The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Want Freedom to Criticize China, Palestine, Mexico, etc.? Protect Criticism of Israel
After the Oct. 7 murders, the first attempts to punish speakers focused on those who defended Hamas's murders. But, unsurprisingly, things have turned to trying to suppress criticism of Israel more broadly, including criticism of Israel's attacks on Gaza. (The slippery slope is a real phenomenon, in a culture where people reason by precedent and analogy in developing both laws and social norms.) The firing of actress Melissa Barrera from Scream 7, in response to her accusing Israel of "genocide and ethnic cleansing" and of "[distorting] the Holocaust to boost the Israeli arms industry," is just one prominent example. The production company's explanation:
We have zero tolerance for antisemitism or the incitement of hate in any form, including false references to genocide, ethnic cleansing, Holocaust distortion or anything that flagrantly crosses the line into hate speech.
Attempts to place outright advocacy of murder beyond the pale have thus morphed into punishments for what is seen as "false" characterization of a foreign government's actions. Likewise, the Ingber v. NYU lawsuit claims NYU violated federal law by tolerating not just discrimination against specific Jewish students and anti-Semitism but also speech "denying Jews the right to self-determination"; and the lawsuit argues for adopting a definition of prohibited anti-Semitism as including, among other things,
- "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 [Israel] a behavior not expected or demanded of any other democratic nation"; …
- "Drawing comparisons of contemporary Israeli policy to that of the Nazis" ….
(This is deliberately drawn from the International Holocaust Remembrance Alliance definition, which has also been cited in other calls to restrict speech and academic freedom at universities, such as in this petition by University of Toronto physicians; see also my older posts discussing the Trump Administration 2020 Executive Order on Anti-Semitism and the Department of Education 2018 decision in the Rutgers case, which likewise invoke the same definition.)
These attempts to suppress criticism of Israel—through proposed campus speech codes, threat of firing, and the like—strike me as dangerous both to American freedom and to American security. I generally support Israel, and think it's quite legitimate (indeed, necessary) for it to destroy Hamas, even if that means the deaths of the people whom Hamas uses as human shields; that is the nature of war, especially war against an enemy that deliberately fights from civilian areas. (What would we do if, say, a breakaway government in northern Baja California sent attackers to kill 40,000 American civilians—the right comparison, given that the 1,200 Israeli deaths were in a country that had 1/35th of the American population—while hiding hid its military operations among civilians in Tijuana?)
But I think it's vital for Americans to be able to freely discuss the actions of foreign governments (as well as, of course, of our own) and decide whom indeed they should side with. That is true when Americans criticize the Palestinian governments (Hamas or PLO), the Communist Chinese government, the Israeli government, or any other country's government.
Now some of the criticism of Israel might indeed stem from prejudice against Israeli people or against Jews more generally. But of course that same accusation can be said with regard to criticism of China, Palestine, Mexico, etc. Humans being human, some people will be influenced by their biases and hatreds against ethnic groups in evaluating the actions of governments associated with those groups. Conversely, the bad actions of governments may often influence some people into hostility to the ethnic groups who are seen as supporting those governments. But that possibility shouldn't immunize foreign governments from criticism, by making such criticism dangerous for Americans. (For example of attempts to suppress anti-Chinese-government speech as being supposedly racist or ethnically biased, see, e.g., here and here.)
Nor can one distinguish criticism of Israel from criticism of other countries on the theory that people are selectively targeting Israel for a discriminatory double standard. First, some of the claims of discriminatory treatment, such as that "[d]enying the Jewish people their right to self-determination" uniquely targets Jews, don't hold up. The Palestinians haven't gotten their own right to self-determination, in the sense of getting an independent state (whether or not one thinks they should). Many Basques and Kurds want self-determination, but they're not getting it; likewise for many other ethnic groups. Some ethnic groups have successfully broken off from another country, generally with the help of a powerful neighbor (e.g., Abkhazia, North Cyprus, South Ossetia), but nearly all countries reject those claims of self-determination, and take the view that those regions ought not exist as separate states. There is no international norm that every ethnic group is entitled to its own state.
Second, different international disputes are different in character. China's claim to Taiwan isn't directly comparable to Ukraine's claim to Donetsk, Luhansk, and Crimea, though both view them as breakaway provinces that should be part of the nation. Israel was founded under different circumstances than, say, modern independent Ukraine. People can reasonably disagree on whether one country's actions are worse than another's, in light of all the surrounding historical circumstances.
Third, people understandably focus on particular disputes—sometimes, to be sure, because of hostility to some group, but often for other reasons. They might have a personal emotional connection to a group that they see as oppressed. They may have heard more about a dispute in the media or among their classmates. The dispute may be in a place that they see as closer, geographically or culturally. They may hold a country to a higher standard because it's our ally or lays claim to being democratic. To be sure, all this may reflect arbitrary distinctions that a moral philosopher would view as improper. (Why should we be so upset by Russia killing Ukrainians, or China oppressing Uyghurs, and not people in Congo killing other people in Congo?) But demanding that people not criticize country A unless they can explain why they don't criticize countries B through Z (many of which most people haven't even heard of) is essentially a demand that they not criticize country A, period.
Of course, besides the suspicion of bigotry, there is also the real feeling of affront that people have when countries with whom they feel a bond are being harshly—and perhaps unfairly—criticized. Many American Jews do feel an affinity for Israel, as many American Arabs and Muslims feel an affinity for Palestine, and many Chinese college students (many of whom may indeed be Chinese citizens) may feel an affinity for China.
(This might be a minority view among Chinese-Americans—see this poll, which reports that 41% of Chinese-Americans see China in a favorable light, while 35% see it unfavorably, and it may well be that even the ones who view China favorably don't view the Communist government favorably. But it seems very likely that at least some people of Chinese extraction, especially the Chinese citizens but likely also others, take personally some criticisms of the Chinese government or at least of the government's defense of what the government sees as Chinese national territory.)
But that risk of offense can't be enough to justify trying to shut down this sort of speech. Of course any debate about who is in the right as to, say, Israel vs. Palestine or China vs. Taiwan or any other such dispute, will be upsetting to supporters of either side, including ones who might feel the upset particularly deeply because of their ethnic connections. Especially sharp claims, whether of genocide, terrorism, racism, brutality, and so on are likely to be especially upsetting. And all of us can always point to ways in which much impassioned debate is hyperbolic, otherwise inexact, unfair, and so on. But, again, it's dangerous for American democracy to suppress, on pain of university discipline, firing, and so on, criticism of foreign countries because some people are upset by it.
Now to be sure the matter is more complex when it comes to employment decisions, because employers often do care about customers or coworkers being upset by people's views. That is especially clear as to, for instance, celebrity endorsers: They are hired because the public likes them, and if they say things the public dislikes, they may just become much less effective endorsers. In some measure, one can say the same thing about actors, to return to Melissa Barrera; if enough people stop wanting to go to her movies, she may fail to do what her employers are hiring her to do.
But my guess is that Scream 7 revenues were unlikely to be much affected by Barrera's criticisms of Israel—perhaps I'm mistaken, but the demographic for such movies, I expect, was unlikely to stop coming to see the movie because of her views. Among other things, horror movies tend to draw a younger audience, and young people tend to be critical of Israel themselves. Even if we should sympathize with employers who object to paying money to employees who become net liabilities rather than net assets, I doubt this is really the problem here.
And to the extent there is public pushback against employers based on the speech of their employees, I think it's time for there to be countervailing public pushback against employers when they try to restrict the speech of their employees. I'd certainly say that if American sports teams try to suppress criticism of China by their players (see here for pressure by China along these lines). I'd say the same for American companies trying to suppress criticism of Israel—even though I think that on the merits the criticism of China is merited and the criticism of Israel is not. (I set aside here the question whether the firing of Barrera may have been illegal and even criminal under California law that protects private employees' political activity; I'm not sure whether Barrera was technically an employee or an independent contractor, and whether she would be working in California or some other state with such a law.)
All this having been said, people should certainly feel free to criticize the critics of Israeli, Palestinian, Chinese, and the governments. If they have evidence the criticism is indeed prejudiced based on ethnicity, religion, race, or what have you, they should certainly set that forth. And I stress again that I think that, considering all the arguments, Israel is doing what it has to do.
My point is simply that criticism should be met with criticism, not with demands that universities or employers suppress the speech of their students or employees. That's what's necessary so Americans can freely debate how American government should deal with foreign countries—a matter on which America's future may well depend.
