The Volokh Conspiracy

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CUNY Law Dean Mary Lu Bilek: Threatening to Set a Sweatshirt on Fire while Someone is Wearing it is Exercising a "First Amendment Right to Express an Opinion"


CUNY law student Nerdeen Kiswani posted on Instagram a short video (embedded in this link) of her standing next to an African-American man wearing an Israeli Defense Forces shirt. In the video, she pulls out a lighter, lights it, and says to the man, "I hate your shirt." She moves a bit closer with the lit lighter and says, "I'm gonna set it on fire." The man responds with something brief and inaudible, and then Kiswani responds, "Nah, I'm serious," still holding the lit lighter.

She tagged her post "I almost set this guy's shirt on fire" and "Fuck Israel. Free Palestine."

After some pro-Israel groups criticized the video and demanded a response, the Dean Bilek posted a condemnation headlined, "CUNY School of Law stands against hate and antisemitism." This may have been her first mistake. It's not clear where the incident took place, but the dean had no call to comment on whether the views of a student, expressed outside the law school, are hateful, antisemitic, or anything else.

After leftist students rallied around Kiswani, Dean Bilek

subsequently issued a statement to all students withdrawing and apologizing for the initial denunciation, claiming that Kiswani had simply "exercised her First Amendment right to express her opinion."

"In responding to this situation, we moved too quickly, which led to several mistakes," Bilek asserted. "I apologize for taking these actions and for the words we used and for the harm they caused."

She lamented the first statement's failure to "communicate the school's position or to support the student" — i.e. Kiswani.

"In that post, the header said that the Law School 'stands against hate and antisemitism,'" Bilek continued. "I know the difference between opposition to Israel's armed forces (or Israel's policies towards Palestine) and antisemitism, and the student's post was clearly expressing the former."

Once again, it's not Dean Bilek's job to mediate between those who think that this incident reflects antisemitism and those who think it only reflects opposition to Israel or Israeli policy.

That said, it seems to me that the whole controversy misses the forest for the trees. Regardless of what one thinks of the antisemitism issue, a CUNY Law student threatened to burn someone's sweatshirt with that person wearing it, while holding a lit lighter. She said she was serious. She posted the video stating that she almost burned the guy's sweatshirt.

Was she really serious? Maybe not. But in legal parlance, what she did was an assault, generally defined as "intentionally putting another person in reasonable apprehension of an imminent harmful or offensive contact." This is a criminal act, and is not protected by the First Amendment. And thus not only is there no reason for Bilek to "support the student," if the law school is going to make any official comment at all, it should be criticizing the student for using a threat of violence in the guise of expressing her opinion.

Back in 2018, writing about Bilek's failure to investigate, much less punish, students who disrupted Josh Blackman's talk at CUNY Law, I wrote a post entitled CUNY Law Needs to Fire its Dean. I can't say the recent incident has changed my opinion.