The Debate Link

A few days ago, a viral video circulated of a neo-Nazi agitator interrupting a psychology class at the University of Washington ... and then being chased out of the room and across campus by basically all the students in the class (as well as the professor). At the end of the video the guy trips and is held down by some of the students (you can hear him pathetically mewling "I thought you were the party of peace!") until campus security arrived to arrest him; those students also prevented anyone from enacting any violence on the man.

On the reddits, I saw a lot of praise for the students' solidarity and discipline, and in particular their decisive action to assume that the Nazi scumbag they had on the ground was not physically attacked or injured. But I remember reading one commentator who was a bit confused by that angle of praise. Aren't we all fans of punching Nazis? Don't we understand that violence is sometimes necessary to defeat fascism? Why was everyone so insistent that this Nazi, who very clearly brought it upon himself, be left unharmed?

My response to that was simple: if you're not a pacifist, then yes, you accept that sometimes violence is necessary to achieve important political ends. But if you're at all a liberal, then violence should never be your preferred choice. If there is a nonviolent way to accomplish your goals, then that's what one should do -- violence is not a good for its own sake (in fact, it's quite bad "for its own sake"). In this circumstance, the students were able to neutralize the Nazi without resort to meaningful violence. Violence wasn't necessary, so it was good that they didn't resort to unnecessary violence.

I was thinking about this with respect to the anti-ICE protests in Portland, and in particular, the comical site of inflatable frogs, chickens, and other absurd animals that have taken center stage in these protests. This being Portland, the worry when Trump announced his invasion plan for our city was that some group of rabble-rousers or agents provocateurs would take it upon themselves to enact violence, which Trump would then use to bolster his lies about Portland being a wartorn hellscape. But instead, they've been met with these ridiculous animal outfits, which have been incredibly effective at making the fascists look ridiculous. Kristi Noem trying to play tough gal while overwatching an "army of antifa" comprised of about a dozen peaceful protesters, one in a chicken suit? Comedy gold. But also, political gold: it highlighted in brilliant and excruciating detail how profoundly unserious Noem and her gang of fascists are. They are playacting a crisis of their own creation so that they can present themselves as action stars; countering that absurdism with humor and whimsy and comedy does more to resist their agenda than any masked stone thrower could accomplish.

In saying this, I'm in no way downplaying the seriousness of the moment we are in. Nothing could be more serious than the specter of one's own government invading your city in order to enact an explicit agenda of ideological terror and suppression. But it is that very seriousness that compels serious thought about what would constitute the most effective countermeasure to that attempt.

The violent/non-violent protest debate, too often, is presented in ethical and philosophical terms -- (when) is violence justified? But this skips past the more immediately practical question of (when) is violence useful? Often times, one can (or should) leave aside the question of justification because the utility just isn't there. And often times, it seems like those who grimly intone the need for violent action because "power cedes nothing without a demand" or some such cliche are very self-evidently excited at the opportunity for violence. It is something they revel in, and desire for its own sake -- the move of first resort, not the last. As much as that instinct presents itself as rising to the demands of the moment -- "by any means necessary" -- it more often than not represents an abdication of the need to actually respond to the demands of the moment in favor of personal indulgence.

So once again, kudos to Portland for resisting that impulse. The point of activism is not to provide an outlet for one's personal rage (however warranted it may be). The point is to figure out effective strategies for undermining one's opposition, and seize on those weak points. Fascists are weak wherever the people show joy. The Portland protests, which show our city in all of its joyful weirdness, represent the best possible response to Trump's pathetic efforts to slander our city as something it isn't.

The image of masked federal agents seizing Rumeysa Ozturk on the street for the "offense" of writing a disfavored op-ed on Gaza is chilling enough. But surely there is an extra dose of irony in the masks themselves, seeing how the MAGA right has specifically identified banning masks as one of its main demands in its ongoing assault on academia in general and protests in particular.

Of course, wearing a mask has also become a progressive marker of good citizenship in recent years. There's always irony enough to go around.

In so many ways, masks are a microcosm of everything that's gone wrong in our politics over the last five years. First, we saw the histrionic conservative protests over mask mandates, where wearing a scrap of fabric over one's face in the middle of a lethal pandemic was portrayed as the greatest civil rights violation in living memory. Soon, not content with not wearing their own masks, the right extended outward to try to actively curtail voluntarily masking by others, using spurious comparisons to the KKK as flimsy justification for what was obviously kulturkampf.

A few years later, though, as masks became de rigueur in the protester scene, we saw a few too many progressives get a little too cute in merging the medical justification for masking with an obvious desire to shield people from accountability for criminal activity or violation of campus rules. The idea that the protesters who stormed an Israel history class at Columbia wore masks out of respect for avoiding contagious disease is ludicrous.

But it wasn't long afterwards that the progressives' legitimate concerns were validated once again, as unmasked individuals associated with campus protests found themselves easy marks for Trump's authoritarian predations. It was Mahmoud Khalil's decision not to wear a mask, after all, that made him a prime target to inaugurate Trump's censorial crackdown on international students. Here masking isn't about evading legitimate consequences for unlawful acts, it's about protecting oneself from out-of-control abuses of power.

And of course, the masked officers making sure to conceal their identity while abducting a student off the street for WrongThink makes for the full circle: a terrifying encroachment on civil liberties that brings to mind the secret police of history's most repressive regimes.

The reality is that the ethics surrounding masks seem uniquely resistant to being formalized into rules, and instead demand a modicum of virtue and common sense. Anyone should be able to tell the moral difference between masking as a prophylactic health measure, versus masking to shield oneself from public accountability. Yet any malicious actor can easily say, without being easily refuted, that they are wearing their mask for medical reasons. How would one refute that?

A healthy society resolves these problems simply by being healthy. We accept frankly trivial burdens like mask mandates if its necessary to stop a pandemic. We recognize that masked hooligans trashing a classroom are not the same as EMTs in an ambulance. We expect our police to conduct their operations in a manner that permits review and accountability, so that we can all be confident the law will be followed.

Our society is not healthy. And so choices that should be taken for granted, no longer can be.

You may have seen that protests have broken out in the Gaza Strip targeting Hamas.

This is a great thing, and the bravery of these protesters deserves nothing but applause. They should be viewed as of a piece with other brave protesters standing up to authoritarian practices in places like Turkey, Israel, and (for that matter) the United States.

But I've noticed some pro-Israel commenters highlighting these protests with a weird tone of empty triumphalism. They're excited about the protests because they're anti-Hamas (makes sense), but beyond expressing that giddiness there's just ... nothing else there in terms of what they, or we, or anyone outside of Gaza might do to back the protesters up.

Nothing on how we might actually support these protests (hint: I suspect they will not find dropping bombs on their heads helpful). And nothing on what, tangibly, we think these protesters should get as an alternative to Hamas rule (again, I doubt they're excited at the process of being evicted to make room for a MAGA seaside resort development).

But if you're going to claim the mantle of supporting these protests, those are the sorts of questions you need to have answers for. You don't get to say "gee, these protests are swell -- anyway, back to bombing!"  (I suppose there is a very slim chance the protesters want the war to continue as a means of ousting Hamas, but anyone making that claim on the protesters' behalf, absent them saying so themselves, bears a very high burden of persuasion). 

And you also don't get to just be coy about the end status of Gaza. I don't have a direct line to the protesters' ears, but I assume they want some form of genuine self-governance and independence. If one isn't willing to accede to that, you also don't get to claim the protests for your own purposes.

Again, the complete inability of Israel to articulate a plausible "day after" upon toppling Hamas is one reason this war is dragging on without end. As long as the war continues, Gaza is Schrodinger's territory -- neither reoccupied and annexed nor granted freedom and independence. Israel doesn't want to commit to either option, so it delays and delays and delays by extending and extending and extending the war.

The reason I have made a point of offering meetings up front, before any sit-in or impasse, is to establish that I see communication as a given, not a negotiating tactic. I was, and am, willing to meet with you — not as a result of threats or demands, but because you are deeply committed Carleton students whose views are important to the institution and to me. 

This, to me, is exactly correct. On the one hand, it is a very bad thing when college decisions are made simply by reference to whomever is yelling the loudest. At other schools where encampments and protests had been successfully "de-escalated" by promises that the college would hear and listen to various pro-Palestine pitches, there was some measure of frustration by Jewish students who did not feel like they were given the solicitude and avenues of access and basically wondered whether the only way they could get a hearing would be to occupy a building. That's a toxic dynamic. At the same time, it is part of the Carleton President's job to listen to and be attentive to student concerns. The President should hear what the protesters are saying not because she is forced to, but because that's part of her job description. The submission is not, or should not be, the point.

The final thought that pinged around my head related to the "no donations until divestment" campaign.  Again, it does not seem like this is making a material dent in Carleton's donations. Nonetheless, we are of course seeing many cases of donors publicly withdrawing contributions to various colleges and universities unless and until they adopt or alter this or that campus policy -- consider Bill Ackman and Harvard as an especially high-profile example. These initiatives I find a bit difficult. At one level, donors of course aren't obligated to give anybody money; if something about Harvard or Carleton or wherever renders it a place they're not comfortable supporting, that's their business. On the other hand, amongst academics it is generally viewed as a very bad thing when a university does in fact alter a policy or practice due to donor demands -- they shouldn't bow to outside pressure (and I think that this belief in institutional independence is at least somewhat severable from underlying opinions about the substantive merits of the underlying demands). So we're left in this weird space where we all agree that donors are absolutely entitled to withdraw their contributions in protest, but we also think that said protests should systematically fail.

In any event, on the whole I was pleased with how things played out at Carleton, and I'm glad that most stakeholders for the most part have comported themselves in a manner that allowed for that happy and peaceable outcome.

Recently, I had occasion to reread Charles Tilly's article "Invisible Elbow." Tilly's basic (oversimplified) thesis is that the "invisible hand" metaphor presumes far too much precision and fine-motor coordination for how social change happens, and misses the degree to which much of human action is a series of halting, try-your-best efforts that have a ton of unanticipated consequences and plenty of errors, followed by error and course corrections as we try to feel our way through to a satisfactory result. As far as the metaphor goes, instead of a delicate hand guiding change, things proceed more like trying to open a screen door with your elbow while holding a full bag of groceries. It's directional, it often works, but it's very imprecise and awkward and sometimes you miss the door and lose the groceries and everything splatters onto the floor.

I was thinking about this idea in relation to the campus protests wracking universities across the country. We've gone in the usual circles of "are they counterproductive", and my standard line on that is that whether a protest is "productive" depends on what it's trying to produce. But to give a bit more color, it seems clear to me that the protests are producing some things -- not always exactly what the protesters want, but also not necessarily orthogonal to their demands or desires either. It's not a hand, and it's certainly not invisible, but there is a visible elbow that's part of a blunt, awkward, jostling process that is creating change. That change is sometimes good, sometimes bad, sometimes in favor of the protesters, sometimes against, but one can't say the protests are not exhibiting an impact.

For example, one complaint I've heard from the protesting camp is that they're frustrated the media is focused on them rather than on what's happening now in Gaza. I'm not especially sympathetic to that complaint, but I also think they're underselling themselves -- I think the protests are actually doing a bang-up job of keeping the Israel/Gaza war forefront in American's minds at a time when it was starting to ebb a little bit. My template here was Russia's invasion of Ukraine, which riveted the nation's eyes and sparked intense activism ... for a few months. Eventually, though, it became background news as nothing really changed -- not that Russia started behaving better, but it stopped being new and fresh and started being part of the foreign policy normal. The Israel/Gaza war seemed like it was inching toward a similar status, but the campus protests (and the hyper-aggressive Columbia-style response to them) has warded that off for now. I think that has to be seen as a success for the protesters in the aggregate.

At the micro level, the "productivity" of the protests is going to depend a lot on local facts and practices. In some places, it's yielding deals to at least talk about divestment, and these deals in turn are being met with anger by Jewish stakeholder groups who are now asking "do we have to occupy a building to be heard?" My prediction on these meetings is that they will not result in termination of academic exchange programs with Israeli universities (perhaps excepting some symbolic carveouts where entire slates of programs were set to be phased out anyway -- I have to think that's what's happening here). There might be new rules on divesting from weapons manufacturers more broadly that are not structured as Israel-only one-offs but reflect some generally-enforceable decision not to invest in the sector.

It's also likely that in other quadrants the protests might generate broader-based backlash. Protesters appeared to have trashed the library at Portland State University following their occupation, it's hard to imagine that will redound to their benefit. One of Columbia's constituent schools elected an Israeli student body president propelled, it seems, in significant part by backlash to the protesters. And of course, if the protests end up giving a leg up to Donald Trump in the 2024 election -- based on a mix of "fracturing the Democratic coalition" and "independent voters just have an instinctive aversion to the sense of disorder" -- that, too, is a consequence.

On the whole, the protests are a "they" and not an "it" -- they are diverse in methods, tactics, goals, and productivity. They'll accomplish some things and fail to accomplish others, some of what they do is intended and some is unanticipated. Even if there is a "master plan", it's not going to come to fruition -- but that doesn't mean they're moot.

And the final thing I'll say is this: as someone who is generally averse to protest (and always has been -- say what you will, but for me there's no "well back in my day...." aspect to this), if you're unhappy at the conclusion that protesters are even in part driving the forces of social change either on campus or in the world as a whole, then it's incumbent on you to reflect on what other social forces might have filled the void and why they didn't. There's plenty that the protesters say or demand that I strongly disagree with. But I do think it's a positive that the institutions of American government and society are starting to treat Palestinian lives and rights as an integral part of the calculus we use to assess our policy in the Middle East, and to be blunt it's hard for me to say with a straight face that would have happened absent these sort of protest initiatives. If one doesn't like the protesters claiming credit for that shift, then one should have insisted on incorporating those interests into the calculus without the protests having been necessary. There has been a complacency (at best) in Congress for many, many years surrounding Palestinians rights and interests, and it was inevitable that void was going to be filled. If you don't like who is filling it now, ask yourself why the domain had been left empty for so long.

My next law review article is on academic speech issues and the regulation of campus protest. You know, taking a break from the fraught topic of antisemitism and shifting over to something placid and uncontroversial. The article was accepted for publication in March, but I did ask my editors if I could make some revisions before we started the editing process due to, er, recent developments (they've been very supportive).

The framing device for my article was the student protests of a talk by Fifth Circuit Judge Kyle Duncan at Stanford Law last year (remember that?). Much of the attention surrounding that incident focused on the behavior of the Stanford administrator on-site, Tirien Steinbach. Steinbach was widely pilloried for her performance, which critics said was insufficiently protective of Judge Duncan's free speech rights and too accommodating towards the protesters. My view was that Dean Steinbach was being unfairly maligned -- she actually did a decent (not perfect, but who is?) job and that people were underestimating the difficult position she was in and the tough cross-cutting pressures that make superficially "easy" free speech issues hard.

I wonder if Steinbach is laughing, just a bit, right now.

A particular claim one saw coming out of the Stanford incident was that the disruptive behavior of the students was attributable to past and present failures by the Stanford administration to respond to illicit protest with a stern hand. Administrative indulgence was akin to tacit support, which emboldened the students to behave even more brazenly later on, and so the cycle went. If the university stopped mollycoddling and just crushed policy-violating protests with an iron fist, the argument went, then they'd send a message to the students that such activities were not okay, successfully deter future disruptions, and restore calm and campus order. Dean Steinbach's relatively conciliatory approach towards the Duncan protest was easily slotted into a villainous role under this narrative: it was a symbol of the limp and weak-willed administrative cowering that was ultimately responsible for "bad" protests.

When one looks at what is happening on campuses today, it's hard not to feel like that argument has been pretty decisively falsified. The current wave of protests and encampments really can be traced back to Columbia, and in particular Columbia President Minouche Shafik's decision to essentially immediately respond to largely peaceful encampments on her campus with a hyper-aggressive police intervention. The result, it turns out, was not that the students were duly chastened and slunk back to their dorms; the result was a cascading series of escalations and counter-escalations at Columbia and the emergence of copycat solidarity protest encampments at universities across the country. Even if one did believe that Shafik had the formal "right" to enact her decisions, it's hard for me to imagine that anyone can call these policies success stories, regardless of whether your metric is protecting free speech, preserving campus order, defending Jewish students, or anything else.

So with the benefit of now getting to see the road-not-taken, maybe Steinbach's choice to take a more conciliatory, non-confrontational approach toward the disruption at Stanford and not immediately resort to "am I formally allowed to call in the police to drag people away" didn't emanate from some personal disdain for freedom of speech. Maybe she was actually a professional who knew what she was doing.  Maybe there are lessons we can learn from her. Maybe the prevailing administrative value in responding to protests should not be reflexive insistence on asserting yourself as the boss.

There's very little for anyone to feel good about regarding what's happening on campus right now (I share Robert Farley's worry that we're rapidly constructing a social framing where "no one can be serious about protesting the war (or countering protests of the war) unless windows are broken and billy clubs bared"), but if anyone deserves to feel the slightest bit of schadenfreudean satisfaction, its Tirien Steinbach.

UC-Berkeley Political Science professor Ron Hassner has ended his sleep-in protest, stating that the university administration has agreed to all of his requests. In particular he flagged the following:

(1) First, he asked that "all students, even the ones wearing Stars of David, should be free to pass through [Sather Gate] unobstructed. The right of protestors to express their views must be defended. It does not extend to blocking or threatening fellow students." The university has since "posted observers from the Division of Student Affairs to monitor bullying at the gate. These are not the passive yellow-vested security personnel who have stood around Sproul in prior weeks. The Student Affairs representatives are there to actively document bullying, abuse, blocking, or intrusion on personal space."

(2) The second request was for the Chancellor to "'uphold this university’s venerable free speech tradition' by inviting back any speaker whose talk has been interrupted or canceled. The chancellor did so gladly and confidently. The speaker who was attacked by a violent mob three weeks ago spoke to an even larger crowd this Monday."

(3) The third request was to fund and implement "mandatory Islamophobia and anti-Semitism training on campus". This has also apparently been arranged.

I give Ron a lot of credit. First, he's not dunking on the administration here, in fact, he gives them a lot of credit: "It is my belief that campus leaders would have fulfilled all these requests of their own accord even in the absence of my sleep-in.... At best, our sleep-in reinforced the university’s determination to act and accelerated the process somewhat."

Second, it's important to emphasize that Ron's protest did not ask or come close to asking that Berkeley silence anyone else's speech, including that of the protesters at Sather Gate. While they should not be able to obstruct Jewish students seeking to travel to campus, they have the right to present their views as well as anyone. It is not a concession but an acknowledgment of the proper role of the university administration that he did not press for them to end the protests outright.

Third, one might notice that Hassner's last demand was for antisemitism and Islamophobia training to be implemented on campus. In recent years, it has become almost cliched to hear certain putative anti-antisemitism warriors express fury whenever the fight against antisemitism is paired with the fight against Islamophobia, racism, or other forms of bigotry. They call it "All Lives Mattering" (although, when these coalitions against hate form and antisemitism isn't included in the collective, they call it "Jews Don't Count"). I've long thought that this was an abuse of the "All Lives Matter" concept, and it is notable that Hassner -- who not only has a ground-level perspective but who is actually putting his money where his mouth is in terms of combatting antisemitism -- doesn't see the pairing as a distraction or diminishment of what he's been fighting for but as an asset. More people could stand to take note.

I just finished a draft article (now before law reviews!) entitled "They Managed a Protest: Prohibitory, Ethical, and Prudential Policing of Academic Speech." As the name implies, it addresses recent controversies regarding free speech on campus, though the framing device is the Kyle Duncan incident at Stanford Law which these days feels almost quaint. In any event, one of my main objectives in the paper is to explore the position of the university administrators -- often untenured -- who are tasked with enforcing free speech policies in the context of campus protests. They occupy difficult positions, not the least because many external observers think their position is easy -- just severely punish disruptive protesters and call it day. What could be simpler than that?

One of the more common points of controversy over the "IHRA" working definition of antisemitism is the allegation that it is used to chill free speech. For what it's worth, my sense is that the attempt to censor speech has actually very little to do with IHRA as a text, and is more related to IHRA's perceived symbolic status. If IHRA didn't exist, the claims wouldn't look much different.

In any event, in assessing whether IHRA "is used to chill speech," we could look at one of two things: cases where persons trying to censor speech appeal to IHRA, and cases where persons engaging in censorship justify it by reference to IHRA. The difference between attempt and success, basically. There are undoubtedly more cases of the former than the latter, and one could fairly argue that the former shouldn't "count" both because they did not actually lead to the suppression of speech and because they're functionally impossible to police (any yahoo with a web browser can say "don't allow this speech because of IHRA"; it doesn't mean anything if they're consistently not successful).

Nonetheless, I do think it is notable when semi-prominent actors use IHRA in order to call for censoring speech. Recently, for instance, a group called the "Combat Antisemitism Movement" released a report that called for universities to adopt IHRA and then use that understanding of antisemitism to bar "Israel Apartheid Week" demonstrations (via).

Allowing this virulent form of discrimination to persist under the auspices of academic freedom is simply intolerable during a time where antisemitism is rising. If such hateful displays would not be tolerated when directed at other ethnic or religious minorities, Jewish students should not be an exception.

.... While universities have an obligation to promote a diverse marketplace of ideas, they also must ensure principles of tolerance and respect for diversity are upheld. Given that it would certainly be deemed inappropriate to set up a week-long demonstration on campus calling for the destruction of another sovereign state, such as Italy, then Israel cannot be the outlier.

On the level of free speech and academic freedom, the university indeed must permit "Israel Apartheid Week" demonstrations; just as they regularly do permit displays and presentations that are deemed offensive to other minorities. But beyond that seemingly banal but nonetheless apparently not-taken-for-granted point, much lies in the framing here. There are university demonstrations which target, for example, Chinese atrocities in Xinjiang, Turkish repression of Armenians, American police violence against racial minorities, or Russian aggression in Ukraine, in extremely harsh tones. No doubt the governments of those nations, to say nothing of any nationals present on campus, may find the claims objectionable or unfair. But the university is not permitted, nor should it be permitted, to say that such protests (and "displays" thereto) are "inappropriate" and can be banned from campus. Israel indeed cannot be the outlier.

Of course, one could argue that Israel is not properly compared to China or Russia. It is better thought of, perhaps, as an Italy. But -- leaving aside whether the university would prohibit raucous protests against Italy that were deemed offensive to Italian students (I'm doubtful -- cf. protests against Columbus Day and claims by Italian-American groups that these protests constitute anti-Italian discrimination) -- the problem is that enforcing this norm would require the university to decide as a matter of institutional policy the correctness or soundness of moral appraisals about Israel's status or conduct. This, of course, is the very centerpiece of what academic freedom is meant to avoid. As the University of Chicago's famous Kalven Report argued, "The university is the home and sponsor of critics; it is not itself the critic." It is generally not the business of universities to institutionally affirm or reject a particular political stance, whether popular or unpopular; the university rather is designed to serve as a forum where these issues can be debated and hashed out. 

This does not mean tolerating actual discrimination. But discomfort with speech, even outrageous speech, is not discrimination. To keep on the Chicago theme, the U of C's widely-praised principles of freedom of expression address this very point:

Of course, the ideas of different members of the University community will often and quite naturally conflict. But it is not the proper role of the University to attempt to shield individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive. Although the University greatly values civility, and although all members of the University community share in the responsibility for maintaining a climate of mutual respect, concerns about civility and mutual respect can never be used as a justification for closing off discussion of ideas, however offensive or disagreeable those ideas may be to some members of our community.

[....]

In a word, the University’s fundamental commitment is to the principle that debate or deliberation may not be suppressed because the ideas put forth are thought by some or even by most members of the University community to be offensive, unwise, immoral, or wrong-headed. It is for the individual members of the University community, not for the University as an institution, to make those judgments for themselves, and to act on those judgments not by seeking to suppress speech, but by openly and vigorously contesting the ideas that they oppose.

And despite the mau-mauing about what is allegedly "not tolerated" for other groups, these principles are the same that explain why Kyle Duncan must be allowed to speak at Stanford, Milo must be allowed to speak at Berkeley, and Christina Hoff Sommers must be allowed to speak ta Lewis & Clark. It's not because there aren't colorable arguments that any or all of these speeches or speakers are hateful. It's not even -- though the Kalven Report might disagree -- that the university isn't allowed to issue its own judgment about the propriety or not of the speech. It's that these judgments cannot, consistent with the basic principles of academic freedom, be used as a vector for prohibiting the speech.

Again, I don't think "IHRA", as a text, is responsible for these calls for censorship. But IHRA is symbol as much as it is text, and its symbolic usage has become increasingly tied to appeals such as this. Those who wish to promote IHRA's utility should think very carefully about standing by and letting it become an avatar of institutional censorship in this way. It does no service to the fight against antisemitism, nor IHRA's role in supporting that fight.

Let's divide the expression of certain opinions into four categories.

1. Correct. This is speech one outright agrees with -- you think is correct on the merits.
2. Legitimate. This is speech you do not agree with, but you concede is within the bounds of legitimate argument. "Reasonable minds can differ" and all that.
3. Permitted. This is speech which you neither think is correct or legitimate, but which you agree one has the formal legal right to say.
4. Impermissible. This is speech you think should be legally prohibited. 

Last week, the 8th Circuit decided Molina v. City of St. Louis, granting qualified immunity to police officers who shot tear gas at a group of lawyers (wearing bright green hats saying "legal observer") congregating on their own property while observing protests. The lawyers contended that the police gassed them in retaliation for exercising their First Amendment right to observe the protests. In a 2-1 ruling authored by Judge Stras, the court held that it was not "clearly established" in 2015 that there was any First Amendment right to observe protests.

(Because this is the Eighth Circuit, this is not even the most outrageous qualified immunity decision authored by Judge Stras of its week. That honor has to go to Leonard v. St. Charles County Police Department, where a jailhouse nurse simply refused to give a mentally ill inmate his prescribed medication, instead placing him under suicide observation -- the end result being jail staff "observing" the man claw out his own eyeball. Is just refusing to provide prescribed medical care "deliberate indifference" to the inmate's constitutional rights? Of course not! After all, the nurse did not do nothing -- she placed the man on suicide watch! That's what's great about modern medicine: everyone knows it can be freely swapped out with "do nothing but observe the patient" with no material change in outcome. This is why nursing is such an easy and non-stressful occupational path).

The interesting thing about Molina is that the Eighth Circuit had already in prior cases appeared to recognize that there was a constitutional right to observe the police. And under the "prior panel" rule, those decisions are supposed to be precedentially binding. But the Molina panel argued that those cases only concluded that it was a Fourth Amendment violation to seize someone for observing police (since there's no probable cause to believe any crime was committed). This does not establish, in the court's view (and notwithstanding the broad language in the case stating that there is a "clearly established right to watch police-citizen interactions at a distance and without interfering."), that there is a First Amendment right that's been established.

Judge Benton's dissent makes mincemeat of this finely-parsed distinction. But I wanted to flag a particular passage from Judge Stras' opinion that appears to embody a sort of vulgar textualism that's way too clever for its own good. In a footnote, Judge Stras argues:

It is not beyond the realm of possibility that a First Amendment right to observe police exists, but our Fourth Amendment cases like Walker and Chestnut do not clearly establish it. And it makes good sense why. It is one thing to conclude that officers cannot arrest someone passively standing by and watching as they do their job. After all, in the absence of interference, there is no crime in it. But it is another matter to say that watching is itself expressive. Expressive of what? Not even Molina and Vogel can provide a clear answer.

This, to me, seems to prove way too much, seduced by the allure of a hyper-literal reading of "expression". This argument, after all, would suggest that there is no First Amendment interest in reading a newspaper or watching a television program. Certainly, the speaker is expressing something, but what is the reader or watcher expressing? For them too, we could ask "expressive of what?" One can shoehorn in an answer ("they're expressing interest in or approval of the material"), but the more obvious answer is that the First Amendment encompasses interests on both the side of the speaker and the listener, and it is a fluke of grammar that "expressive" only directly captures the former. It seems obvious to me that the First Amendment encompasses some sort of right to take in information, not just to transmit it, and any reading that denies the former under the guise of interpreting the word "expression" is completely misunderstanding how to do legal analysis.

Incidentally, many years ago there was a similar thing with Justice Thomas in his Lopez concurrence, where he tried to bring constitutional Commerce Clause jurisprudence all the way back to E.C. Knight and claim that manufacturing is not "commerce". Among his arguments was the point that, grammatically speaking, you can't really substitute "manufacturing" for "commerce" in the clause -- while one can engage in "commerce" with a foreign nation, one can't really engage in "manufacturing" with a foreign nation. This was an argument that, again, proved too much. If there was a constitutional clause authorizing Congress to "wage war with a foreign power", would the power to "wage war" permit Congress to authorize the construction of warships? As a matter of grammatical substitution, it doesn't work ("construct warships with a foreign power"?). But all that means is the broader phenomenon of "waging war" can include activities which are not grammatically interchangeable with the phrase "wage war". And so too with "commerce", which also can refer to a range of activities which, taken as a whole, operate upon or in relation with foreign nations, Indian tribes, or the several states.

It is not a good thing, but also perhaps not an accidental thing, that the turn towards hyper-textualism corresponds to judges becoming increasingly bad readers of texts. The First Amendment obviously encompasses activities that are about receiving information alongside transmitting them. Pilpul about "expression" doesn't change that.

As some of you know, there's been a bunch of controversy recently about the "free speech culture" at Yale Law School, and particularly whether the school is hospitable to conservative speech. Several conservatives have argued that particularly raucous protests that have targeted conservative speakers have crossed over into effective censorship, negating Yale's claim to be a place where diverse views can be discussed.

A recurrent theme in this series is people "blaming the Jews" for activity that is, in all relevant respects, absolutely praiseworthy. Before the series even launched, for instance, I flagged instances where the dictator of Sudan "blamed" Jews for causing the world to pay attention to the Darfur genocide. I'm dubious we were behind that trend, but certainly it'd be nothing to be ashamed of. Jews helping support worthy causes is a good thing!*

But sometimes, we can't take credit even where credit is extended. And so it is in Iran, where Ayatollah Ali Khamenei has finally spoken out about the roiling protests against gender apartheid that have torn through his nation. Does he know what's driving these demonstrations? You bet he does!

“I openly state that the recent riots and unrest in Iran were schemes designed by the U.S.; the usurping, fake Zionist regime; their mercenaries; and some treasonous Iranians abroad who helped them,” Khamenei said Monday in a speech to police cadets in Tehran, remarks which were later posted in English on his official Twitter account.

As much as I might want to tip my cap in thanks, I don't think there's any basis to assume the Zionists or their "mercenaries" are behind these protests. To say otherwise would disserve the brave Iranian women and girls who really have been taking the lead here.

But if we were involved, there'd be nothing but pride to report. All solidarity to the people of Iran demanding freedom from state repression.

* There is a somewhat serious point here, which is that an impact of antisemitic conspiracy theorizing is to constrain Jews from even valid political participation, as any tangible and/or successful intervention into the political sphere can and will be coded as validating the conspiracy. If there were widespread Jewish efforts to extend resources and support to the Iranian protesters, for instance, it probably would not be viewed as positive solidarity but rather would quickly be leveraged as proof that the protests were a Jewish plot and the protesters Zionist stooges. This can quickly become a double-bind: Jews who don't extend themselves politically are faulted for not being sufficiently solidaristic towards others, those who do are indicted for exerting undue political control and influence.

We should be talking about Raphael Warnock and Jon Ossoff's historic victories today, ensuring that incoming President Joe Biden has a Democratic House and Senate that can implement his priorities.

But we can't. Because a mob of pro-Trump extremists has stormed our seat of government, an attempted insurrection aimed at the violent overthrow of our democratic system.

This is the final fruit of Trumpian authoritarianism, eagerly abetted by the overwhelming majority of the Republican Party. Even now, Trump can barely murmur a peep against the "protesters", limply calling for peace while insisting that their paranoid fantastical grievances are in fact wholly justified and salutary. In this, he has been backed by huge swaths of his own Party, who own this blot on our national heritage almost as much as he does. Figures such as Josh Hawley and Ted Cruz deserve permanent disgrace. They cheered this on. They helped make today happen.

And of course, the limp response of the Capitol Police to these acts of White Supremacist sedition stands in such striking contrast to the heavy hand taken against Black Lives Matter protesters. We can't even fathom a similar display to this emanating from the left, because if it had come from the left the streets would run with blood. Yet even here the right plays victim, comparing a few instances of vandalism against  a violent anti-democratic putsch and suggesting that it's the left which comes out with explaining to do. If you think they've learned anything, they haven't.

The Beard and Overalls Putsch will not succeed. It will not stop our democracy. This will not be the day that the American dream dies. But make no mistake. There has to be accounting, and there has to be reckoning. The men and women responsible for allowing this to happen cannot be permitted to escape without consequence. Yes we need to heal. But part of healing means finally expunging the toxic, authoritarian, anti-democratic poison that has been allowed to course through the body politic for far too long.

I don't know if I've said this before, but I think one of the key reasons why the public largely stayed supportive of BLM protesters in the wake of violent police responses is that they occurred just weeks after we all saw right-wing protests over COVID restrictions being met with sober police restraint.

When the far-right began swarming state capitals and government buildings with assault rifles and far-right insignia, screaming about their God-given right to not do the bare minimum to keep their fellow Americans uninfected by a deadly pandemic, the police by and large stood back. They didn't start shooting tear gas and pepper spray. They didn't wade in and start bludgeoning people. There were no mass arrests. And at the time, when all of that didn't happen, I think many more establishment-minded observers viewed that as proof of policing professionalism. "They're doing their job. They don't have to support a protest to defend a right to protest. Even when people are acting manifestly crazy, the police shouldn't escalate the situation. Kudos."

[Remember this photo?]

And then, immediately after, we had another round of protests: this time about the right of Black citizens not to be executed by armed agents of the state (or -- just as bad -- yahoo vigilantes who view themselves as proxy agents of the states). And the contrast in terms of the police response couldn't have been starker. Right after we had a demonstration of how the police could stay restrained in the face of protests if they wanted to, we saw a demonstration of how the police would unleash hell on protesters whose cause they did not endorse. It badly undermined the notion that any of this was about neutral principles of law, or difficult choices in hard situations. It was a choice.

I'm trying to figure out why this round of protests against police violence feels different, in terms of the public resonance it's having, than what came before. It seems every few days we get a new wave of breathless commentary about how the backlash is coming among White suburbanites in Wisconsin and ... so far, it hasn't manifested. It'd be wrong, obviously, to act as if the entirety of America is behind the protesters or anything like that, or if there aren't important divisions and controversies among people who generally do count themselves as supporters. But in the broad sweep of things, support has been far more robust than one might have predicted based on past history.

One candidate that stands out in my mind is that the latest round of protests, sparked by the police killing of George Floyd, occurred basically immediately after a different round of protests by mostly White right-wingers angry about mask-requirements and coronavirus lockdowns. Americans had just been swamped with pictures of heavily armed and kitted-out protesters getting right up in the face of police officers and screaming at them, as the officers stoically endured the assault. A lot of people remarked that the police would be a lot less stoic about this sort of thing if non-White people tried to pull it. And then, wouldn't you know it, we immediately got confirmation.

The response to the anti-lockdown protests was tangible proof that the police could, if they wanted to, respond to high-emotion and fraught protest situations without significantly escalating the situation. So when we saw how they responded to the Black Lives Matter protests occurring essentially at the same time -- indiscriminately using force, arresting journalists and lying about it, and more -- it really underscored that these were choices the police were making that were not inevitable byproducts of having a tough job and being in a difficult situation.

Of course, the differences in how some protests are treated compared to others is nothing that new under the sun when one takes the macrolens out. But the direct juxtaposition -- where one protest immediately followed the other, and the differences in the police response was so drastic and so visceral -- I think made a serious impact. Watching the police act like basically like a type of gang caused a lot of White observers who maybe had a basic faith in the general professionalism of the police to reassess their views. And that reassessment is proving stickier than I think many anticipated.

I have mixed feelings about Hen Mazzig. But I have unambiguous feelings about the justification SJP Vassar just gave for protesting his talk on "The Indigenous Jews of the Middle East: Forgotten Refugees." at Vassar College the other day. It really demonstrates the impossible toxicity of the manner in which SJP seeks to police Jewish -- and often especially minority Jewish -- voices.

The author, Ezra Mead, begins with the nominal affirmation that "[t]he stories of Mizrahi Jews and their struggle both outside and within Israel deserve attention." But by contrast, he argues, "there is no room for 'diverse viewpoints'" or "'free exchange of ideas'" around Israeli military actions in the Palestinian territories.

But of course, Mazzig's talk was not offering [SEE UPDATE BELOW] any viewpoint ("diverse" or otherwise) on the occupation or Israeli military policies, it was -- again -- a talk on "The Indigenous Jews of the Middle East" (i.e., Mizrahi/Sephardic Jews), and he was going to tell the story of his own families dispossession in Tunisia and Iraq that ultimately led them to come to Israel. Mead is engaging in a non-sequitur -- unless, of course, Mead thinks that the mere fact that Mazzig is an Israeli Jew who is not openly contemptuous of his state's existence automatically makes anything he chooses to speak upon an apologia for Palestinian dispossession.

Which is, of course, exactly what he thinks.

It is no surprise, then, that Mead also accuses Mazzig of "pinkwashing", for I've sometimes described "pinkwashing" as encompassing nothing more than being "gay, Jewish, and not visibly burning an Israeli flag". Again: Mazzig's talk was on the history of Jews from North Africa and the Middle East (with a particular focus on his personal family history). It's far from clear that he was going to offer any significant discussion of his sexuality, specifically -- it is certainly a part of his identity he is quite open about, but it did not seem to be the direct focus of the talk itself. But no matter: a gay Jew talking about anything Jewish- or Israel-related is presumed to be and intrinsically coded as part of a plot. You know Jews -- they're only after that one thing.

The fact of the matter is that SJP protested this talk because Mizrahi Jewish history is an uncomfortable subject for them. It does not fit comfortably in the boxes that anti-Zionists (or Zionists, for that matter) wish to lay out for it. Mazzig's talk probably wasn't speaking directly to the IDF or the settlements or the occupation or military operations in Gaza. But it would speak very directly to the brute fact that the most tangible social accomplishment that has occurred under an anti-Zionist banner has not been the enfranchisement of Palestinians (even in circumstances where they live under anti-Zionist political jurisdictions) but the massive dispossession and virtual eradication of ancient Jewish communities throughout the Middle East.

The last thing the SJP wants to do is own that history. So they obstruct that conversation by re-narrating Mizrahi Jewish political narratives generally as being right-wing apologias for Israeli state action no matter what their substantive content is, presumably with a narrow carve-out for those few Mizrahi Jewish activists whose politics are suitably harmonious with SJP's preconceived political commitments about Israel -- i.e., the ones in which they don't have to reckon with what anti-Zionism has tangibly, brutally, concretely meant for that community.

"There is no 'free exchange of ideas' to be had about forced dispossession and ethnic cleansing" indeed.

UPDATE: Hen says that at his talk "I did speak about the occupation and voiced my opposition to it and discussed Palestinians." My guess -- again, given the title -- is that this was not the primary focus of the talk (nor did it have to be!), but perhaps I am mistaken. The broad point remains (if anything, it is strengthened given that Hen contra his SJP "interlocutors" is not "ignoring" Palestinian issues): Mizrahi Jews, Hen Mazzig included, are entirely within their rights to narrate their own history without pausing every forty-five seconds to say "and by the way, the occupation is terrible".

One thing that's been bandied about in the controversy about the DC Dyke March's decision to ban Jewish Pride flags (for being allegedly too similar to an Israeli flag) is the role that Jewish members of the DCDM played in proposing the policy, defending it public, and later in enforcing it, as part of the group of bouncers seeking to keep Jewish counterprotesters outside of the event.

But "role" is a vague term, and I'm curious about the specifics. Specifically, I can imagine three potential roles the Jewish members could have played in bringing about the Jewish Pride flag policy.

1. The policy banning Jewish Pride flags was proposed by other members, and the Jewish members agreed to it, ratified it, or otherwise signaled it was permissible.
2. Some policy regarding Jewish symbols was proposed by other members, and the Jewish members modified or modulated it -- possibly to make it more limited (i.e., initially it was a ban on all Jewish symbols), or possibly to make it more expansive (i.e. initially it was solely a ban on the Israeli flag, as such).
3. The Jewish members proposed this policy sua sponte -- it was their idea to have a policy whereby Jewish Pride flags were banned; DCDM wasn't really considering having a policy regarding Jewish Pride flags until the Jewish members brought it up.

Even if you don't live in San Francisco, some of you might have heard of Manny's. It is a social justice oriented cafe and civic gathering space in the San Francisco Mission whose owner (the eponymous Manny, an Afghan-American Jew) committed the terrible sin of wishing Israel a happy birthday. For this, his establishment has been the subject of protests by an extreme-left fringe.

The protests are not exactly big, and they haven't stopped Manny's from thriving. Nonetheless, the story made the national Jewish press, as tales like this are wont to do. A progressive Mizrahi Jewish social activist creating an affordable cafe that employs formerly homeless individuals being set upon by far-left protesters as a "Zionist gentrifier"? I know click-bait when I see it.

But today, I saw another story about Manny's, one not reported in the Jewish press but just the local San Francisco CBS affiliate: Manny's is, by far, the biggest go-to venue in the city for prospective Democratic presidential candidates. He's already hosted or scheduled to host Pete Buttigieg, Julian Castro, Kirsten Gillibrand, John Hickenlooper, Jay Inslee, Amy Klobuchar, Seth Moulton, Beto O'Rourke, Eric Swalwell, Cory Booker, Steve Bullock, and Kamala Harris. It's a roster that apparently dwarfs any other similar venue in the city. If you're a Democrat and you've got national ambitions, Manny's is the hot spot in San Francisco.

The thing is -- I don't even view this as Democratic candidates bravely defying the hard left which sought to marginalize and degrade Manny's. Why? Because I doubt their protest frankly even hit the radar screen of your average Democratic presidential campaign. There's a version of this narrative where the Democrats are visiting Manny's in "solidarity" against the protesters, but I doubt this is even a case of that. The protest movement against Manny's, in terms of its ability to exert influence on mainstream Democratic politicians, is almost certainly so marginal as to be utterly irrelevant. The CBS story didn't even mention the boycott movement (which, to be honest, may have petered out anyway). It was literally a non-story in this story.

When we talk about the supposed creeping influence of the extreme anti-Israel left on Democratic Party politics, this really needs to be kept in mind. There are chicken littles who view every crank carrying a "Zio-Nazi" poster or campus activist calling Hillel an instrument of Zionist repression as the next head of the DNC. And then there's my position is that fringe is fringe, and that the breathless coverage such groups get by the Jewish press massively overstates their influence on anything that remotely approaches a mainstream liberal institution. The popularity of Manny's among visiting Democratic luminaries certainly seems to be powerful evidence in favor of the latter posture. This big scary far-left protest that got coverage across the national Jewish press? Turns out, it didn't even register as a blip in terms of Manny's viability as a Democratic organizing space.

I can't say I blame the extreme-left protesters for trying to portray themselves as bigger than they are -- the voice of the people! (What's the alternative: "We're a tiny fringe that has no real constituency but nonetheless ought to be viewed as the sole authentic representative of the people, because something-something-revolutionary-vanguard!"?). But we certainly don't have to indulge them.

We should struggle against the availability heuristic on our own time. Fringe remains fringe.