Ohio

As protests against Israel’s actions in Gaza coupled with demands that Universities divest from companies doing business with Israel spread, there has been increasing political pressure by Congress on University Presidents to crack down on alleged anti-semitic speech. Though the situation that has given the immediate impetus to the protests merits a lengthy analysis of its own, in this post, I will focus on the issues related to the potential limits of the First Amendment and Academic Freedom on University campuses. In doing so, I will focus on two questions.

1. Are the protests actually anti-Semitic? In answering this issue, I will not focus on whether or not individuals at protests have  engaged in anti-semitic statements or actions, but whether or not the protests, taken as a whole are motivated by bigotry, prejudice or hatred of Jews as a group of people, or properly directed at a political entity and its actions, specifically, the State of Israel.
2. To what extent have the protestors, if at all, transgressed the boundaries of academic freedom and the First Amendment?

In addressing the first question, we need to define anti-semitism: The International Holocaust Remembrance Alliance defines anti-semitism as:

 “Antisemitism is a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of antisemitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities.”

Though this definition was initially meant to be non-binding, it is now officially enshrined into law for purposes of enforcement of Title VI of the 1964 Civil Rights Act. Since the U.S. does not prohibit hate speech, it does not outlaw such expressions per se. What it does mean, most likely, is that this definition will be the standard for judging allegations of anti-semitic harassment in the workplace and in education. Taken at face value, this seems to be as useful a definition as any. However, by buying into this definition, more controversial examples are also implicitly incorporated. The IHRA extends this definition to incorporate what it considers to be biased criticisms of Israel. The Congressional Act adopts this standard by declaring that the House resolution:

clearly and firmly states that anti-Zionism is antisemitism;

While the IHRA definition lapses into vagueness, the Jerusalem Declaration is more specific and aims to distinguish between criticism of Israel that is anti-semitic and criticism that is not. Specifically, the Jerusalem Declaration does not define advocating for justice for Palestinians or anti-Zionism as anti-semitic. And yet, Congress has specifically stated that definitions other than the IHRA definition may not be used, thus precluding the use of the Jerusalem Declaration.

And herein lies the problem. We are dealing with two differing versions of the definition of anti-semitism. One definition is clear while the other allows for a definition of anti-semitism that is vague, sweeping and aims at eliminating criticism of a political ideology (Zionism) and ending what some undefined party might consider be be biased criticism of Israel. If we adopt the more restrictive definition of anti-semitism, while there have been credible reports in the media of individual acts of overt anti-semitism on college campuses  neither the protestors nor the protests have directly expressed hatred or bigotry towards Jews as an ethnic group or against the practice of Judaism as a religion.

It is important to note that there have been equally credible reports of such behavior directed at Palestinians and Arabs. In some cases pro-Palestinian students have had job offers revoked or been doxxed. Counter protestors have directed acts of intimidation at the protestors.

Yet while some media sources and Congressional Representatives focus on the most extreme comments of protestors, often taken out of context, the real target is political speech that is critical of Israel and does not meet the Jerusalem Declaration’s definition. To argue that political speech is not anti-semitic, is not to say all pronouncements of people affiliated with the demonstrations is necessarily always correct or well thought out. Nor is it to deny the irony of Judith Butler’s argument that the standard for judging anti-semitism should be both narrow and clear or the sudden embrace of many of those on the right of standards for judging discriminatory speech that they have in the past ridiculed.

To sum up: Some statements by some demonstrators can reasonably be interpreted, even by more narrow definitions to be anti-semitic. However, such statements, in isolation, do not necessarily constitute harassment. Other statements have simply been addled. Yet taken as a whole, the demonstrations have been about objecting to US foreign policy, to Israeli actions that have devastated the civilian population and to the investments of their own Universities in companies that profit from doing business with Israel. One may agree or disagree with this speech. Yet the use of the smear of anti-semitism against all criticism of Israel itself results in shutting down needed debate over the Middle East.

Having addressed the issue of anti-Semitism at the protests, I now wish to address whether or not the protests constitute protected speech. While in principle, even hate speech is protected by the First Amendment, when directed at individuals, either in a workplace or even in an academic setting, such speech constitutes harassment, and thus loses protection if it creates a hostile and intimidating environment based on protected characteristics. Thus, shouting slogans, even bad ones, at demonstrations is in principle protected speech. Public demonstrations at Public Universities fall under the First Amendment and most private Universities have committed to similar principles. Hence while I dispute that the demonstrations are inherently anti-semitic, even expressions of anti-semitism are in this context, protected. That there is inconsistency in defining and applying the standards for judging speech on college campuses is true-but that does not invalidate the larger point.

Yet speech, even well reasoned, calm, and non-controversial speech, in some contexts might be reasonably prohibited, though in practice, few ever do so in the case of non-controversial speech. Universities and other public entities are well within their rights to sanction harassment and/or speech that disrupts procedures. A demonstration on the quad that demands the University divest from Israel is clearly protected speech. A demonstration outside a classroom is not. Yet when we are judging whether not speech can be prohibited by time and place, it is imperative to apply a standard of viewpoint neutrality.

Whether the encampments themselves constitute protected speech is more complex. Here again, provided a University applies the same standard to all groups, it is certainly within its rights to prohibit the erection of structures or tents and to prohibit overnight camping on the lawn. This raises questions about the nature of encampments which depends on the policies Universities have adopted about erecting tents or structures in specific spaces. Other tactics, such as disrupting classes, occupying buildings, or shouting down people with opposing views, are not protected speech. To date however, there have been no credible reports of any kind of organized violence or vandalism sanctioned by or organized by the leaders of the demonstrations. For the most part, the encampments have been examples of organized civil disobedience.

The issue of how Universities should deal with protests that become disruptive or which otherwise violate University policies is complex. It is important that all groups are treated equally. There is no obligation for Universities to negotiate with a self appointed student group over the University’s investments. Yet the response of calling in the police to arrest students and dismantling encampments, especially in those cases where University policy does not prohibit encampments is disproportionate to the actual problem. The way in which student protests have been targeted and now officially made the object of opprobrium by Congress, is a clear and present danger to the First Amendment. As matters stand, we are headed for a replay of Nixon and Tin Soldiers.