More Speech Wars
A student recently posted this announcement to the school-wide email list, asking students to join in protesting the annual “Boston Celebrates Israel” event (for Palestinian rights issues). A series of angry responses ensued. One person called for a “unified response” from the Jewish Law Students Association, and another called the message “hate speech” that “shouldn’t be tolerated by our community or administration.” A similar “flame war” already occurred on this same topic on this same list last year.
I wrote the following response to the Jewish Law Students list. It has been edited slightly to remove the identities of the poster of the original message as well as a pro-Israel professor. I am sure these sorts of incidents are being played out all over the country, and many people in the academy have not come to terms with the information environment that results from the ease of reaching a wide audience with a mass email.
I’ve steered clear of this whole discussion, but I am uneasy about the prospect of a “uniform response” from JLSA et al. I could not sign on to any statement condemning this person’s postings, and a unified statement coming from JLSA criticizing this speech would seem, to me, to be misrepresentative of the views of many Jews I know at NUSL.
I consider myself a Zionist. I have lived in Beer Sheva, and have relatives in Tel Aviv and Jerusalem. My father taught at Ben-Gurion University. Like almost any Jew, members of my family perished in the Holocaust. Yet if I had to chose between the positions staked out in e.g., some of Prof. X’s postings and this person’s, I would have to pick the latter, although I won’t go into detail since that’s not the point of this message. (Of course I fully support Prof. X expressing his viewpoint in the ways he does).
It’s quite dangerous (and in my mind, inaccurate) to brand these positngs at hate speech. Even the pseudonymous “John Faggart” postings (attacking same sex marriage rights, etc.) of the last two years are only questionably hate speech. Just because you find speech deeply offensive does not make it hate speech. If we define hate speech based on the subjective effect on the listener, and then sanction such speech, we live in a very limited speech environment indeed.
The rherotic in this person’s emails is quite similar to that targetted against any number of institutions that are viewed as oppressive by some—e.g., the World Bank/IMF, South Africa, the United States, George W. Bush. When these institutions are attacked, it is common to “personalize” the attack—”George W. Bush, how many Iraqi children have you killed today?” In fact, if you look at Supreme Court First Amendment jurisprudence, I suggest that you’ll find this person’s postings would easily fall within speech that warrants the highest level of protection—core political speech.
Just by contrast, I would consider it hate speech for someone to draw Swastikas on lockers of Jews (or anyone); to send out an email: “Jews have no place at NUSL. They are dirty pigs and should be put in gas chambers.” (or substitute Zionists for Jews); or, as is far more common: “Niggers, go back to Africa.”; or, a burning cross in the courtyard (see Virginia v. Black). Many of us would agree that none of speech should be protected. If you compare these examples to this person’s postings, I think you’ll find they come up woefully short of speech that should be punished.
Although NUSL may not be a State Actor and thus directly constrained by the First Amendment, the Academy has traditionally afforded speech greater protection than that provide by the Constitution. Note also 20 USC 1011a:
“It is the sense of Congress that no student attending an institution of higher education on a full- or part-time basis should, on the basis of participation in protected speech or protected association, be excluded from participation in, be denied the benefits of, or be subjected to discrimination or official sanction under any education program, activity, or division of the institution directly or indirectly receiving financial assistance under this chapter, whether or not such program, activity, or division is sponsored or officially sanctioned by the institution.”
Note also that other States do apply First Amendment-type protections against private actors. For example, the Leonard Law in California bars non-religious private colleges and universities from disciplining students for speech unless the government could prohibit the same speech.
I strongly oppose any request by JLSA for the administration to sanction this person’s postings, and I also believe that such a sanction may be illegal.