Let That Be a Lesson For You, Part II

Way back in 2009, I wrote about a case in the Netherlands where an Arab NGO was prosecuted for hate speech after publishing an article insinuating the Holocaust was exaggerated. The thing was, the NGO did not actually think the Holocaust was exaggerated -- rather, it was trying to draw attention a claimed double-standard after Dutch authorities had dropped hate speech charges against right-wing Dutch filmmaker Geert Wilders for a film critics claimed insulted Muhammad. 

Drawing on entry #45 of advice for evil overlords ("I will make sure I have a clear understanding of who is responsible for what in my organization. For example, if my general screws up I will not draw my weapon, point it at him, say 'And here is the price for failure,' then suddenly turn and kill some random underling."), I observed that when a non-Jewish far-right extremist engages in hateful speech towards Muslims, the proper response -- even if one believes in tit-for-tat -- is not to turn and attack some random other minority group (here, Jews).

In the files of "all that's old is new again", a similar situation appears to be brewing in Sweden, where a Egyptian writer has postponed (but not cancelled) a planned "protest" of burning a Torah scroll in front of the Israeli embassy. Why is he burning a Torah scroll in front of the Israeli embassy? Because a far-right Danish journalist and politician (who is not Jewish) recently burned a Koran in front of the Turkish embassy. A hateful and despicable act, to be sure -- but why is the response to awful behavior by a right-wing, non-Jewish Dane to attack the Jewish community in front of the Israeli embassy? Burning a Christian Bible in front of the Danish embassy would not be justified, but at least it would have symmetry. But for some reason Jews are always the random bystander executed in situations like this.

I also want to emphasize that local Jewish community leaders credit the prevention of the Torah burning to Muslim leaders in Sweden speaking out against it. This "protester" is a hateful schmuck whose hate happens to illustrate a particular form of pathology I wanted to highlight. Fortunately, he's a hateful schmuck in the course of being repudiated, and that's a good thing.

Humility vs. Hate

When it comes right down to it, we're not sure how to fight hate and hateful ideologies.

Should it be called out loudly, wherever and whenever its seen? Or does that mean giving oxygen to cranks, amplifying their influence to places they could not reach on their own?

Should bigots be deplatformed? Or does that simply make them more alluring? Should we debate them? Or does that only give them credibility? Should we rally forces against them? Or does that give sustenance to the notion that they are resisting the dreaded establishment? 

Should we punch Nazis? Or are they thereby converted into martyrs? Should haters be ostracized, wholly excluded from all elements of social life as demonstration that their views will not be tolerated? Or should we reach out to them, trying to pull them back from the abyss and convert them to the side of right?

Figuring these questions out is tremendously important. Indeed, there may be little more important than figuring out which interventions against hate are most effective.

But the fact is, we don't seem yet to know what works and what doesn't. So perhaps we can all stand to show a little more humility on the subject. I see so often people very confidently declare their answers to the above questions as if anyone who acts otherwise is a Nazi sympathizer, and I simply do not know where that confidence stems from. Because the fact is, we don't know yet which tactics work and which do not. And so while I'm fine debating the tactics, I'd rather not treat tactical disagreement under conditions of extreme uncertainty as tantamount to be a Fifth Column.

The Bongani Masuku Case Comes To A Close(?)

Long (loooong) time readers of this blog may recall the case of Bongani Masuku, a former top trade union official in South Africa alleged to have engaged in hate speech against Jews in the course of condemnatory comments about Israel during the 2009 conflict with Palestine in Gaza. This has been a lengthy saga -- in 2009, the South African Human Rights Commission concluded that Masuku had engaged in hate speech; in 2017, that ruling was upheld by the Equality Court; and in 2018, that ruling was in turn reversed by an appellate court. Now, finally, in 2022, the Constitutional Court of South Africa -- the highest court -- has weighed in, unanimously concluding that one of the four challenged statements by Masuku does in fact constitute hate speech and ordering Masuku to deliver an apology (link to the opinion here).

Again, this is a complicated saga and some of the points I would make would be repetitive. But a few points are worth (re)emphasizing here:

• Some of the most damning statements by Masuku do not seem to be in the record the courts have been reviewing -- I'm not sure why (I assume it is for some procedural reasons regarding how the challenge was brought, not that the courts are just studiously ignoring them, but I'm not sure). For example, Masuku reportedly expressly said that his comments were meant to "convey a message to the Jews of South Africa", which seems quite germane to assessing whether his comments should be seen as targeting Jews.
• Likewise, I have no particular knowledge about South African law, and so cannot comment on whether this decision is correct or not as a faithful application of the current (or "best") reading of the relevant constitutional clauses and statutes.
• Finally, while I oppose "hate speech" rules on principle, South Africa has elected to take a different approach on speech than does American constitutional law. Given that, there is no reason why the Jewish community of South Africa should not be able to avail itself of these protections.

The Court analyzed four (but really two) comments by Masuku to see if they qualified as hate speech. The first was a blog comment where Masuku said:

1. [A]s we struggle to liberate Palestine from the racists, fascists and Zionists who belong

to the era of their Friend Hitler! We must not apologise, every Zionist must be made

to drink the bitter medicine they are feeding our brothers and sisters in Palestine. We

must target them, expose them and do all that is needed to subject them to perpetual

suffering until they withdraw from the land of others and stop their savage attacks on

human dignity.

(In the realm of "damning comments not discussed", during this blog discussion Masuku reportedly said that he had come to conclude that "Jews are arrogant, not from being told by any Palestinian, but from what I saw myself").

The other three all came during a pro-Palestine university rally (and the court analyzes them together, hence why I think it's perhaps more sensible to view them as one statement rather than three). There Masuku said:

2. “COSATU has got members here even on this campus; we can make sure that for that side [the pro-Israel side] it will be hell.” 

3. “[T]he following things are going to apply: any South African family, I want to repeat it so that it is clear for anyone, any South African family who sends its son or daughter to be part of the Israel Defence Force must not blame us when something happens to them with immediate effect.”

4. “COSATU is with you, we will do everything to make sure that whether it’s at Wits, whether it’s at Orange Grove, anyone who does not support equality and dignity, who does not support rights of other people must face the consequences even if it means that we will do something that may necessarily cause what is regarded as harm.” 

The Court ultimately concluded that the first statement (in the blog) was hate speech, while the other three are not. The deciding factor was the Hitler reference, which, the Court concluded, would reasonably be seen as targeting the Jewish community insofar as Hitler of course is famous for targeting Jews (and not specifically "Zionist Jews"). The other statements, by contrast, however hurtful or offensive they might have been, appear to be in the context specifically of opposing "pro-Israel" persons rather than the Jewish community as such.

Overall, I think this should be viewed as a pretty sizeable victory for the Jewish community. I might suggest that the fourth statement, too, could be seen as targeting the Jewish community insofar as Orange Grove is apparently well-known as a heavily Jewish neighborhood and its inclusion therefore seems to be specifically about referencing the Jewish community as Jews (that is, just as a Hitler reference is evocative of Jews, not Zionist Jews, Orange Grove is also associated with Jews, not specifically Zionist Jews). I think the Court's assessment of the second and third statements is fair enough; there is no doubt those words represent sharp blows thrown, but they expressly relate to persons who are by some form of action taking a side and are commentary on that side. One need not like or approve of them to think they fall within the bounds of protected speech.

But on the whole, the Court seemed quite thoughtful here. It recognized that words which on face might appear neutral or nonsectarian may, given social context, historical usage, or other considerations, nonetheless evoke hateful tropes; this was very important in avoiding what I thought was some too-quick moves by the appellate court to simply intone the truism that Zionism and Judaism are not synonymous and call it day. On this point, the Court said something that may well be worth framing:

Due regard to this context and history must be observed when dealing with expressions that are allegedly anti-Semitic, because many socially acceptable words may become a proxy for anti-Semitic sentiments. Focusing on the plain text and ignoring the objectively ascertainable subtext would be ignorant, inappropriate and antithetical to what our Constitution demands.

Couldn't say it better. 

In any event -- Masuku and COSATU have been very aggressive in fighting this case (and, I'll be honest, I expected them to prevail). It will be interesting to see how the court-ordered apology plays out. But it appears that, as a legal matter, the Masuku saga has finally come to a close.

The Surprising War of ADL vs. Facebook

Am I the only one who's surprised by the intensity with which the ADL has been going after Facebook recently?

I want to be clear: For purposes of this post, I mean "surprised" in a wholly value-neutral way. I'm neither saying "about time" nor "this is out of control". One can make arguments either way about whether the ADL is right or not, and those arguments are worth having, but here I'm really just focusing on the descriptive character, because what we're seeing just seems very out of character for what we know about the ADL's standard operating procedures.

There are many strategies towards trying to effectuate social change. Some are more confrontational, others are more collaborative; some are more utopian, others are more pragmatic. Along that spectrum, I think it's fair to say the ADL tends to work mostly within established systems and structures rather than radically challenging them. Again, that's not a judgment -- there's a place for radical disruption and there's a place for negotiated advances, and it just so happens that the ADL tends to be more about the latter.

And that's why their campaign against Facebook stands out. Facebook is a tech heavyweight, the sort of entity with whom the ADL typically approaches in a more collaborative spirit, knowing full well that this will involve negotiation-with-the-devil compromises and suboptimal, half-a-loaf-is-better outcomes. Whatever when can say about the virtues and defects of that approach, the ADL is hardly naïve on the subject and is relatively comfortable in its own skin as an insider operation. And as I recall, initially that was how the ADL was relating to Facebook as well -- for example, bringing Facebook execs onboard its then-new Center for Technology and Society in 2017 specifically to help combat hate speech online.

But boy is that not their tenor today. Over the past few years, the ADL has been unabashedly presenting Facebook not as a partner to be reformed, but as a menace to be confronted head on. They've organized an advertiser boycott under the banner "Stop hate for profit". Their CEO has said of Facebook "I don't think ever before a single company has been responsible for so much misfortune." They've savaged Facebook for permitting Holocaust denial and for promoting manipulative political misinformation. It is, I think it's fair to say, a full-blown war, of the sort I cannot recall the ADL waging against any institution as prominent as Facebook. Again, this is just not how the ADL typically operates when relating to organizations of Facebook's size and stature.

So while the normative analysis of whether the ADL is right or wrong, or should be doing more or less campaigning like this, is plenty interesting, for the moment I'm just curious about how we got here. What is it that made the ADL break its normal boundaries? Just what happened during the earlier period of collaboration that seemingly made the ADL completely lose patience with Facebook as an even potentially viable partner? I bet there is a very interesting story here, and I'd love to hear about it.

Toxic Analogies About Israel Run Rampant on the ... Right?

There is a serious problem in the conversations swirling around campus about Israel. People treat backing Israel as if it were akin to being an avowed racist or bigot. Why, they openly analogize holding the view that America should support Israel to having opinions like "Some racial groups are less intelligent than others" or "Transgender people have a mental disorder."

And by people, I mean the Foundation for Individual Rights in Education and RealClearEducation, in their 2020 survey on "tolerance" in higher education. When creating a set of questions designed to elucidate students' willingness to permit hateful speakers on campus, the list included a hypothetical speaker who favors "the U.S. backing Israeli military policy" right alongside proponents of the aforementioned "some racial groups are less intelligent than others" and "transgender people have a mental disorder" (the other positions were "Black Lives Matter is a hate group," "All White people are racist," "Abortion should be completely illegal", "Censoring the news media is necessary," and "Christianity has a negative influence on society.").*

For what it's worth, while FIRE and RCE may think these opinions are of a kind, students very much hold them apart. Of all the issues surveyed, students were by far least likely to oppose allowing a speaker who thinks the US should support Israeli military policy on campus (just 14% registering "strong" opposition). By contrast, over 70% of respondents would strongly oppose allowing a speaker who thinks some racial groups are less intelligent than others on campus, and around 50% strongly oppose those who think transgender people have a mental disorder (a similar percentage, incidentally, to those who would strongly oppose permitting a speaker who says all White people are racist, suggested that the censorial instinct towards views perceived as hateful does not track simplistic left/right divides). 

Those findings perhaps can raise an eyebrow amongst free speech absolutists, but they do show that students are not cavalierly clumping in Zionists with hardcore bigots, and they also seem to show that students' departure from free speech absolutism of students is not resulting from the miming of leftist shibboleths either. 

* Interestingly, though just two of the eight questions asked deal with positions that we might expect would generate greater opposition from conservative students -- the anti-Christianity and anti-White ones --  both of those questions, and only those two questions, were dropped when FIRE/RCE actually generated their "tolerance" scores.

The Strongest Point

A UK court has upheld the incitement conviction of Alison Chabloz, a singer-songwriter with a propensity for Holocaust denial. I don't want to get into the free speech concerns here -- the UK has different free speech rules than we have in the states, their merits or demerits are a matter for another time. Certainly, there's no question that Chabloz is a raging antisemite. Highlights of her lyrics include:

• "Did the Holocaust ever happen? Was it just a bunch of lies? Seems that some intend to pull the wool over our eyes. Eternal wandering liars haven’t got a clue, and when it comes to usury, victim’s always me and you."
• "Now Auschwitz, holy temple, is a theme park just for fools, the gassing zone a proven hoax, indoctrination rules."
• "Tell us another, come on, my brother, reap it, the cover, for tribal gain. Safe in our tower, now is the hour, money and power, we have no shame."
• "History repeats itself, no limit to our wealth, thanks to your debts we’re bleeding you dry. We control your media, control all your books and TV, with the daily lies we’re feeding, suffering victimisation. Sheeple have no realisation, you shall pay, all the way, until the break of day."

For added effect, she set the songs to the music of traditional Jewish folk music like Hava Negila (a tune she claimed she had made up herself).

But for whatever reason, I cannot stop cracking up at this highlight from the trial:

At one point, [Chabloz's attorney] suggested that the Nazis did not deliberately murder Anne Frank, declaring “She died of typhus, there is no dispute. They didn’t deliberately murder her. They might be responsible for her death by mistreatment.” Judge Hehir stopped the debate, telling Mr Davies: “I’m not sure that’s your strongest point Mr Davies.”

Indeed, I imagine not. Or maybe so, if you're hanging out in the right parts of the British internet. But -- just lawyer to lawyer -- if you're defending a Holocaust denier against the charge that they've engaged in hateful antisemitic speech, maybe just pivot away from the "did the Nazis really murder Anne Frank" debate.

Masuku Hate Speech Conviction Reversed On Appeal

Long-time readers of the blog might recall the saga of Bongani Masuku, a top COSATU official who back in 2009 was found to have engaged in hate speech for a variety of statements about Jews and Zionists. Highlights included:

• Referring to Zionists as "belong[ing] to the era of their Friend Hitler"
• Contending that "every Zionist must be made to drink the bitter medicine they are feeding our broathers (sic) and sisters in Palestine," and
• Expressing his view that "Jews are arrogant, not from being told by any Palestinian, but from what I saw myself."

Lest there be any mistake on the audience for his remarks, Masuku expressly said he was seeking to "convey a message to the Jews of [South Africa]."

Anyway, the South African Human Rights Commission found that Masuku had engaged in hate speech, and (eight years later) the Equality Court upheld that ruling in 2017. But earlier this month, the Supreme Court of Appeals (an intermediate court -- don't let the name deceive you) reversed that decision and concluded that Masuku's comments were protected speech.

Commenting on foreign legal decisions is always a fraught exercise -- needless to say, I'm not familiar with the particularities of South African law, procedure, or precedents that are germane to correctly deciding the case. That's compounded by the fact that I oppose hate speech laws on principle -- none of what Masuku said would be actionable in America, and I'm content with that arrangement. That said, in states which have such laws I don't think Jews should be cast out from their blanket of protection -- something that does sometimes seem to happen. There's a big difference between a court generally adopting a narrow view of what hate speech prohibits, and a ticket good for this ride only that says Jews -- and only Jews -- have to suck it up and learn how to grow thicker skins.

In any event, the opinion itself seems generally skeptical about the strictures hate speech laws place on free speech -- again, a position I'm broadly sympathetic to, albeit one whose application to this case I'm poorly positioned to evaluate vis-a-vis other South African hate speech precedents. The tenor of the opinion also gave the distinct impression that the court believed that Masuku had been provoked, and was simply responding emotionally in an emotional context -- a position I'm considerably less sympathetic to.

In the main, though, the appellate court concluded that none of the statements identified as "hate speech" by the lower court were targeted at Jews (as opposed to at Zionists). Hence, they could not be deemed to hatred directed at a protected group (religion or ethnicity).

Way back in 2009, I suggested that this was going to be the core issue of the case and suggested some arguments establishing why it was proper to view Masuku as targeting Jews (I also expressed skepticism that Jews would ultimately win in South African courts, so, hurrah for vindication?). I won't rehash those here, but I am curious about the status of those statements from Masuku which did seem to make evident that he was referring to Jews-qua-Jews, not "just" Zionists. The appellate court alluded to other statements "included in the complaint", but did not identify them -- focusing only on those statements which were ultimately adjudged to have been hate speech.

This seems odd. A statement to the effect that one is "convey[ing] a message to the Jews of [South Africa]" may not be hate speech on its own, but it seems like pretty strong evidence regarding who Masuku is talking to and about elsewhere in his speech. If Masuku said he's sending a message to "the Jews", then believe him!

But -- as per my above caution regarding commenting on foreign legal rulings -- I don't know the status of that statement or others where Masuku seems more explicitly antisemitic. Were they in the record of the case? If not, why not? There might be wholly justifiable legalistic reasons for why they were not considered -- I just am not positioned to know what they are. But the impression, from my knowledge of the facts as an observer, is that the court concluded that Masuku wasn't talking about Jews by scrupulously avoiding mention of all the parts where Masuku is very clearly talking about Jews.

The case may still yet go up to South Africa's highest court (I wouldn't hold my breath for a successful outcome). And if you want a taste of my terrible life -- here is the article which initially alerted me to the ruling. If you want to hear the court opinion defended in the most openly antisemitic way possible, click the link and prepare to be depressed.

On The UK's "Not Anti-Semitic" Teacher Case

A story is currently floating through the Jewish press about a UK tribunal ruling which, we're told, concluded that a dismissed teacher who said (among other things) "Every sane human is anti semitic" was "not anti-Semitic."

Is this accurate? Kind of, though I think it's a bit misleading. But it's also a bit revealing. It's certainly a good illustration of why you should always try to read the actual opinion.

The teacher, one Harpreet Singh, was facing suspension of his license for a variety of alleged infractions, including having engaged in "offensive and/or racist comments" on social media. "Every sane human is anti semitic" was one example, another was "Of course we hate Jews". So pretty straightforward. His defense was, as one might expect, that he does not hate Jews "as such", that he was actually targeting Israel and its supporters, that his comments were taken "out of context," that while they were certainly wrong they were "provoked," and that they were ultimately a "reactive response" regarding an issue he felt "passionate" about.

The tribunal hearing the case concluded that Singh's posts were indeed racist, and that he had accordingly failed to show due tolerance and respect towards the rights and beliefs of others. Perhaps most interestingly, they also found that while Singh had recognized his comments were wrong and offensive, his repeated attempt to contextualize them by noting how they occurred in the context of "passionate" public debate suggested that he was at least potentially at risk to reoffend (in circumstances where said passions were again roused). Consequently, the tribunal voted to suspend his teaching license indefinitely (though he can try -- without guarantee of success -- to try to get the ban lifted after three years).

So why did the tribunal say at one point that it "accepted that Mr. Singh is not anti-Semitic" (and it did indeed say that)? Given that the tribunal did find that Mr. Singh had engaged in racist remarks and did impose a substantial punishment, it doesn't seem quite right to say that the panel was implicitly excusing what Singh said. More likely, it was trying to say something of the form that Mr. Singh was not anti-Semitic "to the bone", that it accepted that these comments were out-of-character, that they were motivated not by hatred of Jews "as such" but rather some desire to come to the defense of Palestinians. It matters that the tribunal nonetheless concluded that the comments were racist -- after all, not everyone agrees that racist targeting of Jews exists in circumstances where it is motivated by anything other than hatred of all Jews-qua-Jews.

Yet even though along the tangible metrics the tribunal seemed to reach the right outcome and apply an appropriate sanction, there still may be some grounds for unease. In his book Contemporary Left Antisemitism, David Hirsh speaks of the phenomenon of "pleading guilty to a lesser charge". Those accused of antisemitism are frequently willing to cop to many things -- they'll accept that their statement was offensive, outlandish, over-the-top, bullying, insensitive ... "to anything so long as it is not antisemitism" (14-15). And ditto those tasked with assessing claims of antisemitism -- they'll agree that the comments in question were extreme, uncivil, nasty, disrespectful, (maybe) even racist -- but for whatever reason they won't be willing to actually pull the trigger on "anti-semitic".

So it is notable that while the tribunal opinion repeatedly labels Singh's comments as "offensive", as "intolerant", as "racist" -- it never once refers to them or him as "anti-Semitic." Indeed, across the entire opinion the only mention of the term -- other than when they quote the comment where Singh effectively calls himself anti-Semitic -- is when the tribunal goes out of its way to absolve Singh of that particular charge.

Now maybe there's an innocent explanation for that. I'm unfamiliar with the particulars of how British professional licensing proceedings are structures; perhaps there are technical reasons for why certain words get used and others not. But there's still that nagging sense that, no matter how clear the case, "anti-Semite" seems to remain a bridge no one is willing to cross. Lesser charges, yes, but not that.

Free Speech and Emotional Injury

In 2012, the United States Court of Appeals for the Eighth Circuit, sitting en banc, decided City of Manchester v. Phelps-Roper. The case involved a city ordinance which prohibited picketing within 300 feet of a funeral service. The ordinance was challenged by (and pretty much aimed at) members of the Westboro Baptist Church, who had made a habit of protesting funerals of American soldiers because in their estimation God hates America for our various sinful practices (most notably tolerating homosexuality).

In an opinion by Judge Diana E. Murphy, the court unanimously upheld the ordinance as in keeping with the First Amendment. It was a decision that united both the court's liberals and its conservatives (though the Eighth Circuit is perhaps America's most ideologically lopsided court in terms its conservative bent -- Judge Murphy was at that point one of just two Democratic appointees on the court). I was clerking for Judge Murphy at the time, and I was proud to see the opinion released.

What immediately brought this back to mind was a decision earlier this month by a different Eighth Circuit panel upholding a similar Nebraska ordinance prohibiting picketing near funerals. But what I was particularly struck by, and what is germane to more current political controversies, was the rationale for why the ordinance was upheld.

America is famously absolutist in its free speech jurisprudence. Nonetheless, even absolutism is never quite absolute. Courts have allowed certain types of speech restrictions -- such as those which regulate only the "time, place, and manner" of speech without regard to its content -- albeit only after subjecting them to rigorous scrutiny. Such regulations must be "narrowly tailored to serve a significant governmental interest" and allow for "ample alternative channels for communication."

Why did the ordinance in Manchester survive that test?

A significant governmental interest exists in protecting their privacy because mourners are in a vulnerable emotional condition and in need of "unimpeded access" to a funeral or burial....

Manchester’s ordinance only restricts protests for a relatively short period, tailored to encompass a mourner’s time of highest emotional vulnerability and no longer.

In the Nebraska case, the court similarly focused on the extreme emotional injury mourners are likely to suffer when encountering picketers at a funeral. It quoted expert testimony that "vulnerable mourners can suffer significant emotional injury due to the picketers’ presence," and concluded that "Mourners, because of their vulnerable physical and emotional conditions, have a privacy right not to be intruded upon during their time of grief."

None of this is counterintuitive, of course. When one is burying a parent, spouse, or child, the sheer emotional agony of having one's services disturbed by protesters screaming about how God hates you is simultaneously impossible to imagine and yet all too evident. Nobody finds it odd, or weak-willed, or oversensitive to assert that the emotional injury caused by this speech -- which is just speech, just pure unadorned words -- is very real. And a unanimous court -- conservative and liberal alike -- found that this injury, in this context, could support a type of restriction on speech.

I mention all of this because, as someone who identifies as a free speech absolutist, I have read far, far too many of my putative allies dismiss the entire concept of an "emotional injury" caused by speech as nothing but snowflake-millennial nonsense. What kind of coddled baby do you have to be to say that your emotional health justifies a restriction on free speech?

This retort, of course, is an effort to take a hard problem and turn it into an easy one. The reality is that we have no trouble recognizing that -- in the right circumstances -- speech can cause extreme emotional injuries to persons with perfectly strong wills and tolerant hearts. And if I can imagine the sort of extreme emotional anguish I can envision being triggered by some homophobic thugs protesting a family members' burial, perhaps I can also imagine that sort of anguish resulting from a public speaker at, say, a university declaring one's religious group vermin, or one's ethnic group's entire presence in America parasitic, or one's sexual identity a disease, or one's gender worth nothing beyond sexual gratification. And if I don't condemn the first of these as the product of "intolerance" or emotional fragility, then perhaps I ought not be so quick to attribute that malady to the others.

Yet regular readers of this blog know that I do not support efforts to ban such horrible, injurious speech on college campuses. Why not? What does the free speech absolutist say to all of this?

I say that the Manchester ordinance did not distinguish between "good" and "bad" picketing -- it was "content-neutral" and justified on the basis that funerals were not a place where it was necessary to support the full to-and-fro of political and social exchange. I observe that college campuses are not like that and cannot be made like that, because they are designed as forums for the exchange of ideas and there would be no way to regulate the emotional injury caused by some speech without making appraisals as to content. I note that neither Berkeley nor any other campus would want an ordinance prohibiting picketing within 300 feet of a university. I say that emotional distress is not just caused by unjustifiable speech, and that sometimes being shaken up or made anxious is an important part of the learning process. Finally, I say that the Manchester ordinance was justified not because the Westboro Baptist Church's speech was wrong (though I obviously think it was) but because nobody deserves to accosted that way at a funeral -- but college campuses are not like funerals.

What I do not say is that the emotional injury isn't real, or isn't serious, or exists only in the mind of millennial babies who have never had to deal with a contrary thought.

Speech can cause emotional injury -- real ones, genuine ones, whose gravity we recognize, whose damage can be severe, and whose harms are not always resolvable by "counterspeech". If one is a free speech absolutist, one has to accept that those injuries are sometimes the cost of preserving the free exchange of ideas. But to pretend that there is no cost is an exercise of denial. I know the piper I have to pay.

Not Knowing "Zio" is a Slur is an Indictment, Not a Defense

The Chicago Dyke March, an alternative to Chicago Pride that is meant to have a more "social justice" orientation, caught a heap of bad press when it expelled several Jewish marchers for carrying rainbow Jewish pride flags featuring a Star of David on them. The march has defiantly resisted any and all calls to apologize, and insisted that it was only being "critical of Israel" (isn't everything?).

Yesterday, it popped back into the antisemitism news beat by posting a tweet: "Zio tears replenish my electrolytes!" "Zio" is an antisemitic slur popularized by David Duke; even the milquetoast Chakrabarti Inquiry into antisemitism in Labour agreed it was a racist term (and St. Jeremy Corbyn himself agreed: "'Zio' is a vile epithet that follows in a long line of earlier such terms that have no place whatsoever in our party.").

The March is defending itself from renewed antisemitism allegations by saying it "Definitely didn't know the violent history of the term."

They mean this as a defense. It's actually an indictment. Let me explain why.

I'll accept, for sake of argument, that the Chicago Dyke March did not "know" the term "Zio" was antisemitic. Nonetheless, the March almost certainly did not stumble across the term "Zio" by accident. It got it from somewhere, from sources it felt confident enough in that it felt comfortable emulating. In other words, one of the ways the Chicago Dyke March learned to speak about matters of Jewish concern was from people who think it is okay to toss around terms like "Zio." The odds that everything else it learned about those matters from this same social network was magically uninfected by this obvious antisemitism is incredibly scant. It's the thirteenth (or in this case fourteenth, or fifteenth, or seventieth) chime that calls into question the other twelve.

There are many places in this country where people grow up hearing racial slurs that they don't "know" are derogatory -- they're "just what people say." When they move into the wider world and use such terms, they sometimes claim ignorance -- and in some sense, they might be right. But the implication of their apologia is that not that they are free from racism -- far from it. It's that they grew up in an environment where racism was so normalized that they didn't even know how to recognize it. Such a situation demands some very hard work of unlearning, of radically questioning one's own presuppositions and acknowledging that one needs to acquire substantial new information before one can feel confident in one's ability to relate to the other group in an ethical manner.

But let's give the Dyke March even further benefit of the doubt. Suppose they somehow magically stumbled upon "Zio" through entirely innocent means -- nobody in their social network was using it, they came up with it all by their creative selves. Even still, all that would demonstrate is that they don't know crucial information about a subject they nonetheless feel fully confident to opine on. Put another way, if they didn't "know" that "Zio" was antisemitic, shouldn't the next question be "what else don't we know?"

I've long thought that the heart of oppression as a discursive practice is a perceived entitlement to talk about a group without knowing about the group. The Chicago Dyke March pleads ignorance about Jews and antisemitism, but that ignorance in no way dissipates their belief that they are absolutely entitled to talk about Jews and Jewish institutions however they want and be treated as credible and legitimate entrants to the discussion. It's not a valid move. If you don't know enough about Jews or antisemitism to know that "Zio" is an antisemitic term, then you don't know enough to be confident that any of your other opinions about Jews or antisemitism are worthwhile.

The Dyke March, in short, wants the innocence of ignorance without the responsibility. It wants to be able to say, on the one hand, "we didn't know that this term we used was a prominent antisemitic slur", while on the other hand it equally wants to say "we do know that in all other cases everything else we've said or done vis-a-vis Jews is entirely above-board and not antisemitic." They can only have the first if they're willing to disturb the second.

Court Upholds Masuku Hate Speech Finding

Here's a blast from the past. Back in 2009, I started following the case of one Bongani Masuku, at that time International Secretary of the Congress of South African Trade Unions (COSATU). Masuku was under fire for a bevy of antisemitic statements, virtually all of which were in the context of Palestinian solidarity work, but which kicked off when he stated that he wanted to "convey a message to the Jews of [South Africa]." Other highlights included:

• Referring to Zionists as "belong[ing] to the era of their Friend Hitler"
• Contending that "every Zionist must be made to drink the bitter medicine they are feeding our broathers (sic) and sisters in Palestine," and
• Expressing his view that "Jews are arrogant, not from being told by any Palestinian, but from what I saw myself."

Lovely. In any event, various South African Jews complained and received a judgment from the South African Human Rights Commission (SAHRC) that Masuku's comments constituted antisemitic hate speech -- a ruling which caused COSATU to go absolutely ballistic. Since Masuku refused the SAHRC's order that he apologize, the case headed off to Equality Court in December 2009 -- and that was the last I heard of it.

Until today. The Equality Court issued its verdict, and it found against Masuku on all counts (you can read the opinion here). It unequivocally found that its comments were hate speech, were functionally targeted at Jews, and were unprotected by freedom of expression.* It again ordered him to make an unconditional apology, as well as (with COSATU) paying full litigation costs. It even went out of its way to specifically reject the expert testimony offered in support of Masuku as "partisan" in character and unreliable.

From what I can tell, this is probably not the last stage -- there still can be more appeals, and one doubts that COSATU or Masuku have come this far just to give up and apologize to the damn Jews. But right now, this is a major win for the South African Jewish community, and a huge loss for all those who seek to excuse even naked antisemitism by draping it in the cloak of "criticism of Israel."

* As I have observed previously, South Africa has very different standards regarding free speech compared to the US -- the former allows proscriptions against hate speech, the latter does not. In general, I prefer the US model, but insofar as this is a South African court applying South African law that debate is not germane.

It Was Never About Free Speech

Milo's been dropped from Simon & Schuster, as well as CPAC, after clips came out showing him defending pedophilia.

This is long overdue, but it also is brutal to all the defenses given for inviting Milo onto these forums (and others -- looking at you Bill Maher) in the first place. Not because all the awful things Milo had said before made it predictable that he'd also have said this particular awful thing. Rather, the issue is that the decision to now say "too far" gives lie to standard apologia the right has been giving for trotting Milo out -- that of "free speech."

It was striking that virtually none of Milo's inviters would actually come out and endorse the content of his screeds. When asked why he was being brought to Berkeley or the public press or wherever, the answer was always "freedom of speech!" "Don't silence him!" "Hear his perspective!" Now let's be clear: "free speech" is quite relevant once Milo has been invited to give a talk or a speech. Specifically, it takes certain remedies off the table -- government can't ban the speech, private actors can't violently disrupt it, and so on. There are other remedies that "free speech" very much doesn't take off the table -- nonviolent protest, for instance, much less vitriolic criticism. Free speech represents important values, and I strive to defend them even when the subject is an awful little troll like Milo.

But while "free speech" can tell us something about how to respond to an invited speaker, it can't tell us anything about who to invite. That decision has to be made on the basis of a different set of values -- values that roughly translate to "this person has a perspective worth hearing."

And herein lies the problem. The decision to now disinvite Milo demonstrates that conservatives (and Simon & Schuster) are entirely able to make adjudications regarding the sorts of statements and advocacies which they think are worthwhile and "in-bounds" in public discourse. For instance, we now know that pedophilia is out. But we also now know that all the other things Milo had said -- the horrific racism, the blatant misogyny, the unapologetic harassment, the vicious transphobia, the nasty assault on immigrants -- all of that was in.

Milo wasn't invited to speak because of some unadorned desire to vindicate "free speech". He was invited because the people who invited him thought those perspectives, specifically, were worthwhile. Pedophilia no, racism yes. Pedophilia no, misogyny yes. They looked at the former and said "too far", which means they also looked at the latter and said "fine."

That's an evaluative appraisal that has nothing to do with freedom of speech. It speaks to the inviters' other values. And we are entirely justified in drawing conclusions about the character and the moral worth of the people who hold such values. It does not speak well.

The Berkeley Kids are Alright

Last term, I taught Introduction to American Politics at the University of California, Berkeley. As you can imagine, teaching "Introduction to American Politics" at the University of California, Berkeley during the Fall of 2016 was an interesting experience. Sometimes instructors eagerly grasp at the rare "teachable moment" that falls into our laps; last fall was one long (long) "teachable moment" when it came to American politics.

This term, I'm teaching "Just Political Participation." And of course, what do we get in our first month of term but a scheduled speech by Milo and ensuing protests -- a fantastic illustration of many of the course themes in a class about "Just Political Participation". The academic spirits have blessed or cursed me to be a current events commentator. So this week, I decided to devote class to discussion of Milo's (canceled) talk, and the respective choices of the Berkeley administration, the Berkeley College Republicans, and the protesters (both violent and non-violent).

Berkeley students, of course, have a bit of a reputation on the national stage -- basically, they are presumed to embody whatever the day's shibboleth for radical leftism is. In the 1960s, it was radical free speech, yesterday, it was safe spaces and trigger warnings, today, it unwillingness to engage with alternative views and an outright endorsement of beating up anyone to the right of Bernie Sanders.

This was not my experience. Whenever current events have been discussed, my students have consistently shown a curiosity about the world around them and a willingness to engage with arguments and positions different from their own, and this week was no different. The students leaned left (as college-attending millennials tend to do), but the predominant position in both my classes was opposition to violent protests coupled with utter contempt for Milo and the politics he represented. Some persons took outlier positions on either of these matters, and their views were given respectful consideration. Nobody's views could be predetermined by their personal "identity" background -- there were students of color who had planned to attend Milo's talk because they were curious to hear what he had to say and there were white students emphatically attacking it as hate speech. On that score, alone, what we saw was a testament to the importance and value of diversity in the Berkeley community.

The conversation was wide-ranging and intellectual. People talked about the tactical benefits and drawbacks of protesting (this post is germane), as well as the dignitary issues when persons targeted by Milo's particularly odious brand of bullying are forced to tailor their responses so that Milo doesn't reap benefits (this post is germane). There were differing views on whether the violent aspects of the protests were exaggerated by the media or genuinely reflective of what was going on; persons with these differences engaged respectfully with one another. Persons concerned about violence conducted by the protesters thoughtfully engaged with those who wondered why other forms of violence (such as that by police suppressing protest, or by Milo's own supporters backing him up, or by his listeners harassing targeted minorities in his wake) got less attention. Nuanced positions that often don't get articulated (such as the view that the UC-Berkeley administration had no business shutting down Milo's talk, but that Berkeley students were nonetheless obligated to get out onto the street and make their own views known) received airing and were debated. We got to talk about comparative rules on hate speech, the benefits and virtues of the American rule, the value and the limits of the "marketplace of ideas" metaphor, and many other things besides. And I got perhaps the most amount of nodding when I urged them to resist simplistic solutions that "make a hard question easy." They wanted complexity, nuance, consideration, and thought.

All and all, I came away very impressed. Perhaps I shouldn't have been so surprised, though. The University of California, Berkeley, is one of the world's great public universities. I tell all of my students, at the start of each term, that the fact that they are at Berkeley means they are among the very brightest and most thoughtful persons of their generation, and that I consequently expect all of them to contribute the rare and valuable perspective they possess to class discussions. This week, my students rose to the occasion in fantastic fashion. Kudos to them. The Berkeley kids are, it turns out, all right.

Mandatory Swastika Recommendations

A student in Massachusetts constructed a swastika in the hall. Two teachers talked about it (one by broaching the topic of antisemitism in class, the other in private conversations with teachers and another student); a third rescinded her letter of recommendation for the student (contacting colleges to explain why).

All three teachers have now been disciplined by the school. The first two teachers received disciplinary letters, the third has been suspended from teaching.

This is outrageous. I can -- barely -- wrap my head around some discipline for the two "talkers" on student privacy grounds if (a) they mentioned the swastika-creating student by name and (b) it was not generally known that he was the perpetrator. I still would be very, very dubious, but I can see a superficially not-entirely-frivolous rationale there.

But the suspension of the teacher who rescinded her letter of recommendation is far more troubling. While we don't often talk about "academic freedom" in the context of secondary school, it does exist and this is a great example of it. A teacher's decision to recommend a student for college or a job is an exercise of their personal judgment as academics and directly puts their reputation on the line. There can be no obligation to "go to bat" for a student if the teacher has lost confidence in the qualities that triggered her recommendation in the first place. It is beyond unreasonable to mandate that a teacher continue to back a student who is either pro-Nazi himself or so negligent with respect to the sentiments of others that he just doesn't care about the hurt and offense he causes.

By and large, the story here seems to be that the school district wanted to sweep this incident under the rug and several teachers declined to assist it in doing so. And when the perpetrating student's mother called and complained, the district swung into action to ensure that his not-right to have a favorable recommendation wasn't jeopardized just because he threw up some Nazi symbolism. It's grotesque. The Boston Globe describes the case as "difficult terrain", but it wasn't all that "difficult" until neo-Nazism managed to squirm back into the mainstream.

The teachers here are unionized, and I hope they grieve the hell out of this one.

UPDATE: Yep, the union is interceding on behalf of all three teachers.

Berkeley's Partially Pregnant Protests

There's an old saying that a woman cannot be "partially pregnant". Either she is, or she isn't. I'm not sure it's impossible to have a "partially peaceful protest", but at the very least it is obvious that a few well-positioned agitators can, if they choose, subvert the peaceful desires of the majority and make a nonviolent protest violent.

When Milo's speech was announced at Berkeley, I took the boring position of agreeing with Chancellor Dirks' statement more-or-less down the line: It is true that, upon invitation by a legitimate college organization Milo had the right to speak and Berkeley had no authority to block him. It is also true that the decision by the Berkeley College Republicans to invite him speaks volumes about their character as an organization, and they can rightfully be condemned for their choice.

As many of you know, Milo's speech was eventually canceled as the protest turned violent -- apparently at the instigation of a small group of "black bloc" anarchists who were filmed attacking police, property, and bystanders. It is unclear at this point how many of this cadre are themselves Berkeley students -- they may be, but it is also the case that the East Bay has a significant "homegrown"  anarchist set which is well aware that it can get a lot more attention for its antics if it performs them on our campus. "Unclear" means "unclear": it may be that most of the violent actors were Berkeley students, it may be that virtually none of them were. But there is little controversy that most of the people protesting were not violent nor were they interested in utilizing violence. It is also very clear that the violence was not only against property; while I don't think that in of itself should matter, I have seen some smarmy posts that have ignored the interpersonal elements of the "black bloc" attacks.

It shouldn't surprise you that I am deeply opposed to the violent silencing that went on here. Yet I think it is worth unpacking exactly who was silenced here. Milo was, certainly, and that was wrong -- even though he's a repulsive little troll who never should have been invited in the first place. But it's also the case that the majority of protesters had a message they wish to express that was also violently erased. Violent protests and non-violent protests express different messages; here, the few who imposed the former subverted the speech of the latter. To act as if the former and the latter were simply one indistinct entity -- the "protest" -- is to give a violent minority an authority and authenticity they do not deserve. And to speak as if the only "victim" of the violence last night was Milo or those who wanted to hear him speak is to facilitate the very deliberate erasure that the "black bloc" -- and the right-wing media, for that matter -- wishes to impose upon the majority.

The fact of the matter is that there were three speeches scheduled at Berkeley last night. One was by a racist, misogynist, hateful right-wing troll. One was by a group of bandana-clad rabble-rousers who wanted to (in the words of their banner) "become ungovernable" through violent suppression. And one was by a community resolved to peacefully tell the first speaker that his views were not welcome at Berkeley.

The last one was the one with majority support. But the middle one was the only one we ended up hearing.

Two Tales of Free Speech at Emory

A few days ago, Eugene Volokh posted an opinion by Emory University's "Standing Committee for Open Expression" which gave a broad defense of open expression rights at the University (Volokh's brother, Sasha, serves on the committee). The opinion was in reference to an incident where Emory's Students for Justice in Palestine chapter put up a mock wall in front of a campus building as a means of protesting against Israeli policy. Two Emory community members proceeded to vandalize the wall.

The opinion concludes that such vandalism conflicted with the principles of open expression that govern an academic institution. It expressly rejected the notion that any subjective feeling of "offense" caused by the display, or its alleged "incivility", or the acknowledge commitment of Emory to creating a diverse and inclusive academic space, could justify the attempt to suppress the SJP's expressive activity. All of this seems exactly right in my view -- had I seen the display, I may well have been offended (the SJP hardly has a spotless track record), but that is simply no excuse for vandalism or other thuggery aimed at suppressing their speech. Free expression requires that we sometimes must endure even deeply offensive, uncivil, or anti-pluralistic speech.

Today, Emory is dealing with a new objection to allegedly threatening speech in its public forums. Overnight, several campus sidewalks were chalked with messages supporting Donald Trump. As one might expect, many students find (as I do) Trump to be a repulsive racist whose success in this election cycle is a disgrace to the nation. But some of them have initiated a protest at the President's office, demanding some form of official condemnation.

Assuming, as seems plausible, that Emory does not have a general (or at least generally-enforced) policy of prohibiting chalking in support of political or social causes, the pro-Trump messages are no different in form than the SJP wall display. In both cases, many will find one or both forms of expression threatening and emblematic of deeply hostile and oppressive social norms. It is absolutely reasonable to be upset that people hold such beliefs. But in an academic community, this cannot result in any official censorship -- as one would have hoped the Standing Committee's opinion would have made clear.

Unfortunately, this may not be the case. The President did flatly decline to issue a statement "decry[ing] the support for this fascist, racist candidate". But, according to campus reports:

The University will review footage “up by the hospital [from] security cameras” to identify those who made the chalkings, Wagner told the protesters. He also added that if they’re students, they will go through the conduct violation process, while if they are from outside of the University, trespassing charges will be pressed.

The "decrying" email would have been better -- at least that could be considered naught but counterspeech (the University expressing its opinion just as the chalkers expressed theirs). But the threat of disciplinary sanctions is entirely inappropriate and inconsistent with free expression values.

One other thing worth remarking on:

[President James Wagner] addressed several questions throughout the time in the board room, including “Why did the swastikas [on the AEPi house in Fall 2014] receive a quick response while these chalkings did not?” to which Wagner replied that they “represented an outside threat” and clarified that it was a second set of swastikas that received a swift response from the University. 

The comparison is obviously inapposite, as the swastika case was an act of vandalism, while the chalking was not (and, as Wagner indicates, the university response was not exactly "quick"). But more importantly, it brings to mind a theme I've remarked upon on several occasions -- the idea that Jews are anti-discrimination winners, and the way we get roped into controversies that we on face have nothing to do with. Hence why a protest against (non-Jews) allegedly insulting Muhammad can manifest as a cartoon mocking the Holocaust -- the grievance morphs from "I'm not getting the protection I deserve" to "Jews seem to be getting protections they don't deserve," even though one can fairly wonder why one's mind jumped to the Jews at all. And likewise here: frustration at perceived inadequate university response to Trump's racism (expressed through ordinary political activity) quickly converts into frustration that the administration "quickly" (sort of) responded to anti-Semitic vandalism as a Jewish fraternity. It is fair to be alarmed at the role the figure of the Jew is playing in these sorts of narratives, and to be skeptical of their capacity to encompass Jews as a protected group when they crest.

The Natural Interpretation, Part II

Last year, I reported on Ismo, a Dutch rapper whose lyrics included the lines "I hate those fucking Jews more than the Nazis” and “don’t shake hands with faggots.” His story was notable less for the specific lyrics than for his amazing defense that "By ‘faggots’ I didn’t mean homosexuals and by ‘Jews’ I didn’t mean all Jews" (the Jews he had in mind were the "Zionist" ones, naturally). In any event, Ismo complained bitterly about people "twisting his words" so that "I hate those fucking Jews" and "don't shake hands with faggots" somehow got misinterpreted as something prejudiced.

Anyway, apparently Ismo just was acquitted of charges of hate speech in a Dutch court, which found the lyrics to be offensive but protected as artistic expression. Anti-discrimination advocates are urging the prosecution to appeal the verdict.

Since I'm an American lawyer with the usual set of free speech commitments that identity entails, my thoughts are the following:

• Under American rules regulating free speech, this is obviously the right outcome, as American constitutional jurisprudence does not allow the proscription of "hate speech" per se.
• The Netherlands, like most European countries, has a considerably less speech-protective legal regime that does permit hate speech bans.
• As a matter of policy, I generally support the American free speech position over its European competitors.
• That said, where a country does have a legal regime akin to that of the Dutch, I want it to be enforced evenly; Jews and gays should be able to claim its protections to the same degree as anybody else.
• I have no knowledge of the general contours of Dutch hate speech jurisprudence so as to speak to whether this case deviates from the norm.
• Regardless of the proper legal resolution of the case, there is no question that Ismo's lyrics were homophobic and anti-Semitic and his protestations to the contrary are laughable.

Trading a Virtue for a Vice at Yale

I'm currently reading Jose Medina's truly outstanding book The Epistemology of Resistance. I'm only through the first chapter, but one of Medina's core arguments is that the social position of privilege can (does not always, but can) lead to certain epistemic vices -- for example, close-mindedness or overconfidence. Privileged persons who do not often experience others challenging their views (or, when such challenges do emerge, are assured by other societal actors that these challenges are inconsequential) may be hampered in their ability to self-reflect and think critically about the merits of their own position. Since nothing forces them to engage in such (potentially distressing) behavior, they may simply abstain from it, preferring to bask in the comfortable security of "knowing" that they've got it all figured out. And accordingly, Medina argues, persons under conditions of oppression can (do not always, but can) exhibit certain epistemic virtues -- they may be more open-minded or curious about the world and positions not their own, simply because they have to be. They are not in a position where they can simply not listen to the views of others, they often have to grapple with and be fluent with perspectives and experiences that are different from their own.

Medina is no fundamentalist: he obviously does not think we must be radically open-minded and uncertain towards any and all beliefs we might hold (a position that would lead to epistemic anarchy, if not outright paralysis). Nor is he essentialist: he believes that plenty of oppressed persons can display the vice and plenty of privileged persons the virtue, and he clearly hopes that all of us will strive to do a little less of the former and a little more of the latter. But I worry that we're beginning to see the opposite. Instead of encouraging more virtue -- asking people to emulate the particular epistemic virtues of curiosity often fostered by oppression -- people are asserting a right to the vice. They want the power not to listen, they want to not have to think discomforting thoughts. The equilibrium seems to fall exactly where we don't want it to be.

In a sense, this is unsurprising. Virtues are very often no fun to live out -- that's if anything a cliche --and the virtue of epistemic curiosity is no different. It is uncomfortable and disorienting for one's worldview to constantly be under threat, to never be quite sure if one's views (including passionately-held ones) are on target, to always have to encounter and reckon with voices and perspectives that seem radically alien from one's own. How much nicer is it to occupy that space of privilege -- to not have to endure such challenges, to be secure in one's correctness, to be surrounded by fellow-travelers in solidarity. The virtue is not recognized as a virtue but is recognized as a burden; the vice is not recognized as a vice but is recognized as a comfort.

The recent controversy over Yale students protesting over a college assistant "master's" email critical of administration-promoted suggestions regarding proper Halloween costumes (the master suggested that students should not need or desire the administration providing such "guidance" because they should be able to come to good conclusions on their own; and if in certain circumstances they came to bad conclusions that would not be the end of the world) seems to resonate with this concern. The usual caveats apply: this incident did not occur in isolation, there is a long history of college students making poor choices (itself not the worst thing in the world), no social movement can be perfect all the time, and so on. But nonetheless, the conduct of the students -- surrounding the master and verbally abusing him, seemingly enraged that he might have a different view from theirs, finding it outrageous that one might think his arguments are "worth listening to" (I'm actually less concerned with calls that he resign from his post as master than with the verbal confrontation, oddly enough) -- seemed to be about trading the virtue for the vice. The email in question may be wrong, but it did not seem to be outrageously so, the sort of statement that was so obviously out-of-bounds as to warrant exile from the realm of legitimate discourse. It did not exhibit the markers that should have rendered a lack of curiosity (indeed, a sense of offense towards the idea that one might be curious towards them) about its claims a virtuous stance to take.

So what is going on here? Well, obviously a lot is, and again it is clear that this email alone was not really the critical factor in triggering this outburst. Nonetheless, I think it is possible to understand why these students seemed to frame their claims in terms of their right not to listen. Though Yale students come from a variety of backgrounds and many continue to face significant degrees of oppression (on and off campus), all have at least some privilege simply by virtue of being Yale students. And having tasted that privilege -- experienced how good it feels to just be instinctively, reflexively validated -- it's no wonder that they want more of it. If virtues are stereotypically a burden, vices are often a blast. And there is no reason to suspect that people -- when given a naked choice between living out the virtue or living out the vice -- will typically select the former. In many circumstances, epistemic virtue (like any other) must be inculcated.

Certainly, it is fair to say that it is probably ideal for both camps to move closer to other -- more epistemic confidence for oppressed persons, more epistemic humility from privileged ones -- but that leaves the question of where in the middle the two will meet. People who argue that the claim of marginalized persons to access this place of epistemic security are only demanding what the majority has long possessed aren't wrong -- somebody (I forget who) observed that the conservative freakout over Starbucks' red cups is nothing but a safe-space-style demand that their preferred worldview continue to be the unchallenged default -- but they do overlook that this majority-possessed space is not a virtuous one. The risk is what people will seek out is somewhere that's more on the vice side of the ledger, and that is not a desirable (nor, I'd argue, a sustainable) place to be. Not every college movement that seeks to alter the dialogic norms of the community does this, but some of them do, and the Yale case seems to be closer to a pursuit of the vice than the virtue.

Now, I think in many cases the problem here is misidentified as a "free speech" problem, when often it isn't: it's counterspeech. I've tried to delineate the difference in my posts on academic freedom vs. academic legitimacy (see the latest for links), and while arguably that doesn't apply in the Yale case (where one could plausibly maintain there was intimidation at play), often times people complain about "censorship" when in reality all that's going on is people expressing a contrary  message. The idea that certain ideas should not be socially accepted (so long as social disapprobation is all that's at stake) is entirely consistent with free speech rights. When students say (and do no more than say, though perhaps say quite loudly) "I don't want to listen to this argument" or "I don't think this speaker belongs on our campus", the potential vice in play (and it isn't always a vice) is not censorship, it's a lack of curiosity. This problem -- if it is one (and I think it is one) -- should be addressed on its own terms. And the solution -- whatever it is -- will need to balance the genuine need for bolstering the epistemic confidence of outgroups who are often mistrusted, while preserving the virtues of curiosity and open-mindedness that epitomize an ideal deliberative space.

UPDATE: Please see the follow-up I wrote to this post, which reconsiders some of the critical points and provides additional context.

Conveying a Final Message to the Jews of South Africa

The other day, I noted an ultimatum delivered by the head of the ANC's Western Cape branch to the South African Jewish community. It gave them "until the 07 August 2014 to stop their Zionist propaganda in Cape Town, failing which we will boycott and call strikes at all of their member – and supporting companies and organisations."

On the one hand, the official (Tony Ehrenreich), gave the Jews an extra week to respond. On the other hand, he also raised the stakes well beyond a "mere" boycott:

Ehrenreich wrote that South Africa’s Jewish Board of Deputies, the national Jewish communal organization, should suffer for its support of Israel.

“This makes the Jewish Board of Deputies complicit in the murder of the people in Gaza,” he wrote. “The time has come to say very clearly that if a woman or child is killed in Gaza, then the Jewish board of deputies, who are complicit, will feel the wrath of the People of SA with the age old biblical teaching of an eye for an eye.”

And now we have a call for a pogrom. Lovely.

In case you're curious, yes the SAJBD is accusing him of hate speech and incitement. Ehrenreich, for his part, says he will sue the SAJBD "for supporting crimes against humanity in Gaza, and for being complicit through their actions or inactions, in the killing of women and children in Gaza" (emphasis added).

Finally, Ehrenreich also gets off the obligatory denial that he is in any way anti-Semitic for calling for mass violence against the South African Jewish community. While he contends he is attacking only the SAJBD for "condoning" the Gaza campaign, it is notable that his verbiage (which equates silence with active support of alleged war crimes) would apply to any Jew (really, any person, but of course Ehrenreich only focuses on Jews) who has not spoken out against the Gaza campaign in a manner Ehrenreich finds acceptable. See also Bongani Masuku's statement that "silently consenting or grumbling under tables" would not be sufficient for Jews to "imagine [South Africa] to be their home."

I Smell Another Hate Speech Case

Remember that time that a top COSATU (Congress of South African Trade Unions) official announced he wished to "convey a message to the Jews" of South Africa -- specifically, that he and his union would make their lives "hell" if they supported Israel? It led to a hate speech conviction by the South African Human Rights Commission -- a ruling COSATU was not exactly chagrined by. But less we feel too bad, it did not stop the BDS advocates in the British University and College Union from inviting him to give a talk.

Oh, those were the days. It was almost like that time a major South African government official said "Jewish money" controlled America.

But I digress. Today, an official with African National Congress (South Africa's ruling party) decided to join the "Hitler was right" brigade on Facebook:

The post by Rene Smit, who works at ANC Western Cape, displayed an image of Hitler with the title "Yes man, you were right..." followed by the line: "I could have killed all the Jews, but I left some of them to let you know why I was killing them." At the bottom of the image was the message, "Share this picture to tell the truth a whole world."

Something tells me that this could head right back to the SAHRC. And something tells me that, if and when he is found to have engaged in hate speech, the same "Palestinian solidarity activists" will come out of the woodwork to defend him.