American universities have been neglecting excellence in order to pursue a variety of agendas — many of them clustered around diversity and inclusion. It started with the best of intentions. Colleges wanted to make sure young people of all backgrounds had access to higher education and felt comfortable on campus. But those good intentions have morphed into a dogmatic ideology and turned these universities into places where the pervasive goals are political and social engineering, not academic merit….
Out of this culture of diversity has grown the collection of ideas and practices that we have all now heard of — safe spaces, trigger warnings, … micro aggressions … [and] speech codes ….
In this context, it is understandable that Jewish groups would wonder, why do safe spaces, micro aggressions, and hate speech not apply to us? If universities can take positions against free speech to make some groups feel safe, why not us? Having coddled so many student groups for so long, university administrators found themselves squirming, unable to explain why certain groups (Jews, Asians) don't seem to count in these conversations.
Having gone so far down the ideological path, these universities and these presidents cannot make the case clearly that at the center of a university is the free expression of ideas and that while harassment and intimidation would not be tolerated, offensive speech would and should be protected….
For the past two months, colleges and public squares across the country have been filled with demonstrations in support of Palestinian statehood and opposing Israel's military response to the October 7 terrorist attacks and its policies toward the West Bank. "From the river to the sea, Palestine shall be free," is a common chant at these protests, prompting debate over whether the phrase is or should be considered inherently threatening to Jewish students and others. University of Pennsylvania professor Claire Finkelstein, for one, argues this phrase "in the present context . . . creates a hostile environment that can impair the equal educational opportunities of Jewish students."
Political Science Professor Ron Hassner of the University of California at Berkeley was curious whether college students and others calling for Palestine to be "free" "from the river to the sea" understood what that slogan entails, so he conducted a survey to find out, and wrote up his results in the Wall Street Journal. His op-ed begins:
When college students who sympathize with Palestinians chant "From the river to the sea," do they know what they're talking about? I hired a survey firm to poll 250 students from a variety of backgrounds across the U.S. Most said they supported the chant, some enthusiastically so (32.8%) and others to a lesser extent (53.2%).
But only 47% of the students who embrace the slogan were able to name the river and the sea. Some of the alternative answers were the Nile and the Euphrates, the Caribbean, the Dead Sea (which is a lake) and the Atlantic. . . .
Would learning basic political facts about the conflict moderate students' opinions? A Latino engineering student from a southern university reported "definitely" supporting "from the river to the sea" because "Palestinians and Israelis should live in two separate countries, side by side." Shown on a map of the region that a Palestinian state would stretch from the Jordan River to the Mediterranean Sea, leaving no room for Israel, he downgraded his enthusiasm for the mantra to "probably not." Of the 80 students who saw the map, 75% similarly changed their view.
Hassner also reports that a majority of those surveyed who initially voiced support for a single Palestinian state moderated their views "when they learned it would entail the subjugation, expulsion or annihilation of seven million Jewish and two million Arab Israelis."
Hassner's survey focused on the implications of "from the river to the sea." I would not be at all surprised were surveys looking at claims Israelis are European colonizers or comparing civil and religious freedom across the Middle East to find similar levels of ignorance, and an equivalent moderation of views when respondents were presented with relevant history and context.
While some argue that universities (and others) should tamp down on free expression in order to quell discord on college campuses, Hassner's findings suggest universities might do better to double-down on their core mission: Educating their students and providing a forum for the presentation and examination of ideas. As Hassner found, something as simple as showing students maps of the Middle East significantly informs and affects their understanding of the current Israel-Hamas conflict. Now imagine what might happen if universities made a serious effort to sponsor substantive forums on the history of the conflict, presenting thoughtful proponents of the competing positions and laying bear the full complexity (and perhaps intractability) of the current situation, all the while modeling civil discourse for assembled students. This would do more than policing memes and chants. Universities, of all institutions, should believe in the power of education.
The protection of public health is often a justificiation for increasing government power. But could increasing government power also have negative consequences, including for public health itself?
A new paper, "How does economic freedom influence public health? Evidence from U.S. cities" by economists Justin Callais, Kelly Hyde, Ilia Murtazashvili, and Yang Zhou, forthcoming in the Southern Economic Journal, investigates the relationship between economic freedom and public health, and finds evidence that the former may be good for the latter. Here is the abstract:
Although there is substantial agreement how microeconomic forces—income, risk aversion—shape public health outcomes, there is substantial disagreement about the relationship between macroeconomic forces—market liberalization and economic freedom—on public health. In this paper, we investigate the relationship between public health, economic freedom, and wealth using a large sample of metropolitan-level data from the United States. We find that economic freedom does have a statistically significant and positive impact on general, physical, and mental health, but the overall results are small in magnitude. When we disaggregate the three areas of economic freedom, we find that areas with lower government spending and freer labor markets have the strongest positive effect on physical and mental health. However, our results are strongest for the richest group of respondents, suggesting that the economic freedom-health relationship is perhaps indirect, and shown through income.
The authors note that their findings undermine efforts "to blame market capitalism, globalization, and neoliberal policies forworsening mental and physical health in the United States." At the same time, they caution caution that there are reasons to question whether the findings show a causal relationship, in part because the research relies upon self-reported health data, but it nonetheless suggests the existence of health-related trade offs when government policies seek to improve public health.
Talia Khan, an MIT graduate student, had a detailed and powerful statement about what she sees as anti-Semitism on campus (apparently written in response to an invitation from Reps. Fox and Stefanek).
Extraordinary video in which a Jewish student highlights the extent of antisemitism on campus at @MIT. Elite universities and their DEI bureaucracies have failed us. pic.twitter.com/X2lX9sMw8l
And I think it well reflects how many different things are being mixed together here. For instance, the statement refers to "a radical anti-Israel group at MIT called the CAA" whose members have "stormed the offices of Jewish faculty and staff in the MIT Israel internship office. Staff reported fearing for their lives, as students went door to door trying to unlock the offices." If this is accurate, then it should certainly be punished. Likewise as to "Jewish students being physically blocked from moving through the anti-Israel crowd through the main MIT lobby."
Similarly, this allegation, if accurate, would show serious and improper viewpoint-discriminatory enforcement of MIT's rules:
The Economist/YouGov survey indicates 1 in 5 young Americans believe the Holocaust is a "myth." The result is troubling, but less bad than it looks. It is also just one part of a broader problem of widespread ignorance about history and political issues.
A new Economist/YouGov survey has gotten a lot of media attention because of its finding that 1 in 5 Americans between the ages of 18 and 29 believe the Holocaust is a "myth." This is indeed a troubling result. But it's somewhat less bad than it looks. Ambiguities in the survey question make it seem worse than might actually be the case. In addition, much of the ignorance here may be just one facet of widespread general public ignorance about politics and history, rather than an indicator of neo-Nazism or anti-Semitism. That latter point is simultaneously comforting and troubling.
The question in the survey asks responds whether they "strongly agree," "tend to agree," "tend to disagree," "strongly disagree," or "neither agree nor disagree" with the statement that "the Holocaust is a myth." In the sample as a whole, only 7% picked "strongly agree" (2%) or "tend to agree" (5%). But among young people (age 18-29), the figure was 20% (8% "strongly agree" and 12% "tend to agree"). This is the figure that has understandably caused consternation.
Some of that outrage is justified. The Holocaust is one of the worst events in all of human history and one of the best documented. There is no even remotely plausible reason to consider it a myth. Such claims are in the same boat as those of people who think the Earth is flat, or that the Moon landings were faked.
At the same time, the survey is result is somewhat less awful than it might seem. There are two ambiguities in the question wording that likely have the effect of making things seem worse than the underlying reality. First, a majority of those who endorse the statement picked "tend to agree" rather than "strongly agree." The phrase "tend to agree" is ambiguous enough to include everything from having a slight tendency towards agreement to having a very strong one. Even the former is problematic, when it comes to a statement like this one. But it's much less bad than the latter.
A second relevant ambiguity is that the question doesn't distinguish between people who know what the term "Holocaust" refers to and those who don't. The latter may seem implausible. Who doesn't know what "Holocaust" means? But much evidence shows widespread public ignorance of basic facts of history, science, politics, and even the basic structure of government. A majority of Americans can't name the three branches of government, don't know when the Civil War happened, and support mandatory labeling of food containing DNA (the latter probably because they don't understand what DNA is). And most surveys of political and historical knowledge find that it is inversely correlated with age; that is, younger people tend to know less than older ones. The latter phenomenon isn't confined to the present generation of young people. Survey researchers found the same thing with previous generations when they were young.
A person who doesn't know what the term "Holocaust" refers to might say they "tend to agree" it's a myth precisely because of that ignorance. If it was a real thing, they might reason, I would know about it!
In one sense, being ignorant about the meaning of "Holocaust" is even worse than knowing what it refers to, but still thinking it a myth. The person who believes the former may be even more ignorant than one who believes the latter. But someone who simply doesn't know the meaning of the word is far less likely to be an anti-Semite, a neo-Nazi or some other type of committed Holocaust denier. She is likely just unfamiliar with history and politics, generally.
Some people who believe the Holocaust is a myth really are anti-Semites, neo-Nazis, or adherents of other horrible ideologies. But many are probably just ignorant without being malicious.
It is also important to emphasize that ignorance about the Holocaust is a facet of more general widespread public ignorance of history, politics, and economics. What I said about a previous survey finding widespread ignorance about the Holocaust is relevant here, as well:
Ignorance about the Holocaust is not a unique phenomenon driven by anti-Semitism or by some desire on the part of educators to cover up the truth about this specific event. It is one of many manifestations of a more general problem of public ignorance. Indeed, I suspect that more systematic analysis would find that public ignorance about the Holocaust is actually less severe than that about many other historical events. For example, it is likely that many more Americans know what the Holocaust was than have heard of Mao Zedong's Great Leap Forward, the largest mass murder in the entire history of the world….
The point here is not to suggest that ignorance about the Holocaust is unimportant, or that the Great Leap Forward and other similar communist atrocities were necessarily worse than the Holocaust…. I lost several relatives in the Holocaust myself, and have no desire to somehow downgrade its importance.
Rather, the point is that ignorance about the Holocaust is part of a broader pattern. Any solution to the problem probably cannot focus on the Holocaust alone, but must consider the broader issue of historical and political ignorance, as well. For reasons elaborated in my book, Democracy and Political Ignorance, increasing public knowledge of politics and history is likely to prove a much tougher challenge than some imagine it to be. In the meantime, public ignorance about the Holocaust, communist mass murders, and other historical events makes it more likely that we will fail to learn the lessons of these tragic events, and thus be at greater risk of repeating them.
In some respects, therefore, surveys showing that large numbers of people are ignorant about the Holocaust are less troubling than they might seem to be. They aren't necessarily an indication of either widespread anti-Semitism or unusually severe ignorance about the Holocaust relative to other major historical events.
In another way, the fact that such ignorance is not unique to the Holocaust actually makes the situation even more concerning. Political and historical ignorance can and does cause harm across a wide range of issues, not just those related to the Holocaust, anti-Semitism and related questions.
And if the problem is a general one, that makes it harder to solve than if it were limited to knowledge of the Holocaust. I go over the strengths and weaknesses of various possible strategies to mitigate political ignorance in this recent article.
In the context of the national discourse, Stanford unequivocally condemns calls for the genocide of Jews or any peoples. That statement would clearly violate Stanford's Fundamental Standard, the code of conduct for all students at the university.
Students at Stanford are expected to show both within and without the University such respect for order, morality, personal honor and the rights of others as is demanded of good citizens. Failure to do this will be sufficient cause for removal from the University.
The Fundamental Standard does not restrict speech that is otherwise protected, including speech that some may find objectionable.
I take it that Stanford must therefore be suggesting that calls for the genocide of any peoples are not "protected" "speech." And Stanford acknowledges that the definition of what is "protected" "speech" must rely on First Amendment rules, because a California statute (the so-called Leonard Law) so provides:
As state actors, public universities are held to the strictest of standards when restricting speech and in California, the Leonard Law holds private universities to the same standard. As a protected constitutional right, speech may not be subject to discipline unless that speech rises to a legal standard of being unprotected.
Stanford thus seems to view advocacy of genocide as falling within a First Amendment exception, which means that it's unprotected not just at California private universities but also against civil liability and criminal punishment.
I'm delighted to report (as Adam Liptak wrote in today's New York Times) that the ACLU will be representing the NRA in this important First Amendment case, and that the ACLU's Legal Director David Cole—an experienced Supreme Court advocate—is (the Times notes) planning on arguing.
The issue in the case is whether New York financial regulatory authorities coerced banks and insurance companies to cut off ties with the NRA and thus violated the First Amendment. As the petition argued,
The Second Circuit's opinion below [rejecting the First Amendment claim] gives state officials free rein to financially blacklist their political opponents—from gun-rights groups to abortion-rights groups to environmentalist groups and beyond.
Cole's presence at the lectern and the ACLU's presence on the briefs will help convey the core message to all the Justices: The case is about everyone's free speech rights, not just the NRA's. Cole has argued six cases before the Court, all connected to the First Amendment, most recently Mahanoy Area School District v. B.L. (2021). Mahanoy was an 8-1 decision, and I hope NRA v. Vullo will be 9-0.
Note that I consulted with William Brewer, Sarah Rogers, and Noah Peters of Brewer Attorneys & Counselors on the petition, and look forward to consulting further with them and with Cole (with whom I've much enjoyed working in the past) on the merits briefs.
In March 2022, I had a long post on the district court's ruling in United States v. Chatrie, the first federal district court ruling on geofence warrants and the Fourth Amendment. Today the Fourth Circuit held oral argument in the case, which you can listen to here starting at about 1:10:
It was a somewhat unusual argument, in that the judges spent a lot of time expressing their views and arguing amongst each other. In general, though, I thought it went well for the government. I would guess they prevail 2-1.
Judge Richardson seemed to be a vote on the government's side, and on the broadest ground. He suggested that there was no Fourth Amendment protection in the specific records known as "Google Location History" because you need to opt in to have Google collect them. Only about 1/3 of Google customers opt in to that. And to Judge Richardson, that was outcome determinative: If Google only keeps these particular records if you opt in, then you have volunteered to have those records and the third party doctrine applies.
I happen to think that's right, as I argue briefly in a forthcoming book (more on the book project later). I realize some are skeptical that Google really doesn't keep these records about everyone, but I understand Google's claim to be not that they can't figure out where phones are, but that they have a specific service called Google Location History that is at issue here. Those are the records that the government turned over, and those are the records that (Google claims) they only collect from the 1/3 or so of their users who opt in.
Judge Wilkinson was clearly on the government side, although quite possibly on a different basis. Judge Wilkinson was very concerned about limiting law enforcement use of this useful tool. He suggested he might want to rule for the government without deciding anything except the good faith exception. That way, the law could develop slowly without grand rulings from appellate courts trying to settle too much.
Judge Wynn was clearly on the defense side. He thought this was extremely disturbing surveillance. He analogized this authority to what you might expect in Nazi Germany. He also argued that that opting in is a fiction. There is no real option, in his view.
Looking ahead, an interesting question is whether Judges Richardson and Wilkinson will agree on a rationale to make a majority opinion. It's not clear they'll be able to find a common ground. We could end up with a narrow majority opinion on good faith with both Richardson and Wilkinson writing concurrences—with Judge Richardson writing on opting in and Judge Wilkinson hitting his usual themes of the need to go slowly in this area.
Speaking for myself, I hope the court doesn't decide the case on the good-faith exception without deciding at least some of the merits issues. We've been waiting for years for a geofence case to get to a federal court of appeals. There's almost no law from any court on what is a search in geofence cases, and the law on the particularity of warrants has so far only consisted of really weak and unilluminating decisions from trial courts. For the big case to finally reach a federal court of appeals, and to not get a ruling on any of the merits issues, would be the good faith exception at its worst. It would make sure no one ever knows what the law is.
That would be particularly problematic here, I think, because right now geofence investigations are conducted in the alternative universe of Google Policy. Google has the records, and it won't turn them over without a warrant. The company has come up with a complex procedure for how it will comply with the warrants. That procedure doesn't reflect law; it just reflects Google policy. And Google is very hard to sue about this stuff, as law enforcement would have to stop its investigation for a few years to litigate procedural issues just to try that. As a practical matter, right now Google sets the rules.
But it's hardly clear that Google's corporate policy is the right framework. First of all, if it's really the case that only 1/3 of Google users opt in to turning Location History on, then I am skeptical that there is probable cause to support a warrant in these cases. And if the same opt-in requirement that generates that skepticism means that such records are not protected by the Fourth Amendment, as Judge Richardson (I think correctly) suggested, then there is no legal basis on which Google can demand a warrant anyway.
So it may be that the whole warrant regime that Google has created is the wrong framework. It may be that warrants not only can't be demanded, but can't be obtained. Geofencing would instead take place under the statutory regime of 18 U.S.C 2703(d). And that would raise all the issues I wrote about in this article about how to do particularity for non-content records under the Stored Communications Act.
Anyway, it seems to me that a working system would feature courts ruling about the constitutional issues potentially raised by geofence warrants and then Congress legislating in response to those constitutional rulings— with Google's input, certainly, but not with Google calling the shots. On the other hand, if we're just muddling through under the good faith exception, it may be that the strange world of Google Policy continues on for a long time.
An interesting column by one of my favorite commentators, Prof. John McWhorter. An excerpt:
Precincts across the nation do, in fact, have rules against profanity on the job. However, they are barely enforced if at all …. This casual cursing at people is not a mere matter of the informality of our times and it must stop. It is a much more serious matter than it may seem….
Profanity can be a form of hostility. To be sure, I am skeptical of claims that injurious words always constitute "trauma" (just as I am that "silence is violence"). However, profanity can still be a game changer. In interactions with cops it influences public perception. One study (of many similar) showed that, when presented with a silent video of a person detained by a police officer with captions in which the officers' profanity was left out, observers judged the interaction as more reasonable than when the profanity was included in the captions. Other studies similarly document that, when it comes to the cops, profanity matters—profoundly influencing how citizens view their interactions with police….
On the other hand, we must not fall for a crude, blanket notion that police officers must never be caught in a recording using, say, the word "fuck" on the job for any reason. This would operate upon an almost willfully uninformed sense of how language actually works. Any word remotely interesting likely has a lot of meanings….
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
New cert petition: At summary judgment, judges are supposed to apply the law to undisputed facts, leaving factual disputes to be decided by a jury. But earlier this year, an Eighth Circuit panel usurped the jury's role, said that dashcam video shows something that it does not show, and granted qualified immunity to an officer who pulled a taser on an innocent and compliant mom. Which is an outrage, and the Supreme Court should take a look.
The federal government finances and helps to build the interstate highway system. It has to decide where those highways will go. If Congress or the Department of Transportation decides to have a hearing about competing highway locations, it does not need to have a judge adjudicate that hearing, and it does not have to involve a jury.
On the other hand, imagine that after building the highways, the federal government wants to regulate traffic accidents on them and also set up a federal tribunal to apply these regulations between private parties. It is pretty clear that this tribunal would need to be an Article III court, and that these trials would involve a jury. (I am borrowing this second example from Chief Justice Roberts at the oral argument in SEC v. Jarkesy this week.)
But what about the possibilities in between these two? For instance, in Jarkesy the Securities and Exchange Commission, a branch of the federal government, wishes to exact penalties from somebody who traded in violation of the securities laws. It does so in front of an administrative officer who is part of the SEC, not a court or a jury. Is that more like locating highways, or more like adjudicating a highway accident?
The question presented to the Court is specifically whether this adjudication violates the Seventh Amendment, which says: "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved. . . ." But in Jarkesy the government argued that the Amendment is basically irrelevant. Because it only applies "In Suits at common law," it only applies in courts. If it is legal to assign these penalty cases to administrative officers instead of courts, then the Seventh Amendment falls away. Instead, said the government, any limitations on where these cases can be assigned come from Article III and the Due Process Clause.
This seems basically right to me, and it is what the Court has said in prior cases and what I have written in Adjudication Outside Article III. "[W]hen Congress properly assigns a matter to adjudication in a non–Article III tribunal, 'the Seventh Amendment poses no independent bar to the adjudication of that action by a nonjury factfinder.'" But some of the Justices naturally then wanted to ask the next question, which seems fairly antecedent or included in the question presented: are these SEC penalty proceedings properly assigned to a non-Article III tribunal?
I am not so sure. As I have argued, and more importantly Caleb Nelson before me, a judge is generally required before the government can deprive a private person of their life, liberty, or property. The reason that agency officials can make various kinds of determinations like where to put the interstate highways is that those rights are public rights, not private rights of life, liberty, or property. Fining somebody deprives them of their property, so it requires due process, and so under a more classical view it should require judicial process. (I am putting aside the question of how many 20th century precedents are inconsistent with this view, since there is a debate about how to read several of those precedents and in any event the Court seemed to be considering whether to reconsider or modify some of those precedents.)
The government's response is that from the government's point of view, this is a public right. The government is the plaintiff, and it is enforcing sovereign interests in enforcement of the law that belong to the public. But as Justice Thomas noted at argument, from the defendant's point of view, what is at stake is his private right to property. As Caleb Nelson puts it in criticizing Atlas Roofing:
Historically, only "judicial" power could authoritatively determine individualized adjudicative facts in a way that bound core private rights; if core private rights were at stake on one side of a dispute, the mere fact that public rights were at stake on the other side did not open the door to nonjudicial adjudication. Indeed, that is precisely the structure of the standard criminal case--the paradigmatic example of a dispute that requires fully "judicial" determination.
Is there anything left to defend administrative penalty proceedings? It seems to me the best defense of the practice would be to argue something like this: Congress has the power to completely ban the interstate trade in securities. Therefore, Congress has the power to completely ban the interstate trade except for those who have obtained a license from the federal government. And perhaps this license could be seen as a public right, and perhaps one could condition this license on willingness to accept various kinds of administrative penalties, just as one could presumably condition it on willingness to post a large bond for misbehavior. Something like this argument can be found in John Harrison's article on Public Rights and Public Privileges.
In other words, even if administrative penalties deprive people of private property without judicial process, perhaps they are permissible as a condition on the public privilege to be a securities trader. While this argument is logical, and might be correct, it would also blow a large hole in due process protections against federal legislation and the government did not seem interested in pressing it in Jarkesy. But without this argument, taking somebody's property because of their violations of federal law would seem to require judicial process just as taking their liberty does.
[This post is co-authored with Professor Seth Barrett Tillman].
On December 6, the Colorado Supreme Court heard oral argument in Griswold v. Anderson. In this case, a number of Colorado voters asked the Court to order the Colorado Secretary of State to remove Trump from the primary ballot. The trial court adopted our intellectual position: that the President is not an "Officer of the United States," and therefore, the President is not subject to Section 3 of the Fourteenth Amendment. We did not file an amicus brief with the trial court. The trial court's decision was appealed directly to the Colorado Supreme Court, and we did file an amicus brief before that court. Our brief argued that Section 3 requires federal enforcement legislation, and that the President is not an "Officer of the United States" as that phrase is used in the Constitution of 1788 and Section 3.
In an earlier post, we analyzed several aspects of oral argument with regard to whether the president is covered by Section 3—that is, "Is the president an 'Officer of the United States'?" as that phrase is used in Section 3's triggering or jurisdictional clause. But we did not discuss the disqualification element of Section 3. Those who are disqualified by Section 3 cannot hold certain positions: "No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State." Is the presidency an "Office . . . under the United States" for purposes of Section 3's disqualification clause? Much to the consternation of our critics, we have not taken a firm position on this question. We have explained our reasoning in two articles now, but the critics are still unsatisfied. So be it. And this position is not new. We explained in a recent amicus brief from Michigan that "Since 2011, [Tillman] has expressly eschewed opining on the scope of Section 3's 'Office . . . under the United States'-language." And we don't plan to do so in this post.
But in this post, we will discuss several aspects of oral argument with regard to the phrase "Office . . . under the United States." Specifically, we will address the Jefferson Davis Horrible.
I got an e-mail from a reader today, asking about what I would say to Jewish college students who feel assailed, outnumbered, and collectively targeted by anti-Israel and anti-Israeli speech that they perceive—perhaps quite correctly—as anti-Semitic. What is the value, they might ask, of freedom for speech like that?
By coincidence, today I saw a post by Rice Prof. Moshe Vardi, "A Moral Rot at Rice University," that reports on various anti-Israel speech there, including from the Rice student government. The post closes with this:
I was well aware that antisemitism is alive and well in the US, but I had believed that it exists only in the margins, among the extreme Left and extreme Right. I have been rudely awakened. I now realize that not only is it a mainstream phenomenon, but it is also quite prevalent on my very own campus, among Rice faculty and students. This is a profoundly bitter lesson for me. I am not quite sure how to cope with it.
No-one likes rude awakenings, bitter lessons, and situations with which one is not quite sure how to cope. But they are tremendously useful. Many of us have indeed been rudely awakened to the magnitude of hostility in many American universities to Israel, Israelis, and Jews. But that's not because there has been a surge of such hostility: It's because the existing hostility has revealed itself.
Thanks to the freedom of speech, we have a better sense now than before of who our enemies are, and who our friends are. We have a better sense of how our institutions operate. We have a better sense of how the ideologies that many teach there can play out.
We are now awake when we were asleep. We have learned a lesson, bitter as it may be. Being not sure how to cope with circumstances is better than being sure of the wrong things.
One hundred and twenty years ago, an author had something to say about lessons—in that context military lessons, but I think the principle is generalizable—and indeed in a poem called The Lesson:
So the shocking pro-genocide/pro-Palestinian marches at top Ivy League schools have put their administrations into a pretty pickle. They want to escape responsibility for student speech, but their efforts to plead "free speech" ring hollow, when they've been eagerly policing student—and faculty—speech for years….
But as much as I enjoy seeing these people stew in the juices of their hypocrisy—and believe me, enjoy it I do—it is nonetheless true … that free speech principles, and the First Amendment where it applies, prevent things like a selective ban on anti-semitism, or on "advocacy of genocide" or whatever.
The proposals by various critics to regulate campus speech in response are a bad idea, though there is one upside: The strong support for campus free speech that used to exist was basically developed as a tool to protect leftists on campus from populist or conservative retribution. Perhaps this will have a similar effect.
He goes on to offer a substantial, varied, and ambitious list of proposed remedies.
