The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Two David Bernsteins on Free Speech and Antisemitism
My friend David L. Bernstein, author of the all-too-prescient Woke Antisemitism, and I have a new article about to be published in the Harvard Journal of Law & Public Policy's online forum Per Curiam, "Supporting Free Speech and Countering Antisemitism on American College Campuses." David L. is not an attorney, and the piece is a bit different from standard law review fare.
While we cite relevant caselaw, the article is primarily an attempt to answer this question: "You believe in freedom of speech. You also think that Jewish university students should be protected from discrimination. What should you advocate universities do about campus antisemitism in the post-10/7 climate?"
It turns out that our perspective is broadly consistent with the state of First Amendment and Title VI law. To the extent it isn't or it's unclear, we believe the law should move in the direction we advocate, but absent legal constraints universities should pursue the relevant policies regardless. I will probably blog a few excerpts over the next week.
Here is the abstract:
This article addresses what university leaders should do about the surge of antisemitism on American college campuses following Hamas's October 7, 2023 atrocities from the perspective of committed free speech liberals—who both happen to be named David Bernstein—who also wish to protect the civil rights of Jewish students.
The authors first note that many antisemitic incidents on campus have involved vandalism, assault, and disruptive and illegal protests (e.g., building occupations and illicit encampments) and other acts that violate content-neutral regulations. While the perpetrators of these acts have often defended themselves as engaging in freedom of expression, these acts can and should be punished without infringing free speech.
Similarly, while faculty should be free to advocate anti-Israel positions, even extremist ones, universities must draw the line when such advocacy turns into discrimination against individuals with ties to Israel or with "Zionist" political positions, or when a professor participates in the BDS movement's boycott guidelines in ways that conflict with university policy or the law.
The article also tackles "harder" cases, where offensive speech, such as pro-Hamas chants and extremist anti-Zionist rhetoric, tests the limits of free expression. The authors argue that universities should protect such speech, in part because of liberal principle, and in part because of the pragmatic judgment that in long-run Jews thrive where liberalism, including free speech liberalism, thrives.
On the other hand, universities may not enforce double standards in speech regulation, exemplified by Harvard and the University of Pennsylvania's tolerance of antisemitic rhetoric while punishing other offensive speech. The authors agree that the proper solution to such double standards is to protect speech across-the-board, though they disagree on the proper strategy with regard to universities that insist on enforcing double standards.
The article concludes that universities must consistently apply content-neutral rules, maintain institutional neutrality, and protect both free speech and nondiscrimination to create an environment where Jewish students and others can thrive. By disentangling speech from unlawful conduct and addressing administrative hypocrisy, the authors offer a nuanced liberal framework for resolving these campus challenges.
