UPDATE AND CLARIFICATION:
Some readers, robed and otherwise, have reached out to Rumpole to let us know that the First Amendment does not apply to a private institution like Harvahard. We respond with the best legal response we can muster- DUH.
Our argument is not that the First Amendment covers private institutions like Harvahard and the students who attend.. We know that the First Amendment does not extend that far- although arguably the reach of the commerce clause cases used to integrate the South and stop farmers from eating their own wheat ( See Wickard v. Fulburn)- might be used to extend federal ideals about hate speech into private institutions.
Our argument is that that the university presidents did a bad job of explaining that the universities were choosing to apply First Amendment standards to speech on campus to allow the free expression of ideas- even hateful ideas.
We fully support the proposition that as a private institution, a private university can set as many rules as they want about speech and the students who choose to attend, choose to attend accepting that their speech will be regulated.
We hope we made that clear. Meanwhile, Kudos to the Harvard faculty for supporting their president.
The First Amendment only works when its boundaries are pushed. It is easy to support free speech in the name of standing in front of the White House holding a sign saying "Stop Global Warming". It is harder and more important when the speaker is advancing repugnant ideas.
Which brings us to the disastrous testimony before congress of several university presidents this past week. They did an awful job defending an important principle.
Students at Colleges and Universities are- as young people are wont to do- taking up radical ideas and supporting not just Palestinians, but Hamas- the criminal terrorist organization that did the unspeakable acts we all know about. They chant Hamas slogans and some cheer the death of Jewish people. And the University presidents would not take the step Congress wanted- promising to expel the students for saying such awful things. [ SEE OUR UPDATE- THIS IS OUR ARGUMENT NOT THAT THE FIRST AMENDMENT EXTENDS TO PRIVATE UNIVERSITIES].
And here is why they are right. Who determines that the speech is "awful"? Is there a speech czar? And if we now agree that the speech in question is awful, do you want President Trump's administration determining what he and Stephen Miller think is awful speech that should be punished?
That is the concept that most people uneducated in the law- and many lawyers and judges - and certainly members of Congress - do not get. You cannot punish speech because eventually someone else whose ideas you do not agree with will be in the position to punish your speech - and then what? We cannot have speech decided on the principle of whose ox is gored.
What if Harvard's President was an avowed vegan and animal rights supporter and decided to ban any students who ate and supported the right to eat hamburgers? Millions of cows are slaughtered and to animal rights activists the eating of meat should be criminalized.
In the 1960s radicalized students at colleges and universities staged sit ins at university presidents' offices, disrupted classes, and had large demonstrations supporting the "anti-American" ideals of ending US involvement in Vietnam. They were traitors. American boys were dying to fight communism and no student should be allowed to get an education- much less a free one at a public university- while supporting such repugnant ideas.
Civil rights activists in the 60's supported the "awful", "sinful", "unnatural" concept of a black man marrying a white woman. It was offensive to religion, what the bible taught, it was against the law, and such speech should definitely be punished. Ditto in the 1980s and 90s for two people of the same sex engaging in sex. Why should speech supporting illegal acts like two men engaging in sex with each other be allowed?
And in that vein, why should offensive speech supporting a criminal terrorist organization like Hamas be allowed? There are victims of Hamas, survivors who have been brutally assaulted, children who saw their parents murdered and burned right in front of them, who should not be subject to such offensive speech. No one should be allowed to support Hamas in public the thinking goes.
The reason why is - because.
Because if we have a First Amendment that means anything, then it protects "good speech" and "bad speech". Because we do not have a speech czar because the founders recognized the dangers of giving any government the right to regulate speech. Are there lines? Sure. You cannot yell "fire" in a crowded movie theater. You can demonstrate against integration, but you cannot yell "There is a Jap- let's kill her!" to the crowd.
You can say and sing all day long the praises of Hamas, and you can even applaud the killing of Jews, but you cannot point to a Jewish person and tell the crowd to kill them. You can even walk into court wearing a "fuck you judge" t-shirt. It's been done and the prosecution was reversed on appeal.
Those are the lines that the university presidents were trying to show Congress. They failed. So we took a shot. [SEE OUR UPDATE ].
Our universities are nothing if they do not allow young people to express ideas, explore them, debate them, challenge them, and eventually make up their minds. The idea of a self-governing nation of people where all men were created equal was repugnant to the royalty of Europe and would not have been allowed to have been debated in the colleges of Europe. But we allow such debate here.
You can hate this post and all the things we have said supporting the rights of innocent Palestinians to be safe from being bombed and killed.
Are you ready to cross the line and have the courts order the police to shut us down?
28 comments:
Naive.
Those same universities punish speech all the time. Student says racist thing…or worse, something perceived as racist. Discipline. Fly a confederate flag at Harvard and see what happens.
But…the rules don’t apply evenly. Call for genocide and the university will say that they will punish as bullying or harassment, depending on who the call is against. If it is against blacks, Hispanics, Indians, gay people, trans people, vegetarians, Muslims, you are out…but somehow, calling for genocide against Jews is okay because what Israel is doing is over the top and wrong.
Woke doesn’t work because the rules don’t apply evenly.
With due respect, you are comparing apples to oranges. Siding with Hamas, unbelievably ignorant yet worthy of such an irresponsible opinion. Siding with Hamas along with death to the Jews…that is not only hate mongering but also igniting worse forms of antisemitism.
See you are among those uneducated people I spoke of. You do not understand what a principle is. You do not understand the concepts of philosophy like epistemology. You just careen from idea to idea, deciding "hey that sounds good" and "ooh that sounds bad". If you had an ounce of intelligence you would know there is NOTHING in my post siding with Hamas. I am supporting the rights of people to voice unpopular opinions like those people supporting Hamas. I disagree vehemently with their opinions, but I am defending their right- much like your right- to be unbelievably ignorant and wrong.
May I kindly suggest a blog such as this with discussions of difficult concepts is not for you. Try Fox News. That is much more your style and level of limited intelligence.
Well, they already forced one university president to resign.
https://www.nbcnews.com/news/us-news/university-pennsylvania-president-steps-criticism-antisemitism-testimo-rcna128712
And so many academics are eager to declare the First Amendment doesn't apply to so called "hate speech."
But Yale School of Management Professor Jeffrey Sonnenfeld said it wasn’t an issue of misspeaking: Magill and other university presidents missed the forest through the trees, upholding the right to free speech above the safety of students.
“University leaders have an elevated duty to fortify the truth and protect their campus communities from hate, threats, and violence,” Sonnenfeld said in a statement. “Freedom of expression is NOT an absolute right anywhere in society. Hate speech is different from speech.”
https://www.cnn.com/2023/12/09/business/upenn-board-of-trustees-meeting-liz-magill/index.html
Rumpole, your position is too limited. Free speech that ignites violence upon others needs to be kept in check. Extreme ANYTHING is no good
The Penn president had other issues.
University of Pennsylvania president Liz Magill has resigned amid growing bipartisan backlash against her congressional committee testimony on antisemitism earlier this week and a semester marked by near-weekly protests, deep-pocketed donor complaints and widespread accusations of mismanagement since a controversial festival on campus this fall.
Was Magill's situation really that different from the other college presidents?
Both Harvard and MIT and scores of other elite universities have had frequent inflammatory protests since October along with disgruntled "deep-pocketed" donors denouncing them and demanding removal.
Bill Ackman is a "deep-pocketed donor" who is really gunning for the removal of Claudine Gay. Ackman's lobbying is what brought on these debacle hearings in the first place.
https://www.reuters.com/breakingviews/big-college-is-ripe-full-bill-ackman-2023-12-08/
Though for now, it looks like MIT is circling the wagons around its president.
Aren’t the Republicans the same ones who say that universities prevent the free speech involving conservative issues? So, they want to regulate what can be said, but then complain when they do so? It was a game of gotya and they got got. Money talks and the threat of losing donor money was too much of a threat to their bottom line. We are f’ed as a country.
And did you see that the Texas Supreme Court has stayed the judge’s decision permitting a woman to obtain an abortion in the case when the baby will die after delivered, at great danger to the mother? Now the government wants to interfere with a woman’s health? We are f’ed.
Yes, the speech has to involve a credible threat of immediate and direct harm to be unlawful. Virginia v. Black (2003). Rhetoric or "political hyperbole" is protected. Watts v. United States (1969) https://uwm.edu/free-speech-rights-responsibilities/faqs/what-constitutes-a-true-threat/
The present college students are upset over the carnage by Israel on the civilian Palestinian population, and the lack of any moderating response by our so-called leaders. This is frustration and outrage more than actual threat or anti-Semitism.
It pains me to watch Israel self-destruct.
When I attended PENN (1985-1990) Jewish students were about 30 percent of student body, far more that their numbers in American society. Back then Philadelphia had a vibrant Jewish Community. My Jewish mentors in the 1980s went to PENN in the 1930s. (a 1930 PENN yearbook also showed a couple of black graduates). Now Jewish students make up just roughly 16 percent of the 10,412 undergraduates at PENN according to the link.
https://www.insidehighered.com/news/admissions/2023/05/08/jewish-student-enrollment-down-many-ivies
But I also know membership at Temple Beth Zion-Beth Israel in Philadelphia (18th and Spruce Streets) is about half of what is was in the 1980s, and the Oxford Circle Jewish Community Centre is gone. I suspect smaller families, assimilation, relocation, and mortality accounts for the decline.
The Supreme Court's 1968 decision in Pickering found freedom of speech applies in cases that involve public employees such as school teachers.
Pickering v. Board of Education, 391 U.S. 563 (1968)
https://supreme.justia.com/cases/federal/us/391/563/
Yes, Liz Magill had other issues. And she had big shoes to fill (Amy Gutmann). Sheldon Hackney signed my degree.
Donors are free to cancel donations. Canceled donations will be replaced by other donors jockeying for favor and position.
RE "You can even walk into court wearing a "fuck you judge" t-shirt. It's been done and the prosecution was reversed on appeal."
Was that a case of direct criminal contempt that got overturned?
Imagine being crucified in the media as the Florida Bar spends years trying to suspend you, even on an emergency basis, for this post. The Bar brings case after case until you are disbarred or admit everything you said was a fraud because you were mentally ill. That would be terrible too.
7:22 pm. Thoughtful comment. Here is my response. Who decides ? Who decides when speech is too extreme? Stephen Miller in the next Trump administration? Some Fox tv host who is appointed speech czar. And what if that speech czar says defending Hillary Clinton is too extreme ? That saying Hunter Biden is innocent promotes disregard for the law and paying taxes.
I get your point. But once the horse is out of the barn it will be very hard to get her back in.
Rumpole. Your fixation on Fox News Trump. And Stephen Miller is pathetic. The fact is that left wingers like you have selective values. Look on the bright side of things, when Trump becomes president again. You will abke to transmit your artigant
Kash Patel will decide.
Who decides is exactly right. I'm sure most of the law students from these schools would have been able to articulate this principle better than they did. Their lack of preparation for such an important moment, and one that was sure to be full of traps, is inexcusable.
RE: Rumpole, Who decides?
PENN has a student code of conduct. The code of conduct applies to student relations within the PENN community. After listening to arguments presented the news media, I believe PENN should enforce its code of conduct that would prohibit hate speech by one group of PENN students toward another student or group of students within the PENN community. That same hate speech may be "lawful" in the public domain, but could violate the PENN student code of conduct.
In a sense, PENN has "jurisdiction" over its students, somewhat like a homeowner association has jurisdiction over its residents. Students who make a decision to attend PENN subject themselves to the student code of conduct. Beyond that, it is a matter for the courts. Certainly protesters who are not PENN students can engage in hate speech within the bounds of the Constitution and laws of the United States, because non-students are not subject to the PENN student code of conduct.
Protests against Hillary Clinton and Hunter Biden are fair game under the First Amendment.
Two intelligent comments and one idiot.
If trump were to become president again he would shut down speech and protests against his administration. Which is why 356 am you’re wrong. What you say is fair game under the first amendment would no longer be if we adopt a system where speech is limited by those in power who decide if it’s offensive or not.
Listeners rely on and react to the spoken word. So, truth matters, especially when voters are swayed by misrepresentations. Shame on you George Santos. In such a case, there ought to be a severe consequence beyond being smeared as a liar. Of course, the right to persuade another through words must be protected, but persuasion through falsehoods, well maybe less so. We have the courts to determine truth but that process opens only when falsehood triggers a legal action.
We need an actual rocket Court of review for the political arena. It would be like the NFL instant replay. As a pre-condition to running as a candidate, all politicians would submit to the jurisdiction of this court. An offended party with standing could drop a red flag. Three officials picked by the adversarial sides tell everyone to deliver their best evidence for the proposition on the table withing 24 hours, delays would be resisted, and the truth report would be due for publishing within 72 hours. Times for review of evidence and publication of determined truth automatically tighten as election day approaches. Losers pay costs and attorneys fees.
These universities are private institutions with their own set of rules regarding conduct. They prohibit hate speech. The University presidents could have made a distinction between them and public universities. Those students should be out and they should have said so.
Idiot? Okay, got it. I’m no fan of Trump, but he saved us from Hillary Clinton. How does Trump limit or control freedom of speech? Don’t judges and courts decide what is allowed under the First Amendment?
So you don’t support the student code of conduct? Fine, I guess that is a bunch of woke nonsense. PENN Jewish students are arguing for enforcement of the student code of conduct in news interviews I watched. Now two of them have sued PENN for being called names:
"One of the protestors yelled to her, "you are a dirty Jew, don’t look at us," she said. Other protestors joined in, taunting Davis with: "keep walking you dirty little Jew," "you know what you’ve done wrong," it says."
https://www.cnn.com/2023/12/08/business/students-claim-university-of-pennsylvania-civil-rights-antisemitism-on-campus/index.html
Liz Magill may have resigned as president of PENN, but she is still a tenured professor of law at PENN’s law school. I don’t think she is leaving PENN. Magill also clerked for Ruth Bader Ginsburg 1996-1997.
Norman Finkelstein @normfinkelstein posted on X:
"Make no mistake about it. In order to stifle dissent from Israel's genocidal war in Gaza, the Jewish billionaire class has launched the most concerted assault on academic freedom in the history of our country."
Torah Judaism @TorahJudaism posted on X:
"Jews and Muslims are not enemies.
The common enemy of Jews and Muslims is Zionism.
The problem is Zionism and Israel."
Israel is self-destructing under Nutty-yahoo. The PENN Jewish students have picked the wrong fight with the wrong people.
I agree with 3:56!!!
With regard to expulsion, these universities have rescinded offers of admission for less. I do think there is an element of hypocrisy here. I'm also not sure I buy the distinction between threatening an individual versus calling for the genocide of an entire class of people. I don't believe that factor alone determines whether the speech is protected or not, as the university presidents have suggested. I think other factors would be more important.
11:40. You think president trump would listen to the courts and judges ? As a private citizen he calls for harm to a judge and his staff. What do you think he would do as president? He considered applying the insurrection act to overturn the vote. And you trust him to follow a court order allowing people to demonstrate against his administration? He wanted the military to shoot the George Floyd protestors in the legs. Open your eyes.
We pledge to you that we will root out the Communists, Marxists, fascists, and the radical-left thugs that live like vermin within the confines of our country, that lie and steal and cheat on elections,” Donald Trump said this past November, in a campaign speech that was ostensibly honoring Veterans Day. “The real threat is not from the radical right; the real threat is from the radical left … The threat from outside forces is far less sinister, dangerous, and grave than the threat from within. Our threat is from within.”
How do you think he’s going to do that ?
Rumpole: Calm down.
The 2024 election is still a wild card. The real candidates have not yet entered the race. Not a fan of Trump, or Biden for that matter. But I would trust tRump over Ron DeSanctimonious, Viveck ‘pump and dump’ Ramaswamy, Nikki ‘TikTok’ Haley, Sleepy Joe, or Chris ‘Krispy Kreme’ Christie.
Heck of a lineup.
The A Team is coming.
Alan Dershowitz is among the gadflies demanding Claudine Gay's removal from Harvard.
Just for good measure, Dershowitz also denounces Gay as a "diversity" hire.
https://www.dailymail.co.uk/news/article-12847443/harvard-claudine-gay-jews-israel-gaza-alan-dershowitz.html
There’s no A team. No Ronald Reagan. Jesus take Mitt Romney off the bench and you have yourself a winner I’d vote for him in a second. You have no John McCain. A true hero. You have hacks and the one guy speaking the truth - Chris Christie - can’t get traction.
I believe you are wrong Rumpole. The 1st amendment would apply to a private university that TAKES FEDERAL GRANTS, GUARANTEED STUDENT LOANS and other governmental funds. By accepting federal aid, they SHALL comply with these free speech requirements and other federal laws as to discrimination, housing and equal opportunities in sports, etc.
Norman Finkelstein @normfinkelstein posted on X
The Jewish billionaire class must be stopped. The student body at University of Pennsylvania must boycott classes from Day One of the Spring semester until and unless President Magill is reinstated.
I believe presidential candidate Cornel West said something similar.
Cornel West and Robert F. Kennedy Jr., two more candidates for potus24. One a voice of reason, and one a vaccine conspiracy theorist.
A new battle has opened for Ron D.
Real Estate Titans Battle DeSantis Over China Property Crackdown
https://www.msn.com/en-us/money/other/ron-desantis-s-china-crackdown-draws-backlash-from-wall-street-real-estate-titans/ar-AA1ljSjC
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