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Free Speech

"FIRE to NYU: Uphold Your Free Speech Promises and Stop Investigating Anti-Zionist Statement"

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A statement from FIRE, which I think is generally quite right:

Today, FIRE wrote New York University School of Law urging it to end an investigation into complaints of harassment based on a statement by Law Students for Justice in Palestine criticizing Zionists. Although some were offended by LSJP's statement — which made several allegations including that the "Zionist grip on media is omnipresent" and that "people living under occupation have a right to resist their violent occupation" — it remains core political expression protected by NYU's clear commitments to students' expressive rights.

The statement from NYU's LSJP chapter came two hours after an April 7 email from NYU's Law Students for Israel, which stated, in part, "Few countries have faced as much violence, hatred, and delegitimization as the State of Israel." The statement also said: "The Middle East is big enough for all its indigenous peoples to enjoy self-determination, security, and prosperity. Do not give credence to those, including in our Law School, who say otherwise."

LSJP's response said Law Students for Israel "flips the realities of aggressor and victim on its head," and criticized Israel as an "apartheid regime."

LSJP went on to say the media "craft a narrative of necessary 'self defense' and 'security'" and Zionists suppress "evidence of their own violence, occupation, and dehumanization." The statement also said, "Zionists falsely equate Palestinian resistance and Israeli oppression as a 'conflict' with two sides."

The Washington Free Beacon reported that 11 student groups subsequently expressed support for LSJP's statement. However, in the latest example of students turning to administrators to try to silence differing opinions on the Israeli-Palestinian conflict, some students submitted complaints to NYU administrators alleging that LSJP's statement and support of it amounted to harassment. The university then said it would investigate, "as required by [its] policies."

As FIRE has long argued investigations into protected expression chill speech. Although NYU is a private university not bound by the First Amendment, it makes strong promises to students that they enjoy expressive rights. This includes the right to make subjectively offensive statements which do not rise to the level of unprotected harassment. Given that NYU makes these promises, it must not investigate speech that is clearly protected, and it may not punish students for merely exercising their expressive rights — even when doing so causes controversy.

FIRE takes no position on the merits of the Israeli-Palestinian conflict. But it's clear that none of the dialogue that's been made public here meets the U.S. Supreme Court standard for what constitutes punishable student-on-student, or peer, harassment. The Supreme Court defined peer harassment in Davis v. Monroe County Board of Education. In order for student conduct — including expression — to constitute discriminatory harassment, it must be: (1) unwelcome; (2) discriminatory on the basis of a protected status; and (3) "so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school."

As we argue in our letter, although some may have considered LSJP's statement unwelcome and discriminatory based on national origin, there is no credible argument that the statement was so severe and pervasive that it deprived students of educational opportunities. A controversial issue like the Israeli-Palestinian conflict is bound to result in speech on both sides of the divide that causes anger and offense. But as a federal court recently stated in a case involving a professor's claim of hostile work environment stemming from speech on this topic, if "disagreements on a contentious geopolitical conflict" could in and of themselves form the basis of a harassment or discrimination claim, it would "serve as [a] parking brake on those academic and public debates about those highly contentious topics."

The Free Beacon argues NYU may be obligated to punish students for signing onto LSJP's statement based on NYU's 2020 settlement agreement with the Department of Education's Office for Civil Rights, which prohibits the university from discriminating based on national origin. Yet, as we explain in today's letter:

NYU's settlement agreement with OCR does not—and cannot—require NYU to investigate expression otherwise protected by the First Amendment. While the agreement required, among other things, that NYU amend its policies to prohibit discrimination based on shared ancestry and ethnic characteristics, and that it release a statement from its president that the university "does not tolerate acts of discrimination or harassment," the agreement does not require NYU to investigate protected expression. OCR, in fact, cannot require NYU to investigate or punish protected expression, as it is itself a governmental body bound by the Constitution.

NYU's settlement agreement with OCR does not prohibit heated exchanges of political views that fall short of discriminatory harassment as defined in Davis. And, given that LSJP's statement does not constitute such harassment and is protected by NYU's promises of free expression, NYU cannot investigate or otherwise punish the speech. Investigations into protected speech cause an impermissible chilling effect on both the students involved and on other NYU students and faculty, as they may self-censor for fear of facing investigation or punishment for expressing controversial opinions.

NYU could have fulfilled its obligations to evaluate complaints had it conducted a cursory review of the allegations against LSJP and quickly determined the email alone could not constitute unprotected hostile environment harassment.

Criticism of LSJP's speech is, of course, also protected expression. That is the marketplace of ideas in action. For example, as George Mason University law professor David Bernstein observed on the Volokh Conspiracy blog:

For what it's worth, I think it's a mistake to make the controversy a matter of discrimination or harassment policy. Rather, the essence of the problem is that some NYU law students (1) dehumanize Israelis to the point where they think murdering them for no reason other than that they exist is ok; and (2) either don't understand why stating that "Zionists" control the media is antisemitic, or do understand and think that spreading racism is okay so long as it's for the greater good of Palestinian nationalism. This is a problem regardless of whether the students in question violated NYU policy, and it may also be a problem to find that political opinion, no matter how noxious, violates NYU policy.

NYU has many options available to it to combat anti-Semitism that do not involve censorship. One permissible option would be educating its student body about the issue, so long as that education doesn't target specific students for education or compel speech by requiring affirmative agreement with a specific viewpoint.

FIRE has seen those on both sides of the Israeli-Palestinian conflict turn to university administrators to silence protected speech of those with whom they disagree. This is destructive for everyone. That's why it's important to point out that NYU must not seek to address the issue by conducting chilling investigations into those on the other side of the issue who might engage in controversial speech that might be deemed anti-Arab or anti-Muslim. Students must have the right to express opinions on all sides of controversial issues, within the bounds of the law, regardless of whether those opinions are widely considered offensive or even repugnant.

FIRE defends not only the rights of LSJP and their supporters, but would also defend the expressive rights of NYU's Law Students for Israel — and anyone whose protected expression is threatened on campus. If students or faculty are being investigated or punished for speech supportive or critical of pro-Palestinian or pro-Israel groups, FIRE is here to help.

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  1. "The Middle East is big enough for all its indigenous peoples to enjoy self-determination, security, and prosperity."

    The modern law school, where even the sane people have to talk like nitwits.

    Both the Israelites and every Islamic empire that came through did a pretty good job of cleaning out all the "indigenous" people in that area.

    1. who in turn did a pretty good job of cleaning out all the competing Homo neanderthalensis in the area. How far back do we go?

      1. Pure polemics based on no evidence

        1. Oh? You have evidence of Homo neanderthalensis currently present in those regions?

  2. This letter notes that investigations are harassment. Investigators should pay all costs from personal assets. These include legal costs, time costs, and emotional distress costs. Saying otherwise is lawyer denial of reality. The Mueller investigation should reimburse Trump for all these costs, from the personal assets of the investigators.

    1. Fascinating.

      So you must also support H. Clinton being personally reimbursed by various Republicans for the years of Bengazi! and other investigations, right? McCarthy even admitted it, that's a slam-dunk case.

      That's going to get expensive.

      1. Investigations should start after probable cause of a crime is found. The complainer should come with evidence of such or be dismissed without investigation. For example, a video recording of a crime. Hurt feelings are not probable cause of a crime or even of a regulatory infraction.

        Clinton did not do her job in Benghazi. A homosexual Democrat diplomat was tortured and killed because she did not want to provide Marine protection, ready to go from nearby, according to a high officer. Clinton negligently murdered this diplomat by not rescuing him in time. She should have been fired by Obama. She obviously had something on Obama, so he did not fire her. As she remained Secretary of State, $millions poured into her charity, and were converted to overhead expenses going into the pockets of the Clintons. She was part of an organized crime family at the top of our government. That should have been investigated, not just Benghazi. What did she do in return for all those donations from tyrants? If she did them favors, she should have been arrested, tried, and executed for treason.

        1. "Investigations should start after probable cause of a crime is found."

          How do you think probable cause is found Mayor of Moronville? It doesn't come from Heaven like manna.

          "Clinton blah blah blah"
          See how weird, creepy aspys are so easily drawn into right-wing memes?

          1. Queenie. This is you in 1939. Let the Nazis and the Stalinists speak. Both sides are morally equivalent, and worthy of a listen.

  3. If there was a complaint properly made wouldn't there need to be some investigation following standing procedures for such things before it could be dismissed as not involving harassment/discrimination?

    1. The point of the letter is that investigations are harassment, and should not be allowed for political speech. I should be able to call you a racial epithet and not be investigated. A racial epithet is nothing. You call me a disability epithet every day. I want you investigated for creating a hostile Comment Section environment based on disability status.

      1. "You call me a disability epithet every day."

        I'm sure you hear that often enough in your everyday life.

        1. Queenie. Wherever did you ever get the idea that autism spectrum invalidates the views of a person? Einstein turns out out was right by every experimental measure so far. He also had 2 wives and 10 lovers, which is pretty busy for those sexually restrained days. Imagine Einstein with today's celebrity press and computer dating. He would rule.

          1. Is DaivdBehar acknowledging and accepting a diagnosis of autism spectrum disorder? (Asberger's?)

            1. Einstein bio rebuts Queenie. I don't have any mental disorder. Queenie is unethical in making a diagnosis of someone it never met. All I have is a deep love of the lawyer profession. No love is greater than one willing to correct. Queenie can do better by trying to make an argument of fact, of logic, of law. Queenie went to school where personal insult is part of the culture. Queenie is also frustrated by the solidity of my claims. They are self evident. The lawyer is a denier motivated by $trillion in rent seeking.

              Medical rent seeking is 10 times bigger and 10 times more fatal. I am not addressing that.

    2. "If there was a complaint properly made wouldn't there need to be some investigation following standing procedures for such things before it could be dismissed as not involving harassment/discrimination?"

      Sigh. No. If I go to the administration and complain that my teacher's ugly, they don't have to investigate and see if she's ugly before they dismiss the complaint.

      If the conduct in the complaint doesn't amount to harassment, there is no need for an investigation.

      1. Remember NYU is under a duty to be proactive about stopping discrimination and they're already in some hot water about this issue (indeed, sub-issue). They get a complaint that has lots of people hopping mad, and you want, what, some Grand Poobah of HR to just eyeball the complaint and toss it? That's not how large, bureaucratic institutions work (and that's a good thing for the most part). There's formal procedures in place and checks and such, with all eyes on them and being under scrutiny on this issue they are going to want to cross every t and dot every i. I mean, when they get this complaint, how do they know that this is all there is to it? Maybe the complained against has done other things to other groups (or even to the same group but, being kids, they didn't know to put it into the complaint)?

        1. "being kids, they didn't know to put it into the complaint"

          Then it would be a good part of their legal education to find the complaint defective or at least send it back for a rewrite.

    3. What is there to investigate? There's no dispute about what was said: I'm not sure why it would take more than, at most, a few hours to read the emails, think about them, and decide what to do.

    4. I think this is all about ambiguity in the word "investigation." Of course NYU has to do some minimal, internal due diligence just to evaluate the complaint and its context. That's different from a formal inquiry.

      You might call the former "under investigation" where in the latter case you've "opened an investigation." But that's pretty subtle.

      We may just need better vocabulary for talking about the stages of this sort of complaint.

  4. This investigation isn't occurring in a vacuum. There's complicated legal history why investigating the statement might be legally necessary, particularly concerning SJP and NYU. Moreover, legal statements under certain contexts may indeed rise to the level of harassment

    The school entered into a consent order after a civil rights complaint concerning tolerance of antisemitism on campus, and failure to investigate and possibly remediate could expose it to potential liability.

    https://nypost.com/2020/10/10/nyu-settles-anti-semitism-complaint-brought-by-student/

    https://www.insidehighered.com/news/2020/10/02/new-york-university-settles-anti-semitism-case-education-department

  5. As a starting matter, NYU is a private school. As such, it is (or at least should be) free to investigate / discipline its students however it wants.

    1. And yes, I'd say the same thing about the myriad schools out there that investigate / discipline conservative students for saying conservative things.

    2. Of course. They are also free to be criticized for not following their own policies if they do.

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