NYT piece #2: “A confused piece on campus speech in the New York Times”

November 8, 2023 • 1:00 pm

The  bit in quotes in the title is the header in the email that Greg Mayer sent me, along with a link and his one-paragraph critique of the piece (below).

That NYT piece is apparently making a mistake that’s common in free-speech discussions these days, implying that free speech should be discouraged if it causes mental harm or offense.

Saying “Gas the Jews”, for example, is an example of legal free speech even though it’s calling for harm.  It’s just that the harm is not imminent or predictable, for nobody is about to gas the Jews. And if it offends people, as of course it will, well, that’s unfortunate, but the phrase is neither personally abusive nor designed to incite a fight. I hasten to add that I abhor speech like that, but abhorrent speech is precisely the speech that needs protection. You could, for example, ask someone if they really did want to gas the Jews. Or what they mean when they chant “From the river to the sea. . . ”  And, as Mill and others have noted, at the very least abhorrent speech “outs” the speaker as a repugnant person.

If you don’t know when speech is not protected, you should acquaint yourself with the exceptions to the First Amendment. Wikipedia has a good summary of these exceptions, which include false advertising, defamation, threats, inciting imminent and predictable lawless action, creating a hostile workplace, some forms of obscenity and pornography, and so on. And of course there are gray areas. Remember too that the First Amendment holds in public universities but not necessarily private ones, unless the private ones say they’ll uphold it, too.

Here’s Greg Mayer’s take on the article below (click headline to read or find it archived here). Remember that the Kalven Report is the University of Chicago’s policy of institutional neutrality: no official political, ideological, or moral stand can be promulgated by the university unless it directly deals with the academic mission of the school.

Greg:

A member of the Times editorial board sort of endorses the Kalven report, but then says speech can do “real harm”, that college should be a “safe space”, and that colleges may have to be “weighing in on a larger political debate.” I think he may be trying to find a way to counteract actual threats (whose proscription does not conflict with free speech), while unfortunately adopting the “safety” terminology, which today means something like “if I don’t agree with it, someone saying it harms me.” He’s groping for what’s the right thing to do, but is trapped by his own submission to identitarian newspeak.

An excerpt:

Unfortunately, the universities themselves have done their part to add to the mess. By taking public positions on some high-profile political issues but not others in recent years, they have exposed themselves to charges of inconsistency and bias. By imposing speech codes that ban what they deem offensive speech without clearly defining it, they have encouraged illiberalism in an environment designed to cultivate the liberal arts. And by relying increasingly on an ever-shrinking number of ultrawealthy donors, they have put themselves at risk of losing huge amounts of money if the donors decide they don’t like what is being said (or not said) in the university’s name.

As a result, many schools have flailed, some more than once, in their attempts to navigate the storms of speech, activism and vitriol that have consumed their communities over the past month. Administrators continue to face intense pressure to make statements and take sides, whether from students, faculty members, donors or lawmakers.

One solution is to say nothing or as little as possible. This is known as the University of Chicago approach, after that school issued a report in 1967 urging neutrality in response to student protests against the Vietnam War.

But then Wegman starts to go astray:

“There’s no answer that will please everybody,” Erwin Chemerinsky, the dean of the Berkeley School of Law and an expert on free speech, told me. “I put out a statement, the first sentence of which said I’m horrified by the terrorism that occurred in Israel. I got called a racist for that statement, because it labels it as terrorism.” He pointed out, however, that silence can speak just as loudly. “I didn’t issue any statement condemning students who defended Hamas. I got criticized for that.”

Mr. Chemerinsky wasn’t complaining about the criticism — he’s heard far worse — but even he was shocked by the degree of antisemitism he has been seeing on campus in recent weeks, much of it without meaningful pushback from university administrators.

The answer is to still adhere to Kalven. All our university said about the war was something like this:  “there’s a war on, people are upset, and if you need help, you can find it here. . . . “.  And we didn’t lose donors, incite faculty statements, or have to issue repeated official statements increasingly damning Hamas.

College presidents or administrators should not be making official pronouncements, and if they know what’s good for them, people in high positions should avoid making personal pronouncements too, for while the latter are legal, they serve to chill speech and are not good practice.  (Of course faculty and students can say all they want so long as it’s not couched as University policy and doesn’t violate the First Amendment.)

Then Wegman makes the point that’s riling up everyone at Harvard, Stanford, and even at the University of Chicago:

. . . . and yet Jewish students can be forgiven for wondering why they must endure their professors referring to a terrorist slaughter of Jews as exhilarating and their fellow students calling to get rid of the Zionists. In an age of heightened sensitivity to the real harm that speech can inflict, it seems Jewish students are expected to take it on the chin.

The bottom line is that universities undermine their basic purpose if their students feel in physical danger. Administrators can and should speak out in defense of the safety of their students and the values of their academic community, even if doing so means weighing in on a larger political debate.

No, the university is fulfilling its purpose by allowing deeply offensive speech, like “Gas the Jews”, to be said. Of course that will make students feel “unsafe”, but they aren’t genuinely unsafe. They are offended (as they should be), but they’re not going to be gassed.  They may feel unsafe, but they will not be unsafe so long as direct threats aren’t made to people or imminent lawless action isn’t called for. And, of course, once students learn that ssying “I feel unsafe” will stop offensive behavior, that’s the weapon they will use.

We’ve had several instances at my school in the last two weeks during which pro-Palestinian students uttered things I considered offensive and even hateful, and they have scared Jewish students. In the course of the demonstrations, the pro-Palestinian students violated University regulations, like blocking access to the Administration building, disturbing classes with megaphones, and shutting down a peaceful series of speeches by Jewish students by shouting over the speakers. All these are explicitly forbidden by University rules.

The students should be sanctioned not for what they said, but for violating University regulations about disturbing other events, blocking buildings, and the like. But they should not be punished for saying offensive things about Israel, like the “From the river to the sea.  . ” mantra, recognized by everyone except Rashida Tlaib as a call for the erasure of Israel, even through genocide.

If our University failed, it was not in allowing students to scare others with offensive speech, but in not punishing students who violated the conditions specified for using free speech. (I don’t know if any students have been punished, and probably never will, but if students think that there are no sanctions for breaking the rules, they’ll break them even more frequently.)

The NYT article goes on about donors and the like, but the only other thing that I (JAC) want to take issue with is this:

Obviously there are legal red lines to a culture of free speech: threats, intimidation and harassment, to name the obvious ones. But universities can add their own limits — for instance, no targeting of specific students or of groups because of identity.

Targeting of specific students repeatedly is illegal harassment anyway, but not targeting groups. Yes, let people say “gas the Jews” or “Islam is a hateful and oppressive faith,” even though those words target groups and could scare or offend people (the two terms are pretty synonymous these days).

The “no targeting of groups because of identity” above is what Greg meant when he said this:

“[Wegman’s] groping for what’s the right thing to do, but is trapped by his own submission to identitarian newspeak”.

Targeting identities is legal under the First Amendment, and it should be legal in universities that adhere to that Amendment.  Discouraging that behavior is telling everyone that they have to tread lightly when discussing identities, precisely chilling the kind of discussions we should be having right now.

25 thoughts on “NYT piece #2: “A confused piece on campus speech in the New York Times”

  1. Jerry wrote: “The answer is to still adhere to Kalven. All our university said about the war was something like this: ‘there’s a war on, people are upset, and if you need help, you can find it here. . . ‘”

    I don’t disagree but would go farther: the university should just shut up about all such issues. The reason is that the university can’t possibly issue these “there’s an X happening, people are upset” statements about every issue about which some university members will feel very strongly. So the university ends up picking and choosing which world or local events are important and which are not.

    At my university the current example is the oppression, rape and murder of tens of thousands of Muslim Uighurs in western China versus the deaths of several thousand Muslim Palestinians in Gaza. My university administrators had lots to say about the latter, and nothing to say about the former. Many suspect the reason is that thousands of students at my university are citizens of China who pay huge differential fees to enroll. A recent slight downturn in those enrolments has led to a budget catastrophe. And of course one also suspects antisemitism among many members of the university community.

    This cherry-picking is so obviously biased that it can’t be supported by any reasonable person. The equally obvious solution is for university leaders to just stop making all of these pronouncements or acknowledgements of conflicts. It’s a hard sell to administrators who are committed to the social justice mission and who imagine themselves as critically important advocates (rather than as humble servants of their intellectual communities).

    Sorry for the long essay.

  2. Remember the university that went into full panic mode because someone wrote – in chalk – “Trump 2020”? Police called, counsellors on standby, calm rooms with low lights, soft music, pillows etc.

    People chanting ‘from the river to the sea’ and worse? Crickets.

    The double standard is appalling

    1. You know what I always say (I think I managed not to say it on this post yet):

      It’s the dialectic at work – “FTRTTS” is ok because it is for Liberation (as prophesied by Marcuse).

      Totally different kind of thing.

  3. Sticks and stones may break my bones but names can never hurt me. Anyone remember this from childhood? Maybe update by exchanging names by words.
    I have never forgotten it and it has worked fine for me.

  4. I’d be a little more grudgingly tolerant of even the vague antisemitic stuff if freedom of speech in EVERY OTHER DOMAIN wasn’t so under attack. That said I’ve thought the whole idea of “hate speech” (learned at law school 20+ years ago) is a bad idea. Calls for genocide however….
    The double standard has become so obvious lately.
    D.A.
    NYC

  5. If a noisy crowd is chanting “Gas the Jews!” couldn’t a Jewish passer-by have a quite justified and real fear of physical assault? To my mind, “Gas the Jews” is the wrong side of the allowable line, whereas “Free Palestine” would be okay.

    1. “…the university is fulfilling its purpose by allowing deeply offensive speech, like “Gas the Jews”, to be said. Of course that will make students feel “unsafe”, but they aren’t genuinely unsafe. They are offended (as they should be), but they’re not going to be gassed.”
      Australian here, with different free speech laws.
      I am close to a free speech absolutist.
      But I agree with you (Coel) that this is not clear cut here.
      If a group is chanting ‘gas the jews’, would one say that a jewish person amongst them is ‘not really unsafe’ because they won’t be gassed? Specifically gassed?
      Seems that it is confusing the specific words (gassed) with the threat – the crowd becomes hostile and is threatening. So if they bash the jew, does that mean that, because he wasn’t gassed, there was no threat?
      (Also, ‘they should be offended, but they are not going to be gassed’ – is an assumption. Do we only look at the harm of the chant if it is carried out – and thus in retrospect? If so, then NO words carry imminent harm).
      Also, what if we know (can show staistically) that such a protest with chants leads to an increase in anti-semitic bashings later – does that still not qualify because they were no gassed, or because the harm happened later – even though the corrlation exists and is known?
      I genuinely am grappling with such thoughts. I feel the free speech discourse is rather binary and un-nuanced.
      Again – I am almost an absolutist – but this does not prevent me from constantly questioning my position.

      1. Thanks.
        Australia has different free speech rules, as does the UK etc, and so I try and look at free speech ‘in principle’.

        But this is so hard – it always feels that free speech is always manipulated by those that oppose free speech. It is so hard to uphold this critical principle. There seems, historically, (with various core principles), to be a ‘tipping point’ where the cynical abuse of it becomes suddenly and overtly a force against and undermining the principle.

        Ugh. So hard to find clear language to express my thoughts on this. Anyway, I appreciate the excellent discussion on this site. It really helps.

  6. Professor Kathleen Stock just gave expert testimony about the meaning of “harm” in the ludicrous hearing into the fitness to practise of Canadian registered nurse Amy Hamm. Hamm’s initial crime was to co-sponsor a billboard reading “I [Heart] JK Rowling” , which resulted in two complaints against her, one of them anonymous, and neither of them from her patients.

    I strongly suspect that the British Columbia College of Nurses and Midwives bitterly regrets exposing itself to the international ridicule that the case is attracting from those following the hearings (which have sadly attracted little mainstream media coverage bar some hit pieces pieces by CBC).

    You can read more about the case, and see transcripts of the (many) days of hearings, here: https://tribunaltweets.substack.com/p/british-columbia-college-of-nurses

  7. “In the course of the demonstrations, the pro-Palestine students violated university regulations, like blocking access….shutting down a peaceful series of speeches by Jewish students….by shouting over megaphones…All these are explicitly forbidden by university rules…..If our university failed it was in not punishing students who violated the conditions specified for free speech….”

    To the extent that violations are not stopped in place, called out, and punished, is a big deal. The university must ensure that its entire community understands the Kalven Report guidance and the clear expectations on what it is that constitutes free speech and expression on campus. The only way that ideas can be freely expressed to compete with one another is if the institution ensures the theatre for such expression. In simple terms, An antidote for a “from the river to the sea” speech is a timely “not from the river to the sea” speech and the physically safe environment that allows and protects both speeches is provided by the university.

    This is the responsibility of the university president with support from designated staff, but also self control and behavior of all members of the university community. Last week I believe Jerry wrote of an illegal demonstration he came upon and apparently the responsible “dean on call” did nothing to bring it into compliance with university guidelines. Why not? Was the dean on call sanctioned? If so was a sanitized (with her name redacted) report issued for other faculty and administration to learn from?

    We cannot expect people to obey the rules if they do not know what the rules are. While it would be nice if people simply did what is right, the current world is not nice, and mis-behavior must be called out and punished…if for no other reason to be sure that nasty speech does not grow into nasty and physically dangerous physical behaviors that do hurt people. All members of the community must be protected from physical harm. This is a responsibility of the president to ensure that all members of the community are aware of the rules and the dean on call or other president’s liaison to ensure that the rules are followed on the scene.

  8. “”From the river to the sea. . ” mantra, recognized by everyone except Rashida Tlaib as a call for the erasure of Israel, even through genocide.”
    But is this really a fair criticism?

    Is it likely that “everyone” in the world knows what these six words mean except Rashida Tlaib? Is it likely that everyone who uses the chant means it in the same way? Is it likely that all of the 300 high school students that walked out of Gallileo HS in SF, chanting the phrase they’d just been taught by a fellow student, had all thought long and hard about its implications?

    I offer two interesting points that may be food for thought here:

    1) While the “FTRTTS” chant clearly originated in Palestinian irredentist anger after 1967, and for many Palestinians (e.g. Hamas) meant then, and still means, the eradication of Israel, there has recently developed a “revisionist” current in which the phrase refers to the area, including Israel, where Palestinians now live and their aspirations to “live free, without domination” (whatever that means). It is entirely possible-in fact, likely-that many Palestinians, especially in the West (like Tlaib), are using the words in this sense, and not actually calling for the elimination of Israel or the extirpation of the Jews. There was an article arguing this point in Jewish Currents in 2021 (by Yousef Munayyer); there is no reason to think Rashida Tlaib is sui generis. We can always counter “well, you don’t really know what you’re saying”- and that may be true, but it is a different criticism than “you’re calling for genocide.”

    2). Right-wing Israelis have also taken to using the phrase-in defense of an all Jewish “from the River to the Sea.” Netanyahu danced around it early on, saying that it meant Israeli “sovereignty” FTRTTS, but Deputy Foreign Minister Hotovely came right out and said, in 2015, “This entire land is ours. All of it, from the [Mediterranean] Sea to the [Jordan] River, and we are not here to apologise for this.” So what is sauce for the Palestinian goose is evidently sauce for the Israeli gander- hard-liners on both sides have no problem using the “ethnic cleansing” sense of the chant.

    1. I very much doubt that the statement by the Israeli foreign Minister had anything at all to do with ethnic cleansing. Israel was created under the auspices of the Mandate for Palestine, which ensured, by law, that the civil and religious rights of ALL peoples would be respected. Israel has always lived by this standard. The question of whose sovereign land it is is completely orthogonal to the concept of ethnic cleansing.

  9. In the course of the demonstrations, the pro-Palestinian students violated University regulations, like blocking access to the Administration building, disturbing classes with megaphones, and shutting down a peaceful series of speeches by Jewish students by shouting over the speakers.

    Enforcing the University regulations under such circumstances does not implicate free speech. The demonstrators are being sanctioned not for the content of their speech, but for their conduct. Blocking access to administration buildings, disturbing classes by shouting with megaphones, and shutting down the peaceful speech of others by shouting over it violates university regulations whether the demonstrators are yelling anti-Israeli epithets or screaming “Go Maroons!”

  10. I think we all mostly understand that this is really about consistency. Universities are terribly sensitive about speech that might possibly be interpreted as conservative. The mildest expression of such views will be interpreted as violence, and subject the speaker to the most draconian punishments that the administration can devise.

    My eldest, as I might have written before, attended a school where the White and Asian kids were tormented endlessly by the BLM radicals. They could not sit in the meal facility, the library, or any other common space without BLM people screaming obscenities and racist remarks at them, and demanding that they repeat BLM slogans.
    This was all happening with the knowledge and implied blessing of the school, so there was no authority the kids could petition for relief.

    I am completely confident that the BDS/Hamas kids are being fawned over by the administrations in exactly the same way. So now, I have another kid at a school where mobs of antisemites can wander at will, scrawling hateful slogans on everything, and by all appearances, hunting for Jews.

    This is all bullshit, and needs to end. I attended a college where they had and enforced a code of conduct. None of this crap would have been allowed for even a moment. Of course, I went to a military school, so self discipline and decorum were expected.
    Surely other universities have codes of conduct for students. I am sure we would learn all about that if a kid from Alabama put a rebel flag in his dorm window.

  11. “Targeting of specific students repeatedly is illegal harassment anyway, but not targeting groups.” Actually, targeting of specific students is not necessarily harassment. Harassment has to meet the standards of harassment (and even the harassment standard is often abused to suppress free speech). The real danger in this essay is creating any additional new standard of “targeting.” Targeting based on identity should usually be protected. For example, saying, “That’s your white privilege speaking” is a dumb argument, but it shouldn’t be punishable even though it is targeting a specific person based on their identity.

  12. An off-topic question. I’ve forwarded a number of posts to a friend who would like to subscribe. I can’t figure out how to do that (and don’t remember what I did to get on the mailing list.) Could you send me the instructions? Thanks.

    1. David, scroll down on this page (past the comments), and you will get to a text box where you can subscribe by entering your e-mail address.
      More generally, on any web page holding down the Ctrl key on your keyboard and then pressing F opens up the search box. Then enter the word/phrase/string of letters/etc. you are looking for, e.g., the word “subscribe” or “subscri” (which would find all instances of the words “subscribe” and “subscription”).

  13. But wouldn’t a Professor who utters “gas the Jews” or “I felt exhilarated…” be now open to an accusation by a Jewish student of theirs “Ben Bernstein” who wears a kippah, that they are being graded or treated differently in class or essay etc marking, based on the speech of said Professor?

    Wouldn’t a university want to shut that down right away? Would such a student have a valid concern?

    1. A professor could not do that in class as it’s a political opinion not relevant to the course material. He or she might be sanctioned or even fired if they do it repeatedly. If the prof does that out of class, then it’s legal speech, and a Jewish student, however scared, wouldn’t have a case unless there’s evidence that the student is being treated differently. The University cannot shut down free speech outside of class, but they can shut down free speech in class if it’s a certain type.

      Yes, students might be concerned, but unless they can make a good case that they’re being discriminated against, they can’t do anything about the prof’s out-of-class private speech.

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