West Bank Settler Terrorism Continues Unabated

These stories tend be overshadowed by what's happening in Gaza, but they're still happening with all-too-much regularity:

At least one Palestinian has been killed and 10 have been injured in an attack by Israeli settlers in the West Bank village of al-Mughayyir, the official Palestinian news site Wafa reports.

Footage shows cars and homes torched, allegedly by the settlers, as the IDF fails to gain control over the situation.

The settler raid of the Palestinian village comes amid a manhunt for a 14-year-old Israeli boy who has gone missing from a nearby illegal outpost.

Palestinians say the settlers have used live fire against them, in addition to hurling stones, damaging dozens of homes and cars.

There's a lot of discussion about when and in what contexts we can use terms from Jewish oppression (e.g., "pogrom") to describe contemporaneous acts of oppression by Israel against Palestinians. I won't wade into that debate directly; all I'll say is "child goes missing and locals respond with a wave of violent attacks on local religious outgroup" is a chapter of history I am familiar with.

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.

Who Has What Leverage Over Hamas?

Ceasefire negotiations between Israel and Gaza continue to grind along, and Hamas has responded negatively to the latest offer on the table. Which makes me wonder -- what are the leverage points that exist on Hamas that might help pressure it towards accepting a ceasefire deal?

Since I was recently pancakes/waffled on this, I want to clarify that I'm not saying that Hamas is the only obstacle that has or does exist in front of a ceasefire. My position continues to be that neither Hamas nor Israel seems especially interested in a ceasefire deal, and since both parties need to agree, that relative lack of interest represents a significant problem.

That problem, in turn, suggests that making progress on a ceasefire deal may -- at different times and contexts -- require exerting pressure or leverage on Israel and Hamas. If what you actually care about is ceasefire now -- that is, it's not a stalking horse for "keep the war going unless and until my side gets what it wants" -- then one needs a model for how one can, where necessary, pressure Israel to move off certain lines as well as a model for how one can, when necessary, pressure Hamas to move off some of theirs.

For Israel, it's pretty clear what the potential pressure points are -- in fact, there's a superabundance of them. Military aid, international legal rulings, even western protest movements all in various ways are mechanisms through which outside actors can exert pressure to get Israel to change its behavior and agree to things that it might otherwise be disinclined to accede to. There are all sorts of debates we can have about which levers it is proper to pull and what the un/anticipated effects of our decisions might be -- Dan Nexon had what I felt was a very thoughtful post on this -- but it's not especially opaque where the leverage points are.

For Hamas, though, things are a lot blurrier. There is an interesting Foucauldian dynamic at work here where Israel's greater power paradoxically also makes it more vulnerable -- being far more tied into American and global centers of power means there are a lot more touch points between Israel and the international community that can converted into areas for exerting pressure. Power and resistance are two sides of the same coin. But when we're talking about Hamas, it's not clear where those touch points are.

This is not, to be clear, the normative argument one sometimes hears whereby because Israel is more powerful it deserves to bear the brunt of pressure or it has the responsibility to take the leading role in changing course. My point is that even if we wanted to "pressure Hamas", how would we do it?

In a military conflict, military force is of course one answer. Problem one with that answer is that the point of this exercise is to try to end the military conflict, not intensify it. But the bigger problem two is that Hamas doesn't actually seem that influenced by military damage. On any conventional metric, after all, Hamas is enduring catastrophic losses on the battlefield -- the sorts that would under normal circumstances constitute significantly losing a war and seeking to sue for peace. But Hamas doesn't seem especially bothered by its battlefield losses, and doesn't seem to view its military defeats as demanding a change in the status quo.

In any event, our whole goal here is to figure out points of leverage that aren't More War (with Israel, for instance, the American pressure points are more diversified and do not take the form of "do it or we start flattening IDF bases"). So what are they? Who has the leverage points over Hamas, and what are they? We can't withhold military aid we don't have. Withholding humanitarian aid is morally abhorrent (and frankly also has not seemed to significantly affect Hamas' behavior). Do people think protests would work? By whom, and where? Are their nations who have more "touch points" with the Hamas leadership that can be brought to bear? If so, how can they been induced to wield their leverage. And if all of this seems far-fetched or fanciful, don't we have a serious problem?

Of course, some people will accuse me of being naive in thinking that the "ceasefire now" crew actually is interested in a ceasefire; others will no doubt think that even suggesting Hamas is not fully committed to stopping the war is a Zionist apologetic. 

(I need to digress a bit to talk about this story on a proposed ceasefire resolution that got tabled by the Yonkers City Council, because it has strong "In a Nutshell" vibes related to this whole problem. Basically, pro-Palestine groups loudly demanded a ceasefire resolution; pro-Israel groups equally vocally opposed it. After a bunch of negotiations and rewrites, the city council came out with a compromise resolution that called for a ceasefire, release of Israeli hostages, and recognition of both Israel and Gaza's right to exist and exercise self-determination. And the result was that the pro-Palestinian groups switched to opposing the ceasefire resolution because it acknowledged Israel's right to exist, and the pro-Israel groups remained opposed it because it called for a ceasefire. By the end, the only groups that seemed to actually support the ceasefire resolution were mainline liberal Jewish groups, who needless to say were catching fire from both sides of the spectrum.)

All of which was to say that while there are plenty of people for whom "ceasefire" is a talking point rather than an actual goal, I also do think there are plenty of people who really are genuinely motivated to see an end to the bloodshed and an immediate-term resolution that is, if not ideal, then at least tolerable as a holding pattern for building a more durable just peace going forward. For that cadre, we need to have theories and ideas regarding how to dislodge Israeli intransigence and Hamas intransigence. The former we basically have, at least at the ideas level. The latter we don't seem to have even in concept, and that's a problem.

And one more thing just to be clear -- one dimension of why this serious problem is serious is that the inability to influence Hamas' behavior does not justify just indefinitely blitzing Gaza into dust. The only thing worse than dropping bombs on Gaza until Hamas changes its behavior is dropping bombs on Gaza without it having any impact on Hamas' behavior, but just doing it anyway because it's something. The lack of meaningful points of leverage over Hamas represents I think a genuine puzzle for folks working in this arena that I'm not sure how to effectively resolve, but it's something that has to be dealt with by anyone who thinks Hamas has even a share of responsibility for ending the current state of affairs.

You Can't Accept Me If I Reject You Second!

There are many instances where I think BDS protests are misguided, problematic, or even morally abhorrent. But I'm not sure I've ever seen a case that more exemplifies BDS in its most petty, penny-ante self-aggrandizing form than this story coming out of San Francisco's Contemporary Jewish Museum, where seven anti-Zionist Jewish artists withdrew accepted pieces from a scheduled exhibition:

In a statement posted Friday on Instagram, the artists said they responded to the museum’s open call for works “to make visible the existence of anti-zionist Jewish artists in California.” They anticipated that curators would reject their pieces, which included explicitly pro-Palestinian messages such as “Free Palestine.” Several of the artists openly identified as anti-Zionists in their statements. They were surprised when guest curator Elissa Strauss accepted pieces by seven of the artists in the collective.

Following this "surprise" acceptance, the anti-Zionist artists fired off a list of demands in an obvious attempt to concoct an excuse to withdraw from an exhibition they never intended to join in the first place: 

In addition to demanding that CJM divest from pro-Israel funders, the artists sought extraordinary control over their artwork. They requested that the museum amend the terms they agreed to by giving them the ability to modify or withdraw their works from the exhibit at any time, and to have autonomy over wall texts, artists statements and other framing. (In their Instagram statement, the artists wrote that they were concerned about “potential curatorial both ‘sides-ism’” and about the possibility that their pieces would appear next to ones that “grieve Jewish deaths without acknowledging the genocide of Palestinians.”)

The museum, which communicated to all the artists in the exhibit that their work might be "presented in proximity to artwork(s) by other Jewish artists which may convey views and beliefs that conflict with [their] own", refused to accede to these demands, and the anti-Zionist artists subsequently announced their withdrawal from the exhibition.

So just to recap what went down:

1. A bunch of anti-Zionist artists submitted works to a Jewish museum convinced that they would be summarily rejected, because of course the Zionist Entity would never permit their bold dissenting vision to see light of day.
2. The museum accepted their proposals because it wanted to present a range of contemporary Jewish voices, which included anti-Zionist perspectives.
3. The artists, clearly stunned to see their bluff called, followed up by demanding the museum kick out pro-Israel stakeholders and that their work not be displayed in the proximity of the Zionist artists.
4. The museum refuses the demands, and the artists storm off in a manufactured "huff" -- in quotes because they very clearly did not want to be part of this exhibition to begin with and were hoping to make some sort of statement about Zionist censorship, only to have the tables turned and have it made quite evident that they were the ones trying to thwart representation of the diverse range of Jewish perspectives.

The museum, incidentally, will display prominent blank spaces where the artists' works would have hung, to symbolize their non-presence and draw attention to their decision to withdraw from the relevant community, which I think is fabulous. It also more concretely demonstrates the value of responding to the stilted, cloistered demands of BDS with a genuine commitment of openness and receptive engagement. Had the museum simply summarily rejected the artists, they would have no doubt issued one of those classic disappointed-ecstatic statements about how they were being censored and the hegemony of Zionist in the Jewish world leaving no room for alternatives. Instead, they were caught bluffing, it being obvious that they were the ones seeking censorship and narrowness, and that their non-presence in this community event was entirely a function of their own choices. There's a lesson to be learned here; though I'm unconvinced that many of the Jewish entities who may be faced with similar choices will internalize it.

And for what it's worth, I don't think the Contemporary Jewish Museum was (counter-)bluffing here -- "accepting" the anti-Zionist art pieces only in the expectation that the artists would do exactly what they did and withdraw -- and I hope they weren't. There are a range of Jewish voices on matters of Israel and Zionism right now, and works which are otherwise meritorious but express dissident views should be permitted their place in our communal conversations. Had the works been put on display, I would hope that everyone crowing about how the CJM sure showed those BDSers what's what would have been equally emphatic in defending the CJM's right to include those voices as part of a larger exhibit. Speaking as someone who recently helped organize a collective Jewish event whose contributors adopted a range of views, not all of which I personally agree with, I very much object to the notion that the right standard for inclusion in collective affairs is bounded by my personal ideological preferences. The CJM adopted the right approach, and should be lauded for its commitment to Jewish representation irrespective of a lack of similar commitment from other members of our community.