Campus Free Speech

Executive Order on Anti-Semitism Could Suppress First-Amendment-Protected Criticism of Israel

|The Volokh Conspiracy |

[1.] President Trump's Executive Order on Combating Anti-Semitism begins by noting that, though Title VI of the 1964 Civil Rights Act only bans "discrimination on the basis of race, color, and national origin"—and not religion—"in programs … receiving Federal financial assistance,"

Discrimination against Jews may give rise to a Title VI violation when the discrimination is based on an individual's race, color, or national origin. It shall be the policy of the executive branch to enforce Title VI against prohibited forms of discrimination rooted in anti-Semitism as vigorously as against all other forms of discrimination prohibited by Title VI.

That strikes me as quite sensible. Much discrimination against Jews stems from hostility to Jews as an ethnic group—a group linked by ancestry and culture, quite apart from religion. In this respect, it's much like discrimination against, say, people of Hispanic or Arab ethnicity. Whether such ethnic discrimination against Jews qualifies as forbidden discrimination based on race or national origin turns out to be surprisingly unsettled, as I discussed in a September 2019 post (Is Rejecting Someone Because of His "Jewish Blood" Race Discrimination Under Title VII? National Origin Discrimination?). But there are ample precedents for the view that ethnic discrimination is race/national origin discrimination (again, see that post for more), and I think the Administration's position rightly endorses that view.

[2.] But the Order also goes on to say,

In enforcing Title VI, and identifying evidence of discrimination based on race, color, or national origin, all executive departments … shall consider the following:

(i)   the non-legally binding working definition of anti Semitism adopted on May 26, 2016, by the International Holocaust Remembrance Alliance (IHRA), which states, "Antisemitism is a certain perception of Jews, which may be expressed as hatred toward Jews.  Rhetorical and physical manifestations of antisemitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities"; and

(ii)  the "Contemporary Examples of Anti-Semitism" identified by the IHRA, to the extent that any examples might be useful as evidence of discriminatory intent.

(b)  In considering the materials described in subsections (a)(i) and (a)(ii) of this section, agencies shall not diminish or infringe upon any right protected under Federal law or under the First Amendment.  As with all other Title VI complaints, the inquiry into whether a particular act constitutes discrimination prohibited by Title VI will require a detailed analysis of the allegations.

The IHRA examples state that "Contemporary examples of antisemitism in public life, the media, schools, the workplace, and in the religious sphere could, taking into account the overall context, include, but are not limited to":

Calling for, aiding, or justifying the killing or harming of Jews in the name of a radical ideology or an extremist view of religion.

Making mendacious, dehumanizing, demonizing, or stereotypical allegations about Jews as such or the power of Jews as collective—such as, especially but not exclusively, the myth about a world Jewish conspiracy or of Jews controlling the media, economy, government or other societal institutions.

Accusing Jews as a people of being responsible for real or imagined wrongdoing committed by a single Jewish person or group, or even for acts committed by non-Jews.

Denying the fact, scope, mechanisms (e.g. gas chambers) or intentionality of the genocide of the Jewish people at the hands of National Socialist Germany and its supporters and accomplices during World War II (the Holocaust).

Accusing the Jews as a people, or Israel as a state, of inventing or exaggerating the Holocaust.

Accusing Jewish citizens of being more loyal to Israel, or to the alleged priorities of Jews worldwide, than to the interests of their own nations.

Denying the Jewish people their right to self-determination, e.g., by claiming that the existence of a State of Israel is a racist endeavor.

Applying double standards by requiring of it a behavior not expected or demanded of any other democratic nation.

Using the symbols and images associated with classic antisemitism (e.g., claims of Jews killing Jesus or blood libel) to characterize Israel or Israelis.

Drawing comparisons of contemporary Israeli policy to that of the Nazis.

Holding Jews collectively responsible for actions of the state of Israel.

This, I think, has the potential to unconstitutionally suppress speech. Let me explain why.

[A.] To begin with, imagine that President Bernie Sanders issues the following Executive Order:

In enforcing Title VI, and identifying evidence of discrimination based on race, color, or national origin against Palestinian-Americans, all executive departments shall consider the following examples to the extent that they might be useful as evidence of discriminatory intent:

Denying the Palestinian people their right to self-determination, e.g., by claiming that any Palestinian state would lead to terrorist attacks on Israel.

Applying double standards by requiring of Palestinians a behavior not expected or demanded of any other group that is waging an insurrection against an oppressive government.

Drawing comparisons of contemporary Palestinian policy and attitudes towards Jews to those of the Nazis.

Holding Palestinians collectively responsible for actions of Palestinian de facto governmental organizations.

Justifying the killing or harming of Palestinians in the name of protecting another nation's security, or on the theory that it is acceptable collateral damage in the other nation's defensive operations.

The premise in the first paragraph is legally accurate: Discrimination against Palestinian-Americans is likely already prohibited by Title VI as discrimination based on race or national origin, just as discrimination against Hispanics or Arab-Americans is already prohibited. But I take it that we'd be concerned that the following examples—even if cast just as examples of what might be useful as evidence of discriminatory intent—are likely to (and probably intended to) deter people from expressing their political views about the Israeli-Palestinian conflict.

To be sure, one can draw distinctions between the examples I give above and the examples in the IHRA Anti-Semitism statement. For instance, some people argue that it's illegitimate to deny to Jews a right to have a nation of Israel, because it already does exist, but legitimate to deny the Palestinians a right to have a nation of Palestine, because it has not been officially recognized. (I'm quite skeptical of the view that official international recognition should make a difference for which arguments are legitimate, and especially for which arguments are protected by the First Amendment.) Or some might say that, in their experience, the view that Jews don't have a right to national self-determination is highly correlated with anti-Semitism but the view that Palestinians lack such a right is not highly correlated with anti-Palestinian prejudice.

But do you think it's likely that courts will indeed reliably accept such distinctions? Or, if a court were to uphold President Trump's Executive Order, would that decision be a powerful precedent in favor of the constitutionality of the hypothetical order from President Sanders?

[B.] More specifically, one problem with the real Executive Order (as well as the hypothetical Order) is that speech has in recent years often been labeled discrimination, on the theory that certain statements create a "hostile environment" and therefore violate antidiscrimination rules. Under this theory, a rule that "Drawing comparisons of contemporary Israeli policy to that of the Nazis" is "evidence of discrimination" means that a university could be punished under Title VI for allowing speech drawing such comparisons. Likewise, drawing such comparisons would violate campus speech codes that ban "discrimination" and "harassment."

The Lawfare Project's Dec. 18, 2019 complaint against Columbia, which cites the Executive Order, relies on precisely this theory. Among other things, it lists sharply anti-Israel (and pro-Hamas) public statements by Prof. Joseph Massad and Prof. Hamid Dabashi as examples of "discrimination against" the complainant and "discrimination directed at" other Jews or Israelis. (I received a copy of the Complaint with authorization to quote portions but not post it; it's not a court filing, so it apparently isn't a fully public document.) Likewise, the complaint takes the view that Columbia's refusal to silence such criticisms, or to publicly condemn them, has helped "create[] a hostile environment" in "violation of Title VI."

(Columbia's decision not to condemn certain statements would itself be an exercise of its own First Amendment right not to speak. But the complaint argues that "Although Dabashi has a right to free speech, the university has an obligation to either sanction or condemn this speech when it conflicts with university policies and federal law," and seemingly takes the view that the speech does "conflict[] with … federal law.")

As David Bernstein has pointed out, the problem here partly stems from the view that public comments by students, professors, and others can violate antidiscrimination law if they create a "hostile educational environment" based on race, religion, sex, sexual orientation, gender identity, national origin, and the like. Many courts have struck down campus speech codes framed in such terms, but the government and various universities has continued to assert that such speech restrictions are constitutional.

But the Executive Order, it seems to me, exacerbates the problem by sweeping in anti-Israel speech (and not just overtly anti-Jewish speech) as potentially punishable "discrimination." Both anti-Israel speech and anti-Jewish speech are protected by the First Amendment (unless they fall within one of the narrow exception to First Amendment protection, such as for true threats). But broadening the unconstitutional restrictions is surely not a step forward.

Nor do I think that the Order's statement that, "In considering the materials described in subsections (a)(i) and (a)(ii) of this section, agencies shall not diminish or infringe upon any right protected under Federal law or under the First Amendment," helps much. The problem is that government officials often tend not to recognize that various speech, especially speech that is viewed as bigoted or "discriminatory," is protected by the First Amendment; the Order, notwithstanding its "shall not diminish or infringe language," tends to reinforce this attitude.

[C.] But say that the Executive Order were limited to what one might think of as purely evidentiary uses of speech—e.g., if someone has been attacked, or had his property vandalized, or has been excluded from some university program, or given a low grade, and the question is whether the action was motivated by his being Jewish. That may be what at least one adviser to the Administration may have intended, according to this article in Haaretz (Amir Tibon):

Avi Berkowitz, a close adviser to Kushner and heavily involved in working on the executive order, says the answer is no. "A complaint against a lecture as you describe would not trigger Title VI," he says. "In order for Title VI to apply, there has to be actionable conduct. Title VI requires a certain level of conduct, and the executive order does not change that requirement. The lecture remains protected speech."

Let's set aside the possibility that, as some have argued, the creation or tolerance of a "hostile environment" would itself be treated by some as "actionable conduct," even if the environment stems just from speech that doesn't fit within any of the narrow First Amendment exceptions; and let's focus on the purely evidentiary uses I just mentioned.

Even for such evidentiary uses, I think the Executive Order is dangerous and unconstitutional, as my hypothetical Sanders Executive Order helps illuminate. Say that you are a professor who rejected a student's application to a graduate program. He claims that the rejection stemmed from his or his parents' having been born in Gaza. (Assume he's an American citizen, so the claim is of discrimination based on national origin, and not based on current citizenship, which would raise more complicated problems.)

You argue that, no, you rejected him because you thought his past scholarly work wasn't strong enough. He responds that, (1) under the hypothetical Sanders Executive Order, "Denying the Palestinian people their right to self-determination" is an example that "shall [be] considere[ed] … to the extent that [it] might be useful as evidence of discriminatory intent"; (2) you had publicly argued against a separate Palestinian state; and therefore (3) that is evidence that you were biased against him based on his national origin.

I think such an argument would be quite wrong, and dangerous to academic freedom. If the argument were accepted, it would sharply chill advocacy of various views on the Israeli-Palestinian conflict, and the government has no business doing that. And of course the same is true of the actual Trump Executive Order.

Now I acknowledge that speech can be used as evidence of motive; indeed, sometimes it's the only such evidence. (See this post for more, including a discussion of some key Supreme Court cases on the subject.) Even in the absence of any Executive Order, if a professor publicly says "All Jews are scum and I hate working with them" or "all Palestinians are scum and I hate working with them," that could be evidence that a particular action by a professor with respect to a student was deliberate discrimination based on ethnicity. The same would be true if a student is being accused of punching a classmate or vandalizing the classmate's property based on the classmate's being Jewish or Palestinian.

But when there is such concrete evidence of ethnic hostility, the Executive Order is unnecessary. The Order would make a difference only in cases where statements overtly expressing ethnic hostility are weak or even absent, and the evidence stemming from one's views on the Israeli-Palestinian conflict would then be brought in.

The closest analog in the Supreme Court precedents (not a perfect analog, but I think a helpful one) is the presumption struck down in Virginia v. Black (2003). There, the law banned cross-burning with the intent to intimidate; and some such cross-burning (e.g., burning a cross in front of a black family's house with the intent to make them fear that physical violence would be next) may indeed be punishable, when it falls within the First Amendment exception for true threats of violence. But the law also added,

Any such burning of a cross [including in any public place] shall be prima facie evidence of an intent to intimidate ….

The Court held that this "prima facie evidence" provision violated the First Amendment, for reasons stated by Justice Souter (joined by Justices Kennedy and Ginsburg), and agreed with by Justice O'Connor (joined by Chief Justice Rehnquist and Justices Stevens and Breyer):

As I see the likely significance of the evidence provision, its primary effect is to skew jury deliberations toward conviction in cases where the evidence of intent to intimidate is relatively weak and arguably consistent with a solely ideological reason for burning. To understand how the provision may work, recall that the symbolic act of burning a cross, without more, is consistent with both intent to intimidate and intent to make an ideological statement free of any aim to threaten.  One can tell the intimidating instance from the wholly ideological one only by reference to some further circumstance. In the real world, of course, and in real-world prosecutions, there will always be further circumstances, and the factfinder will always learn something more than the isolated fact of cross burning. Sometimes those circumstances will show an intent to intimidate, but sometimes they will be at least equivocal, as in cases where a white supremacist group burns a cross at an initiation ceremony or political rally visible to the public.

In such a case, … the prima facie evidence provision … will have the practical effect of tilting the jury's thinking in favor of the prosecution…. [T]he provision will encourage a factfinder to err on the side of a finding of intent to intimidate when the evidence of circumstances fails to point with any clarity either to the criminal intent or to the permissible one…. The provision will thus tend to draw nonthreatening ideological expression within the ambit of the prohibition of intimidating expression.

To the extent the prima facie evidence provision skews prosecutions, then, it skews the statute toward suppressing ideas…. The question here is … [whether] the statute's terms show that suppression of ideas may be afoot…. And if we look at the provision for this purpose, it has a very obvious significance as a mechanism for bringing within the statute's prohibition some expression that is doubtfully threatening though certainly distasteful.

I think the same reasoning applies here. If a university responding to a student complaint, or the Department of Education Office for Civil Rights determining whether a university's response was inadequate, sees the usual sorts of evidence that would normally prove discriminatory motivation (e.g., "I hate Jews"), it can certainly rely on that evidence.

But the Executive Order, by listing specific political statements as potential evidence, "skew[s] [the decisionmaker's] deliberations toward [a finding of forbidden behavior] in cases where the evidence of [anti-Semitism] is relatively weak." It "tilt[s] the [decisionmaker's] thinking in favor of [a finding of guilt]" simply based on a professor's or student's expression of political views about Israel (or, in my hypothetical, about Palestinian organizations). If "[t]he question" is whether "the [Executive Order's] terms show that suppression of ideas may be afoot," those terms have "a very obvious significance as a mechanism for bringing within [Title VI's] prohibition some expression that is doubtfully [evidence of discrimination]."

[* * *]

On the merits of the Israeli-Palestinian controversies, I generally support Israel; and I don't always support arguments that various attempts to protect Israel or Israelis from discrimination violate the First Amendment—consider, for instance, my amicus briefs (e.g., this one), filed on behalf of Prof. Michael Dorf, Prof. Andy Koppelman, and myself, arguing that various state anti-BDS statutes do not violate the First Amendment. (My position there is that actual refusal to deal with Israel and Israelis are not protected speech, even if they are politically motivated, just as refusal to deal with Muslims or Christians are not protected speech.)

But here it seems to me (as I've argued before as to similar proposals) that the Executive Order really does risk suppressing not just discriminatory conduct but speech—speech that I generally disagree with, but speech that is fully constitutionally protected.

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  1. I’d like Professor David Bernstein to weigh in on this post by Professor Volokh. As I read this, the executive order does not prohibit any speech. It states that one’s speech may be considered in determining discriminatory intent.

    1. Yes, but it also says that evidence of two possible actions should not be interpreted as such, but as evidence of only one of those actions. The jury is of course free to disregard that directive, but it tips the field in favor of the government.

      To analogize, it would be like a jury instruction that said, “while of course the defendant has the right not to testify in their defense the jury ought to construe that as evidence that they committed the alleged crime and are afraid of being prosecuted for perjury if they stood up to deny it.” Not testifying has many reasons – that being one of them, but also because you’re a bad speaker and don’t want to come appear so to the jury, you’re being threatened by a gang, you weren’t involved in any way but we’re passed out in a bar at the time and so have no information you could provide that’s not better conveyed by someone else, among an infinite number of others.

      The problem isn’t that this says it should be counted as evidence of intent – burning a flag in front of a war memorial is great evidence of something, but that it should by default be construed only as evidence of anti-war sentiment rather than evidence of anti-war sentiment or veterans properly disposing of the units flag under the Flag Code by a memorial to their fallen comrades. It’s the “default interpretation” that’s the problem.

  2. What a bad supreme court lineup.

    All the worst justices of the last 30 years and Rehnquist in his dotage.

    “recall that the symbolic act of burning a cross, without more, is consistent with both intent to intimidate and intent to make an ideological statement free of any aim to threaten”

    Who burns a cross except the KKK and its ilk in order to intimidate blacks?

    1. “Who burns a cross except the KKK and its ilk in order to intimidate blacks?”

      So, the racist assholes just get to take over that symbol, and it cannot ever possibly represent anything else?

      1. I mean, yeah, that’s how brand-protection works. The KKK did such a good job of associating burning crosses with their work, that basically no other Americans have any desire to do it.

        And that association will probalby continue until either (A) the last cross-burning was so long ago that people forget it as a current thing, and think of it as a quaint historical tradition that’s no longer practiced, or (B) some other group intentionally and explicitly tries to “take back” the symbol, and does it long enough and frequently enough to break the association.

        Until one of those two things happen? Yep, burning cross = KKK.

        1. “Yep, burning cross = KKK.”

          I’ll let the United Methodist Church know of your diktat right away.

          1. Had to look up what you were talking about.

            Near as I can tell, Methodists have no history of actually burning crosses, they just have a little stylized flame in their logo. And seeing as the KKK’s burning cross thing isn’t a logo, but a ritualistic act, I think both brands are safe from each other.

            1. “Near as I can tell, Methodists have no history of actually burning crosses”

              The KKK has more of a history of having burned crosses than of actually burning crosses in the present tense.

      2. Take over that symbol? They invented it.

        A better application of your silly question is the swastika; that really did have non-problematic uses before WWII, but thanks to the Nazis it’s pretty much impossible for anyone else to use it.

        1. So, you have nothing substantive to add, then?

  3. I still don’t understand what the difference is between “…actual refusal to deal with Israel and Israelis…” and “don’t support boycott but just happen to not be doing any business with Israel or Israelis.” Isn’t the only difference the espousal of a belief that one should be boycotting Israel? And isn’t that espousal protected by the first amendment? Other than the espousal of a belief, the behavior is identical. I’m not asking rhetorically, I really don’t understand how anti-BDS statutes can be constitutional.

    1. Alpheus Drinkwater: Well, let me ask you — what is the difference between “actual refusal to hire any Catholics” and “don’t support any discrimination against Catholics but just happen to not have hired any Catholics”? The former, after all, is forbidden employment discrimination; the latter (if sincere) is just lawful selection without regard to religion.

      More broadly, say that someone refuses to hire Catholics, but explains it as his own personal, ideologically motivated boycott of the Catholic Church and those people who support it (by membership, donation, etc.). Would that “boycott” label make employment discrimination against Catholics protected (or even presumptively protected) by the First Amendment? I think the answer is “no,” and I think the same is true for refusal to do business with Israel or Israeli companies.

      1. Thank you for that response, Professor Volokh. I understand your point that my action of refusing to hire Catholics, even if it were motivated by my own personal ideology, would not be protected. But don’t I have a protected right to declare my belief that the Catholic Church is evil and I shouldn’t have to hire Catholics? [note – not in the slightest my actual belief] And therefore wouldn’t a law requiring me to declare that I don’t believe that in order to garner state contracts violate the first amendment?

        I think the anti-BDS statutes aren’t penalizing businesses for the behavior of not doing business with Israel, since they allow other businesses who aren’t doing business with Israel to win contracts. They are penalizing the belief in the need for a boycott.

        1. You do have the right to say that. And similarly, you have the right to say that Israel is evil and governments and businesses shouldn’t deal with them.

          But many and perhaps almost all anti-BDS statutes (and I am not as familiar with them as Prof. Volokh is) don’t target that sort of expression. Rather, they merely target people who actually refuse to do business with Israel. And Prof. Volokh is right- that’s analogous to refusing to do business with black people, which is constitutionally unprotected.

          Putting it succintly:

          “I think everyone should refuse to do business with Israel” = constitutionally protected speech.

          Actually refusing to do business with Israel = conduct, not speech, which can be regulated consistent with the First Amendment.

          1. NO NO NO…

            Israel is a sovereign nation and DOES NOT fall under US jurisdiction and therefore deserves ZERO protection under US laws.

            Individuals (blacks, Israeli citizens in the US, Republicans, etc.), who under US jurisdiction should have all the appropriate legal and civil protections available – BUT NOT A FOREIGN COUNTRY.

            1. apedad: That’s a plausible policy argument for why anti-BDS laws (even ones that apply only to government contractors) shouldn’t be enacted. But it doesn’t justify, I think, holding that such laws violate the First Amendment when domestic antidiscrimination laws don’t. The argument in my brief (which I develop in more detail there) is that there’s no general First Amendment right to discriminate in ordinary business decisions (even politically motivated ones). And that logic applies whether the discrimination is against foreign countries or companies or against domestic companies or individuals.

              1. “. . .there’s no general First Amendment right to discriminate in ordinary business decisions (even politically motivated ones).

                So the NBA was wrong to move their All Star game out of N. Carolina when NC enacted bathroom bill laws?

                Companies pulled out of Georgia (and maybe Alabama) because of over-restrictive abortion laws?

                Some people are saying they’ll boycott Chik-Filet because it no longer supports a certain charity?

                And again, you’re new category of “protected foreign country” status is simply incredulous.

                1. Sigh.

                  “So the NBA was wrong to move their All Star game out of N. Carolina when NC enacted bathroom bill laws?”

                  Not unless there’s some law against discrimination based on state.

                  “Companies pulled out of Georgia (and maybe Alabama) because of over-restrictive abortion laws?”

                  Again, not unless there’s some law against discrimination based on state.

                  “And again, you’re new category of “protected foreign country” status is simply incredulous.”

                  It’s not Dilan’s or Prov V’s “new category”, it’s a product of the ant–BDS laws. And you are certainly allowed to think that they are incredulous, but you haven’t made an argument for why they are unconstitutional.

                  1. “you haven’t made an argument for why they are unconstitutional.”

                    Requiring someone to say something in order to receive a benefit from the government to which they would otherwise be entitled sure sounds like an abridgement of freedom of speech. Can Congress (Constitutionally) pass laws that abridge freedom of speech? How about the states? I read somewhere once that they cannot.

          2. “Actually refusing to do business with Israel = conduct, not speech, which can be regulated consistent with the First Amendment.”

            I understand that, Dilan. But the states with anti-BDS statutes aren’t only turning away businesses that they can prove refused Israeli business for the sole reason that it was Israeli. Businesses who want state contracts have to state that they aren’t boycotting Israel. If I state that my company believes in the need to boycott, but the chance to refuse to do business with Israel has never arisen, what is the difference between my company and any other company that hasn’t done business with Israel? Only my speech advocating the need for a boycott. Not my conduct, but my speech.

        2. I entirely agree that you have the right to declare that you believe the Catholic Church evil, or that Israel is evil. None of the anti-BDS laws I’ve seen (certainly not the two that I’ve defended in amicus briefs) require contractors to declare that they don’t believe Israel is evil.

          Rather, they merely require (in the words of the Texas statute) that every contractor verify “that it (1) does not boycott Israel;  and (2) will not boycott Israel during the term of the contract.” “Boycott Israel” is in turn defined to mean “refusing to deal with, terminating business activities with, or otherwise taking any action that is intended to penalize, inflict economic harm on, or limit commercial relations specifically with Israel, or with a person or entity doing business in Israel or in an Israeli-controlled territory, but does not include an action made for ordinary business purposes.” So contractors remain free to say Israel is evil — they just can’t refuse to deal with Israel or Israeli companies. Likewise, under Title VII companies remain free to say Catholicism is evil, but they can’t refuse to hire Catholics.

          1. Likewise, under Title VII companies remain free to say Catholicism is evil, but they can’t refuse to hire Catholics.

            I think it’s important to note that if you wind up in front of a jury
            trying to argue that your business has no Catholic employees not because of discrimination, but “lawful selection without regard to religion”, they’re likely to be much more skeptical if you have public statements about the evils of Catholicism on the record.

            Which is to say… you’re free to say it. But if you do publicly say it, you’d better cross your i’s and dot your t’s to make sure your personal bias isn’t leaking into your business practices, and you’d better keep the receipts to prove it.

            1. EscherEnigma: You are correct, and that is one of the costs of the general rule that speech can be used as evidence of mental state (see the original post and the post to which it links). The Executive Order, though, exacerbates those costs for the reasons I discuss in Part II.C above. The anti-BDS laws don’t; the chilling effect they impose on contractor speech is no greater than the chilling effect imposed by antidiscrimination law.

            2. ” you’re free to say it. But if you do publicly say it, you’d better cross your i’s and dot your t’s to make sure your personal bias isn’t leaking into your business practices, and you’d better keep the receipts to prove it.”

              I think it’s a reasonable inference that if people are willing to publicly say bigoted things, they’re also willing to do bigoted things. It’s rebuttable, sure, but not unreasonable.

          2. Okay, makes sense. Again thank you very much for taking the time to engage! Especially since the subject was somewhat tangential to the original post.

        3. I’m with you, Alpheus. I suggest that a better parallel example is a small employer who is sued by a woman applicant who feels that the job site has a “locker room atmosphere” and thus amounts to hostile environment discrimination. The employer would say, and rightly in my view, that he and his male employees are just engaging in protected speech.

    2. “Isn’t the only difference the espousal of a belief that one should be boycotting Israel?”

      Not necessarily, because there are actual ways to be against buying goods from Israel that have nothing to do with boycotting Israel. For example, a person could be in favor of “buy American”, or could be opposed to shipping products overseas because of the fuel used to transport it. (in other words, a boycott of Israel, but more correctly a boycot of Israel-and-many-others. Notice that someone who advocates for “buy local” both is and isn’t singling out Israel as a place not to buy goods from… depending on how you choose to interpret it.

  4. This lines up with my thinking on the issue. Presenting certain political views as evidence of discrimination (just because such views are connected in some way with the group allegedly being discriminated against) definitely chills broad swathes of speech.

    This is a far more plausible chilling effect argument than the one deployed against hate crime statutes as such: that those inclined to espouse certain bigoted positions will be deterred from doing so on the chance that if they will commit a crime\ their sentence will be elevated due to their past views being adduced as evidence of bias motivation.

    What if opposition to affirmative action is construed as evidence of discriminatory intent against blacks/hispanics? Or espousal of ‘white privilege’ esque positions being construed as bias against whites? The sweep of such a standard is broad

    1. Heck, there’s an even stronger analogy than that.

      As you know, the EO appears to use opposition to Israel as a proxy for anti-semitism. And as you also know, many people contend that large numbers of voters who opposed Obama were racist, and large numbers of voters who opposed Hillary Clinton were sexist.

      So can an Executive Order use opposition to Obama as evidence of racially discriminatory intent, or opposition to Hillary as evidence of sex discriminatory intent?

  5. One again Volokh’s demented TDS shows itself. Obama does something, it is GREAT. Trump makes it permanent, he is ORANGE MAN BAD!

    1. Well, someone’s showing their demented mental processes re:Trump here, anyway.

    2. AustinRoth: Can you elaborate, please? What exactly is the “something” that Obama did that I thought was “GREAT” and that, when Trump did it, I thought it was “BAD”?

      1. You cultivate these commenters, you get these comments.

  6. The problem identified hear is inherent in all anti-discrimination statutes. Speech that relates to the protected class can be used as evidence of discrimination.

    Let’s say that a professor rights an article reviewing positively the book The Bell Curve. The same professor then does not hire a student assistant who happens to be black. Professor says, sorry, your grades and scholarship are not up to par. Student says, no, it’s racial discrimination, and your positive view of that book demonstrates your racial animus.

    1. writes, not rights

      (These comments need an edit function.)

      1. Why fix that one error, and not the others?

        1. I think Bored Lawyer’s critique deserves more than mere snark here. I think approval of the Bell Curve would raise the same sort of concerns as the other examples Prof Volokh cites.

          I guess one can distinguish favorable views of the Bell Curve and opposition to an Israeli State because both are either positions on political or scholarly topics and not necessarily tethered to bigotry qua bigotry (eg: a statement like all filipinos should be flogged). obviously disentangling the two becomes tricky but that is always an issue in law at the margins.

          1. “I think Bored Lawyer’s critique deserves more than mere snark here.”

            It’s a legit question. Obviously, a person who writes documents for a living has an interest in only presenting finished documents to the public, and a person who finds mistakes in documents has an interest in showing that they can find as many mistakes in documents as the document(s) contain. Foolishly, I assumed that working attorneys fall into both categories, but here we have someone who claims to be a lawyer doing neither one. So the question is, why?

  7. “As David Bernstein has pointed out, the problem here partly stems from the view that public comments by students, professors, and others can violate antidiscrimination law if they create a “hostile educational environment” based on race, religion, sex, sexual orientation, gender identity, national origin, and the like…the government and various universities has continued to assert that such speech restrictions are constitutional.”

    Assuming arguendo that they are constitutional, much criticism of Israel is probably illegal. It’s certainly difficult to strongly criticize Israel without creating a hostile environment based on nation origin or Jewish ethnicity.

  8. This, I think, has the potential to unconstitutionally suppress speech. Let me explain why.

    You’re welcome to make that argument before SCOTUS. It may even have some validity.

    To begin with, imagine that President Bernie Sanders issues the following Executive Order:

    That may or may not be a valid comparison. But when evaluating how much I care about an issue, it also matters to me whether it actually affects me. The Jewish religion seems to coexist peacefully with other religions, with atheism, and with liberalism; not so for some other faiths. That’s why people may care about these issues to different degrees.

  9. I agree that simply disagreeing with a plaintiff’s philosophy or behavior can never create a hostile environment. I agree that conceptions of “hostile envIronman the” in which it does are incompatible with the First Amendment. And I agree that a number of examples of evidence of “hostile environment” in the Executive Order are in fact simply constitutionally protected disagreements with the policies and conduct of the State of Israel and it’s government, the tenets of the Jewish religion, etc., and hence do not represent evidence of a hostile environment under a concept of that term that is properly limited by First Amendment principals.

    Finally, I agree that there is a general problem of people presenting constitutionally protected opinions as evidence of a hostile environment, and not just regarding Jews.

  10. The self-determination argument is based on a historical claim and that’s where I draw the line on Jews having self-determination and so called Palestinians not having it. No historian disputes that Israel and Judea existed for thousands of years and were repeatedly occupied by foreign powers (Assyria, Babylon, Seleucid Empire, Rome, etc.) No historian disputes that Palestine didn’t exist until Arafat made it so after the failure of the Yom Kippur War and repeated attacks under a unified Arab banner.

    I don’t know who is trying to memoryhole it or why, but we used to (and most of us still do) refer to this conflict as the Arab-Israeli conflict. That’s because starting in the 20s and leading up to the Yom Kippur War, ARABS from Greater Syria, Transjordan, Egypt, etc. (semi-real nations, but with fake borders) formed an ARAB League and fought explicitly against Jews. They even used to call themselves Palestinian ARABS, denoting that they are Arabic peoples who were currently living in the mandate of British Palestine. Britain didn’t use this term for any particular reason other than it being academically standard. The territory had been called Palestine since the Diaspora (funny how Rome burned but Israel still lives on) and Zionism was still a fledgling movement to the international community.

    The problem isn’t that these people want to live somewhere. The issue is they believe that because some of them (might?) be descended from Arabs who lived there during the time of the Ottoman Empire that this entitles all of them to land they were occupying, including millions of Arab refugees who NEVER lived there and have no connection to the land other than pure jealousy and hatred of Jews.

    Gingrich said it best. Palestinians are an invented people. If you think they have a right to self-determination, then you open the floodgates for anyone to claim such status. The same logic would entitle the Northwest Initiative to proceed and carve an Aryan nation out of Idaho/Montana/Wyoming.

    1. The difficulty here is that, except for the doctrines of religion which are outside government purview anyway, at some level all peoples are invented peoples. Indeed lots of the social fabric of a human society, including the society itself, is just made-up convention.

      But This means “it’s just made up” isn’t the easy basis for dismissal people think it is. Yes, it’s made up. Of course it’s just made up. But so what? Practically everything is just made up.

      But something that was made up a mere half a century or so ago isn’t necessarily less real, in the sense of having real impact on human perceptions and behavior than something that was made a quarter of a millennium ago, or even a few millennia ago. This includes whole societies.

      1. Well that’s just nihilism. For the purposes of determining who has a right to occupy certain lands, there’s a much more valid claim for verified descendants of the furthest dated society than for refugees from bordering states. Unless you know some Canaanites, then by all means let them settle instead.

        If Mecca had been occupied by foreign powers for 2,000 years and international Muslims wished to return and resettle the land, would you dismiss their claim out of hand the same way?

        This question of right of return is not that different from the situation in India dealing with East Pakistani/Bangladeshi refugees who have unclear status.

    2. The “invented person” in the Arab quarter of Jerusalem who offered to buy my Beatles Abbey Road tee shirt seemed pretty real to me.

    3. Rationalizing your history to declare a group not real doesn’t work great if the group feels like it is real, whether you’re formally correct about who got there first as a cohesive group.

      And I’m not at all convinced your narrative is correct. Smacks more as a rationalization to unperson a bunch of undesirables.

      1. It’s not about who got here first, it’s about who these groups are. Calling out a fake collective identity, which was specifically manufactured as a tool to wage war, does not devalue individuality in any way.

        It is grossly offensive to compare us to Palestinians. That’s why I compared them to the Northwest Initiative. Palestinians are an Arab interest group, nothing more. It is no more upsetting that there are innocent children born into other movements that don’t know any better and their truth is decades of propaganda at work, but that doesn’t mean you can abandon truth and start treating them as a legitimate group. That’s exactly what they want and the whole point of the PLO. Arab identitarianism didn’t win hearts and minds for 40 years, slap a new coat of paint and build up your forces while everyone lowers their guard because we’re a bunch of bleeding hearts who don’t know any better.

  11. Whether or not the people living in the area had, in your mind, a right to live in the area, they were, in fact, living in the area. Whereas the vast majority of the Jews “coming home” had not previously lived in the area. Does this justify “drive them into the sea” level animosity? Gee, probably not. But claiming they have not right to ANY animosity? That’s some partisan bullshit. That’s “my guys can do no wrong”, and it’s fantasy. Expect pushback.

    1. You have a valid point, one I had not considered before.
      The Jews who came to Palestine had not lived there before.
      Now generations of Palestinians have grown up in refugee camps in other countries who have not lived in Israel.
      It matters not who is morally right.
      The right of Conquest, and possession is 9/10ths of the law, seem to be operating here.

    2. That’s the thing though, these people were not in fact living in the area. The number of Palestinian refugees claiming right to return is not supported by measures of the Arab population of British Palestine prior to 1948. Just because the UN says so doesn’t make it true. Never mind the absurdity of forcing Israel to cede historical territory, enshrine a hostile Arab state with non-defensible borders by fiat from foreign powers/UN aggression, forced two-state solution to avoid demographic replacement of our dualistic theocratic democracy, burdening us with a refugee crisis instigated by an Arab League invasion of Israel…

      It’s not that my guy can do no wrong. It’s just that the facts don’t really support any of these demands that Israel acquiesce.

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