Several Jewish students at the University of Massachusetts, UMass, have filed a lawsuit in Massachusetts state court seeking to block the school from hosting a May 4 panel that includes Linda Sarsour, Marc Lamont Hill, The Nation sportswriter Dave Zirin, and British singer Roger Waters. The students are right to draw attention to the noxious views of the speakers and the support for anti-Israel extremism within their school’s own administration. But they are wrong, and perhaps dangerously so, to mount a legal case that relies on shutting down speech by equating it to a form of intimidation. That stance not only pits them against the deep, and mainstream, American tradition of defending free expression, but it also legitimates a set of ideas that will be used against Jewish groups who, as a minority on campus, are especially reliant on the First Amendment.
An organization called Not Backing Down had invited the quartet, and two UMass academic departments—Communication, and Women, Gender, and Sexuality Studies—found the Sarsour-Hill-Waters message significant enough to co-sponsor the event.
News of the panel has generated widespread condemnation from local and national Jewish organizations. The ADL’s regional director, for instance, wrote to the UMass chancellor to express concerns about the program “featuring speakers who engage in rhetoric that demonizes the State of Israel and seeks to marginalize its supporters,” raising “significant consternation among Jewish students and many others on campus and in the community.” Dozens of pro-Israel organizations added their concerns, though they made clear they were “not asking that this event be shut down.”
The panel and its speakers deserve this criticism. Unfortunately, a lawsuit seeking to shut down the event not only will almost certainly fail, it likely will weaken the position of Jewish and pro-Israel students on campus. The factual aspects of the complaint are undeniable. The students’ legal complaint notes, for instance, that departmental co-sponsorship left the “clearly intentional” impression that at least a majority of faculty in these departments support BDS. The complaint also recaps the ugly pasts of the speakers—ranging from Sarsour’s connections to Louis Farrakhan and anti-Semitism in the Women’s March leadership (a background first exposed in detail by Tablet) to Hill’s glib celebration of terrorists and endorsement of calls for Israel’s destruction, to Waters’ ill-concealed anti-Semitism.
Nonetheless, beyond the obvious legal problems—there is, as the Foundation for Individual Rights in Education (FIRE) long has pointed out, no “hate speech” exception to the First Amendment, and UMass is a public institution—the lawsuit suffers from two tactical shortcomings.
First, the filing allows Waters, Sarsour, and Hill to position themselves as victims, and attract allies, like the ACLU, that might not otherwise be in their camp. Rather than confronting the actual content of the speakers’ ideas, with its thinly veiled anti-Semitism and extremist position on Israel, the lawsuit has shifted the debate to First Amendment principles, which allows the panelists to position themselves in the mainstream as upholders of free speech. This is an outcome that no defender of Israel or campus Jews should desire.
Second, the legal threat sets a dangerous precedent. In fact, the students would be better served if the lawsuit failed. Otherwise, the resulting ruling would create a precedent that almost certainly would harm pro-Israel students and faculty. At most schools—and virtually all elite residential colleges or research universities—defenders of Israel are a minority, whose strength is declining as liberals and those further left on the ideological spectrum grow more sympathetic to the Palestinians and hostile to Israel. (That student government organizations are now almost routinely considering BDS resolutions even as they remain silent about human rights issues in every other country in the world provides a glimpse of the problem.) In this environment, pro-Israel voices need robust protections of the First Amendment and academic freedom as a bulwark against majority efforts to silence a diverse perspective on Middle Eastern matters.
In this respect, some of the lawsuit’s language, which suggests that exposure to troubling ideas is a kind of victimization, is deeply problematic. It urges judicial intervention in part because flyers for the event have left Jewish students feeling “fearful and intimidated.” (Imagine how easily this standard could be used to suppress a campus address by any Israeli legislator or policy analyst to the right of Meretz.) The complaint (accurately) notes that none of the members of this highly imbalanced panel have “moderate” views—but such a vague standard, if adopted, easily could apply to any address by supporters of Israel on campus as well. The students frame their cause through anti-discrimination and anti-harassment principles—approaches that would almost certainly be turned against defenders of Israeli security, on grounds that they’re discriminating against Muslim students on campus.
That litigation (or pressure on the chancellor to urge a change in the panel’s composition) is a self-defeating strategy, doesn’t mean Jewish students or their supporters at UMass should remain silent. Indeed, the director of the UMass Hillel, Rabbi Aaron Fine, identified the key problem with this event: “We are,” he noted, “particularly disconcerted that the event is being co-sponsored by two University departments.” It would be reasonable for the UMass administration and especially its board of trustees to examine the procedures used to co-sponsor events—and, more broadly, the intellectual and pedagogical atmosphere in the departments.
It’s inconceivable that two academic departments at a major research university would have co-sponsored a talk by figures with records of racism toward African Americans (such as David Duke) or Hispanics (such as former Sheriff Joe Arpaio). So why did the departments have no problem with co-sponsoring a campus visit from people with racist attitudes toward Jews? Does the decision suggest a lack of intellectual diversity within the departments, or a willingness by at least some of their faculty and perhaps the departmental leadership to treat Jewish students unfairly? These questions, which are reasonable ones in light of the decision to co-sponsor, fall well within the scope of a trustees’ inquiry.
Rather than seeking to shut down the event, students could use their own free-speech rights—either through peaceful, nondisruptive protest, or, more effectively, by organizing an event of their own highlighting the tolerance too many on the contemporary academic left have for those who traffic in anti-Semitic tropes.
Using the tools of shared academic governance and the protections supplied by the First Amendment represent more fruitful strategies than litigation for combating anti-Israel and even anti-Semitic speech on campus. The same tools will also prove to be Jewish students’ best defense, and once thrown away for immediate tactical victories, as in the fight at UMass, will not be easily regained.
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KC Johnson is professor of history at Brooklyn College and the CUNY Graduate Center.