The Wrongologist

The Daily Escape:

Wild surf, Shore Acres SP, OR – December 2020 photo by Alan Nyri Photography

Instead of a soothing Saturday, Wrongo has decided to wade into the hot steaming pile that is the controversy over whether the presidents of various prestige universities are sufficiently anti-genocide. What they said at the House hearings has raised a chorus of voices who think that the leadership at Harvard, MIT and UPenn just aren’t anti-genocide enough.

From Bloomberg’s Noah Feldman:

“The lowlight of the House hearings on campus antisemitism…came when Congresswoman Elise Stefanik (R-NY) asked the presidents of Harvard, MIT, and the University of Pennsylvania whether it would be bullying and harassment if someone on campus called for a genocide of Jews. The presidents’ answers — that it depended on context — landed about as badly as it could have. Stefanik, a Trumpist Republican election denier, browbeat them and called it “unacceptable.”

Feldman is a law professor at Harvard. He went on to say:

“The core idea of First Amendment freedom is that the expression of ideas should not be punished because doing so would make it harder, not easier, to find the truth. That freedom extends to the most hateful ideas imaginable, including advocacy of racism, antisemitism, and yes, genocide.”

Wrongo isn’t a lawyer and this isn’t a court or a classroom, so what follows is his take on this matter.

Can speech be constrained? In 1969, the Supreme Court protected a Ku Klux Klan member’s speech and created the “imminent danger” test to determine on what grounds speech can be limited, saying in Brandenburg v. Ohio that:

“The constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force, or of law violation except where such advocacy is directed to inciting imminent lawless action and is likely to incite or produce such action.”

Speech promoting violation of the law may only be restricted when it poses an imminent danger of unlawful action, where the speaker has the intention to incite such action, and there is the likelihood that this will be the consequence of that speech.

In 2017, the Court affirmed this in a unanimous decision on Matal v. Tam. The issue was about government prohibiting the registration of trademarks that are “racially disparaging”. Effectively, the Supreme Court unanimously reaffirmed that there is no “hate speech” exception to the First Amendment. Such speech can be prohibited when the very utterances inflict injury or tend to incite an immediate breach of the peace.

There is plenty of case law on the First Amendment out there to read or about hate speech if you prefer to do your own research. From Wikipedia:

“In the 1980s and 1990s, more than 350…universities adopted “speech codes” regulating discriminatory speech by faculty and students. These codes have not fared well in the courts, where they are frequently overturned as violations of the First Amendment.”

So, while University presidents may sound lawyer-like when asked if “calling for genocide of Jews” should be prohibited, think about the long history of case law that says there are few limits on hate speech that do not result in action intended to produce harm. Also think about the losing streak these universities have been on when they have tried to restrict speech in the past.

As it happens, the three presidents were accurately describing their universities’ rules, which do depend on context. Yascha Mounk in The Atlantic had this to say:

“In a narrow, technical sense, the three presidents were correct to state that their current policies would probably not penalize offensive political speech. In a more substantive sense, universities should defend a very broad definition of academic freedom, one that shields students and faculty members from punishment for expressing a political opinion, no matter how abhorrent.”

Mounk goes on to say that the university presidents were disingenuous when they claimed that their response to anti-Semitism on campus was hamstrung by a commitment to free speech. Recent history at all three institutions shows that their rules about free speech are unevenly applied. So the problem with their answers wasn’t about making a judgement call about calls for genocide.

We’re stepping into muddy waters here. When students say: “From the river to the sea. Palestine will soon be free” they’re using a political slogan that on its face is aspirational. While some may hear that and say it implies genocide of Jews, it should be protected speech. It’s stupid and ignorant, but 100% protected. Widening out our view, blaming all Jews for Netanyahu’s excesses or blaming all Palestinians for the atrocities of Hamas is wrong but it’s still protected speech.

People like Stefanik are too high on their own agenda to appreciate the distinction.

Still, it’s true that many (most? all?) universities have become hypocritical. There are plenty of examples of professors being expelled, or outside speakers being cancelled because the administration doesn’t care for the viewpoints being expressed.

The question of exactly when political/hate speech becomes sufficiently threatening and specific toward a given individual or groups so as to constitute legally (and by extension administratively) a violation of a university’s code of conduct is, not surprisingly, a massive gray area. On Thursday a man saying “Free Palestine” fired shots at a synagogue near Albany NY. Thankfully, nobody was harmed. He wasn’t on campus and he did back his words with a serious threat, so he was arrested.

The university presidents failed to be clear. The US case law and the school’s codes of conduct are sufficiently difficult to adjudicate on a hypothetical basis. These three presidents should learn that first, the US Congress isn’t the academy. Second, they should admit they are fuzzy thinkers about free speech at their institutions. Third, they should develop better codes of conduct.

Let’s give the last word to Feldman:

“Free-speech nuance is something to be proud of, not something to condemn.”

A final thought. Stefanik’s gotcha game with yes/no answers to complex questions shouldn’t be the way the game is played, but for now it is. Many Republicans think that colleges and universities deserve specific blame for the liberal political views of young Americans. It has become an article of faith on the right despite little supporting evidence that colleges are turning young people into liberals. Stefanik is a willing tool of this viewpoint.

On to our Saturday Soother. We’ve had snow overnight for the past two days on the Fields of Wrong. Still, it’s expected to be around 60° on Sunday. Given our uneven weather, the arborist isn’t coming here until the middle of February.

Let’s get comfortable in a big chair near a window. Now, try to let go of the arguments about the “people we hate and I want to talk about them” and empty our minds of complicated ideas, even if they are foundational to our democratic experiment.

Let’s listen to the Academy of St. Martin-in-the-Fields Chamber Ensemble perform Maurice Ravel’s “Introduction and Allegro for harp, flute, clarinet and string quartet”. He composed this work in 1905 and it was first performed in 1907.