Last week, the University of California’s Board of Regents adopted its “Principles Against Intolerance”. Initially prompted by a series of high-profile anti-Semitic incidents — including swastikas found on Jewish fraternities and the attempted exclusion of a candidate for a student government position on account of her Jewish faith — the document begins by forthrightly stating that “Anti-Semitism, anti-Semitic forms of anti-Zionism and other forms of discrimination have no place at the University of California.”
But the Regents hardly restricted themselves to anti-Semitism. The document discusses specific examples of Islamophobia, racism, and homophobia on campus, and the principles themselves are written to encompass discrimination of all sorts.
The Regents’ action would seem to be a cause for celebration — a serious effort by the governing body of one of America’s preeminent public university systems to confront bias, prejudice, and discrimination on its campus, while simultaneously stressing the “paramount” importance of preserving the rights of free expression. This is a difficult balance to strike under the best of circumstances, but on any fair reading the “Principles Against Intolerance” represent a thoughtful attempt.
Unfortunately, in many quarters the reaction has been the opposite of what (or, depending on your cynicism, exactly what) one might have expected.
Even though the principles make abundantly clear that they do not countenance the censorship of any speech (anti-Semitic, anti-Zionist, or otherwise), critics immediately fell into a familiar pattern: “UC Regents New Policy Opens Door to Policing Speech,” cried Jewish Voice for Peace; and JVP rabbinical co-chair Brant Rosen opposed the basis for the principles: "Anti-Zionism Isn't a 'Form of Discrimination,' and It's Not anti-Semitism". “The PC left doesn't understand the value of free speech and neutral rules,” snarked Matt Yglesias. “I have not seen 1/10th the outrage directed towards this as I've seen directed towards previous campus controversies,” wrote MSNBC’s Chris Hayes.
They attacked not just the principles in practice but also what they perceived as hypocrisy: While efforts by racial minorities and LGBT groups to secure administrative protection against campus bigotry were met by many conservative groups with dark warnings of censorship, by claims that “trigger warnings” and “safe spaces” posed threats to free speech, those objections were seemingly nowhere to be found when it was Jews doing the asking.
This objection is misplaced. Put aside the question of whether it makes sense to tie the overwhelmingly progressive Jewish community to predominantly conservative complaints of academic censorship. And forget the fact that, to reiterate, the “Principles Against Intolerance” are expressly applicable to and protective of all groups, not just Jews. These critiques fail for a more fundamental reason: As a response to prejudiced speech, the Regents’ resolution is precisely what free speech advocates have called for all along.
A careful reading of the principles yields two essential distinctions upon which the entire document rests. The first is between “challenging” speech versus censoring it. For years, free speech advocates have followed the maxim of Justice Louis Brandeis in demanding that the remedy for bad speech be “more speech, not enforced silence.” This is the approach the Regents elected to adopt. In unambiguous language, the Regents rejected any form of censorship as a response to perceived bigoted viewpoints:
"Punishing expressions of prejudice and intolerance will not prevent such expressions or change the minds of speakers. In confronting statements reflecting bias, prejudice or intolerance, the University is uniquely situated to respond with more speech to educate members of our community about the different histories and perspectives from which we approach important issues. As a public university, First Amendment principles and academic freedom principles must be paramount in guiding the University’s response to instances of bias, prejudice and intolerance and its efforts to create and maintain an equal campus learning environment for all."
Instead of banning the speech in question, the Regents proposed that it be challenged with counterspeech (Part “c” of the principles, articulating how university leaders should respond to “biased, stereotypical or prejudiced discourse,” uses variations on the word “challenge” three times in a single paragraph). To consider such “challenges” to be a form of censorship is to adopt what Northwestern University Law Professor Steven Lubet has termed the “reverse Voltaire”: that one does not truly respect another’s right to speak unless one also agrees with what they have to say. In reality, of course, there is and can be no free speech right to be free from critical counterspeech.
The second distinction is between speech and conduct. The second half of the principles turns from mere acts of expression, however repugnant. It instead addresses conduct that “physically or otherwise interfere with the ability of an individual or group to assemble, speak, and share or hear the opinions of others.” In these circumstances — which also encompass acts of vandalism, threats, harassment, or destruction of property — the university retains the right to respond with more than just words. Once again, this can hardly be described as censorship: There is no free speech right to obstruct the rights of others to express a message one disagrees with.
Given the content of the principles, what accounts for the cries of censorship?
For some groups the answer is straightforward: As Zachary Braiterman, a Professor of Judaic Studies at Syracuse and a member of Open Hillel’s Academic Advisory Council observes wryly, there are plenty of activist groups and student organizations who are quite enamored with attempting to obstruct or shut down the speech of others (exemplified by high-profile disruptions at UC-Irvine against the Israeli ambassador, the University of Minnesota against an Israeli academic, and Kings College London against a pro-peace former head of the Shin Bet, among others). Of course they’d be outraged at an effort to stifle their censorial instincts.
Others point to earlier draft language that had stated that “anti-Zionism” had no place in the UC system — but this passage was amended without controversy to read “anti-Semitic forms of anti-Zionism” (language suggested by the University of California Faculty Senate) and with the exception of Rosen’s all of the reactions noted above came after this amendment had passed. The debate over whether anti-Zionism is inherently anti-Semitic no doubt depends on one’s definition of both terms; but there surely is no debate that some manifestations of anti-Zionism are anti-Semitic under any definition. And since even the most blatant forms of anti-Semitism (e.g., a South African university’s resolution calling for the expulsion of all Jews or the firebombing of a German synagogue) are routinely defended as naught but “opposing Israeli policies”, it is clearly necessary to confirm that anti-Jewish bigotry is not excused simply by draping it under the generic moniker of “anti-Zionism”.
In reality, the general explanation is quite simple. Many people instinctively label any action perceived to target anti-Semitism — no matter what its content — as a form of silencing, or censorship, or a smear.
Whenever anti-Semitism is challenged — even if it is just a challenge, free from any legal censure or administrative sanction — it is taken to be an illicit attempt at “muzzling” opposition to Israel (if there is one thing you can count on in Jewish political life, it’s that if anyone, anywhere, dares call anything anti-Semitic, JVP will be there to furiously denounce the allegation as a form of oppressive silencing).
Indeed, given that the principles are once again not restricted to anti-Semitism but provide a template for responding to any sort of discriminatory speech, it is more than a little telling that the critics only seem to consider the allegation of anti-Semitism to pose a risk of censorship.
Any policy challenging discrimination — not just anti-Semitism — will encounter people who level accusations of discrimination that others dispute or find controversial. Any policy challenging discrimination — not just anti-Semitism — will require university actors to make judgment calls. If the fact that an element of dispute will always be involved is sufficient to disqualify all and any university efforts aimed at combating prejudice, it is unlikely that any effort, no matter how phrased nor how enacted, could pass muster.
The critics focus on the anti-Semitism case because if they acknowledged the broad focus of the resolution it would become apparent that their critiques — if taken seriously as general principles rather than Jew-only one-offs — place the entire project of combating prejudice on campus squarely in the crosshairs.
The motivation behind the move to isolate anti-Semitism from other forms of discrimination is not necessarily anti-Zionism (the JVP and Rosen are both anti-Zionist, but Yglesias and Hayes are not). Rather, it is closer to what Yglesias in the race context identified as “anti-anti-racism.” Just as many people do not directly harbor racist sentiments but are bitterly opposed to seemingly any effort to combat racism in contemporary society, others do not endorse anti-Semitism so much as they instinctively recoil at all acts designed to fight it. In both cases, the rhetoric quickly converges: Racism or anti-Semitism has been overstated, has been used as a tool to silence dissent, has been supplanted by the real victims who have been unjustly tarred with the brush of bigotry. It is only when anti-Semitism is cordoned off from other forms of discrimination that these similarities can be elided and it can be dismissed as special pleading by overprivileged, oversensitive Jews.
The UC Regents’ resolution is a careful response to one of academia’s most nettlesome problems. Free speech on campus demands that even offensive, biased, or prejudicial speech cannot be met with any form of sanction or suppression. But it can — and should — be met with vigorous public challenge.
These principles are not controversial. To the contrary, they are precisely what free speech advocates have long sought. It should disturb all of us when such anti-discrimination, pro-free expression principles are perceived as censorship simply because Jews are openly acknowledged to fall under their ambit – and protection.
David Schraub is the Darling Foundation Fellow in Public Law and Senior Research Fellow, California Constitution Center, both at the University of California-Berkeley Law School. He blogs regularly at The Debate Link. Follow him on Twitter: @schraubd
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