gate. These are not the passive yellow-vested security personnel who have stood around Sproul in prior weeks. The Student Affairs representatives are there to actively document bullying, abuse, blocking, or intrusion on personal space."

(2) The second request was for the Chancellor to "'uphold this university’s venerable free speech tradition' by inviting back any speaker whose talk has been interrupted or canceled. The chancellor did so gladly and confidently. The speaker who was attacked by a violent mob three weeks ago spoke to an even larger crowd this Monday."

(3) The third request was to fund and implement "mandatory Islamophobia and anti-Semitism training on campus". This has also apparently been arranged.

I give Ron a lot of credit. First, he's not dunking on the administration here, in fact, he gives them a lot of credit: "It is my belief that campus leaders would have fulfilled all these requests of their own accord even in the absence of my sleep-in.... At best, our sleep-in reinforced the university’s determination to act and accelerated the process somewhat."

Second, it's important to emphasize that Ron's protest did not ask or come close to asking that Berkeley silence anyone else's speech, including that of the protesters at Sather Gate. While they should not be able to obstruct Jewish students seeking to travel to campus, they have the right to present their views as well as anyone. It is not a concession but an acknowledgment of the proper role of the university administration that he did not press for them to end the protests outright.

Third, one might notice that Hassner's last demand was for antisemitism and Islamophobia training to be implemented on campus. In recent years, it has become almost cliched to hear certain putative anti-antisemitism warriors express fury whenever the fight against antisemitism is paired with the fight against Islamophobia, racism, or other forms of bigotry. They call it "All Lives Mattering" (although, when these coalitions against hate form and antisemitism isn't included in the collective, they call it "Jews Don't Count"). I've long thought that this was an abuse of the "All Lives Matter" concept, and it is notable that Hassner -- who not only has a ground-level perspective but who is actually putting his money where his mouth is in terms of combatting antisemitism -- doesn't see the pairing as a distraction or diminishment of what he's been fighting for but as an asset. More people could stand to take note.

Art Maven Roundup

All of the sudden, I've been on an art kick. The below image is a silkscreen I recently purchased from DC-based artist Halim Flowers. Flowers was convicted of felony murder as a juvenile and sentenced to two life terms. He was released after serving 22 years following statutory reforms aimed a juvenile offenders who had received life sentences, and now is showing in galleries around the world.

Pictured: "Audacity to Love (IP) (Blue)" by Halim Flowers. The colors are meant to be reminiscent of the Israeli and Palestinian flags (blue and white, and red, white, and green).

* * *

Trump continues to show his contempt for American Jews, saying any Jew who doesn't support him "hates their religion" (and Israel).

An in-depth story about a White supremacist who was elected to city council in Enid, Oklahoma, and the recall campaign to try and remove him.

Given the well-covered softness in Biden's support in the Muslim community, it seems suicidal to me for Democrats to give into the repulsive Islamophobic attacks holding up the confirmation of Third Circuit Court of Appeals nominee Adeel Mangi (the story indicates that Biden has remained rock-solid in backing his confirmation, but there may be some misgivings in the Senate Democratic caucus).

Writing on the sudden "heterodox" support for revisionist accounts justifying George Floyd's murder, Radley Balko flags what has been obvious for a long time: as much as this cadre likes to bleat about respecting truth, free-thinking, and rationality, it is as if not more beholden to ideologically-convenient narratives at the expense of reality. Pretty much everyone on the internet has been sharing this with their own story of the alt-center blowing past truth in order to push conservative grievance politics; mine was watching them stand in unblinking support of a hit piece on California's Model Ethnic Studies Curriculum even after it was revealed the author completely fabricated the inclusion of a seemingly-damning antisemitic quote.

Interesting retrospective on the Israeli Black Panthers in JTA.

The Supreme Court's frosty reception to the contention that government officials privately lobbying social media companies to take down misinformation is a First Amendment violation is the latest suggestion that the Court is finally losing patience with the regular drumbeat of insane legal theories emanating out of hyper-conservative Fifth Circuit.

Jewish Protests at Berkeley

I wrote a few days back about goings-on at Berkeley regarding protests -- which turned destructive -- against an Israeli speaker and a general deterioration of the situation for Berkeley's Jewish community. A few other developments have occurred since then, both of which entail Jews becoming the protesters, rather than the protested.

First, my friend and former colleague Ron Hassner has begun a sit-in in his own office, refusing to leave until the Berkeley administration takes action regarding a series of demands he's made regarding how to address campus antisemitism. Second, a large group of Berkeley Jewish students marched on Sather Gate, where a different group of pro-Palestinian students had been blocking passage as part of their own protest (and reportedly have been haranguing Jewish students in the vicinity). Initially, the plan appeared to be to force a confrontation by attempting to pass through the gate; in the end, the Jewish marchers diverted around the gate, wading across a small creek before reemerging on the other side.

I've given a recap before of my own experience at Berkeley, but that was from several years ago and certainly times and circumstances have changed since then. So I won't comment on the actual state of affairs for Jews on campus -- I'm not on the ground, and people like Hassner are. I do think this is an interesting example of Jews adopting what I termed a "protest politic" -- seeking change via the medium of a protest (as opposed to, say, a board resolution, letter to the editor, or political hearings). I wrote in that post that while I personally am averse to protests (not on general political or tactical grounds; it's a temperamental preference), it does seem that acting via protest -- sit-ins, marches, or even disruption -- was a way of marking yourself as being of a particular political class on campus and so a way of being taken seriously.

At least on campuses, it seems that certain brands of protest have become the language through which communities communicate that they are part of the circle of progressive concern. We can identify an issue as a "progressive" one by reference to how its advocates perform their demands -- the medium rather than the message. If something is demanded through a sit-in or a march, that's an issue that's in the progressive pantheon. Something that is pressed through a Board of Trustees resolution, not so much.

Again, I don't comment on whether these protests are "good", either in their tactical efficacy or their underlying demands. But I do find the adoption of this particular medium, and its comparatively transgressive character, to be an interesting development, and so I wanted to flag it.

Berkeley Has a Tough Task Ahead of It

I just finished a draft article (now before law reviews!) entitled "They Managed a Protest: Prohibitory, Ethical, and Prudential Policing of Academic Speech." As the name implies, it addresses recent controversies regarding free speech on campus, though the framing device is the Kyle Duncan incident at Stanford Law which these days feels almost quaint. In any event, one of my main objectives in the paper is to explore the position of the university administrators -- often untenured -- who are tasked with enforcing free speech policies in the context of campus protests. They occupy difficult positions, not the least because many external observers think their position is easy -- just severely punish disruptive protesters and call it day. What could be simpler than that?

Of course, things aren't as simple as that, even in the seemingly clearest cases. Earlier this week, a group of protesters organized by the "Bears for Palestine" student organization managed to violently shut down a scheduled talk by a right-wing Israeli speaker at UC-Berkeley. Protesters smashed windows and the door of the building where the talk was scheduled to occur, and allegedly assaulted and slurred Jewish students trying to attend the event.

There's little question that this behavior violated UC-Berkeley policy and, probably, state law. The UC-Berkeley Chancellor, Carol Christ, has written a strong statement denouncing these actions. And for my part, as much as I respect the right of students to engage in protest, the allegations of what happened in this event are such that severe punishment -- including potentially suspensions or expulsions -- would seem to be warranted for at least the most serious offenders. To that extent, this is a simple case.

Even still, though, I do not envy the Student Affairs officials* who are tasked with operationalizing that simple case into actual disciplinary action.

To begin, it is abundantly clear that Berkeley is under immense pressure to significantly punish someone. If at the end of their process nobody gets more than a slap on the wrist for violations of this magnitude, they will be accused of turning a blind eye to this sort of behavior, or even tacitly sanctioning it. It needs, at the end of this, to put a few heads on pikes.

But to that end, while I suspect that Berkeley will be able to identify many of the students present at the protest, it likely will not be easy to figure who exactly is responsible for the more egregious acts that would justify the harshest punishment (the antisemitic slurs, the destruction of university property). Many protesters wore masks, and the group itself was comprised of students and non-students. 

So what is the university to do? It could adopt a policy wherein it just throws the book at everyone -- "expel 'em all and let God sort it out." But that sort of short-circuiting of normal due process protections will generate intense backlash and possibly make them vulnerable to a lawsuit. Breaking windows, smashing doors; these are violations of university speech policies. But -- depending on what went down at the event -- being in the vicinity of those actions, without participating in them, may not be. It's the difference between attending Trump's "Stop the Steal" rally versus actually breaching the Capitol. One might not think the former are good people, but they haven't done anything illegal.

In short, there are severe cross-cutting pressures at play here that make reaching even the "simple" right outcome harder than it appears. Those pressures are amplified by the very loud voices on both ends of the spectrum, some of whom will insist that nothing short of a complete extirpation of all pro-Palestinian advocacy on campus means capitulation, others of whom will fulminate that any consequence to any righteous protester on any ground is tantamount to jackbooted censorial thuggery. While we can perhaps justly demand that Student Affairs professionals ignore those voices (easier said than done), their presence, too, complicates significantly the more legitimate problems the office will face in its quest to come to a good decision.

* Disclosure: My wife works in the UC-Berkeley Student Affairs Division, albeit not in a role that has anything to do with meting out student discipline.

Turkey Implements the Stefanik Principle

One of the more common refrains I heard by persons who wanted to defend Elise Stefanik's bad faith grandstanding on campus free speech was the supposedly rhetorical question "how hard is it to simply condemn 'calls to genocide'?" The problem -- well, not the problem because that implies there is only one, but a problem -- is "who decides what count as a 'call to genocide'?" 

We already knew, for instance, plenty of campus actors characterizing Israel's conduct in Gaza as "genocidal"; and it was not long before South Africa brought its own "genocide" charge against Israel before the ICJ. If, as is not improbable, the ICJ rules that at least some of the genocide claims against Israel are "plausible", one can only imagine the turnabout that will occur by the usual on- and off-line subjects who just witnessed pro-Israel activists claim the skins of several high-profile academic actors on the principle of "zero tolerance for permitting speech 'supporting genocide.'" This turnabout was absolutely predictable and while I'm not sure "deserved" is exactly the right word to use here (given that the persons who will be victimized will almost certainly not be named "Chris Rufo" or "Bill Ackman"), it's hard to deny the karmic significance.

But we don't even need to wait that long to see this poisoned tree bear fruit. In Turkey, an Israeli national playing for a Turkish soccer club flashed a signal after scoring a goal meant to represent solidarity with the Israeli hostages who remain in Hamas' captivity. As a result, he's been arrested by the police for "supporting genocide", with threats of further recriminations by the Turkish Justice Minister as well as a promise by his team's president that he'd be kicked off the squad. It's entirely unsurprising that, in the wrong political climate, merely signaling sympathy for Israeli hostages will mark one as a genocidaire (hey, who remembers that essay just days after 10/7 that arguing that even grieving dead Israeli civilians was a means of fueling the Israeli death machine?). Again, all of this was obviously predictable in advance, and while I doubt Turkey is taking its cues from Congress' most craven opportunistic weasel, it still demonstrates the naivete of anyone who thinks that the answer to Stefanik's "genocide" question was "simple".

Free Speech Total War

In the wake of 303 Creative, I argued that one consequence of the Supreme Court's decision would be to supercharge "cancel culture". In a world where a business' decision to serve (or not) a customer is "free speech", then it must be the case that a customer's decision not to patronize a business (and to urge others to follow) is free speech in turn. Indeed, if we follow the metaphor along, "cancel culture" is exactly what the Supreme Court recommends as a remedy for Lorie Smith's homophobic speech, in lieu of enforcement of the anti-discrimination laws the Court struck down. "More speech, not enforced silence" indeed. And what more speech could we ask for than a concerted, express(ive) attempt to boycott her business, to send the message that these views are awful and intolerable and should wither on the vine of the "marketplace of ideas"?

In this way, 303 Creative really did greatly proliferate freedom of speech. But it isn't the freest speech we can imagine. In a Hobbesian sense, the freest free speech regime is one of pure anarchy: anyone can say anything, and anything anyone can persuade anyone else to do is fair game. Hobbes' freedom was the pure war of all against all, with no constraining rules or boundaries whatsoever. Every domain is a legitimate one to wage free speech war. Lorie Smith is wholly within her rights to advocate her views not just by writing a book, but by refusing to serve a customer, by firing an employee, by declining medical coverage -- you name it. And her opponents in turn can advocate their views by boycotting her business, picketing her house, urging her friends to ostracize her -- a war of all against all, with no zones of safety.

We could go further still. In a true free speech total war, if one "persuades" government to punish other speakers for their views, well, one just won a battle of free speech over those parties who oppose such measures (the dissident voices are, of course, free to shout their complaints as they're hauled off to jail, and the majority faction is in turn free to punish them further for their insolence). Nothing is off the table, everything is fair game, when it comes to ideological battles. Even if one can't quite follow me in seeing how express government punishment could be a form of extreme(!) free speech, the point is clear enough even if one takes everything but official de jure censorship off the table (as in the preceding paragraph). 

Of course, this doesn't look much like "free speech" as we typically understand it. Much of the impetus of what is sometimes called "free speech culture" is to remove, less certain topics from discussion, but certain domains from encroachment in ideological battles. Ideological fights should be fought in the arenas of ideology, they should not normally spill over into who one employs (in positions that are not themselves expressly ideological) or who one is friends with or what businesses one patronizes. Even recognizing the pressure that can be placed on "normally" (or "expressly ideological"), the point is generally reasonable enough. 

Consider a world where 303 Creative came out the other way. Someone with Lorie Smith's views continues to hold those views, in private, but as a business owner she dutifully follows the law and serves all her customers as equals. If someone pulled out her private beliefs (shared on Facebook, perhaps), and said "don't patronize this homophobic website designer", that would by many be viewed as a more "standard" case of problematic cancel culture. We might say in that circumstance that taking one's ideological opposition to Smith's views -- however justified -- and bootstrapping them onto whether to hire her as a web designer moves the ideological contest into a problematic domain. To be sure, I can absolutely understand the counterargument: that to give a homophobe money is to "normalize" her, to say her views are "okay", and it is entirely proper not to cooperate in that normalization. And it's not hard to think of cases at the margins where that counterargument may well carry the day. But if it always does, if there is no space between "view I disagree with" and "view whose adherents must be attacked along every possible front," that to me is a very unpleasant place to live in. As I wrote in my 303 Creative post:

One of the virtues of public accommodations law is that it dissipates, under normal circumstances, the inference that basic business transactions are expressive. I very much prefer a world where the bakery that bakes a cupcake for a client isn't seen as sending some sort of message of approval towards the client and the client that eats the baker's treat isn't sending a message of approval toward the baker (beyond "this cupcake is delicious"). That, to me, seems a far more pleasant space to live in than one where every turnip and widget we buy or sell can be taken as some sort of sweeping moral approval for our business partners.

Long story short: Yes, it's true that one can gain ideological victories by not limiting ideological contests to ideological arenas -- attacking them in their profession, their hobbies, their personal life, at every angle. But that world is a very nasty world to live in. Even if we think we might have to do that some of the time, it's very bad if we feel forced to do it all of the time. When social forces move us toward that world -- a free speech total war -- they are moving us towards a deeply toxic and oppressive social milieu.

All of this is lead in to Osita Nwanevu's column this week which, to some extent, endorses "free speech total war" position when it comes to the Israeli/Palestinian conflict and in particular campus discourse thereto. In contrast to the normal "free speech" position which suggests that we should protect advocacy of all sorts of views on Israel/Palestine, across the ideological spectrum, Nwanevu pivots sharply in the opposite direction: Progressives shouldn't stop trying to censor "bad" speech on campus, and should accept in turn that they will sometimes themselves be censored. "Students, academics, administrators, and outside influencers with different views will naturally clash and compete. In the end, some institutions will wind up more progressive or more conservative, [and] some institutions will be more or less tolerant of criticisms of Israel." Both "sides" should be free to wage ideological war on the other, and let the chips fall where they may. 

The more workaday "free speech" position on this issue, the one Nwanevu is contesting, holds something like the following: (1) campus administrators should not punish or obstruct university speakers on the basis of their views, no matter how repellant (the prohibition on de jure censorship); and (2) non-administrative actors should largely limit the domains in which they oppose speech they disagree with to appropriate ideological channels (the norm against "cancel culture"). The former lays out, e.g., why one shouldn't prohibit a "bad" speaker from giving a talk on campus. The latter explains why its problematic to, e.g., refuse to hire an undergraduate for a summer internship because one didn't like their column in the campus newspaper.

Both prongs of this position have come under tremendous strain over the past few months(/years). The first position has come under regular fire from various campus actors who demand that bad speech be formally punished -- in the cases of the Milos, the Ben Shapiros, and what have you, but more recently and ironically against the SJP-types. The second position has been said to be under siege by proponents of "cancel culture" who don't just disagree with X Y Z views but insist that their proponents must be fired from their jobs, ousted from campus clubs, and be viciously ostracized online; and likewise is remanifesting when pro-Palestinian students see their employment offers revoked and their likeness plastered on placards declaring them antisemites d'jour.

A popular argument here is that this is the chickens coming home to roost: leftists loudly decried both traditional free speech and free speech culture, and are now reaping what they sowed. Nwanevu takes aim at this account, however:

It is not at all obvious, actually, that defenses of Palestinian resistance, particularly armed resistance, and criticisms of Israel⁠—which has long been neigh-untouchable in mainstream political discourse—would have been more well-tolerated in a world where the campus controversies of the last decade hadn’t happened. We likely would have seen the very same pressure to support Israel after Hamas’s attack; as such, the speech climate likely would have been just as stultifying.

To believe otherwise is to invest fully in an odd precedential logic that regularly leads minds astray in these debates—those who use and abuse power are not always groping around for actions in the past that might justify their actions in the present. Reality is not a judiciary. And believing otherwise gives agency and responsibility over to whataboutism. Israel’s defenders and the right point to campus progressives, progressives might rightly say that conservatives and reactionaries suppressed left-wingers on campus first during the Cold War, defenders of Cold War conservatives might allude to the Soviets and the gulag, defenders of the Soviets might reference the repression of left-wing activists and thinkers by reactionary governments, and on and on backward in time to some creature of the caves who first realized that a club to the head was a reliable way to end arguments.

There is both more and less to this argument than it appears. On the one hand, I think Nwanevu is clearly right that the "precedential" bulwark against censorship would always be one whose robustness would be limited. "Reality is not a judiciary" indeed, there are always counter-precedents to point to, and everything we know about free speech suggests that there are far more fair-weather friends who are perfectly happy to demand freedom for me and censorship for thee than there are truly committed free speech ideologues who may, regrettably, falter in their commitments due to their opponents' hypocrisy. I agree that no matter how fastidious campus leftists may have been regarding free speech in 2022, it would not have stopped some people calling for the censorship of certain pro-Palestinian views in 2023.

That said, I also think Nwanevu is understating the degree to which the progressive development of free speech institutions is serving as a genuine bulwark against more censorial impulses, even now. Much as I think the levels of antisemitism on campus are overstated by alarmists even as they are no doubt real; it also must be said that the degree of censorship directed towards pro-Palestinian advocacy is simultaneously real and overstated by alarmists as well. Everything is a matter of margins: the question isn't whether commitments to free speech would eliminate all calls for censorship (or even successful instances of censorship), it's whether they are comparatively better at providing protection than alternatives.

In that vein: it is frankly absurd to contend that "criticism of Israel" is or has been "well-neigh untouchable" in campus politics. Take your average academic open letter savaging Israel signed by 1000 university professors, and 99.98% of them will not experience any tangible administrative blowback whatsoever. There's a ton of pro-Palestinian speech that does not and should not get any no pushback at all, and that's largely attributable to free speech commitments working.

Even looking at the list of exceptions proves the rule. Students for Justice in Palestine got targeted after it called the October 7 massacre a "historic win" that would augur a righteous campaign whereby Jews would be ethnically cleansed from Israel (yes, they did). Norman Finkelstein was denied tenure after writing a book titled "The Holocaust Industry". One can (like me) think that views like these are nonetheless protected while also zeroing in on exactly what is triggering the censorship -- not "pro-Palestinian speech" generally, but whooping and cheering a mass rape campaign specifically, or stating that Holocaust remembrance was an industry Jews exploit for profit, specifically. If that speech is coterminous with "pro-Palestinian" speech, that's a far more searing indictment of the field than I could give. And the notion that a more stultifying free speech environment than what we're seeing now is impossible to imagine -- well, I don't think it takes much in the way of imagination at all.

All that said, Nwanevu deserves credit for being willing to pay the piper. In the free speech total war "clash" between various stakeholders, sometimes, progressives will lose, not just in the realm of ideas, but lose quite tangibly -- their jobs, their social positions, their livelihoods. If one wants to extract those costs on others, one has to accept them for oneself.

Taking the freedom of institutions seriously in this way is not without costs for progressives. Bill Ackman and the captains of Wall Street do, in this framework, have the right to bar pro-Palestinian activists from employment at Scrooge McDuck Capital. The purges we’re seeing now are not incompatible with sound liberal principles—advocates for the Palestinian cause will not find refuge in them or in a fuzzy speech maximalism defined and defended inconsistently by most of its own proponents.

[....] 

The only recourse is politics—the sturdiest argument against the repression of those speaking for Palestine isn’t that institutions and the billionaires and propagandists pressuring them don’t have the right to try suppressing Israel’s critics but that the Palestinian cause is substantively just, and Israel’s defenders are backing a senseless and immoral war, a stance more and more Americans are coming to agree with.

The "Scrooge McDuck" shot is a bit cowardly -- not because Ackman deserves any special deference, but because right after admitting that it's fine for pro-Palestinian activists to be subjected to the full blast of modern cancel culture it then slyly suggests that the only actual "costs" they might face are withdrawal of opportunities a good cadre member shouldn't desire anyway. The reality is far worse: the costs we're talking about aren't just loss of a chance to engage in rapacious vulture capitalism; they extend to every nook and cranny of the good life, every hobby and professional ambition a young person might have. That's what's on the table here -- for everyone, on both sides. The whole point is that Bill Ackman and SJP are equally entitled to pursue their ideological agenda by any means necessary.  The end game, so bloodlessly described as "some institutions will wind up more progressive or more conservative", is better described as "ideological dissidents will be ruthlessly hounded out of their places of study, of worship, of employment, and of respite" -- dozens of the most caricatured version of Oberlin College being paired with countless New Colleges of Florida. Maybe we might think that, once the dust settles, everyone will be happier sorted into their neat ideological bubbles. But the transitional costs of successfully cleansing out the minorities will be monstrous -- a Tiebout sorting of the most vicious kind. And that really should be an intimidating proposition.

Why does Nwanevu nonetheless endorse going down that road? One possibility is that he doesn't truly believe the war will be as total as he's letting on. But another possibility is that he thinks that, when the dust settles, his side will win. The momentum is on their side. As many of "his" people will have their lives ruined by pro-Israel cancellation, he believes pro-Palestinian cancellation will be able to ruin even more. Is he right? I'm not as sure as he is about who would end up prevailing in a true free speech total war. But I do know that the casualty count will be staggering.

Like in real war, the constraints on free speech total war are fragile. The appeal of total war isn't pure sadism; it genuinely gives one a greater chance to win; it allows one to gain ground and overrun strongholds that otherwise might seem impregnable. But of course, that means that if one side indulges in it, the other must respond in kind -- a vicious circle to a world where everything is fair game and no one and nowhere is safe. And whatever marginal benefits one side or another might get in the conflict, the absolute costs are catastrophic. There's a reason why after World War II we labored as mightily as possible to ensure that a war like that never occurred again -- the world barely survived one war of that degree of fury, and it was far from clear it could survive a second.  

I am inclined to think similarly towards the concept of a free speech total war. Of course, one way of reading Nwanevu's essay is believing that we're already in a world of free speech total war, one impressed upon progressives by conservatives, and they're only playing the hand they've been dealt (indeed, he even alludes to 303 Creative making similar points to what I made in my introduction). As alluded above, I don't think that's true -- I think we're actually quite far from a free speech total war, and we should be very leery about removing the guardrails keeping such a war at bay. A true free speech total war would be cataclysmic, disastrous, and, importantly, would look nothing like even the decayed and damaged free speech culture we have now. It would be far, far worse. We should not run eagerly towards it. 

Bad Faith Grandstanding on Campus Free Speech is Rewarded

The President of the University of Pennsylvania, Elizabeth Magill, has resigned in the wake of her testimony before Congress about university responses to campus antisemitism.

This is terrible news. To be sure, I don't think Magill is obligated to stay in a position where she feels she either can't be effective or can't function; she has no obligation to stick things out in what I can only imagine is right now an impossibly toxic atmosphere. But still, Magill deserved better; she said absolutely nothing wrong in her testimony. Yet the bad faith grandstanding of the likes of Elise Stefanik -- an antisemitic conspiracy-mongerer in her own right -- has claimed a high-profile victim.

I published my post Thursday before reading Ken White's more colorful response to those smearing Magill, but I endorse it in full. There have definitely been other prominent free speech advocates who have taken the right line here, including Eugene Volokh and David Lat. 

But others are not rising to the moment. I flagged in my last post Keith Whittington for wrongly and misleadingly making Magill rather than Stefanik into his standard-bearer for greater campus restrictions on speech -- even if we think Magill was wrong to begin bending to Stefanik's threats, it's evident that Magill did not originate them. To the contrary, the backlash against Magill -- which Whittington tacitly tried to latch on to -- was and is entirely about her perceived unwillingness to bend sufficiently on protecting free speech. Anyone who was joining the dunk party on Magill was, implicitly or explicitly, endorsing the very unambiguous politics of free speech censorship that Stefanik was explicitly promoting. I can't top Ken White here: "You — and I say this with love — absolute fucking dupes."

Now that Magill has resigned, here is how Whittington reacted to the news:

It's hard to imagine missing the point by a wider margin than this. Whittington's worried that Magill's resignation will be "construed" as a "mandate to shrink the space for free speech" and to "cater to the sensitivities and political preferences of donors and politicians"? Yeah, no kidding -- it will absolutely be "construed" as doing both of those things because that's exactly what prompted it. The lesson that was meant to be sent and which will be learned is "shrink the space for speech when politicians and donors demand that you do so." There's no ambiguity here; that's the entirety of what happened. Anyone who didn't want that to happen should have come out firing in defense of Magill and in opposition to the roiling censorial mob that Stefanik effectively incited.

Magill felt compelled to resign because she publicly articulated -- in the most hostile room imaginable -- the free speech values that Whittington claims are essential. That's it. And that Whittington still cannot name the actual enemy here -- cannot state clearly that Magill got it right, is being punished for getting it right, and it is rabble-rousing Republican demagogues who showed their whole face in terms of demanding censorship under the guise of protecting Jewish students -- is shameful.

I'm also not feeling especially patient towards some of the other common lines I've heard that try to rationalize why it's okay to blame Magill as having done something wrong. One common response I've seen is to say that the witnesses were poorly prepped for the particular environment of a congressional hearing; with better preparation, they could have avoided the "traps" laid out in front of them. I'm doubtful: I think it is the hubris of very smart people in particular that think they can go into a demagogue's home turf, where they're entirely in control of the proceedings, can control the flow of questioning, can reclaim time whenever they want, and outmaneuver their "traps". It's the same hubris that makes liberals think they can go on Fox News and "outdebate Hannity". No you can't, and it's not because Hannity is some secret genius. It's that he has the home field advantage -- he knows how to play this particular game better than you, precisely because it's a "game" that does not in any way reward intellectual honesty or virtuosity.

A similar argument is that, while the responses of Magill et al may have been formally, legally, correct, they were inappropriate in this context -- their role was not to be lawyers but public advocates for their university, and their sin was misapprehending what was called for from their position in this context. My former colleague at Berkeley Steven Davidoff Solomon, for example, described the university presidents as "prepared to give answers in the court — and not a public forum,” and that was their undoing: their job here is “not to give legal answers, it’s to give the vision of the university."

Once again, I'll cry foul. Yes, there are many situations where a technically correct answer nonetheless can be a bad answer because it skirts some larger truth or is inattentive to important surrounding context, which a good answer would pay heed to. But this argument only works if the problems with the "technically correct" answer are not the facts which make it correct. The people who are mad at Magill are not mad based on something like "yes, maybe it's technically true that there are some circumstances where 'calls to genocide' are protected from formal sanction, but it's more important right now to emphasize how heinous those calls are even if they always be literally punished." The thing they're mad about is the thing that Magill said which was true: there are some circumstances where even 'calls to genocide' -- and we're not even getting into Stefanik's attempt to frame the at the least more ambiguous case of 'intifada' chants as a "call to genocide" -- are protecting from formal punishment. As Howard Wasserman wrote:

Magill, Gay, and Kornbluth did not fail to denounce calls for genocide as antisemitic. No one asked whether calls for genocide or "river to sea" are antisemitic; Stefanik asked whether those statements constitute protected speech and they gave the correct answer of "it depends on context," because it does. In fact, they did at points condemn the message, just without expressing intent to sanction the speech where it remained protected.

Put differently, it's fine to say that in some cases a "technically correct answer" isn't good enough, but only if your proposed alternative is not to demand the speaker be overtly and substantively incorrect.

The last thing I'll say is that I'm not generally interested in point-tallying of the "this is the real cancel culture" variety. Free speech, as I've often said, has mostly fair-weather friends, and no camp has covered itself in glory across the board. What I will say though is that no matter how one tallies the overall scoreboard, this absolutely is an incident where the forces of censorship won and those demanding respect for free speech principles lost. The next time we face an incident where some controversial right-winger comes to campus, it will be a lot harder to persuasively lecture our students that as hateful and heinous as this figure may be, this is the demand of free speech protections etc. etc. etc., because they will have seen in vivid detail just how easily those principles can be forced to bend. 

Maybe you think that's a good thing. I still think it isn't. And at the very least, the practical shakeout of who will in practice see their speech censored and who in practice will be able to access administrative protections remains to be seen. I have zero confidence that this will either find a stable and accepted equilibrium or ultimately redound to the benefit of young Jews enduring antisemitism on campus.

Bad Faith Grandstanding on Campus Free Speech Shouldn't Be Rewarded

Many of you have seen the fallout over recent congressional testimony about antisemitism on college campuses, featuring the presidents of MIT, Penn, and Harvard. A particularly high-profile exchange came from Rep. Elise Stefanik (R-NY), demanding to know if calling for "genocide" of Jews violated these university's conduct policies. 

The context of this questioning was the use of "intifada" in campus protests, which Stefanik suggested should be viewed as "genocidal". Right from the start, that should give us pause -- the ambiguity of "intifada" being conflated into "genocide" on its own gives ample reason for the university presidents to demur over committing to formal penalties. And certainly, in a world where its increasingly common to claim that Israel is pursuing a policy of genocide towards Palestinians, Jewish leaders should think long and hard about whether they really want to institute a rule that speech "advocating genocide" can be banned from campus. As Justice Black put it in his Beauharnais dissent, warning minority groups about the "victory" of securing a ban on hate speech: "Another such victory and I am undone."

Nonetheless, I've seen many people praising Stefanik for her "hard questioning", and dismissing the university presidents' responses as "dodges" or missteps. As grandstanding, I might concede that Stefanik was effective. But on substance, she was dead wrong, and the university presidents got it right. What we had here was a textbook example of an effective demagogue putting her targets in an impossible situation, and resolutely refusing to allow them to give a "good" answer, and I'm annoyed that this is being viewed as anything other than the bad faith rabble-rousing that it is.

Jon Chait has an excellent piece on this that strikes exactly the right notes. Here's his reprint of the relevant exchange between Stefanik and UPenn President Elizabeth Magill.

STEFANIK: Ms. Magill, at Penn, does calling for the genocide of Jews violate Penn’s rules or code of conduct? Yes or no?

MAGILL: If the speech turns into conduct, it can be harassment. Yes.

STEFANIK: I am asking, specifically calling for the genocide of Jews, does that constitute bullying or harassment?

MAGILL: If it is directed and severe, pervasive, it is harassment.

STEFANIK: So the answer is yes.

MAGILL: It is a context-dependent decision, congresswoman.

STEFANIK: So calling for the genocide of Jews is, depending upon the context, that is not bullying or harassment. This is the easiest question to answer. Yes, Ms. Magill. So is your testimony that you will not answer yes? Yes or no?

MAGILL: If the speech becomes conduct. It can be harassment, yes.

STEFANIK: Conduct meaning committing the act of genocide. The speech is not harassment. This is unacceptable. Ms. Magill, I’m gonna give you one more opportunity for the world to see your answer. Does calling for the genocide of Jews violate Penn’s code of conduct when it comes to bullying and harassment? Yes or no?

MAGILL: It can be harassment.

This has been treated as Magill being evasive and Stefanik trying to nail her down. But in reality, everything Magill is saying is exactly correct. What she said is pretty similar to how I would've responded to my own students if they asked what the rules were surrounding such speech in a campus environment, and I resent the notion that giving an accurate answer to that question should be characterized as a faux pas. 

The truth is that even hateful speech -- and a call to genocide certainly qualifies as one -- is not the subject of proscription on university campuses. This is not some rule that was just made up when Jews got antsy; it was the same principle that demanded UC-Berkeley permit an unabashed racist like Milo speak on campus and insisted that avowed White supremacist Richard Spencer be allowed to give talks at campuses nationwide. Antisemitic speech is antisemitic, but when it is just speech and not conduct, it is still protected by principles of free speech. In her testimony Magill held the line admirably, and now she's being pilloried for it.

This is why I'm actually a bit annoyed at this Chronicle article by Keith Whittington, speaking as founding chair of the Academic Committee of the Academic Freedom Alliance. Whittington presents a choice looming for college campuses on speech, between holding fast to free speech principles versus seeking to restrict speech on basis of content in the name of "safety". The former position (which is also Whittington's) he associates with Stanford Law Dean Jenny Martinez, and how she handled the aftermath of the anti-Kyle Duncan protests on her campus. The latter position he ties to Magill:

A quite different path is suggested by the University of Pennsylvania’s president, M. Elizabeth Magill. Magill has come under particularly intense pressure to address perceived antisemitism on her campus. In her testimony to the congressional committee, she emphasized that “Penn’s approach to protest is guided by the U.S. Constitution” and gives “broad protection to free expression — even expression that is offensive.” But when confronted with questions about whether calls for genocide violated university policy, Magill and her fellow presidents stumbled in their replies. As a result, Magill released a short video. There she repeated that “Penn’s policies have been guided by the Constitution,” but she added that “in today’s world … these policies need to be clarified and evaluated.” She promised a “serious and careful look at our policies” with an eye to ensuring a “safe, secure, and supportive environment.” She will, she promised, “get this right.”

Magill’s implication is clear: The university’s policies need to be revised so that they do not so closely follow the Constitution; they should instead prioritize students’ sense of safety. Protections for free expression and perhaps even academic freedom might well be pared back in the process.

Here's why I'm mad about this. It's true that Magill has backtracked on the commitment to absolutist free speech protections in the wake of the fallout over her testimony, and that's unfortunate. But Whittington's framing implies that Magill from the outset was hesitant to forthrightly defend the free speech rights of "offensive" speakers on campus, and now has gotten even worse. That's the opposite of what happened: Magill in her testimony said exactly what Whittington thinks she should have said -- and she's getting hammered for it. Contra Whittington, she did not "stumble" during the testimony itself -- or if she did, it's only from the vantage of those who take Stefanik's view that it is a misstep not to endorse paring back academic freedom and free expression in deference to students' sense of safety. 

For those who adopt Whittington's view on free speech, Magill's congressional testimony was not a "stumble" but a clear articulation of the proper position of the university. Whittington accordingly should have had her back; he should have said explicitly that the university presidents got it right in their congressional testimony and the backlash they're enduring for it is the real threat to free speech. Instead, he hung her out to dry as she takes the brunt of public heat for the position Whittington purportedly wants to see more university presidents defend. What do we expect will be the result of this? Unfairness to Magill aside, what does Whittington expect will happen -- what incentives are university administrators given -- when they see that putative "free speech" allies won't give them credit for saying the right thing on campus free speech rules. It's hardly a shocker that Magill is yielding in the face of overwhelming public backlash if even her "allies" refuse to back her up. As De Tallyrand put it, "it's worse than a crime, it's a blunder."

At the very least, Magill does not deserve to be the namesake of the censorial impulse. That dubious honor should have been attached to Stefanik (who isn't even named in Whittington's piece). As Chait writes:

What Stefanik was demanding was the wholesale ban on rhetoric and ideas that Jews find threatening, regardless of context. A university should protect students from being mobbed or having their classes occupied and disrupted. But should it protect them from an op-ed in the student newspaper calling to globalize the intifada? Or a demonstration in an open space demanding “From the river to the sea”? That would entail wholesale violations of free speech, which, in addition to the moral problem it would create, would likely backfire by making pro-Palestinian activism a kind of forbidden rebellion rather than (as many students currently find it) an irritant.

The presidents’ efforts to deflect every question about genocide of the Jews into a legalistic distinction between speech and conduct may have sounded grating, and Stefanik’s indignant replies may have sounded like moral clarity. But on the whole, they were right to focus on the distinction between speech and conduct, and Stefanik was wrong to sneer at it.

It may be unfortunate that, after the fact, Magill is bending on this important point. But as disappointing as that failing is, she isn't the originator of the threat. The actual villains of the story are the likes of Stefanik -- they're the ones proactively, not reactively, demanding that university's sacrifice free speech protections in service of student safety. If we can't name that wrongdoing; if we can't push past misbegotten awe at Stefanik's accomplishments in demagoguery, then the situation is going to get worse far before it gets better.

DeSantis, ADL Call for SJP Ban

A few days ago, Gov. DeSantis ordered Florida universities to "deactivate" campus chapters of Students for Justice in Palestine, on the grounds that SJP provides "material support" to an international terrorist organization (i.e., Hamas). Yesterday, the ADL (along with the Brandeis Center) sent a letter to nearly 200 university presidents effectively urging them to do the same: demanding that the universities investigate their SJP chapters for "potential violations of the prohibition against materially supporting a foreign terrorist organization."

That the ADL has joined this campaign is, at this point, probably overdetermined, given the confluence of:

1. The ADL's general rightward turn on matters relating to Israel and Zionism over the past year;
2. The genuine decay in the campus environment for young American Jews, for which SJP bears more than a share of the responsibility; and
3. The long-standing intense (mutual) loathing between the ADL and SJP, where either one would sell out the constitutional rights of the other for a quarter and give back two dimes in change.

Nonetheless, this call is an obvious flouting of the First Amendment (for public universities) and academic freedom (for privates). As Howard Wasserman puts it, I resent being "[forced] to side with people who want to see me and my family dead," but thanks to DeSantis and the ADL, I'm now in that position.

To be clear: the "material support for terrorism" claim is -- with respect to the evidence presented -- absolutely spurious (FIRE's letter to Florida universities explains why). While the ADL claims to "recognize and support students’ First Amendment rights to freedom of speech, even odious speech," it flags nothing in its letter that goes beyond "odious speech" in support of Hamas. The sole example of alleged "material support" provided by SJP is rhetoric in its toolkit stating:

“We must act as part of this movement. All of our efforts continue the work and resistance of the Palestinians on the ground.” The toolkit refers to the Hamas-led terrorist attack in Israel as “the resistance.” 

This in no way supports an inference of "material support" under the statute. "Material support" has to include more than just advocacy in support of the terrorist organization or rhetorical claims of alignment -- it must entail things like transfer of funds or the provision of a tangible, material benefit. As the Supreme Court made clear in Humanitarian Law Project v. Holder, as expansive as the "material support" statute may be, the prohibition on providing material support to terrorism nonetheless cannot encompass "a regulation of independent speech ... even if the Government were to show that such speech benefits foreign terrorist organizations." "Material" requires actual materials, not just speech.

Just a few weeks ago, there was a virtual consensus that campus SJP actors were a disreputable fringe that nobody should take seriously (this was how the left justified their complaints that we were paying too much attention to "letters sent from Harvard" -- they conceded the letters were gross, but argued that they represented a piddling and insignificant political faction toiling in deserved marginality. Intentional or not, I appreciated the concession!). Now, thanks to DeSantis and his buddies, the SJP can adopt the far more comfortable mantle of First Amendment martyrs. Of course, if there is evidence of actual "material support" -- SJP funneling funds to Hamas, for example, the ADL should provide it (and I'd add, the proper investigators of such claims are law enforcement officials, not university bureaucrats). But as it is presented here, the effort to ban SJP is nothing more than an effort to ban a noxious organization on the basis of its noxious viewpoint, and one cannot support that and claim to be comporting with either the First Amendment (for public universities) or academic freedom.

A Statutory "Green Book" After 303 Creative

In 303 Creative, the Supreme Court held that at least in some circumstances a business's free speech interest in avoiding producing expression it disagrees with constitutionally must trump the application of anti-discrimination law in areas of public accommodation, notwithstanding the admittedly "compelling state interest" the latter type of law protects.

It was not so long ago that minorities in America had booklets they carried to let them know which businesses it was safe for them to patronize, knowing that in certain places and communities they could not simply assume that a hotel, restaurant, or shop open to the general public would be open to them. The Jewish Vacation Guide was one example, the Negro Motorist Green Book was another. In circumstances where discrimination was lawful, these resources served several important needs. 

First, of course, they let their readers know where certain services simply would be unavailable. One does not want to travel through or move into a town where the only hotel or restaurant will refuse to serve you. 

Second, and almost as importantly, they enabled readers to avoid shops which would refuse to grant them service. This is distinct from the first injury, because there is a severe dignitary harm in being refused service on account of one's identity even if a competing business across the street that will happily take one's dollars. One feature of public accommodations law is precisely that one doesn't have to "run the risk" that in entering a storefront on Main Street you'll endure the indignity of being asked to leave because you're the wrong skin color, religion, or sexual orientation. Absent that guarantee being fully enshrined into law, resources like the Green Book enabled travelers to know in advance which storefronts to avoid so they wouldn't have to face that sort of humiliation.

In keeping with that tradition, I wonder if one way of balancing 303 Creative's First Amendment protections with the again conceded-to-be-compelling interest in robust antidiscrimination protections is via the time-tested policy of disclosure. States can pass laws which require any business that wishes to claim a First Amendment exemption from all or part of an anti-discrimination statute to publicly announce and display that choice; and the state can likewise maintain a list of businesses which make such claims. The law would be a sort of statutory Green Book, letting patrons know what businesses are at least claiming an ability to discriminate (and by extension assuring them that businesses not on the list remain safe to patronize).

Here's my very rough crack at some model legislative language:

Sec. XXX -- Exemptions

(a) Registration. Any business which seeks to claim a First Amendment exemption from all or part of the [this state's anti-discrimination law] ("a business seeking an exemption") must, at least thirty days prior to asserting any claim for such an exemption,

(1) Register with the Secretary of State their intent to claim an exemption, including specifying which portions of the law they assert they will not comply with.

(2) The Secretary shall publish the names and addresses of all businesses who register their intent to claim an exemption under this subsection on a publicly available website, including which provisions of the law they claim exemption from. 

(b) Public display. Within thirty days of receiving a filing under Sec. (a)(1), the Secretary shall issue a notification to the business seeking an exemption stating that "WARNING: THIS BUSINESS HAS FILED FOR A FIRST AMENDMENT EXEMPTION FROM THIS STATE'S ANTI-DISCRIMINATION LAWS", including specifying which portions of the law the business claims exemption from. Unless otherwise inapplicable, the text of this notification shall be conspicuously displayed in

(1) The front window or doorway space of any physical location of the business that is open to the general public or the businesses' regular customers; and

(2) The front page of any webpage or social media account controlled by the businesses and through which it advertises its business to the general public;

(3) Notwithstanding any other portion of this subsection, if a business claiming an exemption has neither a physical storefront under subsection (b)(1) or a webpage under subsection (b)(2), the text of the notification shall be displayed in any reasonable location where it will be conspicuous for the average customer considering patronizing the business.

(c) Presumption of sincerity. Any business which complies with the provisions in this section shall be deemed to have established, as a rebuttable presumption, the sincerity of their belief that compliance with [this state's antidiscrimination laws] conflicts with their own expressive beliefs.

(d) No entitlement to, or expansion of the scope of, exemption. Except as detailed in subsection(c), compliance with the provisions of this Section shall not entitle the business seeking an exemption from antidiscrimination law to any relief from the requirements of antidiscrimination provisions beyond that which is constitutionally required under the First Amendment; nor does it immunize the business seeking an exemption from any public or private proceeding seeking to enforce anti-discrimination provisions that would not otherwise violate the First Amendment.

The basic idea of this provision is simple: if you want to claim a First Amendment right to discriminate, you have to claim it publicly, in advance, so that people who would be denied service can plan accordingly. By creating a master list of discriminators, and by requiring businesses who seek to assert a right to discriminate to prominently display their intent on their storefront, it is far less likely that customers who would end up being excluded will on accident patronize the business.

The law would have some other salutary effects as well. By creating a reasonably comprehensive list of businesses asserting a right to discriminate, the state can learn of the existence of any "dead zones" where members of certain marginalized groups may be severely restricted or entirely unable to obtain services -- data that could be very useful for future legislative action. As reflected in subsection (c), the law also I think would aid in dividing the actual true believers from the opportunists -- I assume that only those who really, truly believe in their discriminatory impulses will be willing to announce in advance to the world "I am a discriminator" (as the 303 Creative plaintiff, to her "credit", was willing to do).

What are some potential drawbacks? One possibility is that it will be assumed that a law like this will enable more businesses to discriminate than otherwise would be licensed to do so by 303 Creative; I wrote subsection(d) to try and forestall that risk. Under this statute, registering a claim for an exemption is just that -- a claim, and the claim does not guarantee success. A business that registered but whose activities were not protected under 303 Creative's umbrella would still be liable, notwithstanding their registration.

Another possible problem is the argument that a law like this itself constitutes compelled speech. On face, the requirement that the business post the "WARNING" placard in its store to me doesn't seem any different than requiring a restaurant to display the health inspection notice. But there might be something different here insofar as the broader thrust of the statute would be to force businesses to "go public" with their intention to discriminate. While there's something instinctively odd about claiming a free expression right to avoid expressing one's deeply-held beliefs, there are circumstances where such a claim makes sense -- NAACP v. Alabama is the obvious template here. Alabama in the 1950s sought to require that the NAACP disclose the names and addresses of its members; the NAACP, unsurprisingly, did not wish to make this information public and claimed a First Amendment right to keep their membership data private. The Supreme Court ruled in favor of the NAACP (incidentally, NAACP was perhaps unsurprisingly a key precedent relied upon by the Griswold Court regarding the existence of a right to privacy). The NAACP had obviously reasonable fears that disclosure of their membership would render them vulnerable to harassment and violence; the discriminating businesses might claim fears of a similar vulnerability.

NAACP is clearly distinct, however, for a simple reason: the NAACP did not simultaneously seek to keep its "expression" quiet and claim that its expressive activity entitled it to a governmental benefit  (I've always found the Little Sisters of the Poor style claim -- wanting an exemption, but also being outraged at being forced to actually ask for the exemption -- to be utterly ridiculous). With regards to its membership information, the NAACP truly wanted nothing more than to be "let alone"; there was never a circumstance where the organization would wield its membership data as a sword against the state. By contrast, by stipulation the discriminators do wish to go public regarding their beliefs when they tell the state "you can't enforce your anti-discrimination law against me because I believe X". At most, what they want is to be able to hide their beliefs until the last minute. But that's a far less pressing claim -- at some point, the business seeking the right to discriminate will have to go public with its claim, and so it does not seem unreasonable to insist that the pivotal moment occur before an unwitting customer is humiliated and denied service.

And on the subject of harassment: certainly, violence and vandalism are never justified. But often in this context, "harassment" means nothing more than a consumer counter-boycott -- the company refuses to do business with certain groups because of its beliefs; many other consumers decide accordingly that they will no longer patronize the business in protest of that discrimination (ex: the Jewish community members who no longer are purchasing from a Kosher bakery that decided it couldn't bake "pride" treats). That is not harassment, that's counter-speech. And in that register, I'd argue that under 303 Creative's logic enabling customers to know "this business asserts a right to discriminate" is free speech facilitative, not chilling.

One of the virtues of public accommodations law is that it dissipates, under normal circumstances, the inference that basic business transactions are expressive. I very much prefer a world where the bakery that bakes a cupcake for a client isn't seen as sending some sort of message of approval towards the client and the client that eats the baker's treat isn't sending a message of approval toward the baker (beyond "this cupcake is delicious"). That, to me, seems a far more pleasant space to live in than one where every turnip and widget we buy or sell can be taken as some sort of sweeping moral approval for our business partners.

But the Supreme Court did not agree. And once we open the door to saying that ordinary business transactions should be perceived as expressive, then customers as well as businesses have a strong interest in knowing the political and social views of who they're transacting with so they can assure themselves that values align, and can redirect their dollars where they do not. This is one reason I think a consequence of 303 Creative will be to supercharge "cancel culture" -- the more businesses are allowed to say "we don't serve your kind", the more customers must be allowed to say in return "well then we don't buy from your kind". The only thing worse than cancel culture is unidirectional cancel culture. If businesses can "cancel" customers for supporting gay rights, then customers should be equally empowered to cancel businesses for asserting a right to discriminate.

Again, the model language I've written above is rough. But I'm curious what First Amendment scholars and other interested parties think of the idea. We may have to tolerate certain businesses asserting a constitutionally-protected right to discriminate. But customers have rights too. One of those rights is to have confidence that one can walk into a storefront and be served as an equal. Another right is to be able to avoid patronizing businesses who insist they have a deeply held commitment to discriminating against you, your family, or your loved ones. This statute, it seems, can help bring these clashing interests into balance.