Freedom of Speech and Campus Antisemitism

People love to accuse me of hypocrisy on campus speech and antisemitism, given my longstanding support for speech over conflicting antidiscrimination laws, but my position remains consistent.

There are three separate but related issues with regard to campus antisemitism and speech (note that vandalism, threats, disruptive behavior etc., aren't in the ambit of free speech, nor is enforcing content-neutral reasonable time, place, and manner restrictions on protests an infringement of freedom of speech).

Q. Should speech (even grossly offensive speech) be protected vs. claims that speech, as such, creates a hostile environment, including vs. Jews?
A. Yes. Universities should not be held liable for permitting even grossly offensive speech.

Q. Should universities be held liable for discrimination for treating Jews differently when they complain of a hostile environment than how they treat other groups?
A. Yes, because that's a content-neutral question of equal treatment as required by civil rights law, not suppressing speech. Whatever policies a university has, formal or informal, they can't be different for Jews than for everyone else.

Q. Third, is the proper solution to avoid the latter problem to protect speech equally or to suppress speech equally?
A. Protect speech equally.

Comments

[Dr. Ed 2]

"Q. Should speech (even grossly offensive speech) be protected vs. claims that speech, as such, creates a hostile environment, including vs. Jews?
A. Yes. Universities should not be held liable for permitting even grossly offensive speech."

Provided they permit EVERYONE to do it!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

This includes "You will not replace us."
"White Power" and even "Fuck Allah!"

[Roger S]

There is not much chance that the universities will really permit free speech.

[y81]

The problem is that David Bernstein has what Prof. Volokh has called "censorship envy." Since he observes speech that offends other groups being censored, he becomes convulsed with a sense of injustice when speech that offends the Jews is permitted. How much wiser, and how much better for everyone in the long run, if would be if he adopted a genuine commitment to free expression, and applied it even to speech that he finds offensive. But wisdom is hard to find (though she stands at the crossroads and the city gate), and I don't expect Bernstein to listen to her.

[Michael Ejercito]

It would be better if universities did not censor in the first place.

[zztop8970]

Looks like you did not read what DB wrote in this post:
Q. Should speech (even grossly offensive speech) be protected vs. claims that speech, as such, creates a hostile environment, including vs. Jews?
A. Yes. Universities should not be held liable for permitting even grossly offensive speech.
...
Q. Third, is the proper solution to avoid the latter problem to protect speech equally or to suppress speech equally?
A. Protect speech equally.

[y81]

I read it. Bernstein's theory is that if anyone is ever censored for anything, then that should include censoring anyone who makes Jews unhappy. No genuine commitment to free expression at all.

[zztop8970]

If you read it, then you did not understand what you read, because he explictly said the opposite of what you claim.
Read the last line again, carefully, or ask someone who went to a school that provides better education than Columbua to explain it to you:
"Protect speech equally" - it really can't be any clearer.

[y81]

So you claim that Columbia is being punished for suppressing speech? What speech is that?

[zztop8970]

I am not claiming anything of the sort - where did you get that from? I can't believe someone with such poor reading comprehension is a student at Columbia. No doubt a DEI admission.

[Stephen Lathrop]

zztop8970 — Yeah, Bernstein is proposing to protect speech equally, with equally repressive measures applied against pro-Palestinians who want to demonstrate, and Jews who do not want to demonstrate, but who do want pro-Palestinians suppressed.

Bernstein's take on this is recognizable to Americans old enough to remember the 60s. At the outset of that era, the idea was the status quo is okay, and departures are disruptive, and unpatriotic. But maybe tolerable, if they can be confined behind fences far away, or restricted to times where they will not prove influential. Same now.

Bernstein does a good job presenting as even handed. Problem is, his even hands come bearing time, place, and manner, repressions, and opposition to enforcing a right of assembly. For everyone alike, of course.

[zztop8970]

Your lack of reading comprehension is remarkable. What DB is proposing is to protect speech equally - that requires no repressive measures at all.

And he's also saying that if universities don't want to adhere to his preferred policy above, and and to prohibit speech, possibly using repressive measures, they must do this in a viewpoint neutral manner . That is, if it impermissible to "misgender" a student on campus, or express homophobia, or use the 'n-word', then it should also be impermissible to create a hostile environment for Jews.

[hobie]

I'm sure it was an overlook on your part to swap 'Jews' with 'You'. They sort of rhyme.

Prof. Bernstein, as the great Rev. Kirkland often said, 'These are your fans'. Raging MAGA antisemites. They love Israel, but boy do they hate Jews

[Dr. Ed 2]

antisemites loving a semitic country.

Right

[Davedave]

Ignorant semantic quibbles are one of the last refuges of racists caught racist-ing.

[hobie]

Prof. Bernstein, because you are consistently blinded by your own tribal loyalties, you often fail to see the forest. Your MAGA antisemite allies like Ed here are only after one thing:

Jewish headstones paving the road to Armageddon so his doomsday cult can bring about the destruction of the world

It's silly, but true

[Dr. Ed 2]

BULLSHYTE!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

THIS IS THE PROTESTANT BLOOD LIBEL, AND IT'S EVERY BIT AS OFFENSIVE AS THE JEWISH BLOOD LIBEL -- AND EVERY BIT AS DANGEROUS.

AND SCHMUCK -- IT'S THE THIRD TEMPLE BEING BUILT -- NOT ISRAEL EXISTING....

[Noscitur a sociis]

THIS IS THE PROTESTANT BLOOD LIBEL, AND IT'S EVERY BIT AS OFFENSIVE AS THE JEWISH BLOOD LIBEL -- AND EVERY BIT AS DANGEROUS.

It is, in fact, not.

[Alpheus W Drinkwater]

Yes Ed, that was the point of Prof. Bernstein's second question.

[cannpro]

You just wrote a post yesterday about deporting people who hurt your feelings. David Bernstein is like a character on Severance.

[TwelveInchPianist]

Colleges can deport people?

[Stupid Government Tricks]

Liar. Quote him to that effect, or admit to lying.

[GKHoff]

As I recall (I'm not going to read the post again), Prof. Bernstein said the government has the authority to deport student visa holders on the basis of their speech, without violating the First Amendment. That's a far cry from endorsing the practice.

[neurodoc]

Visa cancelations and deportations could come automatically when when schools expel foreign students for misconduct, Not a subjective determination on the part of the government.

[JasonT20]

Prof. Bernstein,

I didn't see you answer a question I raised in your earlier post in regards to cancelling the visas of foreign students that "support Hamas" - What would count as "support" for "Hamas"? Who would decide that?

The answer to the latter question would presumably be State Dept. officials, but then that leads to the question of how those decisions could be insulated from politics.

[cannpro]

And for that matter, would he defend such a policy if the visa cancelations were for “supporting Israel”? If he’s not a hypocrite as he claims, his answer should be an unequivocal “yes”. But I wouldn’t hold my breath.

[Dr. Ed 2]

"Any alien who is a representative of a political, social, or other group that endorses or espouses terrorist activity is inadmissible."

Israel is not a DESIGNATED group "that endorses or espouses terrorist activity"

There is a list.
Hamas is on it.
Israel isn't.

[cannpro]

I said nothing about what the law currently is. I posed a hypothetical policy that is identical to the one Bernstein supports but targeted at Israel supporters instead of Hamas. Do you know what a hypothetical is?

Good. Now stop acting so silly.

[Stupid Government Tricks]

Your hypocrisy is blinding, but only to you.

[David Bernstein]

If Israel were a terrorist enemy, so determined by the US government, that would be equally appropriate

[David Bernstein]

(or inappropriate....)

[neurodoc]

Visa cancelations and deportations could come automatically when when schools expel foreign students for misconduct, Not a subjective determination on the part of the government.

[Stupid Government Tricks]

In that case, you are questioning enforcement itself, of all laws. You admit that Rule of Law is no such thing, that enforcement always comes down to Rule of Men.

I doubt you meant it to apply to all laws, but you sure did mean it to apply here. "Waaah! This requires human interpretation! That's not fair!"

[JasonT20]

I'll take things I didn't say for $200, Alex.

I doubt you meant it to apply to all laws, but you sure did mean it to apply here. "Waaah! This requires human interpretation! That's not fair!"

Read what I wrote more carefully. I did not complain about the fact that a law or action as described by Bernstein would require human interpretation. I was asking him how he would interpret his own proposal. Then, I could judge whether the criteria he advocates for are objective enough to minimize the chances of abuse and whether there would be sufficient checks against any abuse.

[Dr. Ed 2]

Jason, there is a lot of case law on this dating from the Communist Party in the 1950s. Do you associate with? Publicly express support for?

See ya....

[Pooblius]

What happened to the "free marketplace of ideas"? Why are communism and all countries/groups who oppose America so scary they need to be banned? And what about neo-Nazi organizations based in the US? Hamas supporters get deported, but white nationalists don't get sent back to the Fatherland?

[Dr. Ed 2]

Neo-Nazis aren't allowed IN from the Fatherland in the first place.
(Or at least from the adjacent German-speaking part of Switzerland.)

To enter the US, they have to sign a piece of paper that says that they aren't Nazis, and never have been Nazis.

Lying would be perjury, I guess, and I guess they also could be sent home. Our Neo-Nazis -- the couple dozen we have -- are homegrown.

[Davedave]

You don't half come up with some hoof-typed drivel, Dr Ed the Typing Horse. Foreign Neo-Nazis not allowed in the US? Trump let one speak at his inauguration, and then created a nonsensical government department for him to run.

[neurodoc]

Davedave, please, it's been agreed that he ought to be known as Dr. Ed the Horse's Behind.

[hobie]

Now you got me running the jingle in my mind

[Dr. Ed 2]

Musk is a US Citizen and has been one for 23 years -- and the rules regarding revocation are different.

Musk is a draft dodger -- he left South Africa because he did not want to enforce Apartied. His family was in a political party that opposed it. He's never said anything nice about Hitler, and spent a great deal of money advocating free speech on what used to be Twitter.

So he made an awkward hand gesture -- he claims he was pointing at something. That's all you got?!?

No, I don't approve of him -- there is a reason why we have minimum wage laws in this country, you do not have people working 80 hours a week for no pay -- nor do you pay your already-rich top people opulent salaries. THEY are the ones who don't get paid.

As to savings -- he is going to have to produce because we are on the cusp of a recession right now and there will be pressure for another round of stimulus checks. If he can do it, more power to him -- and I honestly believe that 80% of Federal employees could be fired without anyone ever noticing.

[neurodoc]

Curious how you neglect to mention Musk's support for the AfD, Germany's neo-Nazi party and the remarkable tic of his that sees his right arm suddenly extend straight out from his body palm down.

[damikesc]

AfD has, literally, nothing in common with neo-Nazis. Their Jewish members would be shocked to learn of the neo-Nazism that does not exist.

But given your comments on Elon's "My heart to you" motion, you might be more of a blithering moron than just a pathetic troll.

[David Nieporent]

AfD has, literally, nothing in common with neo-Nazis.

You mean, literally, nothing? Literally, not one thing? Like AfD doesn’t have racialist views of what makes one a real German? Like it's not anti-immigrant, anti-Islam? Like it doesn't complain about criticism of the Holocaust?

[Armchair]

So....supporting a terrorist group.

18 USC 2339B comes to mind.

[not guilty]

Regarding 18 U.S.C. § 2339B, who, if anyone, do you contend has knowingly provided material support or resources to a foreign terrorist organization, or attempted or conspired to do so in the context of campus antisemitism?

If the "material support" consists only of speech or advocacy, the First Amendment should prohibit application of that statute unless such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. See, Brandenburg v. Ohio, 395 U.S. 444 (1969).

[Commenter_XY]

For US citizens and legal permanent residents, yes.

For others, no. The US decides who comes here and stays here. The forms these students fill out are quite detailed, and so are the questions that they answer.

False answers on the fed form is perjury.

[JoeFromtheBronx]

Using comments to critique arguments made in posts is part of what we do around here. I guess some "love" doing it, but then you seem to have a similar zeal attacking the hypocrisy of "the left," too.

[Stephen Lathrop]

. . . nor is enforcing content-neutral reasonable time, place, and manner restrictions on protests an infringement of freedom of speech.

Professor Bernstein, do you foresee unfettered liberty for anti-Israel demonstrators to assemble on Campus, and to make known the cause of grievances which the assembly opposes? Or is it your advocacy that campus administrators can bar alike both pro-Israel assemblies, and anti-Israel assemblies?

[David Bernstein]

I think universities need to have neutral rules, and my preference for those rules, presumptively, is that they be akin to First Amendment rules.

[Stephen Lathrop]

David Bernstein — Let's take a look at that. Assembly is a 1A right, separately protected, along with others. Because press freedom is also a 1A right, publishing is a thing relevant to the 1A. Publishing has capacity to transcend time and space. That offers support for the notion of time, place, and manner restrictions on speech—whatever expressive power might be burdened here and now can presumably be redressed later by publishing.

Not so with the right of assembly. When the question is political assembly, time and place are of the essence. Constrain those, and the right becomes next to meaningless. Lost opportunities to effect politics by political assembly cannot be recreated elsewhere, and at other times, where and when preconditions to accomplish influence are not present.

In light of those remarks, would you care to add anything to your reply?

[neurodoc]

In your view, students should have an unfettered right to occupy the center of their campuses with their encampments notwithstanding many schools rules against such and trespass laws?

[Stephen Lathrop]

Moved.

[Stephen Lathrop]

neurodoc — On what legal principle do you conclude that the 1A-protected right of assembly is subordinate to enforcing a trespassing law? Especially when the enforcement is against folks whose presence at that place would be legal and routine if they were not assembling for a political purpose?

[The Margrave of Azilia]

Is anyone here prepared to defend Columbia University's behavior?

It's a major institution, presumably an influential one with lots of influential alumni. Maybe the administrators and alumni are above posting here, but perhaps someone who *does* post here can link us to, or summarize, the defense which the Columbia establishment makes of its conduct (acts or omissions).

[Dr. Ed 2]

What we are seeing is a complete lack of competence in the university administration -- the cumulative consequence of 40-50 years of people advancing by knowing how to talk without actually saying anything, and never having had to actually make a hard decision.

My guess is that half of them openly support Hamas and the other half are morally-adrift losers who lack any concept of a definitive "right" versus "wrong." They nostalgic remember protesting Apartheid and don't realize that the average Zambian was better off under Apartheid than today.

[Estragon]

“the average Zambian was better off under Apartheid than today.”

Shades of Ron Desantis’ Florida slavery curriculum. Morally adrift indeed!

[David Nieporent]

I'm not sure which is worse, the racism or the geographical ignorance; he meant Zimbabwe.

[Vryedni]

It's the racism. The racism is worse. I know ignorami of whom I'm quite fond. Racists not so much.

[Dr. Ed 2]

How many people who are actually FROM Africa do you know?
And of those, how many have you actually listened to?

For example, there is this: https://commonwealthbeacon.org/opinion/another-chance-for-mass-to-back-south-african-freedom-struggle/

I did not write that...

I had members of the ANC leadership in my MEd program and having to sit through them praising themselves, I concluded that they were worse racists than the Boers ever could have been.

While everyone in Africa is Black, it is NOT a mono-racial culture! They have races too (remember Rwanda?) and racism is an issue there. (E.g. Rwanda....)

South Africa is a multi-racial, multi-lingual society. The ANC are all members of one race, and being good Marxists, they require party membership to advance in their country. The end result of this is that the country went from one racial minority running things to a different racial minority running things -- the majority is still f*cked....
And at least the Boers managed to keep everyone fed -- the ANC can't.

They also have had serious problems providing enough water to drink, and I'm not sure if that is a drought, or their incompetence, or both. Likely both.

Calling me a racist for knowing these unpleasant facts is about as accurate as me calling you a child molester. No, you aren't a child molester, nor am I a racist -- and may I suggest doing a wee bit of research into things which you clearly know nothing about?

[Pooblius]

So many inaccuracies here, your stupidity is actually pretty impressive.

1.) The ANC lost its majority last year and now governs with the majority-white parties, in rejection of the more extreme anti-white parties like EFF and MK.

2.) The op-ed you linked is about a guy whose party won *checks notes* one seat in the new Parliament.

3.) The ANC is not a Marxist party. They are social democrats who now govern with free-market liberals and Christian conservatives.

4.) It's not 1994 anymore, South Africa does not have one racial bloc party, and even if it did, the country is overwhelmingly black.

5.) The Boers did have problems keeping people fed. They also shot Black South Africans dead in the streets for nonviolently protesting their autocratic rule. This probably gets your rocks off though, and you probably wish they had "qualified immunity" there to keep this going, like cops in America.

[David Nieporent]

You forgot:

6.) Everyone in Africa is not black.

[Dr. Ed 2]

No David, he actually meant "Zuid-Afrika."

You probably don't know this, having never received email from South Africa, but the internet country code for South Africa is .za and one of his professors told him that stood for "Zambia" and he made the mistake of thinking the professor might be right.

Having been involved in getting Robert Mugabe's honorary doctorate rescinded, he knows where Zimbabwe is...

[David Nieporent]

I apologize for guessing inaccurately which ignorance you were displaying. I figured that it was more likely a dumb person would confuse Zambia and Zimbabwe than Zambia and South Africa. (Though I find it much harder to believe that you thought apartheid happened in Zambia because South Africa has the country code .za, since there is no actual connection between email and apartheid.)

[y81]

I made some comments, as a Columbia student, on Bernstein's previous post, which you can read.

[JoeFromtheBronx]

"Kingsley Wilson, the newly appointed DoD Deputy Press Secretary, believes in a thoroughly debunked antisemitic conspiracy theory. I've mostly only seen this theory promoted by mask-off neo-Nazis."

(an attack on Leo Frank)

https://www.lawyersgunsmoneyblog.com/2025/03/the-department-of-defense-deputy-press-secretary-is-a-leo-frank-troofer

The call is coming from inside the house.

[Dr. Ed 2]

What bothers me is that they didn't lynch the Black man as well.

He's at least an accomplice, he's Black, and this is Georgia in 1910.
They lynched a lot of Black men for far less. FAR less.

But not him. And Georgia only gave him a commutation on the due process (i.e failure to protect) basis, they did not pardon him.

I feel comfortable saying he didn't get a fair trial and that is unforgivable. But I am not so sure about him not having done it.
An All-White jury in 1910 Atlanta taking the word of a Black man over that of a White man, even a Jewish one -- I wasn't there.

So let's use the "Heels Up" standard -- is this worse than the stuff that Kamela Harris was saying in the Summer of 2020? No.
I look at it as people saying that Sacco & Vanzetti may also have been innocent, and that they too were victims of racism. Maybe.

Let's put this in perspective -- Hitler was a nobody still living in Austria -- he hadn't even moved to Germany yet, let alone joined the German Army.

You gotta do better than this....

[Estragon]

“What bothers me is that they didn't lynch the Black man as well.”

Oh? Is that really keeping you up at night?

[Dr. Ed 2]

It is a logical inconsistency.

It's an acquired skill, but you can learn to think like people very different from you do, and thus predict what they would do. When they don't, you gotta wonder why because there is something significant that you are missing.

[Noscitur a sociis]

What bothers me is that they didn't lynch the Black man as well.

Perhaps the most on brand comment posted here in a long time.

[Pooblius]

Don't forget Dr. Dread also claiming Kamala Harris said worse than this. Ah yes, the milquetoast liberal palling around with Liz Cheney was really driving the conversation towards Nazism.

[Michael P]

So you would have us believe that Democrats criminally prosecuted an innocent man, hid evidence from the court, got a corrupt conviction and then formed a lynch mob to kill the convicted man?

It sounds like a pretty familiar story.

[Pooblius]

Are you a southern white man? Congratulations, you were a Democrat in 1910 and would have supported this.

[Jack Jordan]

Professor Bernstein, I think where you lose people (and show the greatest inconsistency) is in expressly targeting what you vaguely refer to as "antisemitism." You are expressly and specifically targeting one or more particular viewpoints. Moreover, the targeted viewpoints are at least political. Even worse, they also likely are religious. A very popular definition of "antisemitism" expressly targets protected political speech. See
https://holocaustremembrance.com/resources/working-definition-antisemitism.

Perhaps the most fundamental point of our Constitution is that we are free to think and speak about our support for or opposition to political and religious views. The Constitution, itself, is to a certain extent anti-Semitic (and anti-Christian). That's the point of Article VI's prohibition on imposing any religious test, as well as essentially nearly the entire First Amendment (organized religion necessarily implicates freedom of thought, expression, association and assembly). This conversation really should be about "students," not merely "Jewish" or "Israeli" students.

[ReaderY]

I thought the distinction the District Court made in Gartenberg v. Cooper Union was quite reasonable. As Judge Cronan explained, speech made in traditional protest behavior in public places and fora - marching, leafletting, etc. - is pure political speech protected by the First Amendment and immune from civil rights claims, while the same speech, when targeted at specific individuals, their homes, etc. or when made as part of illegal conduct (e.g. vandalism or grafitti) can serve as evidence of harassment.

[y81]

Prof. Bernstein's argument is that because you can't march around campus chanting "No means yes, yes means anal"--this was a fraternity stunt at Yale 10 years ago or so, and the fraternity was severely punished--therefore you also can't march around campus chanting, "From the river to the sea, Palestine shall be free." The one offends women, the other offends Jews, and equality means that both must be punished.

Now a true friend of free expression would be arguing against speech suppression, rather than demanding that it be extended in the name of equality whenever someone else's speech offends him, but Prof. Bernstein has never really cared about any speech other than his own,

[zztop8970]

He explictly wrote the opposite of what you claim:
Q. Third, is the proper solution to avoid the latter problem to protect speech equally or to suppress speech equally?
A. Protect speech equally.

[y81]

No, he wrote: "Whatever policies a university has, formal or informal, they can't be different for Jews than for everyone else." So you can't have a policy, as most universities do, that prohibits chanting "No means yes" but permits chanting "From the river to the sea . . ." Bernstein did not say, as a sincere friend of free expression would: "Prohibiting vulgar fraternity chants violates free expression. Prohibiting anti-Semitic chants only compounds the error." Bernstein's position demands that the injustice be compounded as a matter of federal law. My position, to be clear, is that injustices should not be compounded in the name of equality.

[Ed Grinberg]

To demonstrate the spurious nature of your argument, let me reproduce an email exchange I had with a friend on this very topic:
I sent them this article (with an approving comment):
https://nypost.com/2024/05/01/us-news/house-passes-bill-to-beef-up-protections-against-antisemitism-as-campus-chaos-rages-on/
They replied:
I thought [that] you were against any limits to free speech and [that you believe that] the government should not interfere with [free speech].
I replied:
Basically, there is no free speech on U.S. college campuses today. The only group you can assault (verbally and physically) with impunity are Jews. (Note that I didn't just say "Israelis." It isn't easy to find Israelis to assault in the U.S., but there are plenty of Jews!)
It's as if the 1964 Civil Rights Act had said: "No business can discriminate against any group ... except Jews!" Would you really expect me to be OK with this, being an opponent of government interference with private enterprise? Or, to give another example, if tomorrow the government says: "No more capital punishment ... except for Jews!" -- would you really expect me to be OK with it, being a supporter of capital punishment?!

[zztop8970]

DB 'sargument , spelled out quite clearly is -
The university should not probit any speech. (That's the part I've quoted to you twice already - and once more;
Q. Third, is the proper solution to avoid the latter problem to protect speech equally or to suppress speech equally?
A. Protect speech equally.

But, if it has decided to limit some speech, it must do this in a viewpoint-neutral manner, and not just against some group.

This is quite q simple, principled and consistent arguemnt that a grade schooler could understand, but apparently not a Columbia student.

[y81]

This is getting tedious. There's a good article from some years back in the HLR, by Peter Weston, called "The Empty Idea of Equality," which demonstrates the fallacy of Bernstein's and your invocation of equality and why I'm right and you're wrong.

[zztop8970]

What didn't you understand about the above argument? I'm a patient person, I'll explain it to you like you are an 8 year old .