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| Liz Magill testifying |
Specifically, the trio wouldn’t answer “yes” or “no” to
questions posed by Rep. Elise Stefanik about whether calling for the genocide of Jews violates their universities’
policies on bullying and harassment.
They gave boilerplate responses, suggesting that context would be a
determining factor. Yes, they looked
sort of bad, but Curmie struggled to discern how their answers were
inappropriate. Context does matter,
always; terms like “pervasive,” “severe,” and “directed” may seem legalistic,
but Curmie isn’t sure how one can answer legalistic questions without
responding in kind.
Moreover, Curmie can find no one who advocated for the
“genocide of Jews” in those terms. There
were, apparently, chants of “intifada,” and of “from the river to the sea.” The former refers to resistance against
oppression; it suggests the possibility of violence, and that’s what Hamas
means by it, but the word is apparently used not infrequently by others without
that implication.
Similarly, “from the river to the sea, Palestine shall be
free” is a rallying cry for Palestinians.
But, as Laurie Kellman points out in an AP article,
“what the phrase means depends on who is telling the story — and which audience
is hearing it. Many Palestinian
activists say it’s a call for peace and equality after 75 years of Israeli
statehood and decades-long, open-ended Israeli military rule over millions of
Palestinians. Jews hear a clear demand for Israel’s destruction.”
In other words (wait for it), context matters. When used to justify Hamas’s slaughter and
kidnapping of innocent people whose only offense was to be in the wrong place
at the wrong time, or as a means of intimidating specific Jewish people, it
means something different than simply an declaration of general solidarity with
the Palestinian cause. Yes, it may be naïve
to believe that one is expressing the latter sentiment without recognizing the
distinct possibility that others, particularly but not exclusively Jews, will
hear something different than what was intended. But naïveté should not be a punishable
offense, or, rather, it carries its own punishment.
Let’s be real for a second.
Congressional committee hearings are seldom intended to illuminate an
issue, but rather to provide Congresscritters an opportunity to grandstand for
their respective political bases. Witnesses
at such hearings are generally to be treated as piñatas to be pummeled by the smug
and censorious pols who are blinded by their moment in the spotlight. Stefanik did admirably at getting her name in
the papers (be honest, Gentle Reader, had you ever heard of her before last
week?), largely by asking questions that could not be reasonably answered with
the “yes” or “no” responses she so petulantly demanded. And she got a particularly high score on the
smugometer. The link included above is
from her YouTube page. She’s pretty
damned proud of herself. Curmie doesn’t
think she should be.
As expected, and no doubt intended, the press was all over
the hearing. We heard lots about the
presidents’ “inability” to give straight answers. Their performance was derided by pro-Israeli
pundits and parodied by Saturday Night Live (to be fair, the show pretty well skewered Stefanik, too). Omitted from this commentary was a
recognition that there’s a difference between speech which is repulsive and
that which ought to be suppressed. Nor
was there any indication that the chattering class understands that criticism
of the Israeli government is not intrinsically anti-Semitic, any more that criticizing
the Obama administration was intrinsically racist. Sometimes, yes. Always?
No.
These reports also gloat about Ross Stevens, the UPenn alum who
withdrew a $100 million donation because he decided the university was doing too little to suppress what he
regarded as hate speech. This, probably
more than the reaction to now ex-president Liz Magill’s testimony at the
committee hearing, is likely to have been the deciding factor in her no doubt
forced decision to resign. Curmie, who
would prefer educational policy to be determined by other than plutocrats, is
less enthusiastic about this maneuver.
No one, certainly not Curmie, is countenancing the actual
intimidation and harassment of Jewish students, which has in fact been occurring
on college campuses across the country. How
widespread it is may be difficult to determine—Curmie has seen none of it
first-hand—but it unquestionably exists, and needs to be aggressively addressed. The cries from Muslim advocates that this
situation is no different than what their predecessors endured post-9/11 are
probably accurate but ultimately irrelevant.
Two wrongs…
But revenons à nos moutons; back to that
testimony. As you can no doubt discern
from the commentary above, Gentle Reader, Curmie was not and is not
particularly appalled by those university presidents’ answers. Guarantees of free speech mean nothing if they
apply only to non-objectionable speech.
Whereas it is true that as private universities the three schools in
question are not bound by the 1st Amendment, as elite secular institutions
of higher learning they have a responsibility to be at least as open to speech,
even that which they may find abhorrent, as do their public counterparts. Plus, of course, their respective mission
statements promise that level of protected speech.
But the apparent unanimity of response, even from trusted
sources, gave Curmie pause. It’s clear
that the line between protected speech and harassment, intimidation, or
incitement is very thin and virtually indiscernible. Might Curmie have found himself on the wrong
side of that line? Was his contempt for
Rep. Stefanik’s self-righteous (and, indeed, harassing) posturing affecting his
judgment on the larger issue?
Then, yesterday morning, he read an editorial in the Los
Angeles Times penned by Eugene Volokh and Will Creeley.
The former is one of the most-respected constitutional scholars in the
country; the latter is legal director at the Foundation for Individual Rights
and Expression (FIRE). When it comes to defining
what is and what is not protected speech, we could do a lot worse than
listening to what either of these gentlemen have to say.
Curmie encourages you, Gentle Reader, to read the article in
its entirety, but here’s their most important paragraph: “Antisemitism on
campus is a real problem, and in this fraught moment, many Jewish students are
understandably scared. But if freedom of expression is to survive on American
campuses — and for our nation’s vitality, it must — Magill’s original answer
was right. Context does matter.”
They subsequently argue that calls for intifada are
protected or not according to context.
And whereas the segment quoted above is the best encapsulation of their total
argument, the part that most caught Curmie’s attention comes later, in a
consideration of the ethics and morality of killing civilians in order to
advance a politico-military agenda or, especially, to deter other killing. They note that the same argument could be
made by both Hamas in their self-image as freedom-fighters and by the Israeli
government in terms of their willingness to allow predictable and significant
collateral damage in the form of civilian casualties in their attacks on Hamas.
Significantly, write Volokh and Creeley, “a broad rule
against ‘calling for mass killing’ would render this discussion subject to
punishment. Indeed, it would mean students could be punished for using the same
argument to defend the American bombing of Hiroshima and Nagasaki.”
Curmie notes an even more significant example: the British
decision to allow Coventry to be bombed in order that the Nazis not know that
the Enigma Code had been cracked. That
decision—sacrificing not merely civilians, but one’s own civilians—was a
key to the Allied victory. It literally
could have changed not merely the longevity of the World War II, but its very
outcome. It had to have been a horrible
decision to have to make, but it isn’t difficult to understand the
reasoning. The idea that a discussion of
the propriety of that strategy would somehow be off limits undercuts the entire
rationale for the existence of universities.
Here is where Curmie goes all Confucian (again) and insists
upon looking at these incidents on a case by case basis. Some of the words and actions clearly ought
to be forbidden; others, however upsetting they may be, ought just as clearly
be allowed. And then there are the ones
in the middle, where honorable, objective, and well-intentioned people can
disagree. It would be nice to have an
actual Confucius around to make those close calls, but (alas!) he’s unlikely to
appear on the scene.
The goal is, and must be, to protect one group of students
and faculty from actual harassment and true threats while protecting the
freedom of expression of a different group of students and faculty. Curmie, who lived his entire professional
life subject to the often stupid decisions of university administrators, is
less than entirely sanguine about turning such cases over to them, but there is
no better alternative. Distinguishing
between that which is threatening and that which is merely offensive isn’t
easy, but the job must be done, and done well, or we all lose.
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