The Danger of Banning Anti-Zionist Protests

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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.

What constitutes incitement and intimidation?  According to a "University of California Jewish Student Campus Climate Fact-Finding Team," Jewish students complain that the Star of David is used as a symbol of hate and that protests portray Israeli soldiers "engaging in indiscriminate acts of violence and degradation of Palestinians. ... Most outrageously for Jewish students, the protests routinely analogize Israeli treatment of Palestinians to the Nazis' treatment of Jews. ... The term Holocaust is routinely used to characterize Israeli behavior toward Palestinians." 

Of course some Jewish students are outraged by these protests. The protests express outrage -- injudicious outrage against Israel -- and are probably intended to provoke outrage. They carry on a tradition of outrageous, protected political speech -- a tradition afforded little respect by the authors of the U.C. "Jewish Student Campus Climate Report." They recommend that the U.C. system adopt restrictions on hate speech. Recognizing that hate speech prohibitions may provoke litigation, they urge university officials to "accept the challenge," apparently finding nobility in efforts to restrict political speech.

Their recommendations are unsurprising. The belief that equality requires mandatory tolerance and the repression of hate speech is increasingly commonplace globally. Even in the U.S., staunch free speech advocates opposed to hate speech restrictions -- from laws prohibiting Holocaust denial to blasphemy prohibitions -- seem to be a dwindling minority.
   
Still the U.C. fact finders' recommendations are worth noting: They recommend vigorous regulations of political speech, partly to deter "bigoted harassment," yet their fact finding mission apparently uncovered no instances of serious harassment or intimidation: "No students indicated feeling physically unsafe on U.C. campuses," they report. I guess they didn't interview the students whose complaint sparked the current Department of Education investigation, for whom vitriolic anti-Zionist protests were the equivalent of Nazi propaganda, threatening incitement of violence against Jews, if not another Holocaust.

Put aside the absurdity of regarding Jews in post 9/11 America, who've been embraced by right wing Christian Zionists, as more at risk than Muslims. Assume for the sake of argument that Jewish Americans are indeed vulnerable. Or adopt the traditional, jaundiced view, rooted in history, that Jews are always vulnerable and anti-Semites are people who "hate Jews more than they should." In any case, students who feel at risk and want to remember the Holocaust should never forget the abolition of civil liberty that enabled it.

I'm not suggesting conversely that by restricting hate speech we invite a Holocaust. In fact, at the risk of feeling secure, I think I can safely say that in America, Jews are unlikely to be rounded up anytime soon, at least not on account of being Jewish, whether or not we censor anti-Semitism. But Jews and non-Jews alike could conceivably be rounded up and indefinitely detained under the National Defense Authorization Act if they're charged with substantially supporting terrorism. Or they could be brutalized by local, militarized police for participating in political demonstrations. 

Advocates of restricting hateful or harassing speech badly misconceive the dangers confronting us post 9/11. Whatever threats may follow from free speech are so much more tenuous and remote than the threats of speech restrictions. Hate speech isn't political dissent, aspiring censors assure us. But legitimize the criminalization of allegedly bigoted or hateful political speech, dismantle the First Amendment, however incrementally, and hate speech will be whatever the state proclaims it to be. The story of the Stasi, not the Nazis, is our cautionary tale.

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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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