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Thursday, May 30, 2019

Florida supports free speech in universities . . . sometimes

I wrote last month about the free-expression statement adopted by the Florida State University System. I described it as a good statement, emphasizing  the importance of not stifling ideas because some find them offensive or abhorrent and of not allowing stated concerns for civility or respect be a cover for stifling expression.

Yesterday, the state took a giant step backward when the governor, at a cabinet meeting in Israel (which may be unlawful under state sunshine laws) signed into law a broad prohibition on anti-Semitism at public educational institutions. It defines as anti-Semitism a broad range of protected (if heinous) speech about Jewish people and about Israel. The law does include a clause that it shall not be construed to "diminish or infringe" upon protected constitutional rights. But the point of the April statement was to emphasize the special role of free expression on college campuses. It said not that the First Amendment applies there (because, duh), but that free speech plays a special role there and members of those communities must be especially tolerant of even repugnant ideas. Unless those ideas are anti-Semitic. FIRE is not happy.

This law does tie back to the discussion over that New York Times cartoon from April. The law defines as anti-Semitism certain criticism of Israel, while allowing "criticism of Israel that is similar to criticism toward any other country." But comments to my post and Steve Lubet's separate Faculty Lounge post argue that criticism of Israel may be anti-Semitic even if it is similar as that leveled at other countries, if the criticism plays on historic anti-Semitic stereotypes.

Posted by Howard Wasserman on May 30, 2019 at 04:27 PM in First Amendment, Howard Wasserman | Permalink


Although I'm a descendant of Isaac, it's worth noting that descendants of Ishmael are also ethnographically "semitic." This whole thing makes one wonder about prejudice against Samaritans, too. And the legitimacy of theocracies in general, regardless of the purported faith involved (which is far, far too often a flimsy veil at the upper levels of power).

Does this comment really need either a sarcasm or bemusement tag? Because this entire issue leads to both, almost inevitably.

Posted by: C.E. Petit | Jun 1, 2019 10:51:39 AM

Just correction to my comment:

Should be "Pittsburgh " and not "Petersburg" as mistakenly written of course.

Apologizing ......

Posted by: El roam | May 31, 2019 8:14:56 PM

What harm, under existing policies, can African-American students claim from having right-wing speech on campus? The law just tethers treatment of anti-Semitic "discrimination" to racial "discrimination," but if right-wing speech that African-American students don't like isn't treated by schools as discrimination (whatever harm people can claim it causes them), where does that tethering get you? Anyway, even assuming we do know what the legislature had in mind, between the murky text, which is best read to only define anti-Semitic intent, not the underlying anti-Semitic-intent-motivated discrimination that the statute regulates,* and avoidance, I don't know that even perfect knowledge of what the legislature had in mind would bear on how the statute gets interpreted, though I have no clue how Floridian courts interpret statutes and it is possible that a clear enough picture of legislative intent defeats avoidance there (unlike in, say, federal court).

* For example, the law defines anti-Semitism as inclusive of Holocaust denial. I don't read the statute to mean that discrimination motivated by anti-Semitic intent includes the mere act of verbally denying the Holocaust, but I think it might mean that discrimination motivated by anti-Semitic intent would include a librarian's refusal to assist students with inter-library loans of books on the Holocaust on the basis of her belief that the Holocaust didn't happen, and that Florida state universities must treat that hypothetical case in the way they would treat the case of a racist librarian who didn't buy books on African history because of her racism. Or, cafeteria workers who give unusually chintzy portions to Israeli exchange students because of views about Israel that the statute defines as anti-Semitic are to be treated in the same way as cafeteria workers who discriminate against students on the basis of race.

Posted by: Asher | May 30, 2019 11:06:38 PM

Except we know what the legislature had in mind, at least as applied to college campuses: Allowing Jewish students to claim the same harm from have anti-Semitic/anti-Israel speech on campus as, for example, African-American or LGBTQ students claim from having certain right-wing speech on campus.

Posted by: Howard Wasserman | May 30, 2019 9:14:44 PM

I find this bill intensely confusing, but I'm not sure you're reading it correctly. There is no prohibition of "Anti-Semitism" in this bill. There is a prohibition of discrimination on the basis of religion in public schools in the bill; there then is a requirement that discrimination on the basis of anti-Semitic intent be treated on equal terms with discrimination on the basis of race in student/employee disciplinary policies. Anti-Semitism, then, is defined, and it is indeed defined to include an awful lot of anti-Semitic speech. But a perfectly possible reading of that is that the bill is merely saying that such speech is evidence of anti-Semitic intent motivating discriminatory *acts*, not that what the bill defines as anti-Semitism necessarily qualifies as "discrimination . . . motivated by anti-Semitic intent." If a law said that "discrimination motivated by racism" was banned, and defined racism as "the belief that x," I don't think careful readers would read the law to define "discrimination motivated by racism" as "the belief that x" or statements that one believes x, or even to include mere statements/beliefs as discrimination. Same here. I think that's the best textual reading of the bill, and is in any event compelled by constitutional avoidance, which I assume is recognized by Florida courts.

Posted by: Asher | May 30, 2019 7:50:16 PM

Very interesting, and astonishing in fact. Really overwhelming. For, even for the Israeli state, it is too broad. One may find hereby for example, an article of Gideon Levy, a well known journalist and publicist in the left ( Israel of course ) titled as:

The Gaza Ghetto Uprising


Clearly comparing and suggesting or analogizing the Israeli state and policy, to the Nazis at the time. Yet, one should not forget, that antisemitism as I have explained at the time, is not to be compared to other racial expressions. This is because, it is clearly generating frequently violence. Endless violence. So, even if we deal with theoretical legal free speech, if it does generate violence, all along history, and currently of course, one should re - observe it of course.

That law of Florida for example, clearly suggests and defines antisemitism as among others , I quote:

Making mendacious, dehumanizing, demonizing, or stereotypical allegations about Jews as such or the power of Jews as a collective, especially, but not exclusively, the myth about a world Jewish conspiracy or of Jews controlling the media, economy, government or other societal institutions.

End of quotation:

Yet,not to forget, the shooter in Petersburg, was shouting while shooting, that Jews control the world, and I quote:

“Jews are the children of Satan"

So, how to deal with it? On one hand legal free speech,on the other, generating violence. One needs to come up with the right legal strategy here.




Posted by: El roam | May 30, 2019 5:55:47 PM

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