The Volokh Conspiracy

A bit lost in the controversy over antisemitic speech on campus is the failure of university administrators to enforce existing rules that are content-neutral.

I have already written about my own university's failure to enforce Virginia's law banning masked demonstrations. That failure continues, despite a letter from the state attorney general reminding universities of their obligation to enforce the law, and despite an incident in which a student waving a pro-Israel Israel flag was attacked by masked demonstrators. My understanding is that other universities in Virginia are also refusing to enforce the law. I have an email from one university police department official explaining that the law was intended to be enforced only if another crime has been committed.  This is nonsense. The law is meant to prevent intimidation by hateful mobs, and to help police identify suspects if laws are broken. I understand that one would not want to suddenly enforce the law and arrest masked students on felony charges, but I don't see any problem with enforcing the law after providing due warnings.

Meanwhile, at Cornell anti-Israel groups have been disrupting indoor spaces with extremely loud chanting of "from the river to the sea" and so forth. When students and their parents complained to the school, the response they received from the dean's office is that the university would not intervene unless the protests were "too" disruptive. When pressed, 20-30 minutes of disruption was deemed not "too" disruptive. But it gets worse. According to the Cornell Sun, a university official admitted that the administration has been cooperating with the disruptions, including the students' "occupying" a campus building as he made the statement!

During the meeting, Lombardi also stressed the administration's cooperation and commitment to free expression and student protests. He emphasized that the administration has cooperated with students and demonstrators with respect to the events planned for the week by CML.

"You've had a lot of activities [and] demonstrations, and the staff that's been here has been very committed to helping you be able to do that and express yourself during your demonstrations throughout the week," Lombardi said. "So we remain very committed to that, including today."

UC Berkeley has an "all-comers" policy, ie, student organizations must be open to everyone with no discrimination. Nevertheless, as revealed in a recent lawsuit filed against the university, twenty-three student organizations have adopted policies that discriminate against "Zionists" in various ways. Dean Erwin Chemerinsky has determined that putting aside any civil rights considerations, these policies violate the university's all-comers policy. Starting next semester, he has told students, work for any of these organizations will not be eligible for course credit. However, the organizations apparently remain free to use the Berkeley Law School name, office space, funding, and faculty advisors. Dean Chemerinsky seems to think this is required by the First Amendment. For my part, I don't see how student organizations have a First Amendment right to violate content-neutral university policy, nor why that any such right would apply differently to course credit as opposed to other privileges.

A lawsuit filed against New York University provides several examples of university officials declining to enforce the university's own regulations against anti-Israel protestors and activists.

Anti-Israel students at MIT blocked entrance to a university building while classes were being held, obviously contrary to university rules. The university declined to suspend them because of "serious concerns about collateral consequences for the students, such as visa issues."

These are just a few of the examples I have come across since October 7 of universities declining to enforce their own content-neutral rules. Such actions leave the universities vulnerable to civil rights complaints, given that failure to enforce these rules (a) can contribute to a hostile environment for Jewish students, as their pleas for the university to enforce the rules are ignored; (b) may permit discrimination against Jewish students (as at Berkeley) contrary to school rules; and (c) may constitute discrimination by demonstrating selective indifference to the concerns of Jewish students, if the rules get enforced in other contexts.

But legalities aside, many people are calling for universities to crack down on "hate speech." Instead, critics should demand that universities enforce existing content-neutral rules--and that they certainly should not, as at Cornell, be actively collaborating with student groups in breaking those rules.

Many readers may be aware that it is currently the holiday of Chanukkah. And maybe you know that during this holiday, the Jewish people light a menorah (candelabra) with eight candles to remind us of a miracle: in ancient times, there was only enough oil to light a lamp for one day, but the oil lasted for eight days. But why was there so little oil left over? Why was the holy temple destroyed? The Syrians forced the Jewish people to accept their Hellenistic beliefs, and worship pagan idols. A small band of Jewish rebels, known as the Maccabees (Hammers), fled from the Syrians, and hid in the hills. Against all odds, the Jews defeated the Syrian army, and rededicated, or sanctified their temple. Chanukkah translates to dedication.

The Chanukkah story is not an outlier. Throughout the entirety of recorded history, there have been countless attempts to wipe out the Jewish people. It is told that King Louis XIV asked Blaise Pascal, the French philosopher, to provide evidence of miracles. His response was simple: the Jews. As all other civilizations come and go, the Jews somehow continue. Nevertheless we persisted, as the saying goes. This story may be apocryphal, but it conveys an important lesson: in every generation, there are attempts to exterminate the Jews, yet this scrappy minority survived. Indeed, many Jewish holidays can be summed up with some humor: they tried to kill us, they failed, let's eat.

In every generation, different rationales are put forward for why the Jews cannot be accepted: they practice heretical beliefs (monotheism), they reject the true religion (polytheism), they follow laws without reason (chok), they committed deicide (Jesus), they spread disease (the Black Death), they were infidels (Islam), they engaged in harmful practices (usury), they refuse to convert (Inquisition), the holy land belongs to us (multiple crusades), they don't belong (multiple expulsions), they do not belong (pogroms), they cause struggles (Nazis), and so on. The history of civilization can be written based on whatever the elite society of the day thinks about the Jewish people. As Justice Scalia reminded us, the Holocaust "happened in one of the most educated, most progressive, most cultured countries in the world."

In the wake of the Holocaust, there was perhaps a brief moment of lucidity when the nations of the world recognized that the Jewish people needed a home of their own to ensure these atrocities never happen again. To put it in terms even Tirien Steinbach could understand, Israel would be a "safe space," or "affinity housing," for the world's most oppressed minority. (Don't ask her if the Jews are worth the squeeze.)

Regrettably, as soon as Israel was established, the millennia-long train of anti-semitism simply morphed into its latest manifestation: anti-Zionism. They don't hate all Jews, they just oppose all Jews who seek to protect the the only speck on planet Earth devoted for their protection. This doctrine was dressed up in all the academic garb of Marxism, anti-colonialism, and critical racial studies. Anti-Zionism was championed by elite academics on campuses. DEI apparatchiks, ostensibly hired to promote equity, reified the anti-Zionist trope. Students, who are woefully unfamiliar with world history, see the children of the Holocaust as just another oppressor. And, as they are taught, any act of resistance against the oppressors is not only justified, but necessary. The right type of violence demands silence.

The "gotcha" questions about whether a call for genocide is anti-semitic largely misses the mark. The deeper question is why are elites, in every civilization, drawn to theories that antagonize the Jews. Whether it is Hamas, Hitler, Hadrian, the Hellenists, or Harvard, the root cause is always the same: the Jews are different. The wise people of the day can always make up some rationale to get to that conclusion. Really nothing ever changes. Recently, during the oral argument in Students for Fair Admissions v. Harvard, Justice Gorsuch observed "Harvard's move to a holistic application approach happened in the 1920s because it wanted to impose a quota on Jewish applicants, but it didn't want to do through front door, so it used diversity as a subterfuge for racial quotas." There are always subterfuges to treat the Jews differently.

This background brings me to recent events on campus. Let me make two points at the outset. First, I think Eugene has accurately described First Amendment doctrine, as well as the analogous principles that private universities purport to follow. Second, modifying campus speech policies would likely be turned around to censor Jewish students in the future who defend Israel's policies.

The problem here is not the First Amendment or any campus speech protocol. The root of the problem is the rotten core of college campuses. From the earliest age, students are inculcated with a flawed philosophy: the world must be divided between the oppressed and oppressors. And the answer to any question turns not on any sort of objective moral truths, but based on a dogmatic preference for the plight of the oppressed. So long as this ideology predominates, no committees or task forces can make any difference. Simply adding Jews to the list of "oppressed" people masks the underlying rot. Indeed, the past two months have demonstrated the complete failure of DEI as an institution. If DEI could not handle the most blatant outbreak of anti-semitism since the Holocaust, what good does it serve? These apparatuses should be abolished and the intersectional pyramid should be toppled.

I still favor robust protections for free speech on campus, and oppose governmental intervention in academia. I also worry what happens when donors can influence what happens in academic progress. I'll admit, these views are much less sturdy then they were a few months ago. Let's see what the future brings, as Presidents lose their jobs, as donors withdraw donations, and perhaps, a future Department of Education in a Republican administration brings down the Maccabee.

for a long time i said that antisemitism, particularly on the american left, was not as bad as people claimed.

i'd like to just state that i was totally wrong.

i still don't understand it, really. or know what to do about it.

but it is so fucked.

— Sam Altman (@sama) December 8, 2023

(Apropos The Lesson and the value of free speech; see "Moral Rot": Rude Awakenings, Lessons, and Being Not Sure How to Cope.)

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:

I posted my oral argument impressions on X, and I thought I would summarize my thoughts here, too.

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.