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Thursday, December 07, 2023

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


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

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

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

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

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

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

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

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

STEFANIK: So the answer is yes.

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

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

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

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

MAGILL: It can be harassment.

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

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

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

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

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

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

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

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

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

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

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

9 comments:

  1. Popehat made a similar, and similarly persuasive, argument here: https://popehat.substack.com/p/stop-demanding-dumb-answers-to-hard

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  2. I seem to remember some of the same Republicans fawning over the very fine people on both sides chanting "Jews will not replace us" in Charlottesville, so I have a very hard time believing they suddenly now care about calls for genocide against the Jews.

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  3. David, I've been reading your blog for a few years now so I am thankfully familiar with the reasons you've laid out in the past as to why free speech needs to be protected especially for the sake of minorities' rights. That said, I am still struggling with the explanation you've provided in this instance specifically when reading Magill's testimony, which I also watched some of. My husband works for the Jewish Fraternity AEPi which is why I know that most of what we've seen in the media is just the tip of the iceberg of what Jewish students have been experiencing on campuses. I share that because what has struck me in this particular instance is that Magill says that if speech becomes conduct it can become harassment but at no point in the section you quotes or that I heard did Magill provide an example of what that conduct/harrasment could look like. When I viewed the video of Jewish students locking themselves in a library because a small but not inconsequential group of pro-palestinian protesters was targeting them for being Jewish, that looked a lot to me like speech becoming conduct. I realize this example might not have been on Magills campus but surely if she had been called to testify she could have pushed back against Stefanik trying to nail her down with some examples to illustrate the distinction. But since she wasn't able to provide those examples, do you have any insights you can offer based on the videos that have been coming out of these campuses recently? With that question in mind, I want to share where my thinking on this is at the moment, which is that I think that Stefanik arguing that waiting for a genocide to be attempted is the wrong framing for the distinction that I'd like clarity on. To me it seems as though if a pro-palestinian March is shouting "intifada" that's well within free speech. But if an individual or group of that march see some Jews walking by their march and decide to follow them and shout intifada at them and attempt to follow them into a building for being Jewish, is that not then conduct? And if not I would very much like to learn why. Thank you!

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  4. A grandstanding congresswoman bellowing "Yes or no! It's a yes or no question!" isn't ideal for Magill working through some in depth examples, so I remain sympathetic to her. In terms of what those examples would look like, as you can imagine it's pretty context dependent. This post by Ken White, who's a superb First Amendment specialist, lays out some examples in a manner I find mostly persuasive. The example you give of a group of protesters trapping a group of Jewish students in a library, as you present it, also would strike me as conduct.

    I absolutely get the point that calls for an intifada in the context of a campus rally are "tip of the iceberg" -- but that's just the point: it was Stefanik who elected to focus on the tip. Her whole point was not to drill down into the cases that actually, legitimately could be subjected to administrative sanction; her inquiry was designed to try and get Magill and others to agree to sanction speech-qua-speech.

    Finally, as Chait observes, saying that we have to wait for conduct doesn't mean we have to wait for genocide to be attempted. A case of vandalism targeting a campus Hillel (say, spraypainting "long live the intifada") isn't "genocide", but it is conduct and therefore isn't protected under free speech guidelines even as a student saying "long live the intifada" would be.

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    1. Thank you for your reply David! Ken's essay was also very helpful and clarifying. And while I'm reassured that my understanding of when protected speech turns into not protected conduct is still reasonably attuned, I still feel ill at ease with how the call to protect Jewish students from antisemitic conduct has turned again into a conversation about free speech that is damaging our country and putting our community at risk all over again. That slippage aside, do you know if this congressional hearing was part of Bide 's strategy to respond to antisemitism on campus? And if it was is there any way to push back against how it was conducted and its consequences (that don't help protect Jewish students!) in a way that could help bring the focus back to where it needs to be?

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  5. Hi David,

    I am a big fan of your writing. I have seen some non-lawyers say that allowing students to protest with "calls for Jewish genocide" could be considered Title VI violations by universities in some way. Is this reasonable or is this clearly a free speech issue, and any other student protests that call for genocide would be protected similarly? I am not a lawyer and have no knowledge of Title VI and little knowledge of the free speech protections in the USA.

    Thank you for writing about all these current issues, really appreciated your perspectives.

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  6. We'll leave aside the context Stefanik was talking about ("intifada" cries) and assume we're talking about an actual, literal, unambiguous call to genocide.

    Title VI protects (among others) Jews from discrimination, including harassment, on college campuses. But "harassment" does not intrinsically include offensive speech (no matter how repulsive) on the basis of its repugnant ideological content. The Ken White post I linked to above gives some examples of what would and wouldn't qualify as harassment; which goes to the correctness of the university presidents saying "it depends". A blanket prohibition on "protests" (in any form) which include "calls for Jewish genocide" would neither be demanded by Title VI nor permitted (in a public university context) by the First Amendment. But there are absolutely specific ways one might "protest" that qualify as harassing. To give one distinction (White gives others): At a rally a speaker says "We support killing Jews!" -- that's not harassment. A group follows a particular Jewish student around campus chanting "support killing Jews! Support killing Jews!" -- that is harassment.

    All of these rules are identical for Jews and other covered groups under Title VI.

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  8. I doubt that this hearing weas part of Biden's strategy -- it was a House hearing, which means it was a GOP initiative, which means it almost certainly was acting outside of the White House's orbit.

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