The Greatest Threat to Campus Free Speech

October 1, 2015

By Hank Reichman at The Academe Blog

Last week the AAUP and the Council of University of California Faculty Associations (CUCFA) issued a statement protesting remarks made by University of California Regent Richard Blum, which threatened negative political consequences for the University if it did not approve a policy on alleged anti-semitic speech acceptable to him and his wife, U.S. Senator Dianne Feinstein.  Blum’s comments came as the regents discussed a proposed “Statement of Principles Against Intolerance.”  The statement, which was prompted by allegations of harassment of Jewish students, especially students who support Israeli policies, had met with wide criticism from advocates of academic freedom (including a post by John Wilson on this blog) on one side and from Jewish student and advocacy groups, who argued that the statement ignored incidents of anti-semitism at the university, on the other side.  The proposal was dropped and instead the board announced plans to have a task force come up with a new document articulating the system’s position on the issue.

AAUP and CUCFA were not alone in expressing concern or even outrage at Blum’s comments.  Sarah McLaughlin of the Foundation for Individual Rights in Education (FIRE) wrote: “Yes, a UC Regent flatly threatened the university with political consequences if it failed to craft a ‘tolerance’ policy that would punish — and even expel — its violators.” First Amendment lawyer Ari Cohn tweeted, “Feinstein and her husband think college students should be expelled for protected free speech.”

In an important op-ed piece in the Los Angeles Times, University of California at Irvine law school dean Erwin Chemerinsky, a major scholar of First Amendment law, wrote this of the regents’ effort to devise a policy on intolerance:

Under the First Amendment, there is no such thing as a false idea and all viewpoints may be expressed. The First Amendment even protects the right to deny the Holocaust or advocate the subjugation of a supposedly inferior group. There unquestionably is a First Amendment right to argue against (or for) the existence of Israel or to contend that it should meet (or not have to meet) higher standards of human rights than other nations.

Even the now-retired Executive Director of the Anti-Defamation League Abraham Foxman — who argues that “the effort to support boycott, divestment and sanctions against Israel, is sinister and malicious and is having a negative effect on Jewish students on some campuses and on the wider Jewish community” — has acknowledgedthat such bans would be clearly unconstitutional:

Legislation that bars BDS activity by private groups, whether corporations or universities, strikes at the heart of First Amendment-protected free speech, will be challenged in the courts and is likely to be struck down. A decision by a private body to boycott Israel, as despicable as it may be, is protected by our Constitution.

Chemerinsky proposed this solution:

My advice would be to draft a policy that focuses on reaffirming the importance of free expression while defining what is not constitutionally protected. There is no First Amendment right to threaten or harass another person or to deface someone else’s property.

The policy should not seek to inhibit or limit protected speech, no matter how offensive it might be. The policy should seek to define, with as much precision as possible, what types of speech and conduct cross the line and are impermissible.

We should also remember that universities have the right to free speech too, and can and should speak out against inflammatory speech that targets members of the university community. This, of course, is consistent with the educational mission of universities and a basic principle of the First Amendment: the best remedy for the speech we dislike is more speech.

On the same day that AAUP and CUCFA released our statement, journalist Glenn Greenwald posted a piece on The Intercept arguing that “The Greatest Threat to Campus Free Speech is Coming From Dianne Feinstein and her Military-Contractor Husband.”  Here is some of what Greenwald wrote:

One of the most dangerous threats to campus free speech has been emerging at the highest levels of the University of California system, the sprawling collection of 10 campuses that includes UCLA and UC Berkeley. The university’s governing Board of Regents, with the support of University President Janet Napolitano and egged on by the state’s legislature, has been attempting to adopt new speech codes that — in the name of combating “anti-Semitism” — would formally ban various forms of Israel criticism and anti-Israel activism.

Under the most stringent such regulations, students found to be in violation of these codes would face suspension or expulsion. In July, it appeared that the Regents were poised to enact the most extreme version, but decided instead to push the decision off until September, when they instead would adopt non-binding guidelines to define “hate speech” and “intolerance.”

One of the Regents most vocally advocating for the most stringent version of the speech code is Richard Blum, the multi-millionaire defense contractor who is married to Sen. Dianne Feinstein of California. At a Regents meeting last week, reported the Los Angeles Times, Blum expressly threatened that Feinstein would publicly denounce the university if it failed to adopt far more stringent standards than the ones it appeared to be considering, and specifically demanded they be binding and contain punishments for students found to be in violation. . . .

The specific UC controversy is two-fold: whether, in combating “anti-semitism,” the university should adopt the State Department’s controversial 2010 definition of that term, and separately, whether students who express ideas that fall within that definition should be formally punished up to and including permanent expulsion. What makes the State Department definition so controversial — particularly for an academic setting — is that alongside uncontroversial and obvious examples of classic bigotry (e.g., expressing hateful or derogatory sentiments toward Jews generally), that definition includes a discussion of what it calls “Anti-Semitism Relative to Israel.”

How does speech about Israel become “anti-Semitic”? According to the State Department, “anti-Semitism” includes those who (1) “Demonize Israel” by “drawing comparisons of contemporary Israeli policy to that of the Nazis” or “blaming Israel for all inter-religious or political tensions”; (2) espouse a “Double standard for Israel” by “requiring of it a behavior not expected or demanded of any other democratic nation” or “multilateral organizations focusing on Israel only for peace or human rights investigations”; or (3) “Delegitimize Israel” by “denying the Jewish people their right to self-determination, and denying Israel the right to exist.” The State Department generously adds this caveat at the end: “criticism of Israel similar to that leveled against any other country cannot be regarded as anti-Semitic.”

The ironies of this definition are overwhelming. First, it warns against advocating a “double standard for Israel” — at exactly the same time that it promulgates a standard that applies only to Israel. Would the State Department ever formally condemn what it regards as excessive or one-sided criticism of any other government, such as Russia or Iran? Why isn’t the State Department also accusing people of bigotry who create “double standards” for Iran by obsessing over the anti-gay behavior of Iran while ignoring the same or worse abuses in Saudi Arabia, Egypt and Uganda? The State Department is purporting to regulate the discourse surrounding just one country — Israel — while at the same time condemning “double standards.”

Worse, this State Department definition explicitly equates certain forms of criticism of Israel or activism against Israeli government policies with “anti-Semitism.” In other words, the State Department embraces the twisted premise that a defining attribute of “Jews” everywhere is the actions of the Israeli government, which is itself a longstanding anti-Semitic trope.

But most important of all, whatever you think of this State Department definition, it has no place whatsoever regulating which ideas can and cannot be expressed in an academic institution, particularly one that is run by the state (such as the University of California). Adoption of this “anti-Semitism” definition clearly would function to prohibit the advocacy of, say, a one-state solution for the Israel-Palestine conflict, or even the questioning of a state’s right to exist as a non-secular entity. How can anyone think it’s appropriate to declare such ideas off limits in academic classrooms or outlaw them as part of campus activism? . . .

It’s one thing to apply political pressure to induce governments to adopt speech-repressive definitions of “anti-Semitism” that are non-binding. It’s another thing entirely to try to import them onto state-run college campuses where they are used to outlaw the expression of certain forms of criticisms of the Israeli government. And it’s another thing entirely for a prominent public official like Dianne Feinstein to have her husband throw their ample financial and political weight around in order to threaten and bully school administrators to ban ideas that this power couple dislike and punish the students who express them.

To my knowledge, UC has not yet announced the composition of the task force that will attempt to devise an “acceptable” policy on intolerance and anti-semitism.  But one informed source has said it will include five regents, one faculty member, and apparently no students.  Oh, and rumor has it the group will also include the Chancellor at UC Davis, famous for her role in the pepper spraying of peaceful student demonstrators some years ago, hardly a proven champion of free speech.  One can yet hope, however, that sanity will in the end prevail.