The Danger of Banning Anti-Zionist Protests

Sure, people are outraged when demonstrators compare Jews to Nazis. But outrageous protests are an American tradition -- and they're entirely protected by the First Amendment.

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Students on the steps of UC Berkeley's Sproul Plaza reenact a 1948 Israeli attack on an Arab village. (Ben Margot/AP)

Jewish Americans of my parents' generation endured open, outright, self-righteous discrimination in employment, education, and public accommodations -- discrimination that was not just respectable but legal until the passage of mid 20th century civil rights laws. They lived through World War II, witnessing the Holocaust not as history but in real time. Speaking from experience, they bequeathed to us one wry definition of an anti-Semite as "someone who hates Jews more than he should."

Officials at the U.S. Department of Education might not see the humor in this. Now that formal legal equality has been guaranteed, informal expressions of bigotry are less likely to be considered laughing matters. Based on a complaint by two former students, the DOE is investigating charges of anti-Semitism arising out of "Apartheid Week," pro-Palestinian protests at the University of California-Berkeley.

To its credit, the university correctly defended the protests as constitutionally protected speech, and federal officials may eventually agree. But combine popular support for restricting hate speech with ardent Zionism, and you have a recipe for categorically equating anti-Zionism with anti-Semitism and restricting anti-Zionist protests in order to protect Jewish students from "harassment" and "intimidation." The California Assembly recently passed a non-binding resolution condemning anti-Zionism and exhorting university administrators to pay more "serious attention" to its spread.

It's hard to argue with the proposition that educators should pay attention to anti-Semitism, among other strong biases, unless you understand that "paying attention" means limiting individual speech rights. The California resolution effectively equates illegal behavior, like vandalism, with protected (even if hateful) speech, including divestment and sanctions campaigns directed against Israel, as well as "anti-Semitic imagery and language." It calls for "strong leadership from the top" to make sure that "anti-Semitic activity (meaning arguments as well as actions) will not be tolerated in the classroom or on campus." In addition, "no public resources" (which presumably include campus communications systems) "will be allowed to be used for anti-Semitic or intolerant agitation."

The resolution doesn't have the force of law, but it's not a great leap from legislative resolutions condemning political speech to unconstitutional laws prohibiting it. "No agitating allowed," signs on campus might say.

Passionate protests are inevitably uncivil; indeed, incivility is a virtue when people hurl epithets instead of rocks.

We can hope that the Department of Education's Office For Civil Rights is more enlightened than California legislators. But the office has previously encouraged schools to impose broad restrictions on student speech, in the interests of promoting social equality (with the approval of the ACLU).

And regardless of how they're resolved, investigations of allegedly hateful speech have a chilling effect. They encourage risk-averse college and university administrators to restrict political speech that offends presumptively vulnerable groups. In an era of strict speech and harassment codes and diminished support for First Amendment freedoms, administrators need little encouragement to err on the side of censorship.
   
Passionate protests are inevitably uncivil; indeed, incivility is a virtue when people hurl epithets instead of rocks. Advocates of restricting hate speech blanch at the "violence of the word," but epithets do not constitute violence or unprotected speech amounting to incitement to violence. A landmark 1969 Supreme Court case Brandenburg v. Ohio rightly defined actionable incitement narrowly as speech intended and likely to cause imminent illegal action. It's not speech that arguably contributes to bad attitudes, or even hatred. It's not speech that deeply upsets or outrages people.
  
But the Brandenburg standard may not survive post 9/11 laws criminalizing political advocacy that's labeled material support for terrorism. It may not survive demands to restrict hate speech as a form of incitement. The former students whose complaint sparked the investigation at Berkeley predictably compared the offending protests, conducted in part by Muslim Student Association, to the "incitement" and "intimidation" that preceded the Holocaust.

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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