In 2015, a group of undergraduates applied to establish Students for Justice in Palestine (SJP) as a club at Fordham University in New York City. In accordance with the school’s policies, the students submitted paperwork stating that their goal was to “build support in the Fordham community among people of all ethnic and religious backgrounds for the promotion of justice, human rights, liberation and self-determination for the indigenous Palestinian people.” The applicants also stated that the club would participate in the Boycott, Divestment and Sanctions (BDS) campaign against Israel. In 2016, Fordham’s Dean of Education denied the club’s application on the grounds that it would likely be polarizing, singling out its support for BDS. The students took Fordham to court. In August, a New York judge struck down the Dean’s decision as “arbitrary and capricious.”
The court’s verdict was a win for the Fordham students. But the fact that setting up their club required four years and a lawsuit is telling. As the judge noted, Fordham has clear rules about creating clubs, and they don’t include a requirement to avoid polarization. In invoking a new standard, the Dean was plainly discriminating against SJP.
Fordham is not alone. In recent years, pro-Palestinian students and faculty across the United States have faced barriers in seeking to exercise their rights—including bureaucratic stonewalling, punitive legal actions and termination of employment.
These responses often are initiated by Pro-Israel groups, which seek to silence Pro-Palestinian voices by using tools ostensibly designed to counter racism. Such tools include civil-rights lawsuits; an expanded definition of anti-Semitism (one that equates legitimate criticism of the Israeli government with prejudice against Jewish people); and an outsized concern with intellectual “safety,” according to which robust criticisms of Israel are said to harm Jewish students. This silencing campaign presents itself as inclusive and therapeutic. In reality, it poses a significant threat to intellectual and academic freedom, yet one that seems perennially overlooked in the campus speech wars.
The nature of that threat will be obvious to anyone sympathetic to the Palestinian cause. But the campus crackdown on Pro-Palestinian voices should also concern those with no special interest in this subject. Free inquiry is not just an intellectual value. It is also a moral one. As the political philosopher Ronald Dworkin aptly observed, “academic freedom plays an important ethical role not just in the lives of the few people it protects, but in the life of the community more generally.” The more that freedom is compromised, the greater the risk of an enforced intellectual conformity, not just for wild-eyed professors with unwelcome views, but for everyone.
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The Israeli operation Summer Rains marked a turning point in the history of American free speech. The 2006 military action was the first in a long-running series of clashes between Israel and the Hamas-run Gaza Strip. Summer Rains began a pattern of Israel responding to rocket fire and other violent provocations with overwhelming force. The 2014 Gaza War was perhaps the starkest example. A United Nations report found that while both sides committed war crimes, Israel killed over 2,200 Palestinians, 65 percent of whom were civilians. Of the 73 Israeli dead, all but six were soldiers.
The conflict coincided with the rise of social media. For many Palestinian supporters, the defining image was a photo of a dead Palestinian girl on a beach tweeted by Anthony Bourdain, later retweeted over 14,000 times. The increasing availability of unfiltered images of Palestinian casualties sparked an upsurge in pro-Palestinian activism on U.S. campuses—activism that has met with its own disproportionate response.
This history is documented in The Palestine Exception to Free Speech: A Movement Under Attack in the US, a 2015 report from Palestine Legal, a group that, by its own description, “protects the civil and constitutional rights of people in the U.S. who speak out for Palestinian freedom.” Their report catalogs incidents stretching back over the previous decade, and notes that threats to the intellectual freedom of pro-Palestinian groups were reported especially frequently in 2014 and the first half of 2015, a period during which Palestine Legal responded to 292 incidents of alleged censorship or punishment—as well as 101 further requests for legal assistance in anticipation of such actions. According to The Palestine Exception, “the overwhelming majority of these incidents—89 percent in 2014 and 80 percent in the first half of 2015—targeted students and scholars, a reaction to the increasingly central role universities play in the movement for Palestinian rights.”
Targeted student activism often involved chapters of SJP, such as was the case at Fordham. SJP at Northeastern University in Boston, for example, organized the distribution of mock eviction notices in a campus dormitory in 2014, which stated (falsely) that the building was scheduled for demolition. The flyers were meant to draw attention to demolitions of Palestinian dwellings, and contained a note indicating they were not actual eviction notices. The university formally suspended SPJ for this (and for previous incidents, for which SJP denied responsibility), and its members were interviewed by police. The suspension was lifted after the American Civil Liberties Union and other rights groups challenged it as viewpoint discrimination.
Beyond SJP, targeted student groups included BAKA (Belief, Awareness, Knowledge, Action) at Rutger’s University’s New Brunswick campus in New Jersey. In 2010, BAKA held a fundraiser to support a boat that would participate in the “Gaza Freedom Flotilla,” which sought to break the Gaza blockade. The Jewish campus organization Hillel and the Anti-Defamation League (ADL) condemned the fundraising as illegal support for terrorism. Although the flotilla was advertised as a humanitarian initiative, Hillel and the ADL said that it was likely to deliver “material assistance” to Hamas, which the United States has designated a Foreign Terrorist Organization. The university prevented BAKA from donating the raised funds to the non-profit group supporting the flotilla, and ultimately redirected the money to a different charity.
In addition to listing incidents of heavy-handed responses to student activism, The Palestine Exception documents professors whose academic freedom has been compromised. While some examples concern Gaza specifically, many of the listed professors were carrying out research or teaching concerned Palestinian issues more generally. Representative examples include:
Nadia Abu El-Haj, anthropologist at Barnard College in New York City. Abu El Haj wrote a 2001 book arguing that archaeological research in Israel is conducted and interpreted with the goal of supporting the country’s territorial claims. In 2007, a graduate of Barnard who had settled in the West Bank launched a petition calling for Abu El-Haj’s application for tenure to be denied. The petition, which attracted over 2,500 signatures, alleged that she could not read Hebrew, alongside other false claims with the potential to ruin her reputation. Abu El-Haj was granted tenure, but the resulting harassment and threats compelled her to remove her phone and office-location details from the Barnard directory.
Norman Finkelstein, political scientist at DePaul University in Chicago. Finkelstein, a polemical critic of Israel and the author of controversial books such as The Holocaust Industry, used harsh and insulting language to criticize the scholarship of Harvard law professor Alan Dershowitz, a prominent defender of Israel. Dershowitz subsequently “launched a national crusade to deny Finkelstein tenure,” as the blog of Academe magazine put it. Finkelstein’s 2007 tenure file was approved by his department and by a review committee, but was ultimately denied by the university, which cited his lack of “civility” toward Dershowitz and other critics. Finkelstein has subsequently held no academic appointment at any American university.
Terri Ginsberg, cinema professor at North Carolina State University. In 2007, Ginsberg held a non-tenure track position in which capacity she hosted a Middle East film series. Members of her department encouraged her to apply for a permanent position, and notes by members of the search committee described her as the best of the “First Tier Candidates.” At a screening of Ticket to Jerusalem, about a Palestinian filmmaker who struggles to show a film in East Jerusalem, “Ginsberg thanked the audience for supporting the screening of alternate viewpoints such as the one in the film,” according to a lawsuit she later filed against the university. It alleged that she was chastised, pressured to resign from the film series and rejected for the permanent position. After losing her lawsuit, Ginsberg applied to 150 jobs but received no interviews. She now works at the American University of Cairo.
Kristofer Petersen-Overton, adjunct professor and PhD student at the City University of New York (CUNY). In 2010, Petersen-Overton was fired a week before he was scheduled to begin teaching a class on the politics of the Middle East at CUNY’s Brooklyn College. Petersen-Overton was terminated after Dov Hikind, a pro-Israel member of the New York state assembly, wrote to Brooklyn College to object that Petersen-Overton’s syllabus was overly critical of Israel and promoted suicide bombings. Petersen-Overton was reinstated after protest by hundreds of academics at CUNY and elsewhere.
Steven Salaita, professor of English at Virginia Polytechnic Institute and State University. In 2013, the University of Illinois Urbana-Champaign offered Salaita a tenured faculty position, only for the university’s chancellor to withdraw the offer the next year. The chancellor cited intemperate comments Salaita made on Twitter during the 2014 bombardment of Gaza. Salaita became a cause célèbre and won an $875,000 settlement against the university, yet was unable to find academic work in the United States. After taking a one-year position at the American University of Beirut (AUB), a search committee there recommended he be offered a permanent position, at which point AUB’s president cancelled the search. Salaita’s supporters expressed concern that “AUB is reproducing the trend of persecuting scholars who condemn the injustices in Palestine.” Salaita now drives a school bus outside Washington D.C.
Rabab Abdulhadi, ethnic studies professor at San Francisco State University. In 2014, Abdulhadi made a presentation about a recent trip to the Middle East in which she offered what she later described as “criticism of Israel state policy and Palestinian conditions under occupation.” The AMCHA Initiative, which describes its mandate as opposing campus anti-Semitism, accused Abdulhadi of misrepresenting her trip, which it alleged had included meetings with more than one “known terrorist.” AMCHA, whose allegations were co-signed by seven other organizations, charged that Abdulhadi’s presentation contributed to a “hostile environment” for Jewish students. After an investigation, the university found the allegations to be without merit. Despite this finding, the university subsequently audited Abdulhadi’s international travel from the preceding five years.
Abdulhadi continues to be embroiled in controversy, which she has sometimes exacerbated with defiant rhetoric expressing intolerance for opposing views (e.g. “Zionists are NOT welcomed on our campus”). Abdulhadi, in turn, has been denounced as a “collaborator with terrorists” and promoter of “Jewhatred” in posters put up around her campus by the David Horowitz Freedom Center, a conservative think tank that some have accused of Islamophobia. In 2017, Abdulhadi also became the subject of a lawsuit initiated by the Lawfare Project, a New York organization that called itself “the legal arm of the pro-Israel community.” The lawsuit was dismissed, but Abdulhadi is currently embroiled in a separate lawsuit against her university, which she alleges has discriminated against her.
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In the years since the publication of The Palestine Exception, pro-Palestinian students and scholars have continued to face challenges to their intellectual freedom. These include Paul Hedweh, a student at the University of California, Berkeley, who taught in a school program that allows undergraduates to teach a one-credit class. In 2016, Hedweh’s class, Palestine: A Settler Colonial Analysis, was cancelled after the AMCHA initiative sent a letter co-signed by 43 organizations to Berkeley’s chancellor protesting that the course was “intended to indoctrinate students to hate the Jewish state.” The class was re-instated after widespread public outcry.
Palestine Legal’s most recent annual report indicates that in 2018 it responded to 289 incidents of suppression, noting that of these, “seventy-six percent targeted students and scholars at 68 campuses across the country.” There may be no other group in American academia whose intellectual freedom is so precarious. In this way, the Palestinian exception reveals the shortcomings of two dogmatic narratives about campus speech.
The first is a narrative of conservative martyrdom. It frames academia as singularly intolerant of right-of-center views. “In case after case, I’ve seen conservative professors fired or punished in spite of possessing superior academic credentials,” David French wrote in a representative article in National Review in 2017, which mentioned no cases involving non-conservatives. Violations of the intellectual freedom of conservative professors and speakers are a serious problem, but constant repetition of the conservative narrative has given rise to the false belief that they have no equivalent elsewhere on the political spectrum.
The second dogma is one of liberal complacency. Although this narrative comes from the left, it is reactionary in the literal sense that it approaches the campus speech debate with the sole goal of rebutting conservative complaints.
A 2018 article by Chris Ladd in Forbes is typical. “Our phoney free speech crisis is a pet theory of people triggered to sputtering outrage by a black man who fails to stand for the national anthem,” Ladd writes, referring to former National Football League quarterback Colin Kapernick. “Whining like pampered little snowflakes, they scramble to establish some form of ‘safe space.’” Like other proponents of this view, Ladd is so concerned with turning conservative hyperbole back on itself that he ends up advocating free-speech quietism. Hence his article’s headline, There is No Free Speech Crisis On Campus, which sums up a view also frequently heard on progressive social media.
The Palestinian exception is a free-speech crisis on campus. It should be recognized as such, even if one has doubts about the Boycott, Divestment and Sanctions campaign. Plausible critics of that campaign include Noam Chomsky, whose credentials as an outspoken critic of Israel are impeccable. Chomsky has argued that the BDS campaign is fatally limited by having as one of its goals a mass return of Palestinian refugees to Israel, as “there is virtually no meaningful support for [mass return] beyond the BDS movement itself.” BDS may well be an unrealistic movement, yet one that some may argue still deserves reluctant and partial support, because it is one of the few forces pressuring Israel to improve its treatment of Palestinians.
But even if one were to concede that BDS is totally misguided, the assault on the academic freedom of its advocates should still be seen as unacceptable. At issue is whether pro-Palestinian advocates can engage in free inquiry, not whether they are beyond criticism.
There have been cases of BDS proponents seeking to suppress the speech of others. They include an incident at the University of California, Irvine, in which SJP disrupted a presentation by Reservists of Duty, an anti-BDS group made up of Israel Defense Forces veterans. Video of the 2018 event shows protestors chanting to drown out the reservists, who calmly respond by holding up an Israeli flag and a sign saying, “Do you want to talk or do you want to shout?” Similarly, even though Salaita regularly distinguished Zionism from Judaism, there is no defence of his tweet about the 2014 Gaza War that said, “by eagerly conflating Jewishness and Israel, Zionists are partly responsible when people say antisemitic shit in response to Israeli terror.”
The problem with opponents of BDS and pro-Palestinian voices is that they go far beyond criticism, and seek systematic suppression. The case of Abu El-Haj, the Barnard anthropologist, is instructive. The language she employed in her aforementioned 2001 book, Facts on the Ground: Archaeological Practice and Territorial Self-Fashioning in Israeli Society (which predated BDS), was sober and restrained. Yet despite the scholarly care she took in expressing her views, she was still vilified in a manner meant to remove her from her job.
In the years since Abu El-Haj’s case, pro-Israel entities have devoted extraordinary energy and resources to suppressing speech supportive of BDS, regardless of what form it takes. In 2015, for example, U.S. casino magnate Sheldon Adelson and media proprietor Haim Saban convened a conference said to have raised “at least $20 million” to push back against BDS campus activism. Similarly, Israeli Prime Minister Benjamin Netanyahu is reported to have met with senior cabinet ministers to strategize against BDS. According to The Jerusalem Post, one proposal raised at the meeting was to encourage “anti-boycott legislation in friendly capitals around the world, such as Washington, Ottawa and Canberra.”
U.S. politicians needed little prodding. Since 2014, 27 U.S. states have introduced anti-BDS legislation. In February, the U.S Senate passed “The Combating BDS Act of 2019,” which states that anti-BDS laws at the state level cannot be pre-empted by federal law. The future of that legislation in the House of Representatives is uncertain. (In July the House passed a non-binding resolution condemning BDS, but the senate bill, which is more consequential, may generate more resistance.) Regardless of whether or not Washington ultimately passes binding anti-BDS legislation, the extraordinary interest that senators and members of congress have taken in condemning BDS sends a speech-chilling message of its own, and only encourages further censorship at the local level.
In addition to trying to censor BDS out of existence through legislation, critics of BDS also have made use of civil-rights lawsuits. Title VI of the Civil Rights Act prohibits discrimination by institutions that receive federal funding. The AMCHA Initiative, the Zionist Organization of America and other non-government organizations sympathetic to Israel have filed half a dozen Title VI complaints targeting pro-Palestinian activities at public universities, arguing that they serve to create a hostile environment for Jewish students. To date, every complaint has been rejected. But even when they are denied, lawsuits still have the potential to chill speech. This has been pointed out by Kenneth Marcus, former general counsel for the Louis D. Brandeis Center for Human Rights Under Law, who helped formulate this legal strategy:
Seeing all these cases rejected has been frustrating and disappointing, but we are, in fact, comforted by knowing that we are having the effect we had set out to achieve…These cases—even when rejected— expose administrators to bad publicity…No university wants to be accused of creating an abusive environment…Israel haters now publicly complain that these cases make it harder for them to recruit new adherents…Needless to say, getting caught up in a civil rights complaint is not a good way to build a resume or impress a future employer.
Future complaints may be more successful: Marcus is now the Assistant Secretary of Education for Civil Rights at the U.S. Department of Education, where Title VI cases are decided.
The AMCHA Initiative, the Brandeis Center and similar groups view themselves as countering anti-Semitism. The definition of anti-Semitism they employ, however, has long been controversial. According to the so-called State Department definition, anti-Semitic expression includes not only prejudicial expression about Jews but also the “Three D’s”: demonizing Israel, delegitimizing Israel and holding Israel to a double standard. The expanded definition is a response to a genuine problem, that of anti-Semitic speech which cloaks itself as criticism of Israel. The State Department definition however, particularly as it is wielded by pro-Israel NGOs, goes too far the other way, and labels fair criticisms of Israel as racist. AMCHA co-founder Tammi Rossman-Benjamin, for example, has said that under the State Department definition, all BDS activity would qualify as anti-Semitic (as would mock eviction notices).
Beyond dealing with civil rights lawsuits and a weaponized definition of anti-Semitism, pro-Palestinian scholars and activists also have had to contend with a more basic obstacle: the increasingly pervasive ideology of intellectual “safety,” which encourages students to view disagreeable political speech as psychologically harmful. Writers of letters and emails sent to the University of Illinois chancellor during the Salaita controversy applied this tactic. One message read, “as a Jewish student I would NOT feel safe in his classroom.” Another asked: “Do you want to run a university where your students don’t feel safe?” Similarly, when SJP launched a campaign to encourage Depaul University to divest from companies involved in Israeli’s occupation of Palestinian territory, Breitbart’s coverage was headlined, “Jewish DePaul student: ‘I no longer felt safe on campus.’”
Of course, the ideology of safety is not a result of pro-Israel NGOs coaching students. It is a habit of mind that increasingly comes naturally to well-intentioned people, who overlook the threat to open inquiry and debate that can result from viewing deep political disagreements, a normal feature of campus life, as a threat. The same danger holds for appeals to “civility,” which were deployed in regard to the removal of Finkelstein and Saliata, and for claims that criticisms of Israel create a “hostile environment” for Jewish students. These familiar tropes portray students as intellectually fragile creatures who need to be protected from dangerous ideas. The ease with which they can lead to curtailing free inquiry has of course been documented many times, most often by critics of “political correctness.” But the Palestinian exception shows that progressive causes can themselves be silenced in the name of sensitivity.
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In recent decades, the right to free inquiry has lost some of its progressive sheen. This was observed by Ronald Dworkin in the 1990s, when he gloomily noted how the images and associations conjured by “academic freedom” had changed over his lifetime. For leftists of Dworkin’s generation, who came of age in the 1960s, academic freedom brought to mind communist professors and opposition to loyalty oaths. “Liberals and radicals were all for academic freedom. Many conservatives thought it overrated or even part of the conspiracy to paint America red,” Dworkin wrote in Freedom’s Law (1996). By the 1990s, however, the idea of academic freedom more often was applied to battle campus speech codes prohibiting allegedly racist and sexist utterances. “Now it is the party of reform that talks down academic freedom and conservatives who call it a bulwark of western civilization,” Dworkin observed ruefully. His response to this development was to reaffirm academic freedom as a deeply egalitarian value.
The right to free inquiry often has been defended on instrumental grounds. According to that defence, a society that upholds academic freedom is more likely to discover important intellectual truths. But there are possible restrictions on academic freedom, such as a narrow ban on universities hiring Holocaust deniers or 9/11 Truthers, that would seem to present no barrier to uncovering the truth. So while advancing the truth is one part of the rationale for academic freedom, purely instrumental defences are not enough.
As noted earlier in this essay, we also need academic freedom because of the role it plays in exemplifying what Dworkin called “ethical individualism.” This is the value liberal societies uphold in protecting individual conviction and its expression. It is based on the idea that each of us has the right, and the responsibility, to determine for ourselves what gives shape to a valuable life. Fulfilling this responsibility requires the freedom to live and speak in accord with the truth as we see it.
This responsibility, of devoting ourselves to the truth, is incorporated in different occupations to different degrees. Salespeople, for example, cannot lie, but they are also not obliged to give a strictly neutral description of their products. Doctors are held to a higher standard than telemarketers, but even their strong commitment to the truth can be qualified by a concern with what it in the best interests of a patient to hear. Of all vocations, academics have the greatest obligation to pursue the truth. Their occupation entails, in Dworkin’s words, “an undiluted responsibility to the truth, and it is, in that way, the closest a professional responsibility can come to the fundamental ethical responsibility each of us has, according to the ideals of ethical individualism, to live his life in accordance with his own felt convictions.”
The ethical defence, in short, values academic freedom not just because it helps us discover the truth. Academic freedom also provides a model of what it is to live in truth, which is ultimately the concern of everyone. So even though members of Students for Justice in Palestine are not academic researchers, in devoting themselves to a political cause they, too, are exercising ethical individualism, as are student groups with opposing views on Israel-Palestine.
Contempt for ethical individualism is at the root of why authoritarian regimes in Hungary, Turkey and elsewhere are so hostile to academic freedom. Such freedom contributes to a culture of independence in the wider society. In this way, robust academic freedom is a mortal threat to the culture of conformity that takes purest form under authoritarianism, but which can also occur in democracies, as during the McCarthy period. As Dworkin warned, “an invasion of academic freedom is…dangerous for everyone because it weakens the culture of independence and cheapens the ideal that culture protects.”
What expression is protected by academic freedom, and what is allowed under the law, are separate questions. For its part, the ethical conception of academic freedom does not protect every imaginable form of expression. Burning a cross on the lawn of a historically black college; spray-painting a Swastika in a Jewish student’s dorm; using (as opposed to merely mentioning) racial slurs: None of these forms of expression is protected by academic freedom, because each is clearly motived by a conscious intent to cause distress. No one’s ability to live in truth is compromised by being asked to communicate in a manner that avoids deliberate cruelty.
This limit to academic freedom is worth emphasizing because it is at odds with the far more restrictive conception of academic inquiry that proponents of the Palestinian exception, however unwittingly, enforce. This is evident in many methods they employ. But the ideology of safety, which increasingly informs the use of all the other tools, including anti-BDS legislation, may provide the clearest example.
Whether a statement is a threat to someone’s “safety” is now widely seen as a matter of its impact on the hearer. According to the ethical conception of academic freedom, however, hurt feelings are not grounds to restrict speech and inquiry. This is not because the impact of our words is a trivial matter, or because college students today are sensitive little snowflakes. Academic freedom applies to a relationship, that between hearer and speaker, and in determining if someone has gone beyond the proper bounds of free inquiry, we need to give some weight to the interests of the speaker. In particular, we need to consider what motivated the speech in question. Only in cases in which causing distress is not a mere side effect of trying to get at the truth, but a speaker’s deliberate goal, does academic freedom fail to apply. We apply a counter-factual test: Would the person have said what they said if they did not think it would hurt the listener? By that standard, cross-burnings, swastikas and racial slurs fail. Speech that is incidentally distressing—including controversial political advocacy—does not.
There are many ways in which participating in academic life can cause us to feel indignant, startled or even wounded. A historian might demonstrate that some beloved leader or ancestor was a monster; a philosophy professor might challenge our most cherished religious beliefs; a theologian or a women’s studies professor might call into question our views on abortion or sex. Viewing the offense that free inquiry can cause as grounds to restrict it is incompatible with the proper working of academia, a major function of which is to give life to a culture of independence. Making that culture available to everyone will always permit no exceptions, Palestinian or otherwise.
Andy Lamey teaches philosophy at the University of California, San Diego, and is the author of Duty and the Beast: Should We Eat Meat in the Name of Animal Rights? (Cambridge University Press).
Featured image: 2015 public display presented by Columbia Students for Justice in Palestine.
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