The Volokh Conspiracy

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Free Speech

Speech Defending Attacks on Civilians: A Thought Experiment

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I've heard some suggest that it's proper for universities to expel students for publicly defending the Hamas murders. (This has included both public universities and private universities that had pledged to protect student free speech.) Others have suggested that faculty members who defended the murders be fired. And there have been calls for nonacademic employers to refuse to hire students who have defended the murders. (Such refusals to hire based on a student's speech are legal in most states, though illegal in some.)

If you take this view, let me ask this hypothetical. Say that a student or a professor writes something like this:

With Iran getting a nuclear bomb soon, Israel has to make clear: If Iran (with a population almost 10 times that of Israel) bombs an Israeli city, Israel will bomb an Iranian city, aiming to kill 10 times the number of people killed by the Iranian bomb.

And none of this pretense about limiting the bombing to military targets. Japan surrendered because it was facing the loss of cities, not of military capacity. This is what Mutually Assured Destruction needs to be: tit for tat, civilian deaths for civilian deaths. In war, civilians pay for the sins of their governments, and the prospect of civilian deaths is often the main deterrent to aggression, or the main impetus to surrender; that's just the way it is.

What would your view be?

  1. The hypothetical author should be fired/expelled/etc. just like the pro-Hamas author. He's embracing the deliberate killing of civilians; such advocacy is immoral and creates a hostile environment for Iranian-Americans.
  2. The hypothetical author shouldn't be fired/expelled/etc. He's only defending killing of civilians (likely tens of thousands of civilians, or more), and not rape, kidnapping, beheading, etc. Likewise, people who only defended Hamas killing Israeli civilians shouldn't have been fired/expelled/etc., so long as they made clear they didn't endorse the rape, kidnapping, beheading, etc.
  3. The hypothetical author shouldn't be fired/expelled/etc., because he's not celebrating the proposed bombing, but just explaining it as a practical necessity. If he were to add more emotionally enthusiastic rhetoric, then he should be fired/expelled/etc. Likewise, speakers who simply defended the Hamas attacks on the grounds that they thought them to be a necessary means to promote the Palestinian cause, without emotional enthusiasm, shouldn't be fired/expelled/etc., either.
  4. The hypothetical author shouldn't be fired/expelled/etc., because he is just defending a policy of future killing of civilians, not actual current killing of civilians. But if the bombing does happen, and he defends it then, then he should be fired/expelled/etc.
  5. The hypothetical author shouldn't be fired/expelled/etc., because, in the scenario he is contemplating, Iran would be a sufficiently culpable initial aggressor and Israel would only be justifiably responding. In the Hamas attacks, Israel was not a sufficiently culpable initial aggressor against Palestinians, so Hamas's actions were not justified.
  6. The hypothetical author shouldn't be fired/expelled/etc. unless his statements cause enough public outrage, complaints by wealthy donors, pressure by legislatures, objections by student groups, and so on. If it turns out that not a lot of people are upset by the prospect of the bombing of Iran, the speech should be protected. But the pro-Hamas authors should be fired/expelled/etc., because their statements have indeed caused public outrage.
  7. Neither the hypothetical author nor the pro-Hamas authors should be fired/expelled/etc. by their educational institutions, because such institutions ought to have strong speech-protective rules that don't turn on contestable moral judgments about who in an international conflict is an initial aggressor. But when it comes to hiring by other employers, the employers can and should draw moral distinctions based on such matters, so employers ought to refuse to hire the pro-Hamas speakers but ought not refuse to hire the pro-bombing-Iran speaker.
  8. Neither the hypothetical author nor the pro-Hamas authors should be fired/expelled/etc. by their educational institutions or their private employers. (I set aside some exceptions for narrow classes of employees and employers where the employee's statements are inconsistent with the employee's specific duties, for instance if the bomb-Iran statement is written by a spokesman for an Iranian-American organization or the pro-Hamas statement was written by a spokesman for a Jewish organization.)
  9. Something else?

My personal view is that an Israeli nuclear strike retaliating for an Iranian nuclear attack would be morally justified, horrific as the death toll for innocent civilians would be (and I'd have said the same about, for instance, an American nuclear strike retaliating for a Soviet nuclear attack), but that the Hamas killings were morally unjustified (even apart from the rapes and similar abuse). But I'm skeptical that educational institutions committed to free speech should draw such distinctions based on their moral judgments about who is the true aggressor in a contested foreign conflict. And I think that people who are calling for suppression of pro-Hamas speech now might want to consider about the precedent that such suppression would set for the future‚ÄĒespecially if I'm right to suspect that it's hard to draw defensible distinctions here.

But perhaps I'm mistaken, and in any event I'd love to hear what you folks think.