Can Noise Give Way to Civility?

An exploration of the limits of free speech

Source: Democracy and Me

One my favorite legalistic maxims goes like this: my right to swing my fist ends where your nose begins. The idea, of course, is that we all have a marvelous amount of freedom in the U.S. – much more than in many other countries — but we also must live amongst others. And that “living amongst” part means our individual freedoms go only so far; they are not unlimited.

In physical terms, the limits are easy to define. Along with not having the unfettered ability to toss our hands about, we can’t drive the wrong way down a one-way street. We can’t run naked through our neighborhood, no matter how entertaining that might be for some folks. No matter how much we like the Stones, we can’t blast loud music at all hours in most communities. And we can’t, of course, shout fire in a crowded theater.

But when the subject is intellectual freedom, what are the boundaries? When does one’s ability to argue, to question or to demonstrate cross a line into harassment or intimidation? And what ideas or values are simply beyond the pale, too extreme to tolerate even on a college campus dedicated to academic freedom? When do noxious notions become the equivalent of shouting fire?

Since the atrocities of October 7th in Israel, we have heard much shouting, particularly by pro-Palestinian groups at campuses nationwide. We have also seen efforts to suppress or to contain such outpourings, in part because administrators fear violating Title VI of the Civil Rights Act of 1964, which requires schools to provide all students an environment free from discrimination based on race, color, national origin or shared ancestry.

The noise has grown since the federal Department of Education on Nov. 7 issued a letter reminding schools of their obligations under the law. The DOE has also launched a bevy of investigations, including into a slew of K-12 districts around the country and at least 44 universities and colleges for alleged violations of that law. The allegations include incidents of antisemitism and Islamophobia, often as a result of demonstrations that make Jews or Arabs feel threatened.

Source: Harvard Gazette

Indeed, at Harvard dueling investigations have been spurred by students or alumni who feel aggrieved. The DOE on Feb. 6 announced an investigation into whether the university failed to protect Palestinian, Arab and Muslim students and their supporters from harassment, threats and intimidation. This came on the heels of probe announced in November alleging that the school failed to respond to antisemitism on campus.

The Muslim Legal Fund of America filed the complaint that generated the early February inquest on behalf of more than a dozen anonymous students. A lawyer for the group told The Harvard Crimson that the students complained of “negative treatment by both the administration and Harvard officials as well as fellow students on campus.” The most common complaint was that students were verbally abused for wearing a keffiyeh, a scarf that has become a symbol of advocacy for Palestinians.

“When they simply walk around campus wearing the keffiyeh, they have been verbally attacked, they have had things thrown at them,” the lawyer said. “They have had students and others accuse them of being terrorists for what they’re wearing.”

On the flip side, the department’s investigation begun in the fall followed a complaint by several alumni that Harvard failed to protect students from antisemitism. And separately, a group of students at the school sued on Jan. 30 in federal court, alleging that Harvard “has become a bastion of rampant anti-Jewish hatred and harassment.”

As the lawsuit describes it, Harvard seems like a hellish place.

“Mobs of pro-Hamas students and faculty have marched by the hundreds through Harvard’s campus, shouting vile antisemitic slogans and calling for death to Jews and Israel,” the suit says. “Those mobs have occupied buildings, classrooms, libraries, student lounges, plazas, and study halls, often for days or weeks at a time, promoting violence against Jews and harassing and assaulting them on campus. Jewish students have been attacked on social media, and Harvard faculty members have promulgated antisemitism in their courses and dismissed and intimidated students who object.”

While the lawsuit maintains that Harvard refused to “lift a finger to stop and deter this outrageous antisemitic conduct and penalize the students and faculty who perpetrate it,” in fact Harvard has created two presidential task forces to combat Islamophobia and antisemitism on campus. In a wrinkle curious because of its academic freedom overtones, one task force is co-chaired by Derek J. Penslar, who heads the school’s Center for Jewish Studies and who became a lightning rod for critics who damn him as too critical of Israel. Ironically, Penslar’s book “Zionism: An Emotional State,” was named a finalist for the 2023 National Jewish Book Award by the Jewish Book Council, and he was widely defended by scholars and rabbis.

Setting up task forces to develop policies to curb Islamophobia and antisemitism has become a common first step at several campuses. But some schools have also taken aggressive action — action that troubles free-speech advocates.

MIT, Source: The Times of Israel

As reported by Inside Higher Ed, MIT, Stanford and Brown, for instance, have all cracked down on pro-Palestinian actions that they said flouted university rules. MIT, along with several other schools, recently suspended student groups for failing to follow rules about protests and Stanford quashed a 120-day sit-in on a campus plaza by first threatening disciplinary action and then by agreeing to talk over the student concerns. At Brown, 19 students taking part in a weeklong hunger strike for Palestine claimed that university officials removed “memorial flags” and washed away chalk messages at recent gatherings as they urged the university to divest its endowment from arms manufacturers.

The question this raises is: just what is acceptable speech and action on campuses? Where does one draw the line?

The Foundation for Individual Rights and Expression takes a maximalist view: “The mere expression of an opinion — however repugnant — is always protected. The authority to regulate ‘hate speech’ — an inherently vague and subjective label — is a gift to those who want an excuse to stamp out views they personally detest. FIRE knows from its long history defending free speech on campus how often both sides of the Israeli-Palestinian debate face censorship under this rationale. The target simply depends on who holds power at a given time and place.”

But when does free expression slip into harassment and intimidation? Some cases seem clear. For instance, at the University of Denver, religious items affixed to student doorposts – mezuzahs – were recently torn down from couple dorm rooms and one was defaced. Those are incidents of vandalism, not matters of acceptable expression, and the school administration deplored them. At one dorm there, moreover, pork, which observant Jews shun, was left at a student’s door – a clear case of harassment, it would seem.

Is that the same, however, as people marching and carrying banners that decry the deaths of members of various groups, whether Jews or Palestinians? Should it be illegal to stand up for one’s group, even loudly? And if those marches make members of one group or another feel threatened, should such feelings be the test? Is the freedom to speak one’s mind in an academic setting a value to be protected, regardless of whether it discomfits some students?

Surely, some expression can go over the line. For instance, would any responsible university tolerate students marching with Nazi banners? Indeed, would any tolerate marches with explicitly pro-Hamas or pro-ISIS imagery? The advocates for Palestinians seem mostly to avoid such sentiments as they instead protest “genocide”  or call for ceasefires or an end to the killing in the Israel-Hamas war. Sadly, they often seem ignorant, though, about how phrases such as “from the river to the sea, Palestine will be free” are calls for the eradication of Israel.

As Ari Berman, president of Yeshiva University, contended in a recent U.S. News and World Report commentary, “Students can and should debate important matters like the Israeli-Palestinian conflict and the ethics of war in civilian areas.” Disagreeing, protesting and robustly exchanging ideas are appropriate, he suggested.

Still, as Rabbi Dr. Berman also noted, it would be useful to have “moral clarity” about the war on the agenda at campuses all across the U.S. Making his point, he argued that those who protest for a “free Gaza” should also want it free of Hamas. “In fact, being clear about this distinction could actually help calm campus waters and enable more productive conversations,” he maintained.

Certainly, defenders of Israel will agree that the nation has the right to quash a terrorist group whose barbarism is on par with that of ISIS or other similar groups. Indeed, that may be where well-informed faculty need to step up and educate those who are doing much of the shouting.

Of course, such schooling won’t end disagreements. If education could “calm campus waters” such that civil discussion can replace shouting, we’d all be better off. Sadly, however, at a time when many are dying, emotions are understandably running hot. And that makes free speech difficult.

“People are unrealistic when they say, ‘We want free speech, we want debate, we want difficult conversations,’” legal scholar Randall Kennedy recently told The New York Times. “But then we want all smiles.”

Source: The Philadelphia Citizen

Indeed, the arguments over free speech are slipping into debates over academic freedom, which has come under threat from conservative politicians such as Florida Gov. Ron DeSantis. As the Times noted, DeSantis “has led the passage of laws that restrict what can be taught and spearheaded efforts to reshape whole institutions.”

As the newspaper reported, the Israel-Hamas War has upended longstanding campus arguments over whether conservative voices and ideas were being suppressed. Now, it seems, liberal defenders of Palestinians are making the case that they are being muzzled.

“Some ask why, after years of restricting speech that makes some members of certain minority groups feel ‘unsafe,’ administrators are suddenly defending the right to speech that some Jewish students find threatening,” the paper wrote. “Others accuse longtime opponents of diversity, equity and inclusion efforts of cynically weaponizing those principles to suppress pro-Palestinian views.”

Still, academic freedom, too, must have limits. Such freedom, some note, depends on expertise and judgment – and is not just the right to say whatever one wants. As legal scholar Robert C. Post put it, free academic inquiry depends on the notion that “there are true ideas and false ideas,” and that it is the job of scholars to distinguish them.

The protests and, perhaps, the counterprotests will continue. Arguments over Islamophobia and antisemitism will rage, too, perhaps to be clarified by lawsuits and policies that various task forces can develop. One hopes that amid all the noise, education about truth and falsity can emerge.

A Spoiler Alert

Could a real third-party candidate mean a Trump victory?

Source: Videos Index

History repeats itself, first as tragedy, second as farce – or so goes the saying attributed to Karl Marx. This year we may see a sorry mixture of both, if a credible third-party candidate arises to threaten to do what one arguably did 32 years ago, that is to unseat an unpopular incumbent president.

A friend, a committed Republican of the old-school sort, wrote me recently to say she has become an elected officer of the No Labels party in Maryland. “No Labels is likely to put forth a Unity presidential ticket that will work to deliver commonsense solutions to this country’s many problems,” she wrote. “It is my hope that we can all commit to working together for the greater good, while celebrating the differences that enrich us all.”

What is troubling is that if No Labels launches a serious contender and gains traction, he or she may do what H. Ross Perot did in 1992. The billionaire outsider’s third-party candidacy garnered just under 19% of the popular vote back then, the largest share of the vote for a third-party contender since an election in 1912. While Perot didn’t grab a single Electoral College vote, he served as the spoiler who helped to oust President George H.W. Bush and install William J. Clinton in the White House.

 “Dissatisfied voters of all stripes flocked to his call, creating one of the most powerful third-party movements in American history,” wrote Prof. Russell L. Riley of the UVA Miller Center. “Although Perot drew support from both Republicans and Democrats, he probably hurt Bush disproportionately more than Clinton, owing to his harsh attacks against the incumbent and the timing of both his departure and re-entry into the 1992 campaign.”

Joe Lieberman considers Haley, Source: AP

Could this happen again? Could President Biden be unhorsed by Donald J. Trump thanks to a third-party spoiler? Well, No Labels has gained access to the ballot in at least 13 states so far and is aiming for all 50. It doesn’t have a presidential candidate yet, but depending on how things go in the GOP primaries in coming months, it could land someone such as former South Carolina Gov. and presidential hopeful Nikki Haley to lead its ticket. Founding party chairman Joseph Lieberman said that she “would deserve serious consideration.”

While a campaign spokeswoman, responding to Lieberman’s mid-January comment, said Haley had no interest in No Labels, that was before her loss to Trump in New Hampshire. If she loses in her native South Carolina, as expected, on Feb. 24, her view could change, of course.

Haley has polled ahead of Biden in head-to-head matchups. In a recent Quinnipiac poll, for instance, the former governor tops the president by 47% to 42% in a two-person contest. By contrast, Biden tops Trump in a two-way race, 50% to 44%, making one wonder why a GOP in its right mind would stick with Trump instead of Haley. (Of course, the operative phrase in regard to the MAGA-dominated party is “in its right mind.”)

Source: The Hill

When one tosses in other independent candidates (Robert F. Kennedy Jr., Cornel West and Jill Stein), the results get murkier, according to Quinnipiac. Haley drops to 29%, but Biden also drops, to 36%. Of course, it’s not clear how many votes Haley might siphon off of Biden (or Trump) if she ran with No Labels in a three-way race, but Democrats fear she would do more damage to their man. As the Wall Street Journal reported in analyzing a couple polls last fall, “When voters are given options beyond Biden and Trump, the president tends to bleed the most support …”

Let’s look back to 1992 for some guidance, though. The erratic Perot quit the race in July 1992, but re-entered in October. That gave him just enough time to take part in three debates, where he impressed some voters with his phrase “giant sucking sound,” describing a feared loss of jobs to Mexico if the NAFTA treaty went into effect. At the end of the debates, his chances seemed so good that we at BusinessWeek had to prepare three cover stories in advance of election day, so we’d be ready for anything.

Source: Miller Center

In the end, Clinton won, of course. But he took office with the support of substantially less than half the electorate, collecting just 43% of the vote to Bush’s 37.4% and Perot’s 18.9%. Clinton prevailed because he won in the states where it mattered, swamping Bush in the Electoral College vote – with 370 to Bush’s 168. The president carried only 18 conservative states, including Texas and Florida, both rich in Electoral College votes, but Perot gave them both a run for their money in a couple states, finishing second in Maine (which Clinton won) and Utah (which was Bush country).

Ironically, my friend now helping the No Labels group served in the Bush Administration that Clinton tossed out. She saw first-hand the scorching effect a third-party candidacy can have. As I described in a biography of the late Clayton Yeutter, who was a top adviser to Bush, despondency was widespread in the Bush ranks in mid-1992 and things didn’t get much better as Election Day neared. The president’s approval rating, according to Gallup, dipped to 29% that July and rebounded, but only to 34% soon before he lost the election.

As things stand today, Biden is in better shape than Bush was, but not by much (the Quinnipiac poll, notwithstanding). One can only imagine the depression afflicting his camp. Biden’s approval rating now stands at a disappointing 41%, according to Gallup, though it dropped to 37% last April, October and November. The numbers are reminiscent of those logged by one-term Jimmy Carter, who averaged a 37.4% approval rating in his third presidential year (Biden’s third-year average approval rating is just 39.8%).

Many things can happen between now and November, of course. No Labels, in fact, may not find a credible candidate, especially if Haley demurs or (as seems unlikely) wins enough primaries to be a viable GOP contender. Would Sen. Joe Manchin be a potent contender for the group? Also, Trump may finally be nailed on any number of criminal charges, which likely would erode his support outside of the MAGA diehards (and could force the GOP to seek an alternative). Trump could even be ruled off the ballot in some states, though his appointees to the Supreme Court would shock the world with such a decision.

One thing seems pretty certain, though: a successful third-party candidacy would be a pipe dream. While many Americans don’t like the idea of a Biden-Trump rerun, history suggests that a real third alternative would likely not get very far – but, troublingly, perhaps far enough to make for a repeat of 1992.