Dec 7, 2023Liked by David Lat

David, you wrote a long column on a morally complex topic, incorporating the widely divergent views of people you respect, addressing concerns and objections from all sides, and coming to a well-supported, reasonable, sustainable conclusion. What's WRONG with you?

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Dec 7, 2023Liked by David Lat

I am an old lawyer, now retired, who remembers very well the chilling march through Skokie, IL, so many years ago. My feeling then is dwarfed by my feeling now. Not because defense of 1st Amendment rights are (or should be) any less robust, but because of context. We entrust our children to these universities, and we need to expect more from them.

Violence such as that suffered by the young Jewish student at the hands of the Harvard Law Review Editor and his “friends”, repeated in various heartbreaking forms all over the campuses of our nation, is the context that frames the fear and intimidation created, intentionally so, by those who chant (in so many words) “we are coming for you”.

Yes, we, especially as lawyers, can find a colorable defense in the 1st Amendment. But I ask, who are we, in the context of a university, when we do not call those to account (in a chosen code of conduct) for the harm inflicted by mob behavior directly calling for the genocide of a people? Especially so, when in context, all around us are individuals threatened, harassed, and intimidated by actual physical violence in furtherance of that very call?

I ask more of our educators. I would hope for more from all of us.

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Dec 7, 2023Liked by David Lat

This whole issue strikes me as being approached through the wrong lens by most commentators. This is fundamentally a discrimination issue, not a speech issue or a harassment issue.

It isn't Rep. Stefanik's place to tell Harvard "This specific speech doesn't violate your Code of Conduct? Really? Yes it does" -- Harvard's policies are its own, and as a private institution it can set those policies however it so chooses! Rather, the issue is that Harvard uses its Code of Conduct as a sword (for preferred voices) and a shield (against disfavored criticism -- Jewish in this instance).

The core issue is that these universities have used their Codes of Conduct in the past on a hair-trigger, with aggressive breadth in interpretation, to advance the universities' preferred groups -- but now the universities have a different, much higher, standard for Jewish students. This is fundamentally discriminatory. I cannot tell if this has been a wake-up call for the universities of how far their policies have taken them, but I can only hope so.

I too hope for a "no more statements" approach to these issues, but the administrators/faculty that have led the universities down this path do not strike me as likely to unwind the machine they've put in place. Society's plummeting trust in universities as an institution feels very apt here -- where I think all of us think the least likely outcome is that the universities admit to hypocritical and bad behavior in the past while committing to do better in the future to fairly, and equally, apply their policies for all people going forward.

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Dec 7, 2023Liked by David Lat

David two columns in a week, Christmas came early this year! I have not had a chance to review all of the comments yet,so someone may have made this observation. Oliver Weissman had an excellent observation about this issue In today’s issue of the Free Press.

He noted that the hypocrisy is not so much free speech but the issue of safetyism. That these Universities promote safe spaces on campus or disinvite speakers on campus when some group of students don’t like the persons political point of view. Harvard a few years ago did not defend the professor who had the wild notion that the University shouldn’t police what costume a college student could wear for Halloween or that students and professors should be held to account for the ever shifting crime of micro aggressions.

So, it seems to me that it is quite reasonable that these University presidents were hoisted on their petard not for their sudden appreciation for the First Amendment but for their hypocrisy surrounding these issues.

I also find it interesting that the DEI infrastructure is incapable of addressing this issues. I guess if you not a chosen “victim” then your shit out of luck.

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Dec 7, 2023Liked by David Lat

Great piece, and as a free speech die hard, I tend to agree with you. I think what makes the current situation hard for many Jewish people like myself to swallow is that there is no doubt that, despite what the Harvard president may have said, a student or faculty member who called for the mass murder of Black people or trans people or whatever would be out on their butts in a second. But to be honest, I think protesters screaming “we need another Auschwitz here in Boston” would be too. The fact is that “globalize the intifada” and “from the river to the sea” are coded phrases and everyone can argue they mean this (murder Jews) or that (support the Palestinian political project).

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Thank you for a remarkably well-done column. Please know that my comments below are meant to add to the conversation and quibble with one point, not to denigrate the magnitude of your achievement in articulating your position.

Although you write "even free-speech zealots like us agree that when speech is not protected by the First Amendment, it’s not protected by the First Amendment", I do not think you really accept that position. All of the speech-response to which you point (by universities and by private employers) is NOT prohibited by the First Amendment because it is not state action. "Cancel culture" (which you oppose) is just another way to say "private actors exercising the First Amendment rights of free speech and free association to denounce and/or decline to work with people who espouse viewpoints that they find odious." I do not believe that a person can be anti-"cancel culture" and pro-First Amendment. Rather, you are describing a world where people should have the ability to say/do whatever they want, but people who are horrified by those statements/actions should not be free to scream from the highest mountain and take action to free themselves of interactions with (or financial support to) the person that has espoused an idea that they find loathesome.

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Dec 7, 2023Liked by David Lat

It is uncomfortable to admit that the speech is not harassment in your broad definition, but your argument is persuasive to me. I agree with the AO description of the sneering on behalf of the trio of female Presidents as academic hubris at its best, and the fact that they were overcoached on responses. Tone deaf is being kind to the hearing impaired to describe the question-response volley before Elise Stefanik. I would much prefer that tolerance of speech be higher and tolerance of bad behavior be lower, but in today's highly charged environment, that is a preference perhaps not achievable.

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Dec 10, 2023·edited Dec 10, 2023Liked by David Lat

What makes this a tough issue is that there is a tension between applying the right incentives to the university administrators and expressing a coherent speech protective viewpoint and treating Jewish students equally.

The problem is that there are strong incentives for university administration to punish and prevent a wide range of racist, sexist, homophobic etc speech and they've consistently violated norms of free expression to do so in the past.

Now suppose that whenever an issue like this one comes up where their previous non-nuetral stance gets them in trouble comes up they can switch to a free expression defense and get support from those of us who want a culture on campus that allows for a wide range of debate. Their incentives will be to just make that move every time. Worse, if they make this move only when it's Jewish students being targeted they are necessarily treating them worse than similarly situated students.

It's hard because if you commit to critisize them now no matter what they do they have no good incentives either. If you let them say we now believe in free expression and accept that as good enough they get away with treating Jewish students worse and have every incentive to do it again.

So I think the right move is to say that they only get credit for a free speech defense if they take responsibility for the ways they violated that (inconsistent application) in the past and explain how they'll commit not to do so in the future.

In other words, they need to publicly identify the times that they intervened to protect other groups and violated free speech norms and say they were wrong to do so. That's the closest you can get to equalizing the way they treat Jewish students because at least you retroactively say that we shouldn't have intervened to defend these other groups.

I don't think the administrations of these colleges are prepared to do this.

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David, thank you for sharing and having the courage to publish your thoughts. The title you chose piqued my curiosity about whether there might be more than one kind of free speech hypocrisy at work here. I can’t help but wonder whether serious, thoughtful people are being vilified rashly or for mere political gain.

A politician who holds office by virtue of being elected by voters is vilifying, for example, the President of Harvard because she purportedly “cannot answer the basic question: ‘Does calling for the genocide of Jews violate Harvard’s rules regarding bullying and harassment.’ ” But is that question as “basic” as it was billed?

On the one hand, it seems it should be easy for any sentient being to say that “calling” for “genocide” (especially in speech that is directed at particular individuals) constitutes “bullying and harassment.” On the other hand, it is much harder to say that the actual speech that Representative Stefanik targeted constituted any kind of “call” for “genocide.” You identified the following as (according to Representative Stefanik) purported “call[s]” for “genocide.”

“There is only one solution. Intifada revolution.”

“Globalize the Intifada.”

“From the river to the sea.”

Those sounded like protest slogans to me. I don’t have any idea how many people were expressing any such slogan or what else they were doing at the time, but I think those facts (not just the words) should be considered.

In light of the history of the expression “final solution” being horrifically abused and directed at the same people as the current allusion to “one solution,” I’m inclined to feel that the expression “one solution” is extremely offensive and extremely inappropriate. But to avoid being hypocritical, I couldn’t help but remind myself that maybe the current allusion to “solution” might be meant to remind people that the Israeli solution to the Palestinian problem—especially to those on the receiving end of that solution—sometimes (including right now) looks suspiciously similar to the earlier historical solution.

For similar reasons, targeting the expression “from the river to the sea” here really makes me wonder about who is being hypocritical. If I compare a map of what was Palestine with a map of what now is Israel, I cannot help but wonder who came up with that slogan and who actually is attempting to implement it. Then, I wonder if the people characterizing the slogan as a “call” for “genocide” also would characterize the current implementation to be genocide.

As for the use of the word “revolution,” it certainly does not necessarily mean violent revolution. Many of the most illustrious and enlightened of our Founders emphasized the non-violent meaning of revolution. They often thought of revolution as political evolution.

Thomas Jefferson, for example, trumpeted his first election as “the revolution of 1800” and argued it was “as real a revolution in the principles of our government as that of 76.”

John Adams (many years after the Revolutionary War) insisted that the "[American] Revolution was effected before the war [even] commenced. The Revolution was in the minds and hearts of the people; a change in” their “sentiments of their duties and obligations.” He insisted that “[t]his radical change in the principles, opinions, sentiments, and affections of the people, was the real American Revolution.”

As you know, James Wilson was another of our most illustrious and most enlightened Founders. For those who don’t know, Wilson was one of the very few who signed both the Declaration of Independence and the Constitution, and he was one of the leading participants in drafting the Constitution (including linking the Declaration with the Constitution with the vital and stirring words of the Preamble) and in having the Constitution ratified. He was elected twice to the Continental Congress and later was a U.S. Supreme Court Justice.

Wilson emphasized the following view of “revolution” at the Pennsylvania convention for ratifying the Constitution: “America now exhibits to the world - a gentle, a peaceful, a voluntary, and a deliberate transition from one constitution of government to another” and this “happy experience teaches us to view such revolutions in a very different light - to consider them only as progressive steps in improving the knowledge of government, and increasing the happiness of society.”

So did President Gay really get a fair hearing?

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Are people who are angry and outspoken about what has been happening in Gaza really merely "anti-semitic" or are they anti-killing massive numbers of civilians and massive, widespread destruction of people's homes? Are people who are angry and outspoken about killing massive numbers of civilians and massive, widespread destruction of people's homes in Ukraine really merely "anti-Russian"? Were people who were anti-war or anti-slavery or anti-discrimination of other kinds really "anti-American"?

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David, I think there is a broader context that informs this issue. At one time, certainly when you were there, Jews represented a quarter of the student population at Harvard. My understanding is that it is now down to 5%. What is happening at Harvard is not simply students expressing their views. Antisemitism has become so pervasive among segments of the student body that there is now an atmosphere of hatred directed at Jewish students.

I'm a card-carrying member of the ACLU and I supported the right of Nazis to march through Skokie. But there was no danger of Nazis taking over Skokie. At some point the expression of hatred, even if it does not involve shouting in someone's face or physical conduct, becomes so widespread, that it constitutes harassment (or something worse). In the case of private institutions that are not constrained by the First Amendment, they have an obligation to prevent hatred in all its forms from taking over the institution.

Now I am not arguing for creating "safe spaces." No topic should be off the table in class, even antisemitism, but if taking action against widespread expressions of hatred is inconsistent with First Amendment restrictions on the government, it is nevertheless necessary for an entity dedicated to teaching students from all backgrounds. I am Jewish. I would recommend Jewish parents not send their children to Harvard (no offense, David, but I think there are a lot better schools out there anyway--but that is a different discussion). Harvard's President has made it crystal clear that it will take no real action to protect Jewish students. So Harvard steps back 100 years. We did just fine without it.

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Dec 7, 2023Liked by David Lat

I 100% agree with you in a vacuum.

Behind the criticism though, of these three, is the years and many incidents whereby conservative speech has been shut down and the university has failed to protect speakers whose viewpoints have been unpopular with a very vocal minority willing to undertake to stop the speech "by all means necessary." With these poor credentials then, the voiced commitment to free speech rings hollow, and when we hear such stentorian commitments to it voiced only NOW do our ears perk up.

Simply put, I do NOT believe them when they said that they would react exactly the same if other minorities were denounced. I believe there would be serious repercussions for the speaker. Not a rousing defense of free speech.

So, yes. the commitment to free speech isn't itself a problem. It would be in fact commendable had it not been that until now it was mostly lacking. Hearing a commitment to free speech ONLY when that speech is calling for your head doesn't sound a like a call for free speech, and only a fool would take it so.

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Well said and well done, David

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Dec 18, 2023·edited Dec 18, 2023Liked by David Lat

I'm extremely late to the party but I think the First Amendment framing of the issue misses the real underlying disagreement: do the slogans in question actually refer to genocide? In my estimation, if a student were to publicly take an unequivocally pro-genocide position (e.g., the IDF should exterminate all Gazans, or Palestinians would be in the right to take Israeli territory and ethnically cleanse those territories) and be expelled by the school on that basis, not many people would bat an eye, even if that outcome is technically inconsistent with the Code of Conduct or First Amendment principles. The real issue is that slogans like "globalize the intifada" and "from the river to the sea" are basically Rorschach tests and the listener can read into them what they want. To some people they might be obvious pro-genocide messages but to others they might mean that the speaker advocates a one-state solution or some other form of justice or recompense for Palestinians. A related issue is the nebulous definition of genocide. Some conduct obviously constitutes genocide (e.g. the Holocaust) but the definition under international law includes conduct like "causing serious mental harm to members of the group" and "deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part." Frankly, depending on how expansively one reads those definitions, a lot of what is happening around the world could be called genocide, and casual use of the term by politicians and governments as part of lawfare has only exacerbated the unclarity. This, in my opinion, is why a "genocide exception" to permissible speech on campus is unworkable. Maybe a "conduct universally recognized as heinous (e.g. murder, rape, torture) exception" gets closer to the line that people would instinctively want to draw.

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Dec 9, 2023Liked by David Lat

This is a difficult and a complex issue and you do an admirable job of tackling it especially given your background. I would simply suggest that the challenge for these leaders is that they couched their language in verbose and heavily "lawyered" language that made it difficult for the layperson to understand let alone relate to. This likely flustered and frustrated the politicians who had their own agendas entering into the hearing so much as did the same for the viewing public who, likewise, each came into it with their own agendas and perspectives.

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After further thought, here is the fundamental problem that I see with David’s “free speech culture” stance.

Either a school says (1) all that would be protected under the First Amendment (if we were a state actor) is permitted here


(2) there are limits (short of First Amendment limits) that we impose on members of the University community.

If it is #1, then people who engage in speech do not get protection from the First Amendment responses of people offended by the original statement.

If it is #2, then both the original speaker and the responders are subject to university discipline for anything they say AND the university is subject to public criticism for failure to discipline people who say/do things that the general public finds outrageous.

Neither #1 nor #2 fit into your vision for “free speech culture”, but there is no other stable equilibrium.

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