Free Speech and Discriminatory Motive

One of the more nettlesome problems in anti-discrimination law is how it intersects with free speech rules. Laws against harassment, for example, often target speech -- usually terrible, crass, bigoted speech, but speech all the same. Laws against discrimination likewise interfere with freedom of association -- grotesque, biased preferences regarding who to associate with, but association all the same. As a society, we've at least implicitly decided that anti-discrimination norms can -- at least in some circumstances -- trump free speech norms, and I'm totally okay with that. But our implicit agreement hasn't really cashed out into explicit acknowledgement of the tension, and that means that we don't always have a fully-thought-through sense of how speech and discrimination intersect.

These problems have come to a head with Congress considering the Anti-Semitism Awareness Act, just recently (and swiftly) passed in the Senate and now moving to the House. The Act basically expands the definition of "anti-Semitism" under Title VI of the Civil Rights Act (encompassing educational equality -- for our purposes, laying out the duties educational institutions have with respect to preserving an environment free of anti-Semitic harassment) to codify the definition "set forth by the Special Envoy to Monitor and Combat Anti-Semitism of the Department of State in the Fact Sheet issued on June 8, 2010, as adapted from the Working Definition of Anti-Semitism of the European Monitoring Center on Racism and Xenophobia." The significance of that definition is that it explicitly seeks to consider when and in what circumstances anti-Israel sentiment qualifies as anti-Semitism.

Several commentators, including ones I respect like Jesse Singal and the ACLU, have raised First Amendment alarm bells (the bill contains a savings clause  stating that "[n]othing in this Act, or an amendment made by this Act, shall be construed to diminish or infringe upon any right protected under the First Amendment to the Constitution of the United States", but critics worry those are empty words). After all, statements critical of Israel -- including statements vitriolically so -- are protected by the First Amendment. Even the original drafter of the definition the ASAA incorporates opposes encoding it into US law, arguing that its purposes was to serve as a monitoring device for tracking anti-Semitic incidents, and thus is by design broader than what can be validly proscribed by law.

I don't dismiss the validity of these concerns. But I think they're in many ways oddly situated. They either frame the problem incorrectly, or take a genuine problem that's endemic to anti-discrimination rules and act as if it's uniquely presented by the anti-Semitism case.

To see why, let's divide discrimination cases into two groups: "speech + conduct" and "pure speech." We'll start with the former.

Suppose you declare "I hate Jews!" That's protected speech. Suppose you punch a Jew in the face. That's battery, but it's not a hate crime or an incident of discrimination under Title VI unless its done because they're Jewish (if you punched a Jew in the face because they were a Dodgers fan, it would still be a crime, but it would not be a case of anti-Semitism).  Finally, suppose you punch a Jew in the face while declaring "I hate Jews!" That is very likely to be deemed an incident of anti-Semitism under Title VI, as the speech establishes the requisite motive (that your punch was thrown because the target was Jewish). Presumably, this manner of intersecting "speech" with discrimination law isn't controversial. Obviously, discrimination law looks into one's viewpoint in this respect -- it is entirely about differentiating conduct motivated by particular viewpoints (hating Jews, Blacks, women, Muslims, whomever) from conduct motivated by other concerns (sports fandom, parking disputes, general belligerency, etc.).

The most straightforward way of viewing what the Anti-Semitism Awareness Act does, given its First Amendment language, is to clarify what sorts of statements can establish an anti-Semitic motive when coupled with otherwise actionable conduct. The person who punches a Jew while stating "I hate Jews" is clearly anti-Semitic in a way a person who punches a Jew while stating "that was my parking space" may not be. But what of the person who punches a Jew while stating "Zionists are Nazis!"? Surely still a case of battery, but is it a case of anti-Semitism? The puncher will likely say no -- their actions were motivated by political hostility towards Israel, distinct from anti-Semitism. The victim will usually argue yes -- stating "Zionists are Nazis" is a form of anti-Semitism; if that was the motive for the punch, it was an anti-Semitic punch.

Consider the case of Paul Donnachie,* a student at St. Andrew's University who was convicted of grabbing a dormmate's Israeli flag, rubbing it against his pubic hair, while declaring that the student was a "terrorist", Israel was a "terrorist state", and the flag was a "terrorist symbol." Donnachie of course agreed that his actions were not "dignified", but contended that it was an act of "political expression" rather than anti-Semitism; the Scottish Palestine Solidarity Campaign likewise complained that Donnachie's conviction and expulsion "conflate[d] legitimate political criticism of the State of Israel with racism."

In cases like these, the issue isn't whether the challenged action is "speech" or "conduct". Everyone agrees that defacing another person's property is the sort of thing that can be regulated. The question is whether the motive for that conduct falls within the set of malign motives covered by anti-discrimination law. Had Donnachie done what he did while saying "stupid Jew", there'd be no complaints that his free speech rights were violated (despite "stupid Jew" also being a protected viewpoint). In these cases, the ASAA is simply clarifying that statements which meet the State Department definition do establish the necessary motive. One can disagree with that decision, but it's hard to characterize it as a free speech objection without entirely dismantling the whole of anti-discrimination law. After all, if the problem is that our Jew-puncher is being punished in part for his viewpoint, that problem is equally manifest regardless of whether his views were "Zionists are Nazis" or "I hate Jews." Both are protected speech; both are treated differently from the view "Dodgers suck!"

I don't think that most of the free speech critics of the ASAA are worried about this set of cases. Rather, they're worried about a situation where "pure speech" -- simply saying "Zionists are Nazis", without any accompanying conduct -- could be investigated as a form of harassment.

Note again that this problem is not distinct from a policy saying "Jews are scum" can represent a form of harassment. Again, "Zionists are Nazis" and "Jews are scum" both are equally protected under the First Amendment. So as a free speech objection, this argument only works if one is willing to say that speech alone can never create a discrimination violation. That is a theoretically cogent position. It is not the status quo in civil rights law. Even absent any conduct acts -- touches, obstructions, vandalism, etc. -- "pure speech" can result in a harassment finding in the right circumstances, e.g., if it is severe and pervasive enough to materially interfere with a student's ability to access their educational institution's resources. Constant sexual harassment that never leaves the realm of words would be a classic example of such a case.

So to the extent the ASAA would apply in a "pure speech" case, it would presumably apply on the same terms as any other scenario where speech alone is alleged to create a hostile environment. In general, isolated acts of verbal harassment are rarely sufficient to support a Title VI claim; simply being exposed, occasionally, to persons yelling out racist or sexist or anti-Semitic things does not create legal liability. The case would have to be something like a Jewish student who everyday encounters picketers telling him he's "Zionist Nazi scum." Should a student have a remedy in such case? Maybe, maybe not, but the "Zionist" part of the equation doesn't strike me as relevant from a free speech perspective -- the same analysis would apply if it was a Muslim student perpetually being told she's "ISIS terrorist scum" or a female student told she's "a babymaker who should stay in the kitchen," or for that matter, a Jewish student simply being told she's "a greedy JAP." In all the cases, we are taking something that is -- in the broadest sense -- (terrible) political expression, and using it as the basis of a discrimination investigation. In all the cases, our limiting principle is not that these outlooks are "protected speech" (they all are), but rather requirements of severity and pervasiveness which are supposed to guard the line between protected speech and unlawful harassment.

Again, none of this is to say that there aren't valid free speech concerns here. There are! The point of this analysis is to show that those concerns are pervasive in our discrimination law; this bill doesn't raise novel problems so much as it illuminates the difficulties which already exist.

Hence, for those persons who are generally content with the discrimination law doctrine we have, the "free speech" objection to the ASAA is a masquerade for a more straightforward substantive objection: They don't think that calling Zionists Nazis should be deemed anti-Semitic at all. A defensible position, perhaps, but not one that has anything to do with free speech if the proponent is not willing to level a similar objection to the myriad other ways that discrimination law supervenes on one's political outlooks. It's simply an on-the-merits dispute over what counts as anti-Semitic discrimination.

Meanwhile, there is a perfectly valid argument to be made that discrimination law is not sufficiently attuned to the ways in which it can chill valid political speech. Perhaps the ASAA makes those perils especially clear. But if we're going to go down that route we should actually go down it, not deceive ourselves into believing it can be restricted into a Jew-only one-off. The structure of the free speech objection to the ASAA cannot restrict itself solely to that case.**

* I'm pretending for sake of argument that Scottish law and American law are identical in this arena. They're not, of course, but I don't think that alters the usefulness of the example.

** The reverse is true as well: persons who airily dismiss the free speech worries in the anti-Semitism case cannot throw hysterical fits over how harassment law "makes it impossible" to say the things they want to say in the race or gender arenas.

Breitbart-Approved Experts Continue to Agree: Breitbart is Full of Shit

Breitbart, the conspiratorial far-right website that starting in 2017 will more-or-less become the official media outlet of the Donald Trump administration, ran a story the other day crowing about supposedly plunging temperatures disproving global warming -- citing a video clip from the Weather Channel as proof. The Weather Channel itself was less than thrilled, and just posted this epic-quality smackdown titled "Note to Breitbart: Earth Is Not Cooling, Climate Change Is Real and Please Stop Using Our Video to Mislead Americans."

As someone who also was once approvingly cited as an expert by Breitbart in an article which ludicrously butchered said area of expertise (critical race theory), I relate to this. Keep up the good work, Weather.com.

Things People Blame the Jews For, Volume XXXII: Star Wars

"Star Wars: Rogue One" is coming out this month. Are you excited? I am (though if a certain Rebel X-Wing pilot isn't in it, I am going to be pissed)! The alt-right? Not so much.

White supremacists are calling for a boycott of the latest “Star Wars” movie as evidence of a Jewish plot to foist racial diversity on whites, even as some on the “alt-right” say they watch the film and root for the evil Empire.

“(((Star Wars))) Is Anti-White Social Engineering,” a Reddit user named GenFrancoPepe posted in a forum for the “alt-right,” a hard-line white nationalist movement. The triple parenthesis, known as an “echo,” is a way anti-Semites online call attention to Jewish names or perceived Jewish influence. 

The evidence: “Alt-right” writers point out the multiracial makeup of the stars in the new film, the female starring role, and that Jewish producers and writers were involved. Criticism of the film evokes one of the central tropes of modern anti-Semitism, envisioning a Jewish cabal promoting multiculturalism to suit its own nefarious goals — at the expense of an embattled “white civilization.”

Say what you will about the massive Jewish conspiracy to undermine White civilization, but it makes for some damn fine escapist cinema.

Equality as Normalcy: The Case of Leah Donnella

Next year, I have an article coming out in the Indiana Law Journal titled "Post-Racialism and the End of Strict Scrutiny." I won't go into the details of the article, but it does sketch out some of my thoughts on the end-goal of equality -- what one might term "equality as normalcy." We often think of the fight for equality as a fight for various heightened protections for marginalized outgroups -- things like anti-discrimination laws or affirmative action programs. But these are not the end-point of equality; they are palliatives we use to stanch the bleeding from persistent inequality. What marginalized group members want is to be able to practice the identities that matter to them without those identities being the sites of social conflict or threat -- in other words, for their identities to be normalized.

Under this view, we will have attained racial equality not when we've secured the highest possible barriers against racial discrimination, nor when people cease to think of race as a meaningful axis of social identification. Racial equality will occur when it becomes a "normal" identity, like being a Dodgers fan or a Methodist or a farmer -- something that matters to some people, and sometimes serves as a site of cultural or even political organization, but is not (under normal circumstances) taken to be something illicit or dangerous.

I was thinking about this while reading an interview with Leah Donnella, an NPR journalist and biracial Jew. Her comments on the difficulty of finding a synagogue that mirrors her youthful experience -- when she simply "was" Jewish and her Blackness didn't mark her off as exceptional -- struck me. Here are a few excerpts:

In terms of my day-to-day Jewish life, what I’d like is to go to a synagogue, walk in, and feel anonymous, not be noticed or given special attention. It’s tricky though. I get that folks sometimes walk up to people of color in an effort to make us feel included. But when it’s assumed that I need someone to explain the service to me, it reinforces my feeling of otherness. At the same time, I recognize that there’s a fine line between bringing someone in and making them feel welcome, and bringing them in and making them feel set apart and different....

All I want is to be able to go into a synagogue, sit down, and let a sense of quiet and calm wash over me so that I can pray in peace with other Jews. 

I think this explains her situation with charity and nuance  Donnella isn't a colorblindness advocate -- she writes on race for NPR. It is not (it seems to me) that Donnella wants people in her synagogue to "forget" she's Black, she wants her Blackness to not be thought of as strange or exceptional in the synagogue. It's a subtle distinction, but it matters.

Anyway, I found this interview to be quite thoughtful (though all too short). Well worth a read.

Sunday Fun Day Roundup

Getting donuts this afternoon with an old college friend (and her new baby!). A lot of the below links really deserve their own posts, but I just don't have the time or energy to give them the commentary they deserve.

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Rabbi Jeremy Wieder of Yeshiva University confronts racism among Orthodox Jewish students at his university. Really worth a read.

South Dakota gets a Chabad Rabbi -- the last state to not have one. Congratulations, Sioux Falls!

Jonathan Chait nails the "intellectual collapse of the center." Regarding David Brooks: "[O]ne of the most common genres of David Brooks column was a sad lament that neither party would endorse policies that in fact Obama had explicitly and publicly called for."

Yehuda Mirsky on the "The New Jewish Question" is perhaps the most thoughtful meditation on the place of Jews in the new, populist-right America (and world) that I've read so far. Another one that deserves your full attention.

I've never seen Last Tango in Paris, but it looks like an infamous rape scene in the movie actually involved raping the actress (she neither was informed in advance nor consented). That's really, truly sick.