David, this essay is one of your best. Powerful and within the tradition of high minded approaches to freedom of speech in the United States. In the absence of a marked change in approach by the leaders of major universities, who are mired in moral relativism and engulfed in charges of plagiarism in their institutions, thought leaders must carry the day for our nation and its constitutional values. I count you in the top tier of the thought leaders who will show us the way. Thank you. And those disruptive students should be expelled with prejudice.
Hi David -- Another great essay. As you know, I've written quite a bit on antisemitism and this is an excellent and awful example of where legitimate protest slides -- multiple times -- into illegitimate bias. You're also spot-on regarding the obvious inapplicability of the first amendment to someone's yard, and regarding the feature-not-a-bug of consequences for protest; that is well-put. (That last point also points to the whole theory of MLK and Gandhi; that the punishment they receive would galvanize moral outrage. So protesters should _want_ to face consequences in order to heighten attention and outrage... if such outrage were indeed forthcoming.)
My sole disagreement: I think you're off-base a little in your ascription of selfish motives to the protesters. I know protesters like the ones in the piece, and while they are insufferable and non-tactical (I too think shutdowns are idiotic), they are not being performative or self-aggrandizing. They are being morally righteous. They think that a genocide is occurring (even it is not) and that they have to use any means at their disposal to wake people up to that, and not stand for it. In a way, I'd agree with that to a point, if I thought there really were a genocide. To go to the obvious example, if this were the 1940s and someone is supporting Nazism, I'd be down for just about any tactic to call attention to that -- except for, of course, targeting German people based on their background, which is clearly what these people were doing. Of course, this isn't the 1940s, but my point is that the extreme protest isn't out of performativity or selfishness. I think that's a caricature found in right-wing circles that is quite inaccurate, as well as condescending. It lessens the power of your argument.
The vices these protesters display include antisemitism, extreme discourtesy, a failure of tactical thinking, a failure to embrace the consequences of nonviolent protest, and extreme self-righteousness. But your short paragraph calling them out for attention-seeking makes them out to be insincere, preening virtue signalers. I think that is incorrect and unhelpful.
But that's only the .5% I'm not in agreement with. It's just boring to praise the 99.5% I liked.
"I’m left with this question: what’s the purpose of protest?"
You pose as answer to this two possibilities: persuasion or performance?
As I read your post, I want to suggest a third option, which comes to my mind as I read Dean Chemerinsky's statement: "The students responsible for this [poster] had the leaders of our student government tell me that if we did not cancel the dinners, they would protest at them." The protesters aren't arguing with him about the issue: after all, "We agree with you about what’s going on in Palestine." They're not even demanding he say what they want him to say. (He and his wife did, after all, just say it to them. That isn't a *broadcast* denunciation, but it might perhaps be parlayed into one if the attempt was approached right.) I think the protesters don't ultimately care about persuasion *or* performance.
Rather, they care about *power*. They care about the power to jerk around their dean, who is possibly the most powerful person they can directly influence. To make it so that when they say jump, he says, "How high?" To get a grip on him now, and then perhaps to leverage it later. If they can get him to cancel the dinners, maybe next time they can elicit more.
Canceling the dinners is their demand. That demand doesn't relate at all to persuasion. And unlike protest which can be invigorating, making this demand is just kinda weird and not something you'd feel good "performing".
And it seems to me the only way out of this, if we view it as genuine power struggle, is to counter the attempted illiberal power play outside the rules with authorized power exercised within the rules. To make it so this choice of tactics as raw power has some sort of real consequences that accord with what the established rules say on paper about them. (At this point I don't desire those consequences be punitive or vindictive. I would just like there to *be any*, and with that threshold crossed we can have reasonable arguments about prosecutorial discretion and how much might be too much.)
Something like six years back or a touch longer (Josh Blackman March 2018 NYU is the first example I can remember), legal commentators could contrast illiberal protest-mob tactics on college campuses with their lack in law schools. And they could say that law schools did better because the law schools were full of students who knew something about the law. The experience of today, with law students who presumably are about as legally informed as then, suggests knowledge isn't the reason for that onetime difference. It's just that the power-play tactics that had overtaken college campuses hadn't trickled upward yet. Now they have. And they're going to stick around until the rules that disallow them are enforced promptly and with high probability.
(ETA: And now that I finish out reading the article -- I stopped to write the above when I hit the question I quoted at start -- I think your advice to them usefully reinforces my answer: "Don’t get mad—get powerful." But that is, in fact, *exactly* what they were trying to do here.)
I think I'm a pretty strong supporter of Americans' freedom of speech and press, but Dean Chemerinsky and his wife and guests have my sympathy and support.
The problem they encountered seems to highlight an egregious shortcoming at our institutions of higher learning. We should ask ourselves, how is it that the conversation focuses more on how to punish people who cross lines than on educating citizens about where the lines are that they must not cross? Isn't it past time to really teach college and law school students how not to abuse the powers they have to oppress others and repress the speech of others? Shouldn't we think of it kind of like driver's ed or gun safety and require special training for those who want to use campuses to protest or oppress others? If students want to protest or demonstrate, fine. They should be required to attend a mandatory seminar on how to do so responsibly.
I think it should be pretty obvious by now that one of the most important lessons every citizen can learn (and college students should be taught) is that the power to oppress and repress is dangerous to individuals, as well as to society, and it should be used very sparingly. All citizens--including those exercising the power of government, as well as those with the power to influence government or segments of society--need to be better educated about how to flex their political power responsibly (in a manner that is consistent with the Constitution).
Some might say that the Constitution has no application to the speech of those who are not part of government. But it's well worth bearing in mind what James Madison wrote about the freedom of speech (in his Report of 1800 about the Virginia Resolutions of 1798 opposing the Sedition Act of 1798). “The truth declared” by the plain text of the Constitution is “[t]he authority of constitutions over governments, and of the sovereignty of the people over constitutions.” Sovereign citizens have the freedom of speech and press primarily for the precise purpose of influencing government.
The “right of freely examining public characters and measures, and of free communication among the people thereon” was initially implicit and subsequently explicit in our Constitution (and state Constitutions) precisely because such freedom has been “justly deemed the only effectual guardian of every” American “right.” The people are meant to be sentinels and guardians of the rights of the people, not oppressors of the equal rights of some people merely because the latter have less power.
Students on college campuses are learning right now. They are learning habits and cementing a mindset that is very dangerous to a free society. They need to be better taught about how to use the power of speech more responsibly. I recommend Jacob Mchangama's book "Free Speech: A History from Socrates to Social Media" and his podcast "Clear and Present Danger." The common theme in all oppression and repression throughout all history is that people with power abuse power. That applies equally to protestors or demonstrators who go too far and to those who would punish them for going too far. An ounce of preventive education is worth a pound of punishing pounding.
Most everyone had a mean streak at sometime in childhood. (cf Freud, Civilization and its Discontents) Mainly, it gets socialized out of us and we adapt to social conventions and find something else to do with whatever impulses made the acting out attractive. When social conventions dissolve over some supposedly overarching moral question, such as gun rights, abortion or cooperation with an enemy using civilians as a defense, any limits dissolve with them. The justification of means by ends can take any route from simple absolutism to misapplied legalism, but the permissive rationale comes down to “my feelings on this are more important than your feelings about anything else.” That exactly sums childhood.
I love the stuff at the end about how people should think about whether they are actually being selfless or if they are acting selfishly (and, perhaps, participating in harming the very people they claim to be concerned with).
However, I don't find your argument about the desierability of punishing these protestors very persuasive. Ultimately, when we punish people we make their lives worse and, except for the most horrible offenders, deny society benefits they might have contributed in the future.
This is, unfortunately, often necessary to achieve a deterrent effect (and sometimes to prevent those disposed to bad acts from doing so again by imprisoning them but not really relevant here). But whenever it's not necessary to achieve that deterrent effect why make anyone suffer?
In this case, while it may be true that in some formal sense the violators were on notice, in the practical sense that's relevant for deterrence they really weren't since this kind of behavior has long been tolerated for progressive causes in our higher education system. In this case, it seems to me that virtually all the deterrence can be achieved with a forward looking statement.
I have had some friends who believed very deeply in the Palestinian cause. They weren’t particularly performative though. They lived and worked in Palestine to try and make a difference and then when they were state side, they tried to convince with perspective and stories that countered the conventional wisdom and politics.
For me at least? It was a lot more powerful than what’s going on today.
I don’t know. I get that there is reason the issue may be more urgent today than it was in the past.
But we know a lot about the brain science of group building among homo sapiens. We also know a lot about its opposite: Genocide.
The thing I am repeatedly struck by is how often the pro-Palestinian protests (at least the ones that I hear about - which may be selection bias) preach what sounds like the gospel of the psychology of genocide.
At best, many of these protestors seem to seek a power reversal. I get that oppressing the oppressor is a political ideology and may, in fact, be having its moment.
To me? It’s not a very compelling argument.
But if this kind of thinking is successful and prevails?
I think it just keeps our species mired in the muck of cyclical violence and thousand year grudges.
David -- thank you for highlighting that there are law school students today using effective, peaceful, and appropriate ways to protest. Most of the news on this topic highlights the poor judgment of the students, which has skewed my impression of law school kids these days :(
Extremely well said David and it is good to see at least a small part of UC Berkely behaving like an educational institution as opposed to a platform for the personal whims of their students.
David, this essay is one of your best. Powerful and within the tradition of high minded approaches to freedom of speech in the United States. In the absence of a marked change in approach by the leaders of major universities, who are mired in moral relativism and engulfed in charges of plagiarism in their institutions, thought leaders must carry the day for our nation and its constitutional values. I count you in the top tier of the thought leaders who will show us the way. Thank you. And those disruptive students should be expelled with prejudice.
Hi David -- Another great essay. As you know, I've written quite a bit on antisemitism and this is an excellent and awful example of where legitimate protest slides -- multiple times -- into illegitimate bias. You're also spot-on regarding the obvious inapplicability of the first amendment to someone's yard, and regarding the feature-not-a-bug of consequences for protest; that is well-put. (That last point also points to the whole theory of MLK and Gandhi; that the punishment they receive would galvanize moral outrage. So protesters should _want_ to face consequences in order to heighten attention and outrage... if such outrage were indeed forthcoming.)
My sole disagreement: I think you're off-base a little in your ascription of selfish motives to the protesters. I know protesters like the ones in the piece, and while they are insufferable and non-tactical (I too think shutdowns are idiotic), they are not being performative or self-aggrandizing. They are being morally righteous. They think that a genocide is occurring (even it is not) and that they have to use any means at their disposal to wake people up to that, and not stand for it. In a way, I'd agree with that to a point, if I thought there really were a genocide. To go to the obvious example, if this were the 1940s and someone is supporting Nazism, I'd be down for just about any tactic to call attention to that -- except for, of course, targeting German people based on their background, which is clearly what these people were doing. Of course, this isn't the 1940s, but my point is that the extreme protest isn't out of performativity or selfishness. I think that's a caricature found in right-wing circles that is quite inaccurate, as well as condescending. It lessens the power of your argument.
The vices these protesters display include antisemitism, extreme discourtesy, a failure of tactical thinking, a failure to embrace the consequences of nonviolent protest, and extreme self-righteousness. But your short paragraph calling them out for attention-seeking makes them out to be insincere, preening virtue signalers. I think that is incorrect and unhelpful.
But that's only the .5% I'm not in agreement with. It's just boring to praise the 99.5% I liked.
"I’m left with this question: what’s the purpose of protest?"
You pose as answer to this two possibilities: persuasion or performance?
As I read your post, I want to suggest a third option, which comes to my mind as I read Dean Chemerinsky's statement: "The students responsible for this [poster] had the leaders of our student government tell me that if we did not cancel the dinners, they would protest at them." The protesters aren't arguing with him about the issue: after all, "We agree with you about what’s going on in Palestine." They're not even demanding he say what they want him to say. (He and his wife did, after all, just say it to them. That isn't a *broadcast* denunciation, but it might perhaps be parlayed into one if the attempt was approached right.) I think the protesters don't ultimately care about persuasion *or* performance.
Rather, they care about *power*. They care about the power to jerk around their dean, who is possibly the most powerful person they can directly influence. To make it so that when they say jump, he says, "How high?" To get a grip on him now, and then perhaps to leverage it later. If they can get him to cancel the dinners, maybe next time they can elicit more.
Canceling the dinners is their demand. That demand doesn't relate at all to persuasion. And unlike protest which can be invigorating, making this demand is just kinda weird and not something you'd feel good "performing".
And it seems to me the only way out of this, if we view it as genuine power struggle, is to counter the attempted illiberal power play outside the rules with authorized power exercised within the rules. To make it so this choice of tactics as raw power has some sort of real consequences that accord with what the established rules say on paper about them. (At this point I don't desire those consequences be punitive or vindictive. I would just like there to *be any*, and with that threshold crossed we can have reasonable arguments about prosecutorial discretion and how much might be too much.)
Something like six years back or a touch longer (Josh Blackman March 2018 NYU is the first example I can remember), legal commentators could contrast illiberal protest-mob tactics on college campuses with their lack in law schools. And they could say that law schools did better because the law schools were full of students who knew something about the law. The experience of today, with law students who presumably are about as legally informed as then, suggests knowledge isn't the reason for that onetime difference. It's just that the power-play tactics that had overtaken college campuses hadn't trickled upward yet. Now they have. And they're going to stick around until the rules that disallow them are enforced promptly and with high probability.
(ETA: And now that I finish out reading the article -- I stopped to write the above when I hit the question I quoted at start -- I think your advice to them usefully reinforces my answer: "Don’t get mad—get powerful." But that is, in fact, *exactly* what they were trying to do here.)
I think I'm a pretty strong supporter of Americans' freedom of speech and press, but Dean Chemerinsky and his wife and guests have my sympathy and support.
The problem they encountered seems to highlight an egregious shortcoming at our institutions of higher learning. We should ask ourselves, how is it that the conversation focuses more on how to punish people who cross lines than on educating citizens about where the lines are that they must not cross? Isn't it past time to really teach college and law school students how not to abuse the powers they have to oppress others and repress the speech of others? Shouldn't we think of it kind of like driver's ed or gun safety and require special training for those who want to use campuses to protest or oppress others? If students want to protest or demonstrate, fine. They should be required to attend a mandatory seminar on how to do so responsibly.
I think it should be pretty obvious by now that one of the most important lessons every citizen can learn (and college students should be taught) is that the power to oppress and repress is dangerous to individuals, as well as to society, and it should be used very sparingly. All citizens--including those exercising the power of government, as well as those with the power to influence government or segments of society--need to be better educated about how to flex their political power responsibly (in a manner that is consistent with the Constitution).
Some might say that the Constitution has no application to the speech of those who are not part of government. But it's well worth bearing in mind what James Madison wrote about the freedom of speech (in his Report of 1800 about the Virginia Resolutions of 1798 opposing the Sedition Act of 1798). “The truth declared” by the plain text of the Constitution is “[t]he authority of constitutions over governments, and of the sovereignty of the people over constitutions.” Sovereign citizens have the freedom of speech and press primarily for the precise purpose of influencing government.
The “right of freely examining public characters and measures, and of free communication among the people thereon” was initially implicit and subsequently explicit in our Constitution (and state Constitutions) precisely because such freedom has been “justly deemed the only effectual guardian of every” American “right.” The people are meant to be sentinels and guardians of the rights of the people, not oppressors of the equal rights of some people merely because the latter have less power.
Students on college campuses are learning right now. They are learning habits and cementing a mindset that is very dangerous to a free society. They need to be better taught about how to use the power of speech more responsibly. I recommend Jacob Mchangama's book "Free Speech: A History from Socrates to Social Media" and his podcast "Clear and Present Danger." The common theme in all oppression and repression throughout all history is that people with power abuse power. That applies equally to protestors or demonstrators who go too far and to those who would punish them for going too far. An ounce of preventive education is worth a pound of punishing pounding.
Most everyone had a mean streak at sometime in childhood. (cf Freud, Civilization and its Discontents) Mainly, it gets socialized out of us and we adapt to social conventions and find something else to do with whatever impulses made the acting out attractive. When social conventions dissolve over some supposedly overarching moral question, such as gun rights, abortion or cooperation with an enemy using civilians as a defense, any limits dissolve with them. The justification of means by ends can take any route from simple absolutism to misapplied legalism, but the permissive rationale comes down to “my feelings on this are more important than your feelings about anything else.” That exactly sums childhood.
I love the stuff at the end about how people should think about whether they are actually being selfless or if they are acting selfishly (and, perhaps, participating in harming the very people they claim to be concerned with).
However, I don't find your argument about the desierability of punishing these protestors very persuasive. Ultimately, when we punish people we make their lives worse and, except for the most horrible offenders, deny society benefits they might have contributed in the future.
This is, unfortunately, often necessary to achieve a deterrent effect (and sometimes to prevent those disposed to bad acts from doing so again by imprisoning them but not really relevant here). But whenever it's not necessary to achieve that deterrent effect why make anyone suffer?
In this case, while it may be true that in some formal sense the violators were on notice, in the practical sense that's relevant for deterrence they really weren't since this kind of behavior has long been tolerated for progressive causes in our higher education system. In this case, it seems to me that virtually all the deterrence can be achieved with a forward looking statement.
Outstanding
I have had some friends who believed very deeply in the Palestinian cause. They weren’t particularly performative though. They lived and worked in Palestine to try and make a difference and then when they were state side, they tried to convince with perspective and stories that countered the conventional wisdom and politics.
For me at least? It was a lot more powerful than what’s going on today.
I don’t know. I get that there is reason the issue may be more urgent today than it was in the past.
But we know a lot about the brain science of group building among homo sapiens. We also know a lot about its opposite: Genocide.
The thing I am repeatedly struck by is how often the pro-Palestinian protests (at least the ones that I hear about - which may be selection bias) preach what sounds like the gospel of the psychology of genocide.
At best, many of these protestors seem to seek a power reversal. I get that oppressing the oppressor is a political ideology and may, in fact, be having its moment.
To me? It’s not a very compelling argument.
But if this kind of thinking is successful and prevails?
I think it just keeps our species mired in the muck of cyclical violence and thousand year grudges.
Excellent essay and exactly why I subscribe.
David -- thank you for highlighting that there are law school students today using effective, peaceful, and appropriate ways to protest. Most of the news on this topic highlights the poor judgment of the students, which has skewed my impression of law school kids these days :(
Thank you, David.
Extremely well said David and it is good to see at least a small part of UC Berkely behaving like an educational institution as opposed to a platform for the personal whims of their students.
So good, David.
Obviously. But your comments make me curious: what consequences are you urging?