Wednesday, September 12, 2018

The Rutgers Antisemitism Investigation Isn't About Free Speech, But it is About "Free Speech"

Last week, the Department of Education announced it was reopening an investigation into alleged antisemitism at Rutgers University. This has led to some consternation -- see this very skeptical New York Times article or this statement of condemnation by J Street -- and the usual fretting that it represents an attack on "free speech". The case is being looped into larger discussions about the Antisemitism Awareness Act, the State Department/IHRA antisemitism definition, and when anti-Israel sentiment crosses into discriminatory antisemitism generally.

But the Rutgers case is a very different animal than how it's being portrayed. The legal (as opposed to factual) questions it poses do not appear related to any disputes about the ASAA or the State Department definition, do not implicate free speech concerns at all, and really should not be controversial to anyone who thinks rules against antisemitism are anything more than pro forma.

Let's start with J Street's statement:
The initial Rutgers investigation into an event held by a Palestinian group on campus was triggered by a complaint from the Zionist Organization of America (ZOA) — an ultra-right group that has sought to suppress virtually all activities critical of Israeli government policy, and which regularly traffics in anti-Palestinian and anti-Muslim bigotry. The complaint was thoroughly investigated and dismissed by the DOE in 2014. Its reopening is not about upholding civil rights or a serious effort to combat anti-Semitism, but about advancing a right-wing agenda that seeks to silence open discussion and debate of the Israeli-Palestinian conflict.
To do so, the Trump administration intends to wield a controversial definition of anti-Semitism that equates criticism of Zionism with anti-Semitism — and which was never intended for use on college campuses.... At J Street, we strongly oppose anti-Semitism in all of its forms. We work to challenge ill-informed criticism of Israel and Zionism — including on college campuses, through the efforts of our student movement J Street U. We strongly believe that such criticisms can and must be treated as constitutionally-protected free speech — not banned and punished by Congress or the executive branch. 
As you might expect, I have no quarrel with how ZOA is described here. But it is notable that the statement gives zero details on what the investigation is, you know, investigating. Instead, it just vaguely complains about a chilling effect on free speech, and asserts its opposition to any efforts to "ban and punish" such speech -- along with a shot at the State Department/IHRA "definition" of antisemitism which they likewise accuse of silencing "criticism of Zionism" (I'll sidebar here and say no, the State definition does not "equate criticism of Zionism with anti-Semitism" -- indeed, it does not mention "Zionism" at all -- and given the central role that canard is currently playing in the UK Labour antisemitism disaster-show it's not a good look for J Street to just casually drop in on the side of the Corbynistas).

And that's a problem, because while the J Street statement invokes the scary prospect of government regulators stepping in to "ban" speech, from what I can tell (and unfortunately I haven't been able to get my hands on the letter DoE civil rights head Ken Marcus sent reopening the investigation, so I'm relying on media reports) the Rutgers investigation isn't investigating or targeting anyone's speech at all. And neither does it (or at least must it) rely upon the State Department/IHRA antisemitism definition to get its wheels going.

As it is being reported, the renewed investigation of Rutgers looks at only one incident: allegations that a pro-Palestinian event, initially advertised as free and open to the public, began charging admission fees upon perceiving that many of those seeking entrance were Jewish and/or Israeli (and accordingly committed either ethnic or national origin based discrimination). The key bit of evidence is an email by one of the organizers saying "We need to start charging because 150 Zionists just showed up!" but that “if someone looks like a supporter, they can get in for free" (this email wasn't considered in the initial agency decision, hence why the matter is being reopened). The argument is that, in this context, "Zionist" stood in for "Jewish" (or "Israeli").

Now, whatever else you want to say about this allegation, it simply isn't a free speech case. Questions about when "speech" becomes a form of discriminatory harassment are among the most difficult ones courts and civil rights agencies have to grapple with. There are cases like that -- ones where, e.g., Jewish students are alleging that a given speaker's words (whether directed at Israel or something else) created a hostile environment that interferes with their full and equal access to a public good. And those cases really do raise genuinely difficult and nettlesome free speech questions.

But this case isn't one of them. The DoE is not investigating any claim that the speaker at this event said certain bad words about Israel or Jews which qualify as discriminatory. The investigation is into a much more run-of-the-mill form of discrimination: Charging differential rates to Jews versus non-Jews, or hiking prices because too many Jews were showing up, is discrimination in its most uncomplicated and unproblematic guise. It just cannot be the case that J Street thinks that requiring public events to not hike prices when the Jews show up constitutes "silencing" of anti-Israel speech.

Now, of course, while hiking prices because too many Jews are showing up is definitely discriminatory, it is entirely fair to say that the email quoted above, in the abstract, does not provide unambiguous evidence that this is what happened. The argument in favor, as Marcus expressed, runs thus:
“In other words, the visual perception of a group of ‘150 Zionists’ referenced in the email could have been rooted in a perception of Jewish ancestry or ethnic characteristics common to the group,” Marcus wrote, adding that it was unlikely organizers polled each of the 150 entrants on their views regarding Israel. “In cases such as this, it is important to determine whether terms such as ‘Zionist’ are actually code for ‘Jewish.’”
The letter also noted that some students who reported being charged had a Jewish appearance (like wearing a yarmulke, for example).
Basically, while it's not clear how the organizers would know that attendees looked "Zionist", they perhaps could tell that the prospective attendees looked Jewish -- because they had on religious garb, for example, or perhaps had Hebrew-language clothing. Consequently, it is fair to infer that what really triggered the email was the Jewish (or Israeli) appearance of the guests, not their alleged Zionism (or put more finely, the organizers saw a bunch of unfamiliar Jews, figured they must be Zionists, and responded by raising prices). And if that inference holds up, then one has a very straightforward case of antisemitic discrimination.

[A parallel example might help illustrate. A "Men's Rights" organization on campus hosts an anti-feminist speaker known to be controversial. People start to arrive before the speech, and this initial group is predominantly -- though not exclusively -- male (and, perhaps, people generally known by the organizers to be sympathetic to the speaker). But a few moments later, a huge crowd of women arrive in line to hear the talk. An organizer panics, and sends an email: "we need to start charging -- 150 feminists just showed up". Is this sex discrimination? I think plausibly. The organizer doesn't actually know the political orientation of the new arrivals. What he sees is their gender, and then makes an inference regarding their politics (and their favorability towards the speaker) based on that, which is used to justify raising prices. To me, that'd be sex discrimination. And it'd still be sex discrimination even if a few "cool girls" were involved in the hosting of the speaker].

"Zionist", of course, doesn't always equal "Jewish". But sometimes it does, and frequently enough so that in cases like this it's worth looking into as a possibility. And in particular, there are elements in the record here that make it especially likely that "Zionist" was functioning as "Jewish" (similar reasoning is how we can infer that Jeremy Corbyn was using "Zionist" as a stand-in for "Jewish" when he spoke of people who'd lived in England "all their lives" and yet didn't understand "English irony"). The reliance on visual perception -- how does one "look" like a Zionist without "looking" like a Jew -- significantly strengthens the inference that the Jewishness of the prospective attendees was doing dispositive work.

The basic principle -- that "Zionist" sometimes can be used as a code for "Jew", and that consequently the naked use of the word "Zionist" doesn't act as a definitive defense against an antisemitism claim -- should not be controversial and is something I can't imagine J Street actually disagrees with. If one needs the State Department definition of antisemitism to operationalize that principle, that's a huge point in favor of codifying the definition -- but I actually don't think the State definition is necessary to get us there, because again, the structure of the antisemitism claim here actually isn't that complex (here in particular I wish I had Marcus' letter, as I'm curious what work the State Department definition is purportedly doing for the investigation).

Still, perhaps it does illustrate what I've sometimes termed the "cleansing power of anti-Zionism" -- the inversion of the classic "not all criticism of Israel is antisemitic" argument into the much more robust "if something is framed as criticism of Israel, then ipso facto it is not antisemitic." That move is one that it is very important to check, and the ease at which people fall into that groove is perhaps strong evidence of why a more rigorous definition of antisemitism absolutely is required.

Now, I've been treating these allegations as if they were affirmatively established, and they're not. It's possible the email in question wasn't written by an event organizer, or that if it was written it wasn't the cause of the decision to charge for admission, or that there is some other evidence that the Jewish or Israeli character of the prospective attendees was irrelevant to how the pricing change proceeded. My (very) quick glance at the record suggests that some of these defenses might have legs. But there is a huge difference between dismissing this complaint because (say) the email in question didn't cause the pricing change, and dismissing it because in concept the pricing change could not have been antisemitic because the email used the word "Zionist" rather than "Jewish". That's a spectacularly dangerous precedent to set, and so it's disappointing that J Street seems willing to go down that road in a statement that doesn't even seem to recognize the stakes on the table.

Put another way, it's entirely reasonable to contest the alleged facts here. But there are to my eyes only two substantive legal questions at issue:

  1. Does hiking admissions prices based on the perception that too many Jews are attending an event qualify as anti-Jewish discrimination; and
  2. Can, in concept, "Zionist" be seen as a stand-in for "Jewish" when assessing whether a given act was discrimination against Jews?

The answer to both of these has to be yes. It would be really, really bad if a civil rights agency answered "no" to either of these questions, which means it's really important that, however the investigation ultimately is resolved, it makes clear that it is not giving such a negative answer.

Finally, I want to circle back to the "free speech" focus. Again, on substance the Rutgers investigation just doesn't have anything to do with speech. Either the organizers hiked prices in response to perceived Jewish attendance, in which case it is a straightforward case of antisemitism, or they didn't, and it isn't. Speech just doesn't come into play. Which raises the question: Why did J Street and others instinctively run to that well?

There's recently been a raft of scholarship on what's been called the "New Lochnerism" or "First Amendment Lochnerism". For those of you who haven't suffered through law school, Lochner was a turn-of-the-century Supreme Court case which stands in for a judicial era where courts repeatedly struck down progressive economic and social regulations. For decades, popular democratic legislation protecting workers was strangled by a deeply activist Supreme Court's interpretation of the Fourteenth Amendment's due process requirements. The "New Lochnerism" perceives a similar trend today with respect to the First Amendment, which is also slowly being weaponized to undo progressive electoral accomplishments recast as forms of compelled speech. Janus (public-sector union agency fees) is one prominent example, Citizens United (campaign finance) is another, Masterpiece Cakeshop (anti-gay discrimination) is a third.

Discrimination law is particularly vulnerable to this line of argument, because discrimination claims almost always implicate expressive values. I've been saying that the Rutgers case clearly isn't about speech, but a clever philosopher could reframe it that way with little trouble: "I dislike X group, and the way I express my dislike for them is by charging them more money if they want to attend my events." Or "I express my dislike by refusing to hire them" or "I express my dislike by refusing to do business with them." If one accepts that frame, pretty much all anti-discrimination law represents a First Amendment threat: one is being forced to associate with people one would rather not, and one is foreclosed from acting based on specific (discriminatory) motives when other viewpoints are entirely permissible bases for action.

Fortunately, courts have not taken things that far. But the New Lochnerism suggests a growing trend in that direction, and the hysteria over the Rutgers case fits right inside of it. In my writings on antisemitism and discrimination law more broadly, I've emphasized how certain patterns of discourse about antisemitism reflect broader conservative legal trends that threaten a raft of progressive priorities -- not just an antisemitism, but on anti-racism, anti-sexism, anti-Islamophobia (the interpretation that encompasses Jews under Title VI and gives the DoE jurisdiction over the Rutgers case in the first place is the same one that enables anti-Muslim bigotry to be covered), and other bases as well. That "progressives" don't recognize or don't care about these parallels is either remarkably short-sighted or remarkably dangerous.

The Rutgers case isn't about free speech -- there is no free speech interest in raising prices because you're worried too many Jews will be in the room otherwise. But it is about "free speech", the totemic invocation that anytime, anywhere, anyway that outgroups allege they face discrimination, what's really happening is a form of silencing. It's a powerful argument, and therefore a tempting argument -- even in cases like this, where it doesn't remotely fit the facts. But that doesn't make it a good argument. It leads to a very particular, and very unlovely, end point.

There are discursive tropes which suggest that White people are being "silenced" by overbearing, overexpansive, all-encompassing accusations of racism. These tropes in turn support a backlash against anti-racism efforts across the board. There are also tropes which suggest that men are being silenced by overbearing, overexpansive, all-encompassing accusations of sexism; these support a backlash against anti-sexism efforts across the board. And there are identical tropes which suggest that non-Jews are being silenced by overbearing, overexpansive, all-encompassing accusations of antisemitism; these, too, power a backlash against counter-antisemitism efforts globally.

There isn't necessarily perfect overlap between those who find these various tropes appealing. But they're all based on the same principle, and together they all entrench a particular moral and legal vision of anti-discrimination law that is hobbled to the point of impotency. One can't indulge in the one without getting all the rest.


Dusty said...

Sorry for the non-sequitur, but I'm certain you've read about the Institute for Historical Revision ads up at BART. I realize that advertisements are generally protected speech, but clearly there are some limits (Cigarette ads, for example, are banned) I'm wondering what recourse, if any, the community might have in making these go away, or even if thats the best course of action. I'd appreciate some first amendment guidance on the issue.
Thank you.

David Schraub said...

My understanding of the relevant First Amendment law is that BART is -- for better or worse -- correct that it has no choice but to run these advertisements.

Dusty said...

Code of Federal Regulations
Title 29. Labor
Subtitle B. Regulations Relating to Labor
SuperBrowse Chapter XIV. Equal Employment Opportunity Commission
SuperBrowse Part 1606. Guidelines on Discrimination Because of National Origin (Refs & Annos)
29 C.F.R. § 1606.1
§ 1606.1 Definition of national origin discrimination.
The Commission defines national origin discrimination broadly as including, but not limited to, the denial of equal employment opportunity because of an individual's, or his or her ancestor's, place of origin; or because an individual has the physical, cultural or linguistic characteristics of a national origin group. The Commission will examine with particular concern charges alleging that individuals within the jurisdiction of the Commission have been denied equal employment opportunity for reasons which are grounded in national origin considerations, such as (a) marriage to or association with persons of a national origin group; (b) membership in, or association with an organization identified with or seeking to promote the interests of national origin groups; (c) attendance or participation in schools, churches, temples or mosques, generally used by persons of a national origin group; and (d) because an individual's name or spouse's name is associated with a national origin group. In examining these charges for unlawful national origin discrimination, the Commission will apply general title VII principles, such as disparate treatment and adverse impact.
AUTHORITY: Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq.

Dusty said...

In general
A plaintiff may maintain an employment discrimination claim under Title VII for discrimination solely on the basis of national origin. Civil Rights Act of 1964, § 701 et seq., as amended, 42 U.S.C.A. § 2000e et seq. Bennun v. Rutgers State University, C.A.3 (N.J.)1991, 941 F.2d 154, rehearing denied, certiorari denied 112 S.Ct. 956, 502 U.S. 1066, 117 L.Ed.2d 124. Civil Rights Key Number Symbol​ 1107
Emphasis in determining whether adverse employment action was based upon employee's “national origin”, as opposed to other potential factors, should be on employee's objective appearance to others, not necessarily on his ancestry or birthplace; national origin discrimination is not limited to denial of equal opportunity because of place of origin or possession of physical, cultural or linguistic characteristics of a national origin group. 42 U.S.C.A. § 1983; 29 C.F.R. § 1606.1. Harel v. Rutgers, State University, D.N.J.1998, 5 F.Supp.2d 246, affirmed 191 F.3d 444, certiorari denied 120 S.Ct. 936, 528 U.S. 1117, 145 L.Ed.2d 814. Civil Rights Key Number Symbol​ 1107
Protected classes
In Title VII action, the plaintiff's objective appearance to others, not his subjective feeling about his own ethnicity, was more important in determining whether a plaintiff was a member of a protected class under Title VII. Civil Rights Act of 1964, § 701 et seq., as amended, 42 U.S.C.A. § 2000e et seq. Bennun v. Rutgers State University, C.A.3 (N.J.)1991, 941 F.2d 154, rehearing denied, certiorari denied 112 S.Ct. 956, 502 U.S. 1066, 117 L.Ed.2d 124. Civil Rights Key Number Symbol​ 1107
Sufficiency of evidence, generally
Sufficient evidence supported finding that employment discrimination plaintiff was Hispanic; the plaintiff's father was a Sephardic Jew who traced his lineage to Jews expelled from Spain during the Spanish Inquisition, the plaintiff was born in Argentina, a country where Hispanic culture predominated, and his identification and continued adoption of Spanish culture in his life and the fact that he spoke Spanish in the home supported the conclusion. Civil Rights Act of 1964, § 701 et seq., as amended, 42 U.S.C.A. § 2000e et seq. Bennun v. Rutgers State University, C.A.3 (N.J.)1991, 941 F.2d 154, rehearing denied, certiorari denied 112 S.Ct. 956, 502 U.S. 1066, 117 L.Ed.2d 124. Civil Rights Key Number Symbol​ 1544
Current through September 6, 2018; 83 FR 45202.