Fawzi al-Asmar is a twenty-three year-old Arab citizen of Israel. He used to write his poems at home in Lydda…
I sit in preventive detention.
The reason, sir, is that I am an Arab.
An Arab who has refused to sell his soul
who has always striven, sir, for freedom.
An Arab who has protested the suffering of his
who has carried with him the hope for a just
who has spoken out against death in every corner
who has called for—and has lived—a fraternal
That is why I sit in preventive detention
because I carried on the struggle
and because I am an Arab.
The author of these lines is Fawzi al-Asmar, a thirty-one-year-old Arab citizen of Israel. He used to write his poems at home in Lydda near the Tel Aviv International Airport. Now he writes them in Damon Prison overlooking Haifa Bay.
Fawzi is one of twenty-three Israeli Arabs being held in preventive detention by the Israeli military authorities. As practiced in Israel, preventive detention1 is different from the law of the same name recently proposed by President Nixon and enacted by Congress. The American law authorizes the pre-trial confinement of criminal defendants thought likely to commit serious crimes between the time of their arrest and their trial. The Israeli law permits the imprisonment—without limit of time—of “any person” whose confinement is deemed “necessary or expedient . . . for securing the public safety, the defense of Palestine, the maintenance of public order, or the suppression of mutiny, rebellion, or riot.” Though different in purpose and in effect, both laws have an important element in common: they permit the detention of persons who have not been convicted of any crime.
The Israeli Knesset has never enacted a preventive-detention law. The power to detain derives from a series of Emergency Defense Regulations inherited by Israel from the British Mandatory Government. Ironically, these regulations, originally promulgated in 1937, were directed at the Jewish underground then operating against the British. Many Jewish freedom fighters—including Golda Meir, Moshe Dayan, and others in the present Israeli government—were detained between 1937 and 1948 (as their entries in Who’s Who proudly proclaim).
During the Mandate period, the Jews bitterly opposed preventive detention. The Federation of Hebrew Lawyers convened a protest convention at which they vowed to do everything they could “to abolish the emergency regulations and restore the elementary rights to the individual.” In 1948, however, when Israel was established as a state, the emergency regulations—including preventive detention—remained on the books, to be used sporadically until the Six-Day War of 1967 and more extensively after Israel’s victory and the resulting occupation.
Many Jews in Israel still oppose preventive detention, even though it is now their government which employs it. The New Left (known in Israel as Siah) has seized on the case of Fawzi al-Asmar as the symbol of what they claim to be political repression of Arab intellectuals. Wherever preventive detention is discussed in Israel, Fawzi’s name is likely to be invoked by its critics.
Having long opposed preventive detention in America.2 I was greatly troubled when I learned of its use by the Israeli authorities. While in Israel, therefore, I decided to try to interview Fawzi and to learn all I could about why he and the other Israeli Arabs were being detained. When I set out for Damon Prison, I was doubtful whether the authorities would let me talk to him or whether he would be willing to speak to me. I had called his lawyer—Felicia Langer, a Jewish Communist who represents many detainees—and asked her to arrange an interview. She laughed: “They won’t even let me see him about legal matters.” I had called the Bureau of Prisons, which granted me permission to tour the facility and see the area where the detainees are held, but nothing had been said about interviews.
When I arrived at Damon—which boasts one of the most beautiful views in Israel—I was shown what I am usually shown at prisons: kitchen, showers, cells, ping-pong tables. Then I was taken to the special area where the preventive detainees are separately kept. It was a spacious square courtyard surrounded by three large dormitories and a dining area. The detainees—twenty-three Israeli citizens and seventeen from East Jerusalem—were sitting around in small groups. Most of them were young, in their twenties and thirties. They were not dressed in prison garb (a number were wearing Arab burnooses) and they were not behaving like prisoners. There was no genuflecting before the warden; they made demands, rather than requests. And not a few times I heard remarks prefaced with, “Remember, we’re not prisoners. . . .”
I walked among the inmates and asked for Fawzi. A tall man emerged, strikingly handsome with a captivating smile. Looking more mature than his thirty-one years, Fawzi emitted an aura of confidence, determination, and honesty. I could tell, both by looking at him and by the way he behaved with the other inmates, that Fawzi al-Asmar is a leader of men.
I told Fawzi that his name had been given to me by critics of preventive detention and that I wanted to hear his story. He put an arm around my shoulder and led me toward the empty dining hall where we began to talk. The governor of the prison made no objection and even provided me with a private room in which I later spoke to other detainees.
I asked Fawzi why he was being detained. He looked me directly in the eye and said, “Because I am an Arab.” But there are 300,000 Israeli Arabs, I observed, and only a few handfuls are in prison; why were you singled out? “Because I express the feelings of the 300,000 and that makes me dangerous. There are Jews who share my beliefs, maybe even some who express them better. But they are not dangerous because they are Jews, and no Arab will listen to them. That is why I am being detained, and not Meir Vilner [the Jewish head of Rakah, the Arab Communist party which advocates the destruction of Israel].”
I asked him what the Israeli authorities had accused him of when they detained him thirteen months earlier. He said that they had concocted a story about his being a terrorist organizer. This time I looked straight into his eyes and asked: “Were you a terrorist organizer?” He smiled: “If they could have proved it, they would have brought me to trial.”
Did he support Al Fatah? “I support their ideas, but not all of their means.” Would he harbor a terrorist fugitive? “None has ever sought refuge with me, and that is the kind of question one must answer with his heart, not his lips. I cannot know what I would do until I hear the knock on the door.”
Fawzi had few complaints about conditions in the prison. He writes all he wants to—poems, articles, letters—but he has not tried to publish his prison writings. His greatest complaint is that there is no one to talk to in Damon. I asked him if there were any truth to the charge that Israel is using preventive detention against Arab intellectuals. He laughed and said, “If only that were true, at least I would have someone to talk to. Most of those detained are simple people, half of them can’t read or write. There used to be a lawyer here and we talked, but he’s been freed.”
I asked him why Israel was detaining illiterates; surely not for their political activities? Were they terrorists? “No,” came his quick reply, “most of them are here as the result of family quarrels and personal vendettas. If two families are feuding in a village, one will sometimes go to the Israelis and make up a story that someone in the other family is working with the Fatah.”
I asked how he saw the rest of his life unfolding. Would he remain in detention indefinitely? Did he’ intend to leave Israel after his release? He told me that he could probably be released whenever he chose to be, that various influential people had offered to intercede on his behalf, but that he did not want “special treatment.” No, he would never leave the country. “That’s just what Israel wants me to do—go away. Twice they offered to free me if I would leave. But this is my homeland. I would rather write my poetry in Damon than in Paris.”
As I was leaving, he told me that he was a man of the pen, not of the lips, and that his views on preventive detention were best expressed in two poems he had just written. I asked to read them. He doubted the authorities would allow that. I asked the governor of the prison, and without having seen the poems, he said that Fawzi was free to give me any writings he cared to. One poem, written in Hebrew, appears at the beginning of this article. The other, composed in Arabic, reads as follows:
I would not despair:
Even though my only way is within a jail,
Under the sun,
In the Exile—
I would not despair:
I would not choose but the Right as a realization,
For my right is that we behold the sun,
Destroy the black tent and the banishment,
Eat the fruit of the olive,
Irrigate the vineyard,
Sing melodies, melodies of love,
In the quarters of Jaffa and Haifa,
Sow our green soil with seeds;
Since these rights are mine,
I would not choose but the Right as a refuge.
My way is that we would extend hand to hand,
In order to build a castle of dreams,
Full of flowers,
Without unwise manners,
Since this is my way,
And even if the cost,
Of my adherence to my way,
Is to sacrifice the lids of my eyes,
And my soul,
I would pay,
And would not despair!
Meir Shamgar, the Attorney General of Israel, denies that Fawzi’s way is to “extend hand to hand” or that he is being detained because he is an Arab. “He is being detained because he is a terrorist leader who would kill innocent people if he were free. Sure he is a poet, but the cloak of a poet can sometimes conceal deadly bombs.”
Shamgar, a career legal official who was formerly Judge Advocate General of the Army, knows all there is to know about preventive detention and about terrorism. He has literally been on both sides of the wall. As a young man, he was a member of Irgun Zvai Leumi (known in the U.S. as the Irgun and in Israel as Etzel). Under the leadership of master terrorist Menahem Begin (now the head of Gahal, the right-wing party which recently left Mrs. Meir’s government), the Irgun’s raison d’être was to make life so miserable for the British that they would leave Palestine. Among their most notorious accomplishments was the blowing up of the English High Command Headquarters in the King David Hotel. Although Begin himself eluded capture, Shamgar was caught and detained without trial by the British under the very same regulation which authorized Fawzi’s confinement. Shamgar remained in British detention camps, both in Palestine and in North Africa, for more than four years. (After telling me about his career as a terrorist, Shamgar reminded me, in a tone of humorous warning, that the Emergency Defense Regulations, which have never been altered, still have a provision punishing anyone who has contacts with a “member of . . . Irgun Zvai Leumi.”)
Nor was preventive detention used against Shamgar’s comrades-in-arms only by the British. Within weeks after Israel declared its statehood, a half-dozen Irgunites were detained by the new Jewish government in order to head off an insurrection threatened by the arrival of the “Altalena,” a ship packed with weapons earmarked for the Irgun rather than the Haganah. In the fall of 1948, preventive detention was again used by the Israeli government against another group of Jewish terrorists. Following the brutal murder of Count Folke Bernadotte, about a hundred members of Lohamei Herut Israel (known in the U.S. as the Stern Gang, and in Israel as Lehi) were detained for a number of months. During the next four years, preventive detention was twice again employed against Jewish groups: first against an ultra-Orthodox religious organization that was allegedly plotting to plant a smoke bomb in the Knesset; and then against leaders of an organization suspected of bombing two embassies.
Since 1953, preventive detention has not been used against any Jewish group. Indeed between 1953 and 1967, it was hardly used at all; and when it was, it served primarily as a short-term “holding operation” against suspected spies until it could be decided whether to deport, to try, or to exchange them for Israeli spies.3 These were years of relative quiet for Israel, during which numerous attempts were made to repeal, or at least to modify, the Emergency Defense Regulations. When Ya’akov Shimshon Shapiro, the incumbent Minister of Justice, assumed his position in 1966, he convened a committee to study the regulations with an eye toward repeal. (Shapiro had repeatedly expressed disapproval of these laws while in private practice.) The committee was leaning in that direction when the 1967 war forced the government to turn its attention to more pressing concerns.
Israel’s victory, accompanied by its occupation of Judea, Samaria, and Gaza, brought about an almost immediate increase in terrorist activities. Israeli Arabs, who had been cut off from direct contact with Jordanian Arabs (except through television which respects no political borders), began to mix freely with Arabs from the West Bank. Indeed, under Israel’s “open bridge policy,” they were able to establish contact with Arabs from the East Bank as well.
Israel’s unwillingness to seal the borders resulted not only in a free exchange of views; it also brought about a traffic in weapons and explosives. Now, for the first time, those Israeli Arabs who had preached terrorism could obtain the materiel with which to practice it. The Israeli authorities, who had always tolerated advocacy of the most extreme ideas, now had the job of keeping potential terrorists from practicing what they had been preaching.
Among those who had been preaching the most extreme measures, was the family of Fawzi al-Asmar. Fawzi’s mother was also a poet famous for her anti-Israeli writings. His father had been in trouble with the authorities even before the Six-Day War, having made illegal contact with an Arab government. Fawzi’s brother was recently convicted of being a Syrian spy and sentenced to a term of imprisonment. But what about Fawzi himself? Shamgar arranged for me to meet with the chief of the Shin Bet’s Arab section in order to learn some details of the government’s case against Fawzi.
The Shin Bet is Israel’s small, but highly respected, counter-intelligence organization which is responsible for compiling the dossiers on detainees. The chief, whose name I never learned, was a warm and friendly man in his late forties who, like most Israelis of every rank, wore sandals and an open shirt. He explained the procedure employed in building a case for detention. No piece of information is ever relied upon unless it is corroborated by at least two independent sources. “We know about these family quarrels. We don’t want to waste our resources on somebody who is the victim of a grudge.” He brought out a pile of thick files and laid them on the table. I picked out a few at random for him to go through. He showed me how each important allegation is corroborated in various ways, how each piece of the puzzle is locked into place.
The file on Fawzi was voluminous and extremely convincing. In every instance where I could, I myself checked the details with independent sources. Here—on the basis of what I was told by various officials and my own investigation—is what I believe to be the truth about Fawzi al-Asmar.
Early last year, the Israeli army caught an Arab attempting to make an illegal crossing over the Jordan. On his person was discovered a number of papers. One was a coded message to a named person in a city on the West Bank. When decoded, the message proved very revealing: it was a detailed series of instructions to the leader of a terrorist group based in that city. The army went to the courier’s destination and discovered an enormous cache of weapons and explosives in the home of the intended recipient and sixteen of his associates. They were all subsequently tried, convicted, and sentenced to prison terms.
While this raid was in progress, the search of the courier’s effects continued. Another seemingly innocuous piece of paper was found. It turned out, however, that this paper contained a message written in invisible ink. This paper, when processed and decoded, sealed Fawzi’s fate. It was an instruction to a named person to contact one Fawzi al-Asmar in Lydda about various terrorist activities to be carried out by “the group that he has under his control.” Among the activities described in the message was the assassination of certain individuals.
Despite this information, Fawzi was not yet detained; he was placed under surveillance. Over the next weeks, a number of events occurred which made it plain to the Israelis that more stringent measures would have to be taken: two of those slated for assassination in the instructions turned up dead (apparently duplicate messages had been sent with other couriers); the “middle man” who was supposed to deliver the message to Fawzi was interrogated and said that although he had never met Fawzi, he knew from others that Fawzi was “very active in the field of sabotage and terrorism”; he also said that but for his arrest he would have contacted Fawzi pursuant to the instructions. Finally, the Shin Bet received corroboration from an Israeli agent who said that he had heard directly from a Palestinian commander in Jordan that Fawzi had been active in assassination and terrorism since the end of the Six-Day War. As a result of all this information, Fawzi was detained in Damon Prison where he remains to this day.
The case of Fawzi al-Asmar puts the problem of preventive detention into sharp focus. If the Israeli information is correct, then Fawzi is, to say the least, an extremely dangerous man whose freedom might result in countless deaths and injuries. And the information does seem correct. That the Arab caught crossing the Jordan was a bona fide courier is evidenced by the discovered cache and the conviction of the terrorist group; that the messages found on him were genuine is evidenced by the death of two of those marked for assassination; that Fawzi was not the innocent recipient of a message he knew nothing about is evidenced by the statement of the man who was to contact him and corroborated by the agent’s report of his discussion with the commander in Jordan. (It is, of course, possible that the entire file was contrived by the Shin Bet. My own investigation convinces me that this was not done, though I cannot, of course, vouch for the authenticity of every piece of information in the file. I am personally convinced, for whatever that is worth, that Fawzi al-Asmar is the leader of a terrorist group.)
Yet even with this apparently tight web of evidence, it would have been quite impossible—under Israeli law—to charge Fawzi with a crime and bring him to trial. The courier’s document—dramatic as it is—would be inadmissible hearsay; it is merely the statement of an unknown person somewhere in Jordan that Fawzi was the head of a terrorist group. The statement of the “middle man” would also be inadmissible hearsay, since he knew of Fawzi’s activities from others; in any event, he refused to repeat his statement in open court for fear of his life. (Numerous “collaborators” have, in fact, been killed by Arab terrorists.) The Israeli agent from Jordan could not, quite obviously, be brought into court (even if the power of subpoena extended across the Allenby Bridge).
What then are the options available to a democratic society in a case, like this one, where it seems fairly clear that the suspect is indeed a dangerous terrorist but where a criminal trial under the usual rules of evidence is precluded?
One obvious option is to follow the rules wherever they take you. If Fawzi cannot be tried and convicted under the established rules of evidence, then he must be released no matter how dangerous he is thought to be. This is what we in the United States do—at least in theory—in ordinary criminal cases: if a suspected murderer cannot be convicted because his confession was coerced or because the weapon was discovered unlawfully, he is supposed to be released. Often, however, ways are found to keep the dangerous defendant in confinement despite the absence of a criminal conviction: if he has “homicidal propensities” he may be committed to a mental hospital; if his crime has sexual overtones, he may be confined as a sexual psychopath; even if he must eventually be released, he may be held in pre-trial detention for a year or two before his acquittal. It is true, of course, that some suspected murderers are in fact released even though they are thought to be extremely dangerous.
In times of war, however, the United States does not even purport to follow the usual rules of evidence when these rules would lead to the release of suspected spies or saboteurs. During both world wars we had—and still have—special administrative procedures for detaining dangerous people who could not be convicted of crime under the established rules of evidence. During World War II we used administrative tribunals not only to detain; we actually used them to execute suspected enemy agents.4 I am not aware of any country in the world that follows the customary rules of evidence during wartime, when those rules would lead to the release of persons who are known to have committed—but who could not be convicted of—serious acts of sabotage, espionage, or terrorism. As one high court correctly observed: “Preventive justice . . . is common to all systems of jurisprudence,” especially during times of war or national emergency.5
And Israel today is a country at war. Although a cease-fire is currently in effect between Israel and some of the Arab states, Israel is at war with various nations and also with the growing Palestinian terrorist organizations. The war with the Palestinians is being fought not only on Israel’s borders, but also in its marketplaces, its cinemas, its bus terminals, and its civilian airplanes. The fear of a bomb planted in a crowded location is ever-present. The security guard who looks into the purse of every woman entering the concert hall and the Supersol is a constant reminder of the Palestinian terrorists’ boast that every Arab living in Israel is carrying a bomb in his heart and perhaps in his pocket.
It is interesting to recall how our country reacted when we thought we faced a similar situation after the Japanese attack on Pearl Harbor in 1941. At that time there were about 110,000 Americans of Japanese ancestry living on the West Coast, of whom 70,000 were American citizens (virtually all of them born here, since residents who emigrated from Japan were ineligible for American citizenship under the racial prohibitions then on our statute books). A virulent anti-Japanese hysteria followed Pearl Harbor. Rumors were circulated that Hawaiians of Japanese ancestry were signaling enemy pilots and submarines; that Japanese-Americans had intentionally infiltrated the power and water companies; and that they had formed sabotage and espionage rings numbering in the thousands. In fact none of these stories proved true. The records of “the Federal Bureau of Investigation and Army and Navy intelligence indicate that there was not a single instance of espionage or sabotage by a resident of Japanese ancestry before, during, and after World War II. . . .”6 The absence of such activities did not, however, satisfy a hysterical population with deep-rooted racial antagonisms. Indeed Earl Warren, then Attorney General of California, expressed the Alice-in-Wonderland view that it was the very absence of sabotage that was “the most ominous sign in our whole situation.” It convinced him, he said, “that the sabotage . . . the fifth-column activities that we are to get, are timed just like Pearl Harbor,” and that the present inaction by the Japanese-Americans was designed to lull us “into a false sense of security.”7
The various intelligence agencies—the FBI and army and navy intelligence—preferred to approach the problem of potential terrorism and espionage “on the basis of the individual, regardless of citizenship, and not on a racial basis.” This was what was done with persons of German and Italian extraction on the East Coast. Thousands of aliens “regarded by the Attorney General as dangerous to the national security if permitted to remain at large” were preventively detained on an individual basis. But on the West Coast the prevalent attitude was reflected by General De Witt, head of the Western Defense Command: “A Jap’s a Jap. There is no way to determine their loyalty. . . .” Earl Warren agreed: “We believe that when we are dealing with the Caucasian race we have methods that will test their loyalty. . . . But when we deal with the Japanese . . . we cannot form any opinion that we believe to be sound.”8 Accordingly, the decision was made to confine the entire West Coast population of Japanese-Americans; 109,650 men, women, and children were put in detention camps where they remained for nearly the entire war. Virtually no exceptions were made; those detained included veterans of World War I, future soldiers who would die fighting in the famous 442nd Regimental Combat Team (the “Nisei Brigade”), and life-long members of the American Legion (whose monthly publication advocated “putting American Japanese on some Pacific island”).
Liberal opinion in the United States was extremely critical of the detention of the Japanese-Americans on racial grounds. Prominent leaders of the American Civil Liberties Union urged President Roosevelt “to constitute a system of hearing boards to test the loyalty” of individual citizens and non-citizens. Those Justices of the Supreme Court who dissented from the judicial approval given the exclusion and detention orders criticized the government for not treating “these Japanese-Americans on an individual basis by holding investigations and hearings to separate the loyal from the disloyal as was done in the case of persons of German and Italian ancestry.” (Virtually no criticism was ever leveled against the preventive detention of the latter.) Academic criticism centered on our failure to detain Japanese-Americans “on the basis of individual suspicion,” and also on our unwillingness to adopt a system of graded restrictions—as the English and French did—whereby only the most dangerous were detained and others “were subjected to certain continuing restrictions especially as to their travel.”9
What the liberals in the United States urged that we do with our Japanese citizens is essentially what Israel has done with its Arab citizens. It has made an intensive effort to separate out the potential terrorists from the loyal Arab, or even the “merely disloyal” Arab. “We are not interested in loyalty,” I was told by the Minister of Justice. “We don’t care what they believe in their hearts; we care only about what they conceal under their clothing. Let them pray for Arab victory, as long as they don’t work for it.”
The Israeli authorities have divided their Arab citizens into four categories. The first covers the loyal and “merely disloyal,” which includes more than 99 per cent of Israel’s 300,000 Arab citizens. No restrictions are placed on them. They enjoy full rights of citizenship; they may live and travel where they wish (including the occupied territories); they may read the various anti-Israel newspapers published in Jerusalem and elsewhere; they may—as a considerable number of them do—belong to the Maoist-oriented Rakah party which has eight members in the Knesset.10 The fact that they are Arabs and that Israel is at war with Arabs has resulted in no legal discriminations against them (unless their not being subject to the draft is regarded as discrimination).
The Arab-Israeli is, to be sure, subject to some de facto discrimination. He is stopped more frequently at the road blocks which the Israeli police routinely set up at the entrance points to every large city. But if his identification is in order—every Israeli, Jew as well as Arab, must carry an identification card—he is politely sent on his way. And it is far more difficult for an Arab—even a loyal Arab—to get a job which has any connection with security (a word which has a broad meaning in Israel).
Thus, those Arabs who are not regarded by the security service as potential terrorists, saboteurs, or assassins, are subjected to no legal restrictions, even if it is known that their sympathies lie with the enemy. Even those who are regarded as potential terrorists are not all detained. The majority are simply told not to leave their city, town, or village without permission; within that area they are free to move about as they please by night or day. Permission to travel to other cities is routinely granted for business reasons and periodically for family and social reasons.
Those who are regarded as especially dangerous—a few hundred—are subject to further restrictions: they may not leave their homes during the hours of darkness without special permission (a kind of personalized curfew), and they must report daily to the local police station.
Only a tiny portion of potential terrorists—twenty-three Israeli citizens at the last count in August—are actually detained. (The number has never been more than 100.) The Israeli authorities claim that every one of those detained has, in fact, been involved in serious terrorist activities and that they could not effectively be prevented from carrying on future terrorism by restrictions less total than actual detention.11
If there are only two dozen Israeli citizens who are sufficiently dangerous to be preventively detained, would it not be wiser, I asked an Israeli official, to release them and take the risks of a few additional acts of terrorism? He responded by telling me the story of Leon Kanner.
Leon was a Hebrew University student who had recently emigrated to Israel from his native Uruguay. His family lived on a kibbutz where they worked in agriculture. Leon shared a small flat in Jerusalem with his friend Edward Joffe, a student who had been twice wounded during the Six-Day War. On the weekend of February 21, 1969, the boys were planning a “trip to the hills to pick flowers,” as Edward wrote to his parents. On Friday morning, the roommates went together to the Supersol at Jerusalem’s busiest intersection to do some shopping for their trip. The store—which is one of the largest in Israel—was crowded with women doing their pre-Sabbath shopping. As the boys approached the meat counter, an explosion ripped through the store. A bomb containing five kilograms of dynamite had been planted in a biscuit can. Both boys were killed instantly. Many women—including a survivor of Auschwitz—were seriously injured. On another Friday—the eve of the Jewish Sabbath seems to be a favorite time for terrorist activities—Al Fatah planted a massive charge of explosives in an automobile in Machane Yehuda, the always-crowded outdoor market in Jerusalem. Twelve shoppers were killed and fifty-two seriously injured.
These are the realities of living in Israel today. They are not rumors, like those which were used to justify our detention of the Japanese. Every Israeli knows a family that has suffered from terrorism, whether it was the blowing up of the Hebrew University cafeteria, the bomb in the Tel Aviv bus station, or the explosions in the Haifa apartment houses.12 A decision to release a known terrorist who cannot be brought to trial is viewed as a decision to risk the lives of dozens of civilians. Rightly or wrongly, these are the reasons why Israel will not—at least in the most serious handful of cases—follow the usual rules of evidence when these rules lead to release. Indeed, I was surprised that the Israeli population had not demanded detention for more of those under village restriction.13
A second obvious option available to a democratic country in a case like Fawzi’s is to change the usual rules of evidence—especially the often anachronistic hearsay rule—so as to allow the introduction of reliable information even if its direct source cannot be produced in court. If hearsay evidence were admissible, a conviction might very well be obtainable against Fawzi: the invisible-ink document could be introduced if the prosecutor established its authenticity; the statement of the man who was supposed to contact Fawzi could be admitted without his identity being disclosed; and even the communication from the agent in Jordan might be considered by the judge.
I asked a high-ranking Israeli legal official whether it would not be better to loosen up their hearsay and other evidentiary rules. “We are very proud of our civil liberties,” he told me. “It would be absurd to wreck our entire judicial system to accommodate a few wartime security cases.” But would you really have to wreck the system, I asked, couldn’t you just change some of the rules of evidence? “The rules of evidence lie at the center of our civil liberties and the right to confront your accuser is the heart of any fair system of evidence. If we created a rule allowing into evidence the invisible-ink message and the agent’s report, there would be virtually nothing left to the right of confrontation. I would rather see us act completely lawlessly in a few security cases than a little lawlessly in every case.” This official felt strongly enough to say that he would “resign in protest” if Israel ever changed its rules to allow hearsay evidence in the general run of cases.
A third option, and the one adopted by Israel, is to create a separate category of cases entirely outside of the judicial system; to handle them administratively; and to apply the flexible rules of evidence traditional in administrative cases. The basic reason why Israel opted for this approach is that the mechanism was there, fully blown; the law establishing this system was on the books of Israel, even though it had been inscribed by a British pen.14 There is no written Constitution in Israel under which the regulations could be invalidated, though one Supreme Court Justice, writing in dissent, would have struck down preventive detention as inconsistent with the judicial conscience (a phrase similar to the “shock the conscience test” sometimes applied by our Supreme Court).
The preventive detention regulation inherited from the British is written in the broadest possible terms. There are no restrictions on the military commanders’ discretion; no limits on the duration of detention; no rules of evidence; and no judicial review. The regulation does require that there be “one or more advisory committees [whose chairman] shall be a person who holds or has held judicial office or is or has been a senior officer of the government.” But the commander is under no legal obligation to follow the advice of the committee.
When the British administered this regulation in Palestine, they did so in the spirit in which it was written. It was a purely arbitrary grant of power to the military unlimited by narrowing rules or practices. The Israeli government, although it has left the broad language of the regulation unamended, has circumscribed it by a series of carefully drawn rules and established practices. Until now these rules were unpublished and regarded as secret (though lawyers had some idea of what they provided). After numerous requests, I was finally given a copy of them. Among other things, they explicitly remove the power to detain for more than three months from any military commander (as provided in the regulation) and give it solely to the Chief of the General Staff. In addition to the advisory committee required by the regulations, the rules establish an internal advisory committee which includes lawyers and professors; no request for a detention order may be made to the Chief of Staff unless a majority of the committee so votes. Another rule limits any period of detention to six months and requires a complete review at the end of this period. In addition, the advisory committee—which includes a Justice of the Supreme Court—is regarded as more than advisory; its advice has never been ignored by the Israeli military authorities in twenty-two years. What is most important, however, is not the language of the regulation or of the narrowing rules; it is the fact—and a fact that is not challenged by Arab or Jewish critics—that the number of Israeli citizens actually detained has been so impressively small.
Despite the fact that so few have been detained, there has been much criticism from students, journalists, leftists, lawyers, and—of course—Arabs. And the criticism has by no means emanated exclusively from the Left. Hans Klinghoffer—the intellectual leader of the right-wing Gahal party—told me that he was unalterably opposed to “this unpardonable exception to the rule of law.” “Terrorists must be imprisoned,” he declared, “but not by means of legal terrorism.” He feared that a population gets used to “special rules of war” and has difficulty living without them even when peace returns. He has tried to enact an Israeli security law to replace the “British abomination.” Under his proposal, the suspected terrorist would be tried by a court, but the rules of evidence would be specially adapted to security cases. Could a person like Fawzi al-Asmar be convicted under his proposal? “Probably yes.”
I asked the Minister of Justice, Ya’akov Shapiro, why he opposed Klinghoffer’s proposal. “I do not want to get the courts involved in the business of the military. Our courts would not second-guess the military. The only effect would be to legitimate—to impose a judicial imprimatur of lawfulness—on actions which are taken for military necessity but fall outside the rule of law.”15
I asked Shapiro whether it would not be wiser for Israel to enact its own preventive detention law to reflect its narrowly-circumscribed practices. He preferred to keep things the way they were. “It is one thing for the military to use somebody else’s law. It is quite another thing for the Knesset to enact as its own a new preventive detention law.” He told me that he could not vote for a preventive detention law. “I have seen the inside of a prison, and not as a visitor. I know what it means to be preventively detained. How many Ministers of Justice do you know who were in jail?” (He described a recent meeting of a committee of distinguished Israeli jurists. “You know that every member of the committee had spent some time in British, German, or Russian jails. People like us could not bring our-selves to vote for an Israeli law of preventive detention.”)
I asked the Minister how he could speak so sanctimoniously about not wanting to enact a preventive detention law when he readily enforces the present regulation. He was hurt by my question. “I do not enforce that regulation. I have nothing to do with it. That is a matter between the military authorities and the advisory committee. It is not within my jurisdiction. It is not a matter of law. It is a matter of military necessity.”
That kind of argument is not very convincing to critics of the New Left, the most prominent of whom is a no-nonsense journalist named Amos Kenan who has long been critical of preventive detention in particular and of Israeli policies toward Arabs in general.
He too had known preventive detention from the other side, having been a member of the Stern Gang as a young man. Kenan had no doubt that most of the Arabs detained were indeed terrorists. He knew, from personal contacts, that numerous Israeli Arabs were working with Al Fatah and with the Popular Front for the Liberation of Palestine. “Before the Six-Day War I know that many Israeli Arabs were reporting Israeli troop movements to the Arab government. Our army knew it as well; in fact, they arranged some phony movements with the expectation that they would be reported.” I asked him on what he based his information. He told me that he is—and has been for many years—very close to Arab radicals. This began during his days with the Stern Gang which, he claims, was the “only true anti-colonialist army in Palestine. We had no quarrel with the Arabs. We had a common cause with them against the British. I wept bitterly the first time we were attacked by Arabs and had to fight back. I really did regard them as brothers fighting a single enemy.” On the eve of the Six-Day War, a group of Kenan’s Arab friends—confident of Egyptian victory—offered his family refuge from the massacre they expected against the Jews. Kenan politely declined the offer and went to join his reserve unit. (Virtually no one in Israel—regardless of his political views—declines to serve in Israel’s army.)
I asked Kenan whether in light of his own observations about Arab attitudes and actions, he could really say that Israel was unjustified in detaining the small number of Arabs now in Damon Prison. He told me that his condemnation of preventive detention had to be understood in the context of Israeli-Arab relations over the past twenty years. “Maybe it is needed now. But it might not have been needed if our government had adopted a different policy toward its Arab citizens over the past generation. I could support preventive detention only if I were certain that there had been no other way. But there was another way.”
I discussed with him the allegation that people like Fawzi al-Asmar were being detained for their political views. He smiled when I mentioned the poet’s name. “I’ve known Fawzi for a long time. We worked together on many causes. There isn’t an honest bone in his body. He’s deceitful, he’s a parasite, and I think he’s a lousy poet. There may be politicial detainees; Fawzi may even be one of them; but don’t believe a word he tells you; don’t be taken in by that goddam smile.
“Fawzi is one of those Arabs,” he continued, “who criticizes the hell out of Israel whenever she deserves it; but he doesn’t have the balls to criticize any Arab government or group, ever. When I ask him why he doesn’t, he says that you have to understand that the risks of making such criticism are very great. But that’s the goddam problem with the Palestinian movement. They should take personal risks for their beliefs. The Palestinians will become a real people only after a few of them have been hung for saying what they believe. I’m sorry, but I can’t accept a double standard when judging Arabs and Jews.”
I asked him whether he himself wasn’t employing a double standard by being so vocal in his criticism of Israel’s detention practices and so silent about the far more extensive use of preventive detention in Arab countries. His answer was that Israel deserved special criticism because its performance did not match its boasts about human liberty. The Arab countries make no such boasts. “In any event, I am an Israeli and therefore I have a special obligation to be critical of my government.”
I asked him whether he would advocate releasing the detainees even though he knew that among them were potential terrorists. “Yes,” he said sadly, “even if it results in an explosion or two. That’s the price we have to pay for our past errors.” I asked whether he thought the day would ever come when Jewish critics, like him, would be detained. “I anticipate that happening in your country sooner than mine,” he said. “Look at the way you treat your Communists. Ours are elected to the Knesset and practice law.”
Felicia Langer is a Communist who practices law in partnership with an Arab Israeli named Ali Rafi. She is a lively woman in her forties who joined the party in her native Poland before coming to Israel. Now she is active in Rakah. She sees preventive detention as directed primarily against the Communists. “Our people were the first to be detained. That’s how I got into this area.” (The real reason she got into this area is that there is no tradition in Israel—as there is in the United States—under which leaders of the bar are willing to defend people whose views they despise. Some good Jewish lawyers have represented terrorists in Israel, but most of the cases have—unfortunately in my view—gone by default to the Communist lawyers.) I asked Mrs. Langer whether preventive detention was used for political reasons. “Yes, for political reasons against Communists and also as a means of pressure to get Arabs to collaborate.” Does it work, I asked? “Not against our people. Not a single Communist has collaborated.”
If it is used against political opponents, I asked why are there no Jews being detained? “It is a racist law, just like in your country the laws are directed against Third World people. Israel is a fascist country, they fight aggressive wars. I am concerned where this is all going to lead. I am concerned not for me, but for my seventeen-year-old son who will be in the army next year.” I was surprised. “If your son feels the way you do,” I asked, “why doesn’t he refuse to fight? That’s what the young people are doing in my country.” Her answer came automatically. “The party has decided that our children must serve and must try to indoctrinate the troops. My own views are unimportant.”
I asked whether the Communist party was against preventive detention in principle or just when it is directed at Communists. She boasted that there are no such laws in Communist countries. I reminded her that thousands of people are detained in Russian jails without trials, and that we all know what a Russian trial means. “I am not interested in their practices, only their laws,” she said with contempt.
My own academic bias leads me to be at least as interested in actual practices as in written laws. I set out, therefore, to make an independent appraisal of preventive detention in practice. On the basis of my experience, I find it difficult to understand the criticism leveled against Israel by groups such as Amnesty International who claim that Israel will not open its doors to their investigatory teams. Almost every door in Israel seemed unlocked; all that was needed was some initiative, and, sometimes, a gentle push. The authorities in Israel were aware of my critical attitude toward preventive detention; yet they imposed no restrictions on my activities.
I interviewed numerous Arabs, both in detention and under village restriction. I spoke to their lawyers, to government officials, and to men on the street. I heard both sides of every case. In each instance where I could, I checked these often conflicting versions with third parties or documented records.
My investigation led me to conclude that virtually all of those detained had, in fact, been involved in terrorist activites; that the vast majority could not be tried under Israeli law; and that a considerable number would probably engage in future terrorism if released. Some of the detainees were not bomb throwers themselves; they were recruiters, money raisers, and—like Fawzi—commanders. Not one of them was a mere politician, or a writer without connection to terrorist activities.16
Only one case troubled me greatly on its facts, perhaps because it involved a lawyer. It deserves recitation because it marks, in my view, the boundary beyond which Israel has not gone in preventively detaining its citizens.
Sabri Jaris is a thirty-one-year-old Arab who began speaking and writing against the Israeli government when he was still a teen-age law student at the Hebrew University. He now practices law in Haifa, sharing office space with an older Arab lawyer active in Rakah and a Jewish lawyer affiliated with Maki (the Jewish Communist party). Sabri divides his time between representing members of the Palestine Liberation Organization charged with terrorism, and writing books about the plight of the Israeli Arab.
On February 20 of this year, Sabri found himself in need of a lawyer. He was arrested by the Shin Bet and detained. Preventive detention was no stranger to Sabri. During the last hours of the Six-Day War, he—along with a handful of other Arabs who had publicly called for Egyptian victory—was detained for a short time. (Sabri is fond of remarking: “You know, the Israelis never would have won the war if they hadn’t detained me.”)
When he was sent to Damon this time, Sabri Jaris turned out to be a tiger in the tank. For the first month he just stalked silently, angry but hopeful of early release. When it did not come, he began to organize the other detainees. He started a hunger strike which received international publicity; he brought lawsuits challenging the conditions of detention; he sought his own freedom by writ of habeas corpus; he notified his French publisher who came to Israel with a famous Continental advocate; he stimulated protests by other members of the Israeli bar (Jewish as well as Arab). Three months after his arrest, Sabri was sent home to Haifa.
It was in that city, just a few weeks after his release, that I spoke to Sabri Jaris. His office, which was on the third-floor walk-up in the Arab market, was shabby and not even charming. There was no privacy; three large rooms—each with a number of desks—simply adjoined one another without any doors. Loud discussions in Hebrew and Arabic permeated every corner while a dozen Arab clients, mostly old, waited to speak with one of the lawyers. Sabri invited me into his room and we began our often interrupted conversation.
Sabri told me, in his soft fluent English, of his early life in a small Arab village on the Palestinian side of what is now the Israel-Lebanon border. His parents and most of their nine children still live there, and Sabri and his younger brother, Jarius, used to visit them on Christian holidays. During his university years, Sabri became active in various Arab nationalist movements. He was one of the founders of El Ard, an extreme movement which advocated the destruction of Israel. Even before the Six-Day War he had been in trouble with the security service. Once he was briefly detained for investigation after a Lebanese Arab caught trying to cross the border illegally had “mentioned his name.” For the past eight years, there has been an order outstanding against him which limits his movement outside Haifa without special permission.
I asked him how this restriction affected his life. He told me that it had little or no impact on his professional career, that he could—and does—go anywhere his law practice takes him. His personal life is, however, severely restricted. He told me that he was recently denied permission to attend a friend’s wedding and that his visits to his parents’ village near the Lebanon border have been limited to certain religious and family occasions. (Twice he has been caught violating these restrictions and fined.)
We talked about his most recent detention. The Shin Bet had received information that Sabri’s younger brother had crossed over into Lebanon and joined Al Fatah. They accused Sabri of harboring him on his way to carrying out a terrorist mission, and Sabri denied all knowledge of his brother’s activities. He told me with a smile that was both sad and proud: “I think the authorities are right. My brother is working with the Fatah in Lebanon.” But he quickly added that he did not harbor him or help him. “My brother’s activities were the pretext the government has been looking for all along. They detained me because of my political views.”
Moving to those views, I asked him what he thought of Al Fatah. “I understand them, I sympathize with the way they are fighting and what they are fighting for.” Did he agree with their tactics? “I feel good when I hear that the Fatah have attacked an enemy—that is an Israeli—army camp. I don’t like the idea of bombs for innocent people. But how do you expect them to do otherwise when Israel blows up the houses of innocent people in Hebron?”17 Would he help a member of the Fatah who sought refuge in his home? “No, I would not give him a place to stay. But neither would I inform the police that he sought refuge. That would be asking too much.” Did he regard himself as a loyal citizen of Israel? “I regard myself first and foremost as a Palestinian Arab. Israel was imposed on me. But I have accepted Israeli citizenship and membership in its bar. I have chosen to remain here. I obey the laws, but no more. I would not fight against my brother Arabs, and that is not required of me by Israeli law. I long for Arab victory, but I do not actively work for it.” Why did he suppose they released him after three months? “They had no choice. The pressure was too great. World opinion does not tolerate the detention of a lawyer. In the end they were sorry they had started up with me.”
I suspect that Sabri may be right: Israeli officials do seem sorry now that they detained Sabri. The case against Sabri Jaris—as told to me by government officials and others—was not nearly as compelling as the case against Fawzi al-Asmar. It was the least convincing of the many cases I had investigated.
It seems that Sabri’s native village on the Israeli side of the Lebanon border—Fasuta—was a favorite stopping-off place for terrorists entering Israel from the north. One day early this year, the Israeli police observed a small truck driving suspiciously fast in the area of Fasuta. After a brief chase the truck crashed into a tree, but the occupants escaped into a wooded area. Inside the truck, the police found two large sacks of explosives and detonating devices. They ultimately traced the truck to its owner in Fasuta and were told that the driver of the truck was Jarius Jaris, Sabri’s younger brother. They also learned from a number of reliable people in the village that Jarius spent both the night before and the night after the truck incident with Sabri (who had traveled from Haifa to Fasuta to meet him).
Within a few days the Shin Bet received a communication from an agent in Lebanon corroborating their information about where Jarius had spent the two nights. They also were told by the agent that Sabri and Jarius had planned further sabotage action in the Haifa area. Sabri was then detained—according to the Israeli authority—not for the purpose of punishing him for harboring a member of Al Fatah, but rather to prevent him from carrying out further collaborative work with his terrorist brother who was still at large. The reason Sabri was not brought to trial was because all the evidence against him was obtained from sources that either would not testify (the Fasuta villagers) or could not testify (the agent in Lebanon).
If Sabri was planning future terrorist activities, then why, I asked, was he released after only three months of detention? I was told that something had occurred in May of this year which made it highly unlikely that Sabri could carry out the planned activities. I asked what this occurrence was, and for the first and only time in my numerous interviews, I was told: “This we cannot tell you.” My surmise is that the Israeli authorities have learned that Jarius is no longer a threat and have concluded that Sabri himself, without his brother, does not constitute a sufficient danger to justify his continued detention. Accordingly, he is back in Haifa, restricted in his travel, but otherwise unhampered in the practice of his profession.
Sabri’s case is disturbing to me. I believe that he did harbor his brother as the Shin Bet charges. But that does not purport to be the basis on which he was detained. His future dangerousness was evidenced merely by the uncorroborated report of an agent. Moreover, it did not have the kind of specificity contained in the evidence marshaled against Fawzi. Finally, if the only fear was that Sabri might collaborate with a given person, namely his brother, then it seems to me that careful surveillance might have been adequate to prevent this eventuality.
It must be remembered, however, that the Sabri Jaris case was not permitted to run its full course. Since his detention ended after three months, it need not have been approved by the internal advisory committee or the Chief of Staff. Nor did the outside advisory committee or the courts have an opportunity to review its merits. Any one of these might well have decided to release him, as in fact the security people decided themselves to do after ninety days. It must also be remembered that Sabri is now actively engaged in the practice of law, despite his various detentions and violations. Consider whether a lawyer in this country would, after Sabri’s experience, be permitted to resume his practice unhampered by Bar Association investigation and discipline.
The case of Sabri Jaris leaves me with two impressions: first, the suspicion that he might have remained in Damon well beyond the three months if he had not been as prominent and vocal as he was; and second, the confidence that this is as far as the Israelis will take preventive detention, and perhaps that they will never again apply it in so questionable a case.
On balance, I favor repeal of the Emergency Defense Regulations. If Israel feels that it cannot live with the normal rules of evidence in cases of suspected terrorists, then the Knesset should enact special rules of evidence for a narrowly circumscribed category of cases during carefully defined periods of emergency. All other safeguards should be provided, as in ordinary cases. In the last analysis, such a system might result in the release of some who are now detained. It is in the nature of any judicial system that in order to prevent confinement of the innocent, it must sometimes release the guilty. And those released might engage in acts of terrorism. But risks to safety have always been the price a society must pay for its liberty. Israel knows that well. By detaining only two dozen of its 300,000 Arab citizens, Israel today is taking considerable risks. Indeed, I know of no country—including our own—that has ever exposed its wartime population to so much risk in the interest of civil liberties.
1 The literal translation of the Hebrew term is “administrative detention”; the words “preventive” and “administrative” are used interchangeably when the subject is discussed in English.
2 See, for example, my articles: “Preventing Preventive Detention,” New York Review of Books, March 31, 1969, and “The Psychiatrist's Power in Civil Commitment,” Psychology Today, February 1969; and my testimony before the Senate Subcommittee on Constitutional Rights, January 23, 1969, Hearing on Bail Reform at pp. 172—185.
3 A recent example of this was provided by the detention of the two Algerian security officials who were taken off their airplane at Lod Airport, held for a short time, and then released.
4 See, ex. parte Quirin, 317 U.S. 1 (1942).
5 Maung Hla Gyaw v. Commissioner, 1948 Burma Law Reps. 764, 766. Compare, for example, the emergency rules recently put into effect by the Canadian government. The infringement of civil liberties authorized under these laws far exceeds that authorized under the Israeli regulations; yet the threat of terrorism is clearly not as serious in Canada—at least not yet—as in Israel.
6 This is the claim of the Japanese-American Citizens League, and I know of no allegations to the contrary.
7 Quoted in Hosokowa, Nisei: The Quiet Americans (Morrow, 1969), p. 288.
8 Hosokowa, op. cit., pp. 287—88.
9 Rostow, “The Japanese American Cases—A Disaster,” 54 Yale Law Review 489 (1945). After the war ended, Congress enacted an individualized preventive detention law directed against members of “the World Communist movement” and sponsored by such liberal Senators as Humphrey, Douglas, Kefauver, and Lehman. That law authorized the “detention of persons who there is reasonable ground to believe probably will commit or conspire with others to commit espionage or sabotage.” Since it can come into operation only in the event of a foreign invasion, a declaration of war, or an insurrection to aid a foreign enemy, this detention act has never been employed. Its repeal is now under consideration in Congress.
10 The day I visited the Knesset it was presided over by the Deputy Speaker, who is a Christian Arab from Nazareth.
11 It must be pointed out that these 23 detainees do not include the Arabs from occupied territories or from East Jerusalem. A considerably larger number of Gaza Strip and West Bank Arabs—in the area of 1,000—are being held in preventive detention. Following the recent terrorist hijackings, an additional 450 West Bank Arabs were detained for a brief period and then released. Residents of the West Bank are Jordanian, not Israeli, citizens. Under the Geneva Accords, Jordanian law is supposed to govern their conduct. The Jordanian law applicable to the West Bank derives from the very same Emergency Defense Regulations inherited by Israel and explicitly authorizes preventive detention. When the Jordanian government controlled the West Bank, they made extensive use of preventive detention against Palestinian political opponents. During a visit to the West Bank, I was shown a petition—found by the Israeli army during the war—that had been signed by hundreds of Palestinian women whose husbands, sons, and fathers had been preventively detained by the Jordanian government on “political” grounds. Preventive detention of dangerous members of an occupied population is also authorized by the Geneva Accords. It has been practiced by all occupying armies confronting a hostile population. I have, in this article, limited myself to preventive detention as it is practiced on citizens of Israel; I have not dealt with the occupied territories which present different considerations, both legal and practical.
12 Indeed, the Dolphin—an excellent fish restaurant in East Jerusalem that is jointly owned by a Jew and an Arab—was blown up shortly after I ate there with my family.
13 The Israeli authorities publicly belittle the damage done by terrorists, claiming that more Israelis die each year from automobile accidents than from terrorist attacks. But anyone who has driven on Israeli roads can take little comfort from that comparison.
14 It was there as a result of the First Law of the State of Israel under which “The Law that existed in the Land of Israel on the Fifth Day of Iyar 5708 [the last day of the British Mandate] will be in force” unless repealed or inconsistent with subsequent enactments.
15 He reminded me of the observation made by Justice Jackson in the Japanese-American detention cases: “In the very nature of things, military decisions are not susceptible of intelligent judicial appraisal. They . . . are made on information that would often not be admissible and assumptions that could not be proved. . . . Hence courts can never have any real alternative to accepting the mere declaration of the authority that issued the order that it was reasonably necessary from a military viewpoint. . . .”
Jackson went on to conclude that the judicial approval of the army order detaining the Japanese was a “far more subtle blow to liberty than the promulgation of the order itself.”
16 There has been some suggestion by Israeli authorities that preventive detention might be used against convicted terrorists who have served short prison terms, who are due for release, and who pose a danger of renewed terrorist activities. A change in sentencing practices would seem to be a better way to deal with the recidivistic terrorist.
17 Israel has blown up some houses in which terrorists have hidden. No inhabitants have ever been hurt in these explosions.
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Terrorism & Preventive Detention: The Case of Israel
Must-Reads from Magazine
t can be said that the Book of Samuel launched the American Revolution. Though antagonistic to traditional faith, Thomas Paine understood that it was not Montesquieu, or Locke, who was inscribed on the hearts of his fellow Americans. Paine’s pamphlet Common Sense is a biblical argument against British monarchy, drawing largely on the text of Samuel.
Today, of course, universal biblical literacy no longer exists in America, and sophisticated arguments from Scripture are all too rare. It is therefore all the more distressing when public intellectuals, academics, or religious leaders engage in clumsy acts of exegesis and political argumentation by comparing characters in the Book of Samuel to modern political leaders. The most common victim of this tendency has been the central character in the Book of Samuel: King David.
Most recently, this tendency was made manifest in the writings of Dennis Prager. In a recent defense of his own praise of President Trump, Prager wrote that “as a religious Jew, I learned from the Bible that God himself chose morally compromised individuals to accomplish some greater good. Think of King David, who had a man killed in order to cover up the adultery he committed with the man’s wife.” Prager similarly argued that those who refuse to vote for a politician whose positions are correct but whose personal life is immoral “must think God was pretty flawed in voting for King David.”
Prager’s invocation of King David was presaged on the left two decades ago. The records of the Clinton Presidential Library reveal that at the height of the Lewinsky scandal, an email from Dartmouth professor Susannah Heschel made its way into the inbox of an administration policy adviser with a similar comparison: “From the perspective of Jewish history, we have to ask how Jews can condemn President Clinton’s behavior as immoral, when we exalt King David? King David had Batsheva’s husband, Uriah, murdered. While David was condemned and punished, he was never thrown off the throne of Israel. On the contrary, he is exalted in our Jewish memory as the unifier of Israel.”
One can make the case for supporting politicians who have significant moral flaws. Indeed, America’s political system is founded on an awareness of the profound tendency to sinfulness not only of its citizens but also of its statesmen. “If men were angels, no government would be necessary,” James Madison informs us in the Federalist. At the same time, anyone who compares King David to the flawed leaders of our own age reveals a profound misunderstanding of the essential nature of David’s greatness. David was not chosen by God despite his moral failings; rather, David’s failings are the lens that reveal his true greatness. It is in the wake of his sins that David emerges as the paradigmatic penitent, whose quest for atonement is utterly unlike that of any other character in the Bible, and perhaps in the history of the world.
While the precise nature of David’s sins is debated in the Talmud, there is no question that they are profound. Yet it is in comparing David to other faltering figures—in the Bible or today—that the comparison falls flat. This point is stressed by the very Jewish tradition in whose name Prager claimed to speak.
It is the rabbis who note that David’s predecessor, Saul, lost the kingship when he failed to fulfill God’s command to destroy the egregiously evil nation of Amalek, whereas David commits more severe sins and yet remains king. The answer, the rabbis suggest, lies not in the sin itself but in the response. Saul, when confronted by the prophet Samuel, offers obfuscations and defensiveness. David, meanwhile, is similarly confronted by the prophet Nathan: “Thou hast killed Uriah the Hittite with the sword, and hast taken his wife to be thy wife, and hast slain him with the sword of the children of Ammon.” David’s immediate response is clear and complete contrition: “I have sinned against the Lord.” David’s penitence, Jewish tradition suggests, sets him apart from Saul. Soon after, David gave voice to what was in his heart at the moment, and gave the world one of the most stirring of the Psalms:
Have mercy upon me, O God, according to thy lovingkindness: according unto the multitude of thy tender mercies blot out my transgressions.
Wash me thoroughly from mine iniquity, and cleanse me from my sin. For I acknowledge my transgressions: and my sin is ever before me.
. . . Deliver me from bloodguiltiness, O God, thou God of my salvation: and my tongue shall sing aloud of thy righteousness.
O Lord, open thou my lips; and my mouth shall shew forth thy praise.
For thou desirest not sacrifice; else would I give it: thou delightest not in burnt offering.
The sacrifices of God are a broken spirit: a broken and a contrite heart, O God, thou wilt not despise.
The tendency to link David to our current age lies in the fact that we know more about David than any other biblical figure. The author Thomas Cahill has noted that in a certain literary sense, David is the only biblical figure that is like us at all. Prior to the humanist autobiographies of the Renaissance, he notes, “we can count only a few isolated instances of this use of ‘I’ to mean the interior self. But David’s psalms are full of I’s.” In David’s Psalms, Cahill writes, we “find a unique early roadmap to the inner spirit—previously mute—of ancient humanity.”
At the same time, a study of the Book of Samuel and of the Psalms reveals how utterly incomparable David is to anyone alive today. Haym Soloveitchik has noted that even the most observant of Jews today fail to feel a constant intimacy with God that the simplest Jew of the premodern age might have felt, that “while there are always those whose spirituality is one apart from that of their time, nevertheless I think it safe to say that the perception of God as a daily, natural force is no longer present to a significant degree in any sector of modern Jewry, even the most religious.” Yet for David, such intimacy with the divine was central to his existence, and the Book of Samuel and the Psalms are an eternal testament to this fact. This is why simple comparisons between David and ourselves, as tempting as they are, must be resisted. David Wolpe, in his book about David, attempts to make the case as to why King David’s life speaks to us today: “So versatile and enduring is David in our culture that rare is the week that passes without some public allusion to his life…We need to understand David better because we use his life to comprehend our own.”
The truth may be the opposite. We need to understand David better because we can use his life to comprehend what we are missing, and how utterly unlike our lives are to his own. For even the most religious among us have lost the profound faith and intimacy with God that David had. It is therefore incorrect to assume that because of David’s flaws it would have been, as Amos Oz has written, “fitting for him to reign in Tel Aviv.” The modern State of Israel was blessed with brilliant leaders, but to which of its modern warriors or statesmen should David be compared? To Ben Gurion, who stripped any explicit invocation of the Divine from Israel’s Declaration of Independence? To Moshe Dayan, who oversaw the reconquest of Jerusalem, and then immediately handed back the Temple Mount, the locus of King David’s dreams and desires, to the administration of the enemies of Israel? David’s complex humanity inspires comparison to modern figures, but his faith, contrition, and repentance—which lie at the heart of his story and success—defy any such engagement.
And so, to those who seek comparisons to modern leaders from the Bible, the best rule may be: Leave King David out of it.
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Three attacks in Britain highlight the West’s inability to see the threat clearly
This lack of seriousness manifests itself in several ways. It’s perhaps most obvious in the failure to reform Britain’s chaotic immigration and dysfunctional asylum systems. But it’s also abundantly clear from the grotesque underfunding and under-resourcing of domestic intelligence. In MI5, Britain has an internal security service that is simply too small to do its job effectively, even if it were not handicapped by an institutional culture that can seem willfully blind to the ideological roots of the current terrorism problem.
In 2009, Jonathan Evans, then head of MI5, confessed at a parliamentary hearing about the London bus and subway attacks of 2005 that his organization only had sufficient resources to “hit the crocodiles close to the boat.” It was an extraordinary metaphor to use, not least because of the impression of relative impotence that it conveys. MI5 had by then doubled in size since 2001, but it still boasted a staff of only 3,500. Today it’s said to employ between 4,000 and 5,000, an astonishingly, even laughably, small number given a UK population of 65 million and the scale of the security challenges Britain now faces. (To be fair, the major British police forces all have intelligence units devoted to terrorism, and the UK government’s overall counterterrorism strategy involves a great many people, including social workers and schoolteachers.)
You can also see that unseriousness at work in the abject failure to coerce Britain’s often remarkably sedentary police officers out of their cars and stations and back onto the streets. Most of Britain’s big-city police forces have adopted a reactive model of policing (consciously rejecting both the New York Compstat model and British “bobby on the beat” traditions) that cripples intelligence-gathering and frustrates good community relations.
If that weren’t bad enough, Britain’s judiciary is led by jurists who came of age in the 1960s, and who have been inclined since 2001 to treat terrorism as an ordinary criminal problem being exploited by malign officials and politicians to make assaults on individual rights and to take part in “illegal” foreign wars. It has long been almost impossible to extradite ISIS or al-Qaeda–linked Islamists from the UK. This is partly because today’s English judges believe that few if any foreign countries—apart from perhaps Sweden and Norway—are likely to give terrorist suspects a fair trial, or able to guarantee that such suspects will be spared torture and abuse.
We have a progressive metropolitan media elite whose primary, reflexive response to every terrorist attack, even before the blood on the pavement is dry, is to express worry about an imminent violent anti-Muslim “backlash” on the part of a presumptively bigoted and ignorant indigenous working class. Never mind that no such “backlash” has yet occurred, not even when the young off-duty soldier Lee Rigby was hacked to death in broad daylight on a South London street in 2013.
Another sign of this lack of seriousness is the choice by successive British governments to deal with the problem of internal terrorism with marketing and “branding.” You can see this in the catchy consultant-created acronyms and pseudo-strategies that are deployed in place of considered thought and action. After every atrocity, the prime minister calls a meeting of the COBRA unit—an acronym that merely stands for Cabinet Office Briefing Room A but sounds like a secret organization of government superheroes. The government’s counterterrorism strategy is called CONTEST, which has four “work streams”: “Prevent,” “Pursue,” “Protect,” and “Prepare.”
Perhaps the ultimate sign of unseriousness is the fact that police, politicians, and government officials have all displayed more fear of being seen as “Islamophobic” than of any carnage that actual terror attacks might cause. Few are aware that this short-term, cowardly, and trivial tendency may ultimately foment genuine, dangerous popular Islamophobia, especially if attacks continue.R
ecently, three murderous Islamist terror attacks in the UK took place in less than a month. The first and third were relatively primitive improvised attacks using vehicles and/or knives. The second was a suicide bombing that probably required relatively sophisticated planning, technological know-how, and the assistance of a terrorist infrastructure. As they were the first such attacks in the UK, the vehicle and knife killings came as a particular shock to the British press, public, and political class, despite the fact that non-explosive and non-firearm terror attacks have become common in Europe and are almost routine in Israel.
The success of all three plots indicates troubling problems in British law-enforcement practice and culture, quite apart from any other failings on the parts of the state in charge of intelligence, border control, and the prevention of radicalization. At the time of writing, the British media have been full of encomia to police courage and skill, not least because it took “only” eight minutes for an armed Metropolitan Police team to respond to and confront the bloody mayhem being wrought by the three Islamist terrorists (who had ploughed their rented van into people on London Bridge before jumping out to attack passersby with knives). But the difficult truth is that all three attacks would be much harder to pull off in Manhattan, not just because all NYPD cops are armed, but also because there are always police officers visibly on patrol at the New York equivalents of London’s Borough Market on a Saturday night. By contrast, London’s Metropolitan police is a largely vehicle-borne, reactive force; rather than use a physical presence to deter crime and terrorism, it chooses to monitor closed-circuit street cameras and social-media postings.
Since the attacks in London and Manchester, we have learned that several of the perpetrators were “known” to the police and security agencies that are tasked with monitoring potential terror threats. That these individuals were nevertheless able to carry out their atrocities is evidence that the monitoring regime is insufficient.
It also seems clear that there were failures on the part of those institutions that come under the leadership of the Home Office and are supposed to be in charge of the UK’s border, migration, and asylum systems. Journalists and think tanks like Policy Exchange and Migration Watch have for years pointed out that these systems are “unfit for purpose,” but successive governments have done little to take responsible control of Britain’s borders. When she was home secretary, Prime Minister Theresa May did little more than jazz up the name, logo, and uniforms of what is now called the “Border Force,” and she notably failed to put in place long-promised passport checks for people flying out of the country. This dereliction means that it is impossible for the British authorities to know who has overstayed a visa or whether individuals who have been denied asylum have actually left the country.
It seems astonishing that Youssef Zaghba, one of the three London Bridge attackers, was allowed back into the country. The Moroccan-born Italian citizen (his mother is Italian) had been arrested by Italian police in Bologna, apparently on his way to Syria via Istanbul to join ISIS. When questioned by the Italians about the ISIS decapitation videos on his mobile phone, he declared that he was “going to be a terrorist.” The Italians lacked sufficient evidence to charge him with a crime but put him under 24-hour surveillance, and when he traveled to London, they passed on information about him to MI5. Nevertheless, he was not stopped or questioned on arrival and had not become one of the 3,000 official terrorism “subjects of interest” for MI5 or the police when he carried out his attack. One reason Zaghba was not questioned on arrival may have been that he used one of the new self-service passport machines installed in UK airports in place of human staff after May’s cuts to the border force. Apparently, the machines are not yet linked to any government watch lists, thanks to the general chaos and ineptitude of the Home Office’s efforts to use information technology.
The presence in the country of Zaghba’s accomplice Rachid Redouane is also an indictment of the incompetence and disorganization of the UK’s border and migration authorities. He had been refused asylum in 2009, but as is so often the case, Britain’s Home Office never got around to removing him. Three years later, he married a British woman and was therefore able to stay in the UK.
But it is the failure of the authorities to monitor ringleader Khuram Butt that is the most baffling. He was a known and open associate of Anjem Choudary, Britain’s most notorious terrorist supporter, ideologue, and recruiter (he was finally imprisoned in 2016 after 15 years of campaigning on behalf of al-Qaeda and ISIS). Butt even appeared in a 2016 TV documentary about ISIS supporters called The Jihadist Next Door. In the same year, he assaulted a moderate imam at a public festival, after calling him a “murtad” or apostate. The imam reported the incident to the police—who took six months to track him down and then let him off with a caution. It is not clear if Butt was one of the 3,000 “subjects of interest” or the additional 20,000 former subjects of interest who continue to be the subject of limited monitoring. If he was not, it raises the question of what a person has to do to get British security services to take him seriously as a terrorist threat; if he was in fact on the list of “subjects of interest,” one has to wonder if being so designated is any barrier at all to carrying out terrorist atrocities. It’s worth remembering, as few do here in the UK, that terrorists who carried out previous attacks were also known to the police and security services and nevertheless enjoyed sufficient liberty to go at it again.B
ut the most important reason for the British state’s ineffectiveness in monitoring terror threats, which May addressed immediately after the London Bridge attack, is a deeply rooted institutional refusal to deal with or accept the key role played by Islamist ideology. For more than 15 years, the security services and police have chosen to take note only of people and bodies that explicitly espouse terrorist violence or have contacts with known terrorist groups. The fact that a person, school, imam, or mosque endorses the establishment of a caliphate, the stoning of adulterers, or the murder of apostates has not been considered a reason to monitor them.
This seems to be why Salman Abedi, the Manchester Arena suicide bomber, was not being watched by the authorities as a terror risk, even though he had punched a girl in the face for wearing a short skirt while at university, had attended the Muslim Brotherhood-controlled Didsbury Mosque, was the son of a Libyan man whose militia is banned in the UK, had himself fought against the Qaddafi regime in Libya, had adopted the Islamist clothing style (trousers worn above the ankle, beard but no moustache), was part of a druggy gang subculture that often feeds individuals into Islamist terrorism, and had been banned from a mosque after confronting an imam who had criticized ISIS.
It was telling that the day after the Manchester Arena suicide-bomb attack, you could hear security officials informing radio and TV audiences of the BBC’s flagship morning-radio news show that it’s almost impossible to predict and stop such attacks because the perpetrators “don’t care who they kill.” They just want to kill as many people as possible, he said.
Surely, anyone with even a basic familiarity with Islamist terror attacks over the last 15 or so years and a nodding acquaintance with Islamist ideology could see that the terrorist hadn’t just chosen the Ariana Grande concert in Manchester Arena because a lot of random people would be crowded into a conveniently small area. Since the Bali bombings of 2002, nightclubs, discotheques, and pop concerts attended by shameless unveiled women and girls have been routinely targeted by fundamentalist terrorists, including in Britain. Among the worrying things about the opinion offered on the radio show was that it suggests that even in the wake of the horrific Bataclan attack in Paris during a November 2015 concert, British authorities may not have been keeping an appropriately protective eye on music venues and other places where our young people hang out in their decadent Western way. Such dereliction would make perfect sense given the resistance on the part of the British security establishment to examining, confronting, or extrapolating from Islamist ideology.
The same phenomenon may explain why authorities did not follow up on community complaints about Abedi. All too often when people living in Britain’s many and diverse Muslim communities want to report suspicious behavior, they have to do so through offices and organizations set up and paid for by the authorities as part of the overall “Prevent” strategy. Although criticized by the left as “Islamophobic” and inherently stigmatizing, Prevent has often brought the government into cooperative relationships with organizations even further to the Islamic right than the Muslim Brotherhood. This means that if you are a relatively secular Libyan émigré who wants to report an Abedi and you go to your local police station, you are likely to find yourself speaking to a bearded Islamist.
From its outset in 2003, the Prevent strategy was flawed. Its practitioners, in their zeal to find and fund key allies in “the Muslim community” (as if there were just one), routinely made alliances with self-appointed community leaders who represented the most extreme and intolerant tendencies in British Islam. Both the Home Office and MI5 seemed to believe that only radical Muslims were “authentic” and would therefore be able to influence young potential terrorists. Moderate, modern, liberal Muslims who are arguably more representative of British Islam as a whole (not to mention sundry Shiites, Sufis, Ahmmadis, and Ismailis) have too often found it hard to get a hearing.
Sunni organizations that openly supported suicide-bomb attacks in Israel and India and that justified attacks on British troops in Iraq and Afghanistan nevertheless received government subsidies as part of Prevent. The hope was that in return, they would alert the authorities if they knew of individuals planning attacks in the UK itself.
It was a gamble reminiscent of British colonial practice in India’s northwest frontier and elsewhere. Not only were there financial inducements in return for grudging cooperation; the British state offered other, symbolically powerful concessions. These included turning a blind eye to certain crimes and antisocial practices such as female genital mutilation (there have been no successful prosecutions relating to the practice, though thousands of cases are reported every year), forced marriage, child marriage, polygamy, the mass removal of girls from school soon after they reach puberty, and the epidemic of racially and religiously motivated “grooming” rapes in cities like Rotherham. (At the same time, foreign jihadists—including men wanted for crimes in Algeria and France—were allowed to remain in the UK as long as their plots did not include British targets.)
This approach, simultaneously cynical and naive, was never as successful as its proponents hoped. Again and again, Muslim chaplains who were approved to work in prisons and other institutions have sometimes turned out to be Islamist extremists whose words have inspired inmates to join terrorist organizations.
Much to his credit, former Prime Minister David Cameron fought hard to change this approach, even though it meant difficult confrontations with his home secretary (Theresa May), as well as police and the intelligence agencies. However, Cameron’s efforts had little effect on the permanent personnel carrying out the Prevent strategy, and cooperation with Islamist but currently nonviolent organizations remains the default setting within the institutions on which the United Kingdom depends for security.
The failure to understand the role of ideology is one of imagination as well as education. Very few of those who make government policy or write about home-grown terrorism seem able to escape the limitations of what used to be called “bourgeois” experience. They assume that anyone willing to become an Islamist terrorist must perforce be materially deprived, or traumatized by the experience of prejudice, or provoked to murderous fury by oppression abroad. They have no sense of the emotional and psychic benefits of joining a secret terror outfit: the excitement and glamor of becoming a kind of Islamic James Bond, bravely defying the forces of an entire modern state. They don’t get how satisfying or empowering the vengeful misogyny of ISIS-style fundamentalism might seem for geeky, frustrated young men. Nor can they appreciate the appeal to the adolescent mind of apocalyptic fantasies of power and sacrifice (mainstream British society does not have much room for warrior dreams, given that its tone is set by liberal pacifists). Finally, they have no sense of why the discipline and self-discipline of fundamentalist Islam might appeal so strongly to incarcerated lumpen youth who have never experienced boundaries or real belonging. Their understanding is an understanding only of themselves, not of the people who want to kill them.
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Review of 'White Working Class' By Joan C. Williams
Williams is a prominent feminist legal scholar with degrees from Yale, MIT, and Harvard. Unbending Gender, her best-known book, is the sort of tract you’d expect to find at an intersectionality conference or a Portlandia bookstore. This is why her insightful, empathic book comes as such a surprise.
Books and essays on the topic have accumulated into a highly visible genre since Donald Trump came on the American political scene; J.D. Vance’s Hillbilly Elegy planted itself at the top of bestseller lists almost a year ago and still isn’t budging. As with Vance, Williams’s interest in the topic is personal. She fell “madly in love with” and eventually married a Harvard Law School graduate who had grown up in an Italian neighborhood in pre-gentrification Brook-lyn. Williams, on the other hand, is a “silver-spoon girl.” Her father’s family was moneyed, and her maternal grandfather was a prominent Reform rabbi.
The author’s affection for her “class-migrant” spouse and respect for his family’s hardships—“My father-in-law grew up on blood soup,” she announces in her opening sentence—adds considerable warmth to what is at bottom a political pamphlet. Williams believes that elite condescension and “cluelessness” played a big role in Trump’s unexpected and dreaded victory. Enlightening her fellow elites is essential to the task of returning Trump voters to the progressive fold where, she is sure, they rightfully belong.
Liberals were not always so dense about the working class, Williams observes. WPA murals and movies like On the Waterfront showed genuine fellow feeling for the proletariat. In the 1970s, however, the liberal mood changed. Educated boomers shifted their attention to “issues of peace, equal rights, and environmentalism.” Instead of feeling the pain of Arthur Miller and John Steinbeck characters, they began sneering at the less enlightened. These days, she notes, elite sympathies are limited to the poor, people of color (POC), and the LGBTQ population. Despite clear evidence of suffering—stagnant wages, disappearing manufacturing jobs, declining health and well-being—the working class gets only fly-over snobbery at best and, more often, outright loathing.
Williams divides her chapters into a series of explainers to questions she has heard from her clueless friends and colleagues: “Why Does the Working Class Resent the Poor?” “Why Does the Working Class Resent Professionals but Admire the Rich?” “Why Doesn’t the Working Class Just Move to Where the Jobs Are?” “Is the Working Class Just Racist?” She weaves her answers into a compelling picture of a way of life and worldview foreign to her targeted readers. Working-class Americans have had to struggle for whatever stability and comfort they have, she explains. Clocking in for midnight shifts year after year, enduring capricious bosses, plant closures, and layoffs, they’re reliant on tag-team parenting and stressed-out relatives for child care. The campus go-to word “privileged” seems exactly wrong.
Proud of their own self-sufficiency and success, however modest, they don’t begrudge the self-made rich. It’s snooty professionals and the dysfunctional poor who get their goat. From their vantage point, subsidizing the day care for a welfare mother when they themselves struggle to manage care on their own dime mocks both their hard work and their beliefs. And since, unlike most professors, they shop in the same stores as the dependent poor, they’ve seen that some of them game the system. Of course that stings.
White Working Class is especially good at evoking the alternate economic and mental universe experienced by Professional and Managerial Elites, or “PMEs.” PMEs see their non-judgment of the poor, especially those who are “POC,” as a mark of their mature understanding that we live in an unjust, racist system whose victims require compassion regardless of whether they have committed any crime. At any rate, their passions lie elsewhere. They define themselves through their jobs and professional achievements, hence their obsession with glass ceilings.
Williams tells the story of her husband’s faux pas at a high-school reunion. Forgetting his roots for a moment, the Ivy League–educated lawyer asked one of his Brooklyn classmates a question that is the go-to opener in elite social settings: “What do you do?” Angered by what must have seemed like deliberate humiliation by this prodigal son, the man hissed: “I sell toilets.”
Instead of stability and backyard barbecues with family and long-time neighbors and maybe the occasional Olive Garden celebration, PMEs are enamored of novelty: new foods, new restaurants, new friends, new experiences. The working class chooses to spend its leisure in comfortable familiarity; for the elite, social life is a lot like networking. Members of the professional class may view themselves as sophisticated or cosmopolitan, but, Williams shows, to the blue-collar worker their glad-handing is closer to phony social climbing and their abstract, knowledge-economy jobs more like self-important pencil-pushing.
White Working Class has a number of proposals for creating the progressive future Williams would like to see. She wants to get rid of college-for-all dogma and improve training for middle-skill jobs. She envisions a working-class coalition of all races and ethnicities bolstered by civics education with a “distinctly celebratory view of American institutions.” In a saner political environment, some of this would make sense; indeed, she echoes some of Marco Rubio’s 2016 campaign themes. It’s little wonder White Working Class has already gotten the stink eye from liberal reviewers for its purported sympathies for racists.
Alas, impressive as Williams’s insights are, they do not always allow her to transcend her own class loyalties. Unsurprisingly, her own PME biases mostly come to light in her chapters on race and gender. She reduces immigration concerns to “fear of brown people,” even as she notes elsewhere that a quarter of Latinos also favor a wall at the southern border. This contrasts startlingly with her succinct observation that “if you don’t want to drive working-class whites to be attracted to the likes of Limbaugh, stop insulting them.” In one particularly obtuse moment, she asserts: “Because I study social inequality, I know that even Malia and Sasha Obama will be disadvantaged by race, advantaged as they are by class.” She relies on dubious gender theories to explain why the majority of white women voted for Trump rather than for his unfairly maligned opponent. That Hillary Clinton epitomized every elite quality Williams has just spent more than a hundred pages explicating escapes her notice. Williams’s own reflexive retreat into identity politics is itself emblematic of our toxic divisions, but it does not invalidate the power of this astute book.
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When music could not transcend evil
he story of European classical music under the Third Reich is one of the most squalid chapters in the annals of Western culture, a chronicle of collective complaisance that all but beggars belief. Without exception, all of the well-known musicians who left Germany and Austria in protest when Hitler came to power in 1933 were either Jewish or, like the violinist Adolf Busch, Rudolf Serkin’s father-in-law, had close family ties to Jews. Moreover, most of the small number of non-Jewish musicians who emigrated later on, such as Paul Hindemith and Lotte Lehmann, are now known to have done so not out of principle but because they were unable to make satisfactory accommodations with the Nazis. Everyone else—including Karl Böhm, Wilhelm Furtwängler, Walter Gieseking, Herbert von Karajan, and Richard Strauss—stayed behind and served the Reich.
The Berlin and Vienna Philharmonics, then as now Europe’s two greatest orchestras, were just as willing to do business with Hitler and his henchmen, firing their Jewish members and ceasing to perform the music of Jewish composers. Even after the war, the Vienna Philharmonic was notorious for being the most anti-Semitic orchestra in Europe, and it was well known in the music business (though never publicly discussed) that Helmut Wobisch, the orchestra’s principal trumpeter and its executive director from 1953 to 1968, had been both a member of the SS and a Gestapo spy.
The management of the Berlin Philharmonic made no attempt to cover up the orchestra’s close relationship with the Third Reich, no doubt because the Nazi ties of Karajan, who was its music director from 1956 until shortly before his death in 1989, were a matter of public record. Yet it was not until 2007 that a full-length study of its wartime activities, Misha Aster’s The Reich’s Orchestra: The Berlin Philharmonic 1933–1945, was finally published. As for the Vienna Philharmonic, its managers long sought to quash all discussion of the orchestra’s Nazi past, steadfastly refusing to open its institutional archives to scholars until 2008, when Fritz Trümpi, an Austrian scholar, was given access to its records. Five years later, the Viennese, belatedly following the precedent of the Berlin Philharmonic, added a lengthy section to their website called “The Vienna Philharmonic Under National Socialism (1938–1945),” in which the damning findings of Trümpi and two other independent scholars were made available to the public.
Now Trümpi has published The Political Orchestra: The Vienna and Berlin Philharmonics During the Third Reich, in which he tells how they came to terms with Nazism, supplying pre- and postwar historical context for their transgressions.1 Written in a stiff mixture of academic jargon and translatorese, The Political Orchestra is ungratifying to read. Even so, the tale that it tells is both compelling and disturbing, especially to anyone who clings to the belief that high art is ennobling to the spirit.U
nlike the Vienna Philharmonic, which has always doubled as the pit orchestra for the Vienna State Opera, the Berlin Philharmonic started life in 1882 as a fully independent, self-governing entity. Initially unsubsidized by the state, it kept itself afloat by playing a grueling schedule of performances, including “popular” non-subscription concerts for which modest ticket prices were levied. In addition, the orchestra made records and toured internationally at a time when neither was common.
These activities made it possible for the Berlin Philharmonic to develop into an internationally renowned ensemble whose fabled collective virtuosity was widely seen as a symbol of German musical distinction. Furtwängler, the orchestra’s principal conductor, declared in 1932 that the German music in which it specialized was “one of the very few things that actually contribute to elevating [German] prestige.” Hence, he explained, the need for state subsidy, which he saw as “a matter of [national] prestige, that is, to some extent a requirement of national prudence.” By then, though, the orchestra was already heavily subsidized by the city of Berlin, thus paving the way for its takeover by the Nazis.
The Vienna Philharmonic, by contrast, had always been subsidized. Founded in 1842 when the orchestra of what was then the Vienna Court Opera decided to give symphonic concerts on its own, it performed the Austro-German classics for an elite cadre of longtime subscribers. By restricting membership to local players and their pupils, the orchestra cultivated what Furtwängler, who spent as much time conducting in Vienna as in Berlin, described as a “homogeneous and distinct tone quality.” At once dark and sweet, it was as instantly identifiable—and as characteristically Viennese—as the strong, spicy bouquet of a Gewürztraminer wine.
Unlike the Berlin Philharmonic, which played for whoever would pay the tab and programmed new music as a matter of policy, the Vienna Philharmonic chose not to diversify either its haute-bourgeois audience or its conservative repertoire. Instead, it played Beethoven, Brahms, Haydn, Mozart, and Schubert (and, later, Bruckner and Richard Strauss) in Vienna for the Viennese. Starting in the ’20s, the orchestra’s recordings consolidated its reputation as one of the world’s foremost instrumental ensembles, but its internal culture remained proudly insular.
What the two orchestras had in common was a nationalistic ethos, a belief in the superiority of Austro-German musical culture that approached triumphalism. One of the darkest manifestations of this ethos was their shared reluctance to hire Jews. The Berlin Philharmonic employed only four Jewish players in 1933, while the Vienna Philharmonic contained only 11 Jews at the time of the Anschluss, none of whom was hired after 1920. To be sure, such popular Jewish conductors as Otto Klemperer and Bruno Walter continued to work in Vienna for as long as they could. Two months before the Anschluss, Walter led and recorded a performance of the Ninth Symphony of Gustav Mahler, his musical mentor and fellow Jew, who from 1897 to 1907 had been the director of the Vienna Court Opera and one of the Philharmonic’s most admired conductors. But many members of both orchestras were open supporters of fascism, and not a few were anti-Semites who ardently backed Hitler. By 1942, 62 of the 123 active members of the Vienna Philharmonic were Nazi party members.
The admiration that Austro-German classical musicians had for Hitler is not entirely surprising since he was a well-informed music lover who declared in 1938 that “Germany has become the guardian of European culture and civilization.” He made the support of German art, music very much included, a key part of his political program. Accordingly, the Berlin Philharmonic was placed under the direct supervision of Joseph Goebbels, who ensured the cooperation of its members by repeatedly raising their salaries, exempting them from military service, and guaranteeing their old-age pensions. But there had never been any serious question of protest, any more than there would be among the members of the Vienna Philharmonic when the Nazis gobbled up Austria. Save for the Jews and one or two non-Jewish players who were fired for reasons of internal politics, the musicians went along unhesitatingly with Hitler’s desires.
With what did they go along? Above all, they agreed to the scrubbing of Jewish music from their programs and the dismissal of their Jewish colleagues. Some Jewish players managed to escape with their lives, but seven of the Vienna Philharmonic’s 11 Jews were either murdered by the Nazis or died as a direct result of official persecution. In addition, both orchestras performed regularly at official government functions and made tours and other public appearances for propaganda purposes, and both were treated as gems in the diadem of Nazi culture.
As for Furtwängler, the most prominent of the Austro-German orchestral conductors who served the Reich, his relationship to Nazism continues to be debated to this day. He had initially resisted the firing of the Berlin Philharmonic’s Jewish members and protected them for as long as he could. But he was also a committed (if woolly-minded) nationalist who believed that German music had “a different meaning for us Germans than for other nations” and notoriously declared in an open letter to Goebbels that “we all welcome with great joy and gratitude . . . the restoration of our national honor.” Thereafter he cooperated with the Nazis, by all accounts uncomfortably but—it must be said—willingly. A monster of egotism, he saw himself as the greatest living exponent of German music and believed it to be his duty to stay behind and serve a cause higher than what he took to be mere party politics. “Human beings are free wherever Wagner and Beethoven are played, and if they are not free at first, they are freed while listening to these works,” he naively assured a horrified Arturo Toscanini in 1937. “Music transports them to regions where the Gestapo can do them no harm.”O
nce the war was over, the U.S. occupation forces decided to enlist the Berlin Philharmonic in the service of a democratic, anti-Soviet Germany. Furtwängler and Herbert von Karajan, who succeeded him as principal conductor, were officially “de-Nazified” and their orchestra allowed to function largely undisturbed, though six Nazi Party members were fired. The Vienna Philharmonic received similarly privileged treatment.
Needless to say, there was more to this decision than Cold War politics. No one questioned the unique artistic stature of either orchestra. Moreover, the Vienna Philharmonic, precisely because of its insularity, was now seen as a living museum piece, a priceless repository of 19th-century musical tradition. Still, many musicians and listeners, Jews above all, looked askance at both orchestras for years to come, believing them to be tainted by Nazism.
Indeed they were, so much so that they treated many of their surviving Jewish ex-members in a way that can only be described as vicious. In the most blatant individual case, the violinist Szymon Goldberg, who had served as the Berlin Philharmonic’s concertmaster under Furtwängler, was not allowed to reassume his post in 1945 and was subsequently denied a pension. As for the Vienna Philharmonic, the fact that it made Helmut Wobisch its executive director says everything about its deep-seated unwillingness to face up to its collective sins.
Be that as it may, scarcely any prominent musicians chose to boycott either orchestra. Leonard Bernstein went so far as to affect a flippant attitude toward the morally equivocal conduct of the Austro-German artists whom he encountered in Europe after the war. Upon meeting Herbert von Karajan in 1954, he actually told his wife Felicia that he had become “real good friends with von Karajan, whom you would (and will) adore. My first Nazi.”
At the same time, though, Bernstein understood what he was choosing to overlook. When he conducted the Vienna Philharmonic for the first time in 1966, he wrote to his parents:
I am enjoying Vienna enormously—as much as a Jew can. There are so many sad memories here; one deals with so many ex-Nazis (and maybe still Nazis); and you never know if the public that is screaming bravo for you might contain someone who 25 years ago might have shot me dead. But it’s better to forgive, and if possible, forget. The city is so beautiful, and so full of tradition. Everyone here lives for music, especially opera, and I seem to be the new hero.
Did Bernstein sell his soul for the opportunity to work with so justly renowned an orchestra—and did he get his price by insisting that its members perform the symphonies of Mahler, with which he was by then closely identified? It is a fair question, one that does not lend itself to easy answers.
Even more revealing is the case of Bruno Walter, who never forgave Furtwängler for staying behind in Germany, informing him in an angry letter that “your art was used as a conspicuously effective means of propaganda for the regime of the Devil.” Yet Walter’s righteous anger did not stop him from conducting in Vienna after the war. Born in Berlin, he had come to identify with the Philharmonic so closely that it was impossible for him to seriously consider quitting its podium permanently. “Spiritually, I was a Viennese,” he wrote in Theme and Variations, his 1946 autobiography. In 1952, he made a second recording with the Vienna Philharmonic of Mahler’s Das Lied von der Erde, whose premiere he had conducted in 1911 and which he had recorded in Vienna 15 years earlier. One wonders what Walter, who had converted to Christianity but had been driven out of both his native lands for the crime of being Jewish, made of the text of the last movement: “My friend, / On this earth, fortune has not been kind to me! / Where do I go?”
As for the two great orchestras of the Third Reich, both have finally acknowledged their guilt and been forgiven, at least by those who know little of their past. It would occur to no one to decline on principle to perform with either group today. Such a gesture would surely be condemned as morally ostentatious, an exercise in what we now call virtue-signaling. Yet it is impossible to forget what Samuel Lipman wrote in 1993 in Commentary apropos the wartime conduct of Furtwängler: “The ultimate triumph of totalitarianism, I suppose it can be said, is that under its sway only a martyred death can be truly moral.” For the only martyrs of the Berlin and Vienna Philharmonics were their Jews. The orchestras themselves live on, tainted and beloved.
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He knows what to reveal and what to conceal, understands the importance of keeping the semblance of distance between oneself and the story of the day, and comprehends the ins and outs of anonymous sourcing. Within days of his being fired by President Trump on May 9, for example, little green men and women, known only as his “associates,” began appearing in the pages of the New York Times and Washington Post to dispute key points of the president’s account of his dismissal and to promote Comey’s theory of the case.
“In a Private Dinner, Trump Demanded Loyalty,” the New York Times reported on May 11. “Comey Demurred.” The story was a straightforward narrative of events from Comey’s perspective, capped with an obligatory denial from the White House. The next day, the Washington Post reported, “Comey associates dispute Trump’s account of conversations.” The Post did not identify Comey’s associates, other than saying that they were “people who have worked with him.”
Maybe they were the same associates who had gabbed to the Times. Or maybe they were different ones. Who can tell? Regardless, the story these particular associates gave to the Post was readable and gripping. Comey, the Post reported, “was wary of private meetings and discussions with the president and did not offer the assurance, as Trump has claimed, that Trump was not under investigation as part of the probe into Russian interference in last year’s election.”
On May 16, Michael S. Schmidt of the Times published his scoop, “Comey Memo Says Trump Asked Him to End Flynn Investigation.” Schmidt didn’t see the memo for himself. Parts of it were read to him by—you guessed it—“one of Mr. Comey’s associates.” The following day, Robert Mueller was appointed special counsel to oversee the Russia investigation. On May 18, the Times, citing “two people briefed” on a call between Comey and the president, reported, “Comey, Unsettled by Trump, Is Said to Have Wanted Him Kept at a Distance.” And by the end of that week, Comey had agreed to testify before the Senate Intelligence Committee.
As his testimony approached, Comey’s people became more aggressive in their criticisms of the president. “Trump Should Be Scared, Comey Friend Says,” read the headline of a CNN interview with Brookings Institution fellow Benjamin Wittes. This “Comey friend” said he was “very shocked” when he learned that President Trump had asked Comey for loyalty. “I have no doubt that he regarded the group of people around the president as dishonorable,” Wittes said.
Comey, Wittes added, was so uncomfortable at the White House reception in January honoring law enforcement—the one where Comey lumbered across the room and Trump whispered something in his ear—that, as CNN paraphrased it, he “stood in a position so that his blue blazer would blend in with the room’s blue drapes in an effort for Trump to not notice him.” The integrity, the courage—can you feel it?
On June 6, the day before Comey’s prepared testimony was released, more “associates” told ABC that the director would “not corroborate Trump’s claim that on three separate occasions Comey told the president he was not under investigation.” And a “source with knowledge of Comey’s testimony” told CNN the same thing. In addition, ABC reported that, according to “a source familiar with Comey’s thinking,” the former director would say that Trump’s actions stopped short of obstruction of justice.
Maybe those sources weren’t as “familiar with Comey’s thinking” as they thought or hoped? To maximize the press coverage he already dominated, Comey had authorized the Senate Intelligence Committee to release his testimony ahead of his personal interview. That testimony told a different story than what had been reported by CNN and ABC (and by the Post on May 12). Comey had in fact told Trump the president was not under investigation—on January 6, January 27, and March 30. Moreover, the word “obstruction” did not appear at all in his written text. The senators asked Comey if he felt Trump obstructed justice. He declined to answer either way.
My guess is that Comey’s associates lacked Comey’s scalpel-like, almost Jesuitical ability to make distinctions, and therefore misunderstood what he was telling them to say to the press. Because it’s obvious Comey was the one behind the stories of Trump’s dishonesty and bad behavior. He admitted as much in front of the cameras in a remarkable exchange with Senator Susan Collins of Maine.
Comey said that, after Trump tweeted on May 12 that he’d better hope there aren’t “tapes” of their conversations, “I asked a friend of mine to share the content of the memo with a reporter. Didn’t do it myself, for a variety of reasons. But I asked him to, because I thought that might prompt the appointment of a special counsel. And so I asked a close friend of mine to do it.”
Collins asked whether that friend had been Wittes, known to cable news junkies as Comey’s bestie. Comey said no. The source for the New York Times article was “a good friend of mine who’s a professor at Columbia Law School,” Daniel Richman.
Every time I watch or read that exchange, I am amazed. Here is the former director of the FBI just flat-out admitting that, for months, he wrote down every interaction he had with the president of the United States because he wanted a written record in case the president ever fired or lied about him. And when the president did fire and lie about him, that director set in motion a series of public disclosures with the intent of not only embarrassing the president, but also forcing the appointment of a special counsel who might end up investigating the president for who knows what. And none of this would have happened if the president had not fired Comey or tweeted about him. He told the Senate that if Trump hadn’t dismissed him, he most likely would still be on the job.
Rarely, in my view, are high officials so transparent in describing how Washington works. Comey revealed to the world that he was keeping a file on his boss, that he used go-betweens to get his story into the press, that “investigative journalism” is often just powerful people handing documents to reporters to further their careers or agendas or even to get revenge. And as long as you maintain some distance from the fallout, and stick to the absolute letter of the law, you will come out on top, so long as you have a small army of nightingales singing to reporters on your behalf.
“It’s the end of the Comey era,” A.B. Stoddard said on Special Report with Bret Baier the other day. On the contrary: I have a feeling that, as the Russia investigation proceeds, we will be hearing much more from Comey. And from his “associates.” And his “friends.” And persons “familiar with his thinking.”
Choose your plan and pay nothing for six Weeks!
In April, COMMENTARY asked a wide variety of writers,
thinkers, and broadcasters to respond to this question: Is free speech under threat in the United States? We received twenty-seven responses. We publish them here in alphabetical order.
Floyd AbramsFree expression threatened? By Donald Trump? I guess you could say so.
When a president engages in daily denigration of the press, when he characterizes it as the enemy of the people, when he repeatedly says that the libel laws should be “loosened” so he can personally commence more litigation, when he says that journalists shouldn’t be allowed to use confidential sources, it is difficult even to suggest that he has not threatened free speech. And when he says to the head of the FBI (as former FBI director James Comey has said that he did) that Comey should consider “putting reporters in jail for publishing classified information,” it is difficult not to take those threats seriously.
The harder question, though, is this: How real are the threats? Or, as Michael Gerson put it in the Washington Post: Will Trump “go beyond mere Twitter abuse and move against institutions that limit his power?” Some of the president’s threats against the institution of the press, wittingly or not, have been simply preposterous. Surely someone has told him by now that neither he nor Congress can “loosen” libel laws; while each state has its own libel law, there is no federal libel law and thus nothing for him to loosen. What he obviously takes issue with is the impact that the Supreme Court’s 1964 First Amendment opinion in New York Times v. Sullivan has had on state libel laws. The case determined that public officials who sue for libel may not prevail unless they demonstrate that the statements made about them were false and were made with actual knowledge or suspicion of that falsity. So his objection to the rules governing libel law is to nothing less than the application of the First Amendment itself.
In other areas, however, the Trump administration has far more power to imperil free speech. We live under an Espionage Act, adopted a century ago, which is both broad in its language and uncommonly vague in its meaning. As such, it remains a half-open door through which an administration that is hostile to free speech might walk. Such an administration could initiate criminal proceedings against journalists who write about defense- or intelligence-related topics on the basis that classified information was leaked to them by present or former government employees. No such action has ever been commenced against a journalist. Press lawyers and civil-liberties advocates have strong arguments that the law may not be read so broadly and still be consistent with the First Amendment. But the scope of the Espionage Act and the impact of the First Amendment upon its interpretation remain unknown.
A related area in which the attitude of an administration toward the press may affect the latter’s ability to function as a check on government relates to the ability of journalists to protect the identity of their confidential sources. The Obama administration prosecuted more Espionage Act cases against sources of information to journalists than all prior administrations combined. After a good deal of deserved press criticism, it agreed to expand the internal guidelines of the Department of Justice designed to limit the circumstances under which such source revelation is demanded. But the guidelines are none too protective and are, after all, simply guidelines. A new administration is free to change or limit them or, in fact, abandon them altogether. In this area, as in so many others, it is too early to judge the ultimate treatment of free expression by the Trump administration. But the threats are real, and there is good reason to be wary.
Floyd Abrams is the author of The Soul of the First Amendment (Yale University Press, 2017).
Ayaan Hirsi AliFreedom of speech is being threatened in the United States by a nascent culture of hostility to different points of view. As political divisions in America have deepened, a conformist mentality of “right thinking” has spread across the country. Increasingly, American universities, where no intellectual doctrine ought to escape critical scrutiny, are some of the most restrictive domains when it comes to asking open-ended questions on subjects such as Islam.
Legally, speech in the United States is protected to a degree unmatched in almost any industrialized country. The U.S. has avoided unpredictable Canadian-style restrictions on speech, for example. I remain optimistic that as long as we have the First Amendment in the U.S., any attempt at formal legal censorship will be vigorously challenged.
Culturally, however, matters are very different in America. The regressive left is the forerunner threatening free speech on any issue that is important to progressives. The current pressure coming from those who call themselves “social-justice warriors” is unlikely to lead to successful legislation to curb the First Amendment. Instead, censorship is spreading in the cultural realm, particularly at institutions of higher learning.
The way activists of the regressive left achieve silence or censorship is by creating a taboo, and one of the most pernicious taboos in operation today is the word “Islamophobia.” Islamists are similarly motivated to rule any critical scrutiny of Islamic doctrine out of order. There is now a university center (funded by Saudi money) in the U.S. dedicated to monitoring and denouncing incidences of “Islamophobia.”
The term “Islamophobia” is used against critics of political Islam, but also against progressive reformers within Islam. The term implies an irrational fear that is tainted by hatred, and it has had a chilling effect on free speech. In fact, “Islamophobia” is a poorly defined term. Islam is not a race, and it is very often perfectly rational to fear some expressions of Islam. No set of ideas should be beyond critical scrutiny.
To push back in this cultural realm—in our universities, in public discourse—those favoring free speech should focus more on the message of dawa, the set of ideas that the Islamists want to promote. If the aims of dawa are sufficiently exposed, ordinary Americans and Muslim Americans will reject it. The Islamist message is a message of divisiveness, misogyny, and hatred. It’s anachronistic and wants people to live by tribal norms dating from the seventh century. The best antidote to Islamic extremism is the revelation of what its primary objective is: a society governed by Sharia. This is the opposite of censorship: It is documenting reality. What is life like in Saudi Arabia, Iran, the Northern Nigerian States? What is the true nature of Sharia law?
Islamists want to hide the true meaning of Sharia, Jihad, and the implications for women, gays, religious minorities, and infidels under the veil of “Islamophobia.” Islamists use “Islamophobia” to obfuscate their vision and imply that any scrutiny of political Islam is hatred and bigotry. The antidote to this is more exposure and more speech.
As pressure on freedom of speech increases from the regressive left, we must reject the notions that only Muslims can speak about Islam, and that any critical examination of Islamic doctrines is inherently “racist.”
Instead of contorting Western intellectual traditions so as not to offend our Muslim fellow citizens, we need to defend the Muslim dissidents who are risking their lives to promote the human rights we take for granted: equality for women, tolerance of all religions and orientations, our hard-won freedoms of speech and thought.
It is by nurturing and protecting such speech that progressive reforms can emerge within Islam. By accepting the increasingly narrow confines of acceptable discourse on issues such as Islam, we do dissidents and progressive reformers within Islam a grave disservice. For truly progressive reforms within Islam to be possible, full freedom of speech will be required.
Ayaan Hirsi Ali is a research fellow at the Hoover Institution, Stanford University, and the founder of the AHA Foundation.
Lee C. BollingerI know it is too much to expect that political discourse mimic the measured, self-questioning, rational, footnoting standards of the academy, but there is a difference between robust political debate and political debate infected with fear or panic. The latter introduces a state of mind that is visceral and irrational. In the realm of fear, we move beyond the reach of reason and a sense of proportionality. When we fear, we lose the capacity to listen and can become insensitive and mean.
Our Constitution is well aware of this fact about the human mind and of its negative political consequences. In the First Amendment jurisprudence established over the past century, we find many expressions of the problematic state of mind that is produced by fear. Among the most famous and potent is that of Justice Brandeis in Whitney v. California in 1927, one of the many cases involving aggravated fears of subversive threats from abroad. “It is the function of (free) speech,” he said, “to free men from the bondage of irrational fears.” “Men feared witches,” Brandeis continued, “and burned women.”
Today, our “witches” are terrorists, and Brandeis’s metaphorical “women” include the refugees (mostly children) and displaced persons, immigrants, and foreigners whose lives have been thrown into suspension and doubt by policies of exclusion.
The same fears of the foreign that take hold of a population inevitably infect our internal interactions and institutions, yielding suppression of unpopular and dissenting voices, victimization of vulnerable groups, attacks on the media, and the rise of demagoguery, with its disdain for facts, reason, expertise, and tolerance.
All of this poses a very special obligation on those of us within universities. Not only must we make the case in every venue for the values that form the core of who we are and what we do, but we must also live up to our own principles of free inquiry and fearless engagement with all ideas. This is why recent incidents on a handful of college campuses disrupting and effectively censoring speakers is so alarming. Such acts not only betray a basic principle but also inflame a rising prejudice against the academic community, and they feed efforts to delegitimize our work, at the very moment when it’s most needed.
I do not for a second support the view that this generation has an unhealthy aversion to engaging differences of opinion. That is a modern trope of polarization, as is the portrayal of universities as hypocritical about academic freedom and political correctness. But now, in this environment especially, universities must be at the forefront of defending the rights of all students and faculty to listen to controversial voices, to engage disagreeable viewpoints, and to make every effort to demonstrate our commitment to the sort of fearless and spirited debate that we are simultaneously asking of the larger society. Anyone with a voice can shout over a speaker; but being able to listen to and then effectively rebut those with whom we disagree—particularly those who themselves peddle intolerance—is one of the greatest skills our education can bestow. And it is something our democracy desperately needs more of. That is why, I say to you now, if speakers who are being denied access to other campuses come here, I will personally volunteer to introduce them, and listen to them, however much I may disagree with them. But I will also never hesitate to make clear why I disagree with them.
Lee C. Bollinger is the 19th president of Columbia University and the author of Uninhibited, Robust, and Wide-Open: A Free Press for a New Century. This piece has been excerpted from President Bollinger’s May 17 commencement address.
Richard A. Epstein
Today, the greatest threat to the constitutional protection of freedom of speech comes from campus rabble-rousers who invoke this very protection. In their book, the speech of people like Charles Murray and Heather Mac Donald constitutes a form of violence, bordering on genocide, that receives no First Amendment protection. Enlightened protestors are both bound and entitled to shout them down, by force or other disruptive actions, if their universities are so foolish as to extend them an invitation to speak. Any indignant minority may take the law into its own hands to eradicate the intellectual cancer before it spreads on their own campus.
By such tortured logic, a new generation of vigilantes distorts the First Amendment doctrine: Speech becomes violence, and violence becomes heroic acts of self-defense. The standard First Amendment interpretation emphatically rejects that view. Of course, the First Amendment doesn’t let you say what you want when and wherever you want to. Your freedom of speech is subject to the same limitations as your freedom of action. So you have no constitutional license to assault other people, to lie to them, or to form cartels to bilk them in the marketplace. But folks such as Murray, Mac Donald, and even Yiannopoulos do not come close to crossing into that forbidden territory. They are not using, for example, “fighting words,” rightly limited to words or actions calculated to provoke immediate aggression against a known target. Fighting words are worlds apart from speech that provokes a negative reaction in those who find your speech offensive solely because of the content of its message.
This distinction is central to the First Amendment. Fighting words have to be blocked by well-tailored criminal and civil sanctions lest some people gain license to intimidate others from speaking or peaceably assembling. The remedy for mere offense is to speak one’s mind in response. But it never gives anyone the right to block the speech of others, lest everyone be able to unilaterally increase his sphere of action by getting really angry about the beliefs of others. No one has the right to silence others by working himself into a fit of rage.
Obviously, it is intolerable to let mutual animosity generate factional warfare, whereby everyone can use force to silence rivals. To avoid this war of all against all, each side claims that only its actions are privileged. These selective claims quickly degenerate into a form of viewpoint discrimination, which undermines one of the central protections that traditional First Amendment law erects: a wall against each and every group out to destroy the level playing field on which robust political debate rests. Every group should be at risk for having its message fall flat. The new campus radicals want to upend that understanding by shutting down their adversaries if their universities do not. Their aggression must be met, if necessary, by counterforce. Silence in the face of aggression is not an acceptable alternative.
Richard A. Epstein is the Laurence A. Tisch Professor of Law at the New York University School of Law.
David FrenchWe’re living in the midst of a troubling paradox. At the exact same time that First Amendment jurisprudence has arguably never been stronger and more protective of free expression, millions of Americans feel they simply can’t speak freely. Indeed, talk to Americans living and working in the deep-blue confines of the academy, Hollywood, and the tech sector, and you’ll get a sense of palpable fear. They’ll explain that they can’t say what they think and keep their jobs, their friends, and sometimes even their families.
The government isn’t cracking down or censoring; instead, Americans are using free speech to destroy free speech. For example, a social-media shaming campaign is an act of free speech. So is an economic boycott. So is turning one’s back on a public speaker. So is a private corporation firing a dissenting employee for purely political reasons. Each of these actions is largely protected from government interference, and each one represents an expression of the speaker’s ideas and values.
The problem, however, is obvious. The goal of each of these kinds of actions isn’t to persuade; it’s to intimidate. The goal isn’t to foster dialogue but to coerce conformity. The result is a marketplace of ideas that has been emptied of all but the approved ideological vendors—at least in those communities that are dominated by online thugs and corporate bullies. Indeed, this mindset has become so prevalent that in places such as Portland, Berkeley, Middlebury, and elsewhere, the bullies and thugs have crossed the line from protected—albeit abusive—speech into outright shout-downs and mob violence.
But there’s something else going on, something that’s insidious in its own way. While politically correct shaming still has great power in deep-blue America, its effect in the rest of the country is to trigger a furious backlash, one characterized less by a desire for dialogue and discourse than by its own rage and scorn. So we’re moving toward two Americas—one that ruthlessly (and occasionally illegally) suppresses dissenting speech and the other that is dangerously close to believing that the opposite of political correctness isn’t a fearless expression of truth but rather the fearless expression of ideas best calculated to enrage your opponents.
The result is a partisan feedback loop where right-wing rage spurs left-wing censorship, which spurs even more right-wing rage. For one side, a true free-speech culture is a threat to feelings, sensitivities, and social justice. The other side waves high the banner of “free speech” to sometimes elevate the worst voices to the highest platforms—not so much to protect the First Amendment as to infuriate the hated “snowflakes” and trigger the most hysterical overreactions.
The culturally sustainable argument for free speech is something else entirely. It reminds the cultural left of its own debt to free speech while reminding the political right that a movement allegedly centered around constitutional values can’t abandon the concept of ordered liberty. The culture of free speech thrives when all sides remember their moral responsibilities—to both protect the right of dissent and to engage in ideological combat with a measure of grace and humility.
David French is a senior writer at National Review.
Pamela GellerThe real question isn’t whether free speech is under threat in the United States, but rather, whether it’s irretrievably lost. Can we get it back? Not without war, I suspect, as is evidenced by the violence at colleges whenever there’s the shamefully rare event of a conservative speaker on campus.
Free speech is the soul of our nation and the foundation of all our other freedoms. If we can’t speak out against injustice and evil, those forces will prevail. Freedom of speech is the foundation of a free society. Without it, a tyrant can wreak havoc unopposed, while his opponents are silenced.
With that principle in mind, I organized a free-speech event in Garland, Texas. The world had recently been rocked by the murder of the Charlie Hebdo cartoonists. My version of “Je Suis Charlie” was an event here in America to show that we can still speak freely and draw whatever we like in the Land of the Free. Yet even after jihadists attacked our event, I was blamed—by Donald Trump among others—for provoking Muslims. And if I tried to hold a similar event now, no arena in the country would allow me to do so—not just because of the security risk, but because of the moral cowardice of all intellectual appeasers.
Under what law is it wrong to depict Muhammad? Under Islamic law. But I am not a Muslim, I don’t live under Sharia. America isn’t under Islamic law, yet for standing for free speech, I’ve been:
- Prevented from running our advertisements in every major city in this country. We have won free-speech lawsuits all over the country, which officials circumvent by prohibiting all political ads (while making exceptions for ads from Muslim advocacy groups);
- Shunned by the right, shut out of the Conservative Political Action Conference;
- Shunned by Jewish groups at the behest of terror-linked groups such as the Council on American-Islamic Relations;
- Blacklisted from speaking at universities;
- Prevented from publishing books, for security reasons and because publishers fear shaming from the left;
- Banned from Britain.
A Seattle court accused me of trying to shut down free speech after we merely tried to run an FBI poster on global terrorism, because authorities had banned all political ads in other cities to avoid running ours. Seattle blamed us for that, which was like blaming a woman for being raped because she was wearing a short skirt.
This kind of vilification and shunning is key to the left’s plan to shut down all dissent from its agenda—they make legislation restricting speech unnecessary.
The same refusal to allow our point of view to be heard has manifested itself elsewhere. The foundation of my work is individual rights and equality for all before the law. These are the foundational principles of our constitutional republic. That is now considered controversial. Truth is the new hate speech. Truth is going to be criminalized.
The First Amendment doesn’t only protect ideas that are sanctioned by the cultural and political elites. If “hate speech” laws are enacted, who would decide what’s permissible and what’s forbidden? The government? The gunmen in Garland?
There has been an inversion of the founding premise of this nation. No longer is it the subordination of might to right, but right to might. History is repeatedly deformed with the bloody consequences of this transition.
Pamela Geller is the editor in chief of the Geller Report and president of the American Freedom Defense Initiative.
Jonah GoldbergOf course free speech is under threat in America. Frankly, it’s always under threat in America because it’s always under threat everywhere. Ronald Reagan was right when he said in 1961, “Freedom is never more than one generation away from extinction. We didn’t pass it on to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same.”
This is more than political boilerplate. Reagan identified the source of the threat: human nature. God may have endowed us with a right to liberty, but he didn’t give us all a taste for it. As with most finer things, we must work to acquire a taste for it. That is what civilization—or at least our civilization—is supposed to do: cultivate attachments to certain ideals. “Cultivate” shares the same Latin root as “culture,” cultus, and properly understood they mean the same thing: to grow, nurture, and sustain through labor.
In the past, threats to free speech have taken many forms—nationalist passion, Comstockery (both good and bad), political suppression, etc.—but the threat to free speech today is different. It is less top-down and more bottom-up. We are cultivating a generation of young people to reject free speech as an important value.
One could mark the beginning of the self-esteem movement with Nathaniel Branden’s 1969 paper, “The Psychology of Self-Esteem,” which claimed that “feelings of self-esteem were the key to success in life.” This understandable idea ran amok in our schools and in our culture. When I was a kid, Saturday-morning cartoons were punctuated with public-service announcements telling kids: “The most important person in the whole wide world is you, and you hardly even know you!”
The self-esteem craze was just part of the cocktail of educational fads. Other ingredients included multiculturalism, the anti-bullying crusade, and, of course, that broad phenomenon known as “political correctness.” Combined, they’ve produced a generation that rejects the old adage “sticks and stones can break my bones but words can never harm me” in favor of the notion that “words hurt.” What we call political correctness has been on college campuses for decades. But it lacked a critical mass of young people who were sufficiently receptive to it to make it a fully successful ideology. The campus commissars welcomed the new “snowflakes” with open arms; truly, these are the ones we’ve been waiting for.
“Words hurt” is a fashionable concept in psychology today. (See Psychology Today: “Why Words Can Hurt at Least as Much as Sticks and Stones.”) But it’s actually a much older idea than the “sticks and stones” aphorism. For most of human history, it was a crime to say insulting or “injurious” things about aristocrats, rulers, the Church, etc. That tendency didn’t evaporate with the Divine Right of Kings. Jonathan Haidt has written at book length about our natural capacity to create zones of sanctity, immune from reason.
And that is the threat free speech faces today. Those who inveigh against “hate speech” are in reality fighting “heresy speech”—ideas that do “violence” to sacred notions of self-esteem, racial or gender equality, climate change, and so on. Put whatever label you want on it, contemporary “social justice” progressivism acts as a religion, and it has no patience for blasphemy.
When Napoleon’s forces converted churches into stables, the clergy did not object on the grounds that regulations regarding the proper care and feeding of animals had been violated. They complained of sacrilege and blasphemy. When Charles Murray or Christina Hoff Summers visits college campuses, the protestors are behaving like the zealous acolytes of St. Jerome. Appeals to the First Amendment have as much power over the “antifa” fanatics as appeals to Odin did to champions of the New Faith.
That is the real threat to free speech today.
Jonah Goldberg is a senior editor at National Review and a fellow at the American Enterprise Institute.
KC JohnsonIn early May, the Washington Post urged universities to make clear that “racist signs, symbols, and speech are off-limits.” Given the extraordinarily broad definition of what constitutes “racist” speech at most institutions of higher education, this demand would single out most right-of-center (and, in some cases, even centrist and liberal) discourse on issues of race or ethnicity. The editorial provided the highest-profile example of how hostility to free speech, once confined to the ideological fringe on campus, has migrated to the liberal mainstream.
The last few years have seen periodic college protests—featuring claims that significant amounts of political speech constitute “violence,” thereby justifying censorship—followed by even more troubling attempts to appease the protesters. After the mob scene that greeted Charles Murray upon his visit to Middlebury College, for instance, the student government criticized any punishment for the protesters, and several student leaders wanted to require that future speakers conform to the college’s “community standard” on issues of race, gender, and ethnicity. In the last few months, similar attempts to stifle the free exchange of ideas in the name of promoting diversity occurred at Wesleyan, Claremont McKenna, and Duke. Offering an extreme interpretation of this point of view, one CUNY professor recently dismissed dialogue as “inherently conservative,” since it reinforced the “relations of power that presently exist.”
It’s easy, of course, to dismiss campus hostility to free speech as affecting only a small segment of American public life—albeit one that trains the next generation of judges, legislators, and voters. But, as Jonathan Chait observed in 2015, denying “the legitimacy of political pluralism on issues of race and gender” has broad appeal on the left. It is only most apparent on campus because “the academy is one of the few bastions of American life where the political left can muster the strength to impose its political hegemony upon others.” During his time in office, Barack Obama generally urged fellow liberals to support open intellectual debate. But the current campus environment previews the position of free speech in a post-Obama Democratic Party, increasingly oriented around identity politics.
Waning support on one end of the ideological spectrum for this bedrock American principle should provide a political opening for the other side. The Trump administration, however, seems poorly suited to make the case. Throughout his public career, Trump has rarely supported free speech, even in the abstract, and has periodically embraced legal changes to facilitate libel lawsuits. Moreover, the right-wing populism that motivates Trump’s base has a long tradition of ideological hostility to civil liberties of all types. Even in campus contexts, conservatives have defended free speech inconsistently, as seen in recent calls that CUNY disinvite anti-Zionist fanatic Linda Sarsour as a commencement speaker.
In a sharply polarized political environment, awash in dubiously-sourced information, free speech is all the more important. Yet this same environment has seen both sides, most blatantly elements of the left on campuses, demand restrictions on their ideological foes’ free speech in the name of promoting a greater good.
KC Johnson is a professor of history at Brooklyn College and the CUNY Graduate Center.
Laura KipnisI find myself with a strange-bedfellows problem lately. Here I am, a left-wing feminist professor invited onto the pages of Commentary—though I’d be thrilled if it were still 1959—while fielding speaking requests from right-wing think tanks and libertarians who oppose child-labor laws.
Somehow I’ve ended up in the middle of the free-speech-on-campus debate. My initial crime was publishing a somewhat contentious essay about campus sexual paranoia that put me on the receiving end of Title IX complaints. Apparently I’d created a “hostile environment” at my university. I was investigated (for 72 days). Then I wrote up what I’d learned about these campus inquisitions in a second essay. Then I wrote about it all some more, in a book exposing the kangaroo-court elements of the Title IX process—and the extra-legal gag orders imposed on everyone caught in its widening snare.
I can’t really comment on whether more charges have been filed against me over the book. I’ll just say that writing about being a Title IX respondent could easily become a life’s work. I learned, shortly after writing this piece, that I and my publisher were being sued for defamation, among other things.
Is free speech under threat on American campuses? Yes. We know all about student activists who wish to shut down talks by people with opposing views. I got smeared with a bit of that myself, after a speaking invitation at Wellesley—some students made a video protesting my visit before I arrived. The talk went fine, though a group of concerned faculty circulated an open letter afterward also protesting the invitation: My views on sexual politics were too heretical, and might have offended students.
I didn’t take any of this too seriously, even as right-wing pundits crowed, with Wellesley as their latest outrage bait. It was another opportunity to mock student activists, and the fact that I was myself a feminist rather than a Charles Murray or a Milo Yiannopoulos, made them positively gleeful.
I do find myself wondering where all my new free-speech pals were when another left-wing professor, Steven Salaita, was fired (or if you prefer euphemism, “his job offer was withdrawn”) from the University of Illinois after he tweeted criticism of Israel’s Gaza policy. Sure the tweets were hyperbolic, but hyperbole and strong opinions are protected speech, too.
I guess free speech is easy to celebrate until it actually challenges something. Funny, I haven’t seen Milo around lately—so beloved by my new friends when he was bashing minorities and transgender kids. Then he mistakenly said something authentic (who knew he was capable of it!), reminiscing about an experience a lot of gay men have shared: teenage sex with older men. He tried walking it back—no, no, he’d been a victim, not a participant—but his fan base was shrieking about pedophilia and fleeing in droves. Gee, they were all so against “political correctness” a few minutes before.
It’s easy to be a free-speech fan when your feathers aren’t being ruffled. No doubt what makes me palatable to the anti-PC crowd is having thus far failed to ruffle them enough. I’m just going to have to work harder.
Laura Kipnis’s latest book is Unwanted Advances: Sexual Paranoia Comes to Campus.
Eugene KontorovichThe free and open exchange of views—especially politically conservative or traditionally religious ones—is being challenged. This is taking place not just at college campuses but throughout our public spaces and cultural institutions. James Watson was fired from the lab he led since 1968 and could not speak at New York University because of petty, censorious students who would not know DNA from LSD. Our nation’s founders and heroes are being “disappeared” from public commemoration, like Trotsky from a photograph of Soviet rulers.
These attacks on “free speech” are not the result of government action. They are not what the First Amendment protects against. The current methods—professional and social shaming, exclusion, and employment termination—are more inchoate, and their effects are multiplied by self-censorship. A young conservative legal scholar might find himself thinking: “If the late Justice Antonin Scalia can posthumously be deemed a ‘bigot’ by many academics, what chance have I?”
Ironically, artists and intellectuals have long prided themselves on being the first defenders of free speech. Today, it is the institutions of both popular and high culture that are the censors. Is there one poet in the country who would speak out for Ann Coulter?
The inhibition of speech at universities is part of a broader social phenomenon of making longstanding, traditional views and practices sinful overnight. Conservatives have not put up much resistance to this. To paraphrase Martin Niemöller’s famous dictum: “First they came for Robert E. Lee, and I said nothing, because Robert E. Lee meant nothing to me.”
The situation with respect to Israel and expressions of support for it deserves separate discussion. Even as university administrators give political power to favored ideologies by letting them create “safe spaces” (safe from opposing views), Jews find themselves and their state at the receiving end of claims of apartheid—modern day blood libels. It is not surprising if Jewish students react by demanding that they get a safe space of their own. It is even less surprising if their parents, paying $65,000 a year, want their children to have a nicer time of it. One hears Jewish groups frequently express concern about Jewish students feeling increasingly isolated and uncomfortable on campus.
But demanding selective protection from the new ideological commissars is unlikely to bring the desired results. First, this new ideology, even if it can be harnessed momentarily to give respite to harassed Jews on campus, is ultimately illiberal and will be controlled by “progressive” forces. Second, it is not so terrible for Jews in the Diaspora to feel a bit uncomfortable. It has been the common condition of Jews throughout the millennia. The social awkwardness that Jews at liberal arts schools might feel in being associated with Israel is of course one of the primary justifications for the Jewish State. Facing the snowflakes incapable of hearing a dissonant view—but who nonetheless, in the grip of intersectional ecstasy, revile Jewish self-determination—Jewish students should toughen up.
Eugene Kontorovich teaches constitutional law at Northwestern University and heads the international law department of the Kohelet Policy Forum in Jerusalem.
Nicholas LemannThere’s an old Tom Wolfe essay in which he describes being on a panel discussion at Princeton in 1965 and provoking the other panelists by announcing that America, rather than being in crisis, is in the middle of a “happiness explosion.” He was arguing that the mass effects of 20 years of post–World War II prosperity made for a larger phenomenon than the Vietnam War, the racial crisis, and the other primary concerns of intellectuals at the time.
In the same spirit, I’d say that we are in the middle of a free-speech explosion, because of 20-plus years of the Internet and 10-plus years of social media. If one understands speech as disseminated individual opinion, then surely we live in the free-speech-est society in the history of the world. Anybody with access to the unimpeded World Wide Web can say anything to a global audience, and anybody can hear anything, too. All threats to free speech should be understood in the context of this overwhelmingly reality.
It is a comforting fantasy that a genuine free-speech regime will empower mainly “good,” but previously repressed, speech. Conversely, repressive regimes that are candid enough to explain their anti-free-speech policies usually say that they’re not against free speech, just “bad” speech. We have to accept that more free speech probably means, in the aggregate, more bad speech, and also a weakening of the power, authority, and economic support for information professionals such as journalists. Welcome to the United States in 2017.
I am lucky enough to live and work on the campus of a university, Columbia, that has been blessedly free of successful attempts to repress free speech. Just in the last few weeks, Charles Murray and Dinesh D’Souza have spoken here without incident. But, yes, the evidently growing popularity of the idea that “hate speech” shouldn’t be permitted on campuses is a problem, especially, it seems, at small private liberal-arts colleges. We should all do our part, and I do, by frequently and publicly endorsing free-speech principles. Opposing the BDS movement falls squarely into that category.
It’s not just on campuses that free-speech vigilance is needed, though. The number-one threat to free speech, to my mind, is that the wide-open Web has been replaced by privately owned platforms such as Facebook and Google as the way most people experience the public life of the Internet. These companies are committed to banning “hate speech,” and they are eager to operate freely in countries, like China, that don’t permit free political speech. That makes for a far more consequential constrained environment than any campus’s speech code.
Also, Donald Trump regularly engages in presidentially unprecedented rhetoric demonizing people who disagree with him. He seems to think this is all in good fun, but, as we have already seen at his rallies, not everybody hears it that way. The place where Trumpism will endanger free speech isn’t in the center—the White House press room—but at the periphery, for example in the way that local police handle bumptious protestors and the journalists covering them. This is already happening around the country. If Trump were as disciplined and knowledgeable as Vladimir Putin or Recep Tayyip Erdogan, which so far he seems not to be, then free speech could be in even more serious danger from government, which in most places is its usual main enemy.
Nicholas Lemann is a professor at Columbia Journalism School and a staff writer for the New Yorker.
Michael J. LewisFree speech is a right but it is also a habit, and where the habit shrivels so will the right. If free speech today is in headlong retreat—everywhere threatened by regulation, organized harassment, and even violence—it is in part because our political culture allowed the practice of persuasive oratory to atrophy. The process began in 1973, an unforeseen side effect of Roe v. Wade. Legislators were delighted to learn that by relegating this divisive matter of public policy to the Supreme Court and adopting a merely symbolic position, they could sit all the more safely in their safe seats.
Since then, one crucial question of public policy after another has been punted out of the realm of politics and into the judicial. Issues that might have been debated with all the rhetorical agility of a Lincoln and a Douglas, and then subjected to a process of negotiation, compromise, and voting, have instead been settled by decree: e.g., Chevron, Kelo, Obergefell. The consequences for speech have been pernicious. Since the time of Pericles, deliberative democracy has been predicated on the art of persuasion, which demands the forceful clarity of thought and expression without which no one has ever been persuaded. But a legislature that relegates its authority to judges and regulators will awaken to discover its oratorical culture has been stunted. When politicians, rather than seeking to convince and win over, prefer to project a studied and pleasant vagueness, debate withers into tedious defensive performance. It has been decades since any presidential debate has seen any sustained give and take over a matter of policy. If there is any suspense at all, it is only the possibility that a fatigued or peeved candidate might blurt out that tactless shard of truth known as a gaffe.
A generation accustomed to hearing platitudes smoothly dispensed from behind a teleprompter will find the speech of a fearless extemporaneous speaker to be startling, even disquieting; unfamiliar ideas always are. Unhappily, they have been taught to interpret that disquiet as an injury done to them, rather than as a premise offered to them to consider. All this would not have happened—certainly not to this extent—had not our deliberative democracy decided a generation ago that it preferred the security of incumbency to the risks of unshackled debate. The compulsory contraction of free speech on college campuses is but the logical extension of the voluntary contraction of free speech in our political culture.
Michael J. Lewis’s new book is City of Refuge: Separatists and Utopian Town Planning (Princeton University Press).
Heather Mac DonaldThe answer to the symposium question depends on how powerful the transmission belt is between academia and the rest of the country. On college campuses, violence and brute force are silencing speakers who challenge left-wing campus orthodoxies. These totalitarian outbreaks have been met with listless denunciations by college presidents, followed by . . . virtually nothing. As of mid-May, the only discipline imposed for 2017’s mass attacks on free speech at UC Berkeley, Middlebury, and Clare-mont McKenna College was a letter of reprimand inserted—sometimes only temporarily—into the files of several dozen Middlebury students, accompanied by a brief period of probation. Previous outbreaks of narcis-sistic incivility, such as the screaming-girl fit at Yale and the assaults on attendees of Yale’s Buckley program, were discreetly ignored by college administrators.
Meanwhile, the professoriate unapologetically defends censorship and violence. After the February 1 riot in Berkeley to prevent Milo Yiannapoulos from speaking, Déborah Blocker, associate professor of French at UC Berkeley, praised the rioters. They were “very well-organized and very efficient,” Blocker reported admiringly to her fellow professors. “They attacked property but they attacked it very sparingly, destroying just enough University property to obtain the cancellation order for the MY event and making sure no one in the crowd got hurt” (emphasis in original). (In fact, perceived Milo and Donald Trump supporters were sucker-punched and maced; businesses downtown were torched and vandalized.) New York University’s vice provost for faculty, arts, humanities, and diversity, Ulrich Baer, displayed Orwellian logic by claiming in a New York Times op-ed that shutting down speech “should be understood as an attempt to ensure the conditions of free speech for a greater group of people.”
Will non-academic institutions take up this zeal for outright censorship? Other ideological products of the left-wing academy have been fully absorbed and operationalized. Racial victimology, which drives much of the campus censorship, is now standard in government and business. Corporate diversity trainers counsel that bias is responsible for any lack of proportional racial representation in the corporate ranks. Racial disparities in school discipline and incarceration are universally attributed to racism rather than to behavior. Public figures have lost jobs for violating politically correct taboos.
Yet Americans possess an instinctive commitment to the First Amendment. Federal judges, hardly an extension of the Federalist Society, have overwhelmingly struck down campus speech codes. It is hard to imagine that they would be any more tolerant of the hate-speech legislation so prevalent in Europe. So the question becomes: At what point does the pressure to conform to the elite worldview curtail freedom of thought and expression, even without explicit bans on speech?
Social stigma against conservative viewpoints is not the same as actual censorship. But the line can blur. The Obama administration used regulatory power to impose a behavioral conformity on public and private entities. School administrators may have technically still possessed the right to dissent from novel theories of gender, but they had to behave as if they were fully on board with the transgender revolution when it came to allowing boys to use girls’ bathrooms and locker rooms.
Had Hillary Clinton had been elected president, the federal bureaucracy would have mimicked campus diversocrats with even greater zeal. That threat, at least, has been avoided. Heresies against left-wing dogma may still enter the public arena, if only by the back door. The mainstream media have lurched even further left in the Trump era, but the conservative media, however mocked and marginalized, are expanding (though Twitter and Facebook’s censorship of conservative speakers could be a harbinger of more official silencing).
Outside the academy, free speech is still legally protected, but its exercise requires ever greater determination.
Heather Mac Donald is a fellow at the Manhattan Institute and the author of The War on Cops.
John McWhorterThere is a certain mendacity, as Brick put it in Cat on a Hot Tin Roof, in our discussion of free speech on college campuses. Namely, none of us genuinely wish that absolutely all issues be aired in the name of education and open-mindedness. To insist so is to pretend that civilized humanity makes nothing we could call advancement in philosophical consensus.
I doubt we need “free speech” on issues such as whether slavery and genocide are okay, whether it has been a mistake to view women as men’s equals, or to banish as antique the idea that whites are a master race while other peoples represent a lower rung on the Darwinian scale. With all due reverence of John Stuart Mill’s advocacy for the regular airing of even noxious views in order to reinforce clarity on why they were rejected, we are also human beings with limited time. A commitment to the Enlightenment justifiably will decree that certain views are, indeed, no longer in need of discussion.
However, our modern social-justice warriors are claiming that this no-fly zone of discussion is vaster than any conception of logic or morality justifies. We are being told that questions regarding the modern proposals about cultural appropriation, about whether even passing infelicitous statements constitute racism in the way that formalized segregation and racist disparagement did, or about whether social disparities can be due to cultural legacies rather than structural impediments, are as indisputably egregious, backwards, and abusive as the benighted views of the increasingly distant past.
That is, the new idea is not only that discrimination and inequality still exist, but that to even question the left’s utopian expectation on such matters justifies the same furious, sloganistic and even physically violent resistance that was once levelled against those designated heretics by a Christian hegemony.
Of course the protesters in question do not recognize themselves in a portrait as opponents of something called heresy. They suppose that Galileo’s opponents were clearly wrong but that they, today, are actually correct in a way that no intellectual or moral argument could coherently deny.
As such, we have students allowed to decree college campuses as “racist” when they are the least racist spaces on the planet—because they are, predictably given the imperfection of humans, not perfectly free of passingly unsavory interactions. Thinkers invited to talk for a portion of an hour from the right rather than the left and then have dinner with a few people and fly home are treated as if they were reanimated Hitlers. The student of color who hears a few white students venturing polite questions about the leftist orthodoxy is supported in fashioning these questions as “racist” rhetoric.
The people on college campuses who openly and aggressively spout this new version of Christian (or even Islamist) crusading—ironically justifying it as a barricade against “fascist” muzzling of freedom when the term applies ominously well to the regime they are fostering—are a minority. However, the sawmill spinning blade of their rhetoric has succeeding in rendering opposition as risky as espousing pedophilia, such that only those natively open to violent criticism dare speak out. The latter group is small. The campus consensus thereby becomes, if only at moralistic gunpoint à la the ISIS victim video, a strangled hard-leftism.
Hence freedom of speech is indeed threatened on today’s college campuses. I have lost count of how many of my students, despite being liberal Democrats (many of whom sobbed at Hillary Clinton’s loss last November), have told me that they are afraid to express their opinions about issues that matter, despite the fact that their opinions are ones that any liberal or even leftist person circa 1960 would have considered perfectly acceptable.
Something has shifted of late, and not in a direction we can legitimately consider forwards.
John McWhorter teaches linguistics, philosophy, and music history at Columbia University and is the author of The Language Hoax, Words on the Move, and Talking Back, Talking Black.
Kate Bachelder OdellIt’s 2021, and Harvard Square has devolved into riots: Some 120 people are injured in protests, and the carnage includes fire-consumed cop cars and smashed-in windows. The police discharge canisters of tear gas, and, after apprehending dozens of protesters, enforce a 1:45 A.M. curfew. Anyone roaming the streets after hours is subject to arrest. About 2,000 National Guardsmen are prepared to intervene. Such violence and disorder is also roiling Berkeley and other elite and educated areas.
Oh, that’s 1970. The details are from the Harvard Crimson’s account of “anti-war” riots that spring. The episode is instructive in considering whether free speech is under threat in the United States. Almost daily, there’s a new YouTube installment of students melting down over viewpoints of speakers invited to one campus or another. Even amid speech threats from government—for example, the IRS’s targeting of political opponents—nothing has captured the public’s attention like the end of free expression at America’s institutions of higher learning.
Yet disruption, confusion, and even violence are not new campus phenomena. And it’s hard to imagine that young adults who deployed brute force in the 1960s and ’70s were deeply committed to the open and peaceful exchange of ideas.
There may also be reason for optimism. The rough and tumble on campus in the 1960s and ’70s produced a more even-tempered ’80s and ’90s, and colleges are probably heading for another course correction. In covering the ruckuses at Yale, Missouri, and elsewhere, I’ve talked to professors and students who are figuring out how to respond to the illiberalism, even if the reaction is delayed. The University of Chicago put out a set of free-speech principles last year, and others schools such as Princeton and Purdue have endorsed them.
The NARPs—Non-Athletic Regular People, as they are sometimes known on campus—still outnumber the social-justice warriors, who appear to be overplaying their hand. Case in point is the University of Missouri, which experienced a precipitous drop in enrollment after instructor Melissa Click and her ilk stoked racial tensions last spring. The college has closed dorms and trimmed budgets. Which brings us to another silver lining: The economic model of higher education (exorbitant tuition to pay ever more administrators) may blow up traditional college before the fascists can.
Note also that the anti-speech movement is run by rich kids. A Brookings Institution analysis from earlier this year discovered that “the average enrollee at a college where students have attempted to restrict free speech comes from a family with an annual income $32,000 higher than that of the average student in America.” Few rank higher in average income than those at Middlebury College, where students evicted scholar Charles Murray in a particularly ugly scene. (The report notes that Murray was received respectfully at Saint Louis University, “where the median income of students’ families is half Middlebury’s.”) The impulses of over-adulated 20-year-olds may soon be tempered by the tyranny of having to show up for work on a daily basis.
None of this is to suggest that free speech is enjoying some renaissance either on campus or in America. But perhaps as the late Wall Street Journal editorial-page editor Robert Bartley put it in his valedictory address: “Things could be worse. Indeed, they have been worse.”
Kate Bachelder Odell is an editorial writer for the Wall Street Journal.
Jonathan RauchIs free speech under threat? The one-syllable answer is “yes.” The three-syllable answer is: “Yes, of course.” Free speech is always under threat, because it is not only the single most successful social idea in all of human history, it is also the single most counterintuitive. “You mean to say that speech that is offensive, untruthful, malicious, seditious, antisocial, blasphemous, heretical, misguided, or all of the above deserves government protection?” That seemingly bizarre proposition is defensible only on the grounds that the marketplace of ideas turns out to be the most powerful engine of knowledge, prosperity, liberty, social peace, and moral advancement that our species has had the good fortune to discover.
Every new generation of free-speech advocates will need to get up every morning and re-explain the case for free speech and open inquiry—today, tomorrow, and forever. That is our lot in life, and we just need to be cheerful about it. At discouraging moments, it is helpful to remember that the country has made great strides toward free speech since 1798, when the Adams administration arrested and jailed its political critics; and since the 1920s, when the U.S. government banned and burned James Joyce’s great novel Ulysses; and since 1954, when the government banned ONE, a pioneering gay journal. (The cover article was a critique of the government’s indecency censors, who censored it.) None of those things could happen today.
I suppose, then, the interesting question is: What kind of threat is free speech under today? In the present age, direct censorship by government bodies is rare. Instead, two more subtle challenges hold sway, especially, although not only, on college campuses. The first is a version of what I called, in my book Kindly Inquisitors, the humanitarian challenge: the idea that speech that is hateful or hurtful (in someone’s estimation) causes pain and thus violates others’ rights, much as physical violence does. The other is a version of what I called the egalitarian challenge: the idea that speech that denigrates minorities (again, in someone’s estimation) perpetuates social inequality and oppression and thus also is a rights violation. Both arguments call upon administrators and other bureaucrats to defend human rights by regulating speech rights.
Both doctrines are flawed to the core. Censorship harms minorities by enforcing conformity and entrenching majority power, and it no more ameliorates hatred and injustice than smashing thermometers ameliorates global warming. If unwelcome words are the equivalent of bludgeons or bullets, then the free exchange of criticism—science, in other words—is a crime. I could go on, but suffice it to say that the current challenges are new variations on ancient themes—and they will be followed, in decades and centuries to come, by many, many other variations. Memo to free-speech advocates: Our work is never done, but the really amazing thing, given the proposition we are tasked to defend, is how well we are doing.
Jonathan Rauch is a senior fellow at the Brookings Institution and the author of Kindly Inquisitors: The New Attacks on Free Thought.
Nicholas Quinn RosenkranzSpeech is under threat on American campuses as never before. Censorship in various forms is on the rise. And this year, the threat to free speech on campus took an even darker turn, toward actual violence. The prospect of Milo Yiannopoulos speaking at Berkeley provoked riots that caused more than $100,000 worth of property damage on the campus. The prospect of Charles Murray speaking at Middlebury led to a riot that put a liberal professor in the hospital with a concussion. Ann Coulter’s speech at Berkeley was cancelled after the university determined that none of the appropriate venues could be protected from “known security threats” on the date in question.
The free-speech crisis on campus is caused, at least in part, by a more insidious campus pathology: the almost complete lack of intellectual diversity on elite university faculties. At Yale, for example, the number of registered Republicans in the economics department is zero; in the psychology department, there is one. Overall, there are 4,410 faculty members at Yale, and the total number of those who donated to a Republican candidate during the 2016 primaries was three.
So when today’s students purport to feel “unsafe” at the mere prospect of a conservative speaker on campus, it may be easy to mock them as “delicate snowflakes,” but in one sense, their reaction is understandable: If students are shocked at the prospect of a Republican behind a university podium, perhaps it is because many of them have never before laid eyes on one.
To see the connection between free speech and intellectual diversity, consider the recent commencement speech of Harvard President Drew Gilpin Faust:
Universities must be places open to the kind of debate that can change ideas….Silencing ideas or basking in intellectual orthodoxy independent of facts and evidence impedes our access to new and better ideas, and it inhibits a full and considered rejection of bad ones. . . . We must work to ensure that universities do not become bubbles isolated from the concerns and discourse of the society that surrounds them. Universities must model a commitment to the notion that truth cannot simply be claimed, but must be established—established through reasoned argument, assessment, and even sometimes uncomfortable challenges that provide the foundation for truth.
Faust is exactly right. But, alas, her commencement audience might be forgiven a certain skepticism. After all, the number of registered Republicans in several departments at Harvard—e.g., history and psychology—is exactly zero. In those departments, the professors themselves may be “basking in intellectual orthodoxy” without ever facing “uncomfortable challenges.” This may help explain why some students will do everything in their power to keep conservative speakers off campus: They notice that faculty hiring committees seem to do exactly the same thing.
In short, it is a promising sign that true liberal academics like Faust have started speaking eloquently about the crucial importance of civil, reasoned disagreement. But they will be more convincing on this point when they hire a few colleagues with whom they actually disagree.
Nicholas Quinn Rosenkranz is a professor of law at Georgetown. He serves on the executive committee of Heterodox Academy, which he co-founded, on the board of directors of the Federalist Society, and on the board of directors of the Foundation for Individual Rights in Education (FIRE).
Ben ShapiroIn February, I spoke at California State University in Los Angeles. Before my arrival, professors informed students that a white supremacist would be descending on the school to preach hate; threats of violence soon prompted the administration to cancel the event. I vowed to show up anyway. One hour before the event, the administration backed down and promised to guarantee that the event could go forward, but police officers were told not to stop the 300 students, faculty, and outside protesters who blocked and assaulted those who attempted to attend the lecture. We ended up trapped in the auditorium, with the authorities telling students not to leave for fear of physical violence. I was rushed from campus under armed police guard.
Is free speech under assault?
Of course it is.
On campus, free speech is under assault thanks to a perverse ideology of intersectionality that claims victim identity is of primary value and that views are a merely secondary concern. As a corollary, if your views offend someone who outranks you on the intersectional hierarchy, your views are treated as violence—threats to identity itself. On campus, statements that offend an individual’s identity have been treated as “microaggressions”–actual aggressions against another, ostensibly worthy of violence. Words, students have been told, may not break bones, but they will prompt sticks and stones, and rightly so.
Thus, protesters around the country—leftists who see verbiage as violence—have, in turn, used violence in response to ideas they hate. Leftist local authorities then use the threat of violence as an excuse to ideologically discriminate against conservatives. This means public intellectuals like Charles Murray being run off of campus and his leftist professorial cohort viciously assaulted; it means Ann Coulter being targeted for violence at Berkeley; it means universities preemptively banning me and Ayaan Hirsi Ali and Condoleezza Rice and even Jason Riley.
The campus attacks on free speech are merely the most extreme iteration of an ideology that spans from left to right: the notion that your right to free speech ends where my feelings begin. Even Democrats who say that Ann Coulter should be allowed to speak at Berkeley say that nobody should be allowed to contribute to a super PAC (unless you’re a union member, naturally).
Meanwhile, on the right, the president’s attacks on the press have convinced many Republicans that restrictions on the press wouldn’t be altogether bad. A Vanity Fair/60 Minutes poll in late April found that 36 percent of Americans thought freedom of the press “does more harm than good.” Undoubtedly, some of that is due to the media’s obvious bias. CNN’s Jeff Zucker has targeted the Trump administration for supposedly quashing journalism, but he was silent when the Obama administration’s Department of Justice cracked down on reporters from the Associated Press and Fox News, and when hacks like Deputy National Security Adviser Ben Rhodes openly sold lies regarding Iran. But for some on the right, the response to press falsities hasn’t been to call for truth, but to instead echo Trumpian falsehoods in the hopes of damaging the media. Free speech is only important when people seek the truth. Leftists traded truth for tribalism long ago; in response, many on the right seem willing to do the same. Until we return to a common standard under which facts matter, free speech will continue to rest on tenuous grounds.
Ben Shapiro is the editor in chief of The Daily Wire and the host of The Ben Shapiro Show.
Judith ShulevitzIt’s tempting to blame college and university administrators for the decline of free speech in America, and for years I did just that. If the guardians of higher education won’t inculcate the habits of mind required for serious thinking, I thought, who will? The unfettered but civil exchange of ideas is the basic operation of education, just as addition is the basic operation of arithmetic. And universities have to teach both the unfettered part and the civil part, because arguing in a respectful manner isn’t something anyone does instinctively.
So why change my mind now? Schools still cling to speech codes, and there still aren’t enough deans like the one at the University of Chicago who declared his school a safe-space-free zone. My alma mater just handed out prizes for “enhancing race and/or ethnic relations” to two students caught on video harassing the dean of their residential college, one screaming at him that he’d created “a space for violence to happen,” the other placing his face inches away from the dean’s and demanding, “Look at me.” All this because they deemed a thoughtful if ill-timed letter about Halloween costumes written by the dean’s wife to be an act of racist aggression. Yale should discipline students who behave like that, even if they’re right on the merits (I don’t think they were, but that’s not the point). They certainly don’t deserve awards. I can’t believe I had to write that sentence.
But in abdicating their responsibilites, the universities have enabled something even worse than an attack on free speech. They’ve unleashed an assault on themselves. There’s plenty of free speech around; we know that because so much bad speech—low-minded nonsense—tests our constitutional tolerance daily, and that’s holding up pretty well. (As Nicholas Lemann observes elsewhere in this symposium, Facebook and Google represent bigger threats to free speech than students and administrators.) What’s endangered is good speech.
Universities were setting themselves up to be used. Provocateurs exploit the atmosphere on campus to goad overwrought students, then gleefully trash the most important bastion of our crumbling civil society. Higher education and everything it stands for—logical argument, the scientific method, epistemological rigor—start to look illegitimate. Voters perceive tenure and research and higher education itself as hopelessly partisan and unworthy of taxpayers’ money.
The press is a secondary victim of this process of delegitimization. If serious inquiry can be waved off as ideology, then facts won’t be facts and reporting can’t be trusted. All journalism will be equal to all other journalism, and all journalists will be reduced to pests you can slam to the ground with near impunity. Politicians will be able to say anything and do just about anything and there will be no countervailing authority to challenge them. I’m pretty sure that that way lies Putinism and Erdoganism. And when we get to that point, I’m going to start worrying about free speech again.
Judith Shulevitz is a critic in New York.
Harvey SilverglateFree speech is, and has always been, threatened. The title of Nat Hentoff’s 1993 book Free Speech for Me – but Not for Thee is no less true today than at any time, even as the Supreme Court has accorded free speech a more absolute degree of protection than in any previous era.
Since the 1980s, the high court has decided most major free-speech cases in favor of speech, with most of the major decisions being unanimous or nearly so.
Women’s-rights advocates were turned back by the high court in 1986 when they sought to ban the sale of printed materials that, because deemed pornographic by some, were alleged to promote violence against women. Censorship in the name of gender–based protection thus failed to gain traction.
Despite the demands of civil-rights activists, the Supreme Court in 1992 declared cross-burning to be a protected form of expression in R.A.V. v. City of St. Paul, a decision later refined to strengthen a narrow exception for when cross-burning occurs primarily as a physical threat rather than merely an expression of hatred.
Other attempts at First Amendment circumvention have been met with equally decisive rebuff. When the Reverend Jerry Falwell sued Hustler magazine publisher Larry Flynt for defamation growing out of a parody depicting Falwell’s first sexual encounter as a drunken tryst with his mother in an outhouse, a unanimous Supreme Court lectured on the history of parody as a constitutionally protected, even if cruel, form of social and political criticism.
When the South Boston Allied War Veterans, sponsor of Boston’s Saint Patrick’s Day parade, sought to exclude a gay veterans’ group from marching under its own banner, the high court unanimously held that as a private entity, even though marching in public streets, the Veterans could exclude any group marching under a banner conflicting with the parade’s socially conservative message, notwithstanding public-accommodations laws. The gay group could have its own parade but could not rain on that of the conservatives.
Despite such legal clarity, today’s most potent attacks on speech are coming, ironically, from liberal-arts colleges. Ubiquitous “speech codes” limit speech that might insult, embarrass, or “harass,” in particular, members of “historically disadvantaged” groups. “Safe spaces” and “trigger warnings” protect purportedly vulnerable students from hearing words and ideas they might find upsetting. Student demonstrators and threats of violence have forced the cancellation of controversial speakers, left and right.
It remains unclear how much campus censorship results from politically correct faculty, control-obsessed student-life administrators, or students socialized and indoctrinated into intolerance. My experience suggests that the bureaucrats are primarily, although not entirely, to blame. When sued, colleges either lose or settle, pay a modest amount, and then return to their censorious ways.
This trend threatens the heart and soul of liberal education. Eventually it could infect the entire society as these students graduate and assume influential positions. Whether a resulting flood of censorship ultimately overcomes legal protections and weakens democracy remains to be seen.
Harvey Silverglate, a Boston-based lawyer and writer, is the co-author of The Shadow University: The Betrayal of Liberty on America’s Campuses (Free Press, 1998). He co-founded the Foundation for Individual Rights in Education in 1999 and is on FIRE’s board of directors. He spent some three decades on the board of the ACLU of Massachusetts, two of those years as chairman. Silverglate taught at Harvard Law School for a semester during a sabbatical he took in the mid-1980s.
Christina Hoff SommersWhen Heather Mac Donald’s “blue lives matter” talk was shut down by a mob at Claremont McKenna College, the president of neighboring Pomona College sent out an email defending free speech. Twenty-five students shot back a response: “Heather Mac Donald is a fascist, a white supremacist . . . classist, and ignorant of interlocking systems of domination that produce the lethal conditions under which oppressed peoples are forced to live.”
Some blame the new campus intolerance on hypersensitive, over-trophied millennials. But the students who signed that letter don’t appear to be fragile. Nor do those who recently shut down lectures at Berkeley, Middlebury, DePaul, and Cal State LA. What they are is impassioned. And their passion is driven by a theory known as intersectionality.
Intersectionality is the source of the new preoccupation with microaggressions, cultural appropriation, and privilege-checking. It’s the reason more than 200 colleges and universities have set up Bias Response Teams. Students who overhear potentially “otherizing” comments or jokes are encouraged to make anonymous reports to their campus BRTs. A growing number of professors and administrators have built their careers around intersectionality. What is it exactly?
Intersectionality is a neo-Marxist doctrine that views racism, sexism, ableism, heterosexism, and all forms of “oppression” as interconnected and mutually reinforcing. Together these “isms” form a complex arrangement of advantages and burdens. A white woman is disadvantaged by her gender but advantaged by her race. A Latino is burdened by his ethnicity but privileged by his gender. According to intersectionality, American society is a “matrix of domination,” with affluent white males in control. Not only do they enjoy most of the advantages, they also determine what counts as “truth” and “knowledge.”
But marginalized identities are not without resources. According to one of intersectionality’s leading theorists, Patricia Collins (former president of the American Sociology Association), disadvantaged groups have access to deeper, more liberating truths. To find their voice, and to enlighten others to the true nature of reality, they require a safe space—free of microaggressive put-downs and imperious cultural appropriations. Here they may speak openly about their “lived experience.” Lived experience, according to intersectional theory, is a better guide to the truth than self-serving Western and masculine styles of thinking. So don’t try to refute intersectionality with logic or evidence: That only proves that you are part of the problem it seeks to overcome.
How could comfortably ensconced college students be open to a convoluted theory that describes their world as a matrix of misery? Don’t they flinch when they hear intersectional scholars like bell hooks refer to the U.S. as an “imperialist, white-supremacist, capitalist patriarchy”? Most take it in stride because such views are now commonplace in high-school history and social studies texts. And the idea that knowledge comes from lived experience rather than painstaking study and argument is catnip to many undergrads.
Silencing speech and forbidding debate is not an unfortunate by-product of intersectionality—it is a primary goal. How else do you dismantle a lethal system of oppression? As the protesting students at Claremont McKenna explained in their letter: “Free speech . . . has given those who seek to perpetuate systems of domination a platform to project their bigotry.” To the student activists, thinkers like Heather MacDonald and Charles Murray are agents of the dominant narrative, and their speech is “a form of violence.”
It is hard to know how our institutions of higher learning will find their way back to academic freedom, open inquiry, and mutual understanding. But as long as intersectional theory goes unchallenged, campus fanaticism will intensify.
Christina Hoff Sommers is a resident scholar at the American Enterprise Institute. She is the author of several books, including Who Stole Feminism? and The War Against Boys. She also hosts The Factual Feminist, a video blog. @Chsommers
John StosselYes, some college students do insane things. Some called police when they saw “Trump 2016” chalked on sidewalks. The vandals at Berkeley and the thugs who assaulted Charles Murray are disgusting. But they are a minority. And these days people fight back.
Someone usually videotapes the craziness. Yale’s “Halloween costume incident” drove away two sensible instructors, but videos mocking Yale’s snowflakes, like “Silence U,” make such abuse less likely. Groups like Young America’s Foundation (YAF) publicize censorship, and the Foundation for Individual Rights in Education (FIRE) sues schools that restrict speech.
Consciousness has been raised. On campus, the worst is over. Free speech has always been fragile. I once took cameras to Seton Hall law school right after a professor gave a lecture on free speech. Students seemed to get the concept. Sean, now a lawyer, said, “Protect freedom for thought we hate; otherwise you never have a society where ideas clash, and we come up with the best idea.” So I asked, “Should there be any limits?” Students listed “fighting words,” “shouting fire in a theater,” malicious libel, etc.— reasonable court-approved exceptions. But then they went further. Several wanted bans on “hate” speech, “No value comes out of hate speech,” said Javier. “It inevitably leads to violence.”
No it doesn’t, I argued, “Also, doesn’t hate speech bring ideas into the open, so you can better argue about them, bringing you to the truth?”
“No,” replied Floyd, “With hate speech, more speech is just violence.”
So I pulled out a big copy of the First Amendment and wrote, “exception: hate speech.”
Two students wanted a ban on flag desecration “to respect those who died to protect it.”
One wanted bans on blasphemy:
“Look at the gravity of the harm versus the value in blasphemy—the harm outweighs the value.”
Several wanted a ban on political speech by corporations because of “the potential for large corporations to improperly influence politicians.”
Finally, Jillian, also now a lawyer, wanted hunting videos banned.
“It encourages harm down the road.”
I asked her, incredulously, “you’re comfortable locking up people who make a hunting film?”
“Oh, yeah,” she said. “It’s unnecessary cruelty to feeling and sentient beings.”
So, I picked up my copy of the Bill of Rights again. After “no law . . . abridging freedom of speech,” I added: “Except hate speech, flag burning, blasphemy, corporate political speech, depictions of hunting . . . ”
That embarrassed them. “We may have gone too far,” said Sean. Others agreed. One said, “Cross out the exceptions.” Free speech survived, but it was a close call. Respect for unpleasant speech will always be thin. Then-Senator Hillary Clinton wanted violent video games banned. John McCain and Russ Feingold tried to ban political speech. Donald Trump wants new libel laws, and if you burn a flag, he tweeted, consequences might be “loss of citizenship or a year in jail!” Courts or popular opinion killed those bad ideas.
Free speech will survive, assuming those of us who appreciate it use it to fight those who would smother it.
John Stossel is a FOX News/FOX Business Network Contributor.
Warren TreadgoldEven citizens of dictatorships are free to praise the regime and to talk about the weather. The only speech likely to be threatened anywhere is the sort that offends an important and intolerant group. What is new in America today is a leftist ideology that threatens speech precisely because it offends certain important and intolerant groups: feminists and supposedly oppressed minorities.
So far this new ideology is clearly dominant only in colleges and universities, where it has become so strong that most controversies concern outside speakers invited by students, not faculty speakers or speakers invited by administrators. Most academic administrators and professors are either leftists or have learned not to oppose leftism; otherwise they would probably never have been hired. Administrators treat even violent leftist protestors with respect and are ready to prevent conservative and moderate outsiders from speaking rather than provoke protests. Most professors who defend conservative or moderate speakers argue that the speakers’ views are indeed noxious but say that students should be exposed to them to learn how to refute them. This is very different from encouraging a free exchange of ideas.
Although the new ideology began on campuses in the ’60s, it gained authority outside them largely by means of several majority decisions of the Supreme Court, from Roe (1973) to Obergefell (2015). The Supreme Court decisions that endanger free speech are based on a presumed consensus of enlightened opinion that certain rights favored by activists have the same legitimacy as rights explicitly guaranteed by the Constitution—or even more legitimacy, because the rights favored by activists are assumed to be so fundamental that they need no grounding in specific constitutional language. The Court majorities found restricting abortion rights or homosexual marriage, as large numbers of Americans wish to do, to be constitutionally equivalent to restricting black voting rights or interracial marriage. Any denial of such equivalence therefore opposes fundamental constitutional rights and can be considered hate speech, advocating psychological and possibly physical harm to groups like women seeking abortions or homosexuals seeking approval. Such speech may still be constitutionally protected, but acting upon it is not.
This ideology of forbidding allegedly offensive speech has spread to most of the Democratic Party and the progressive movement. Rather than seeing themselves as taking one side in a free debate, progressives increasingly argue (for example) that opposing abortion is offensive to women and supporting the police is offensive to blacks. Some politicians object so strongly to such speech that despite their interest in winning votes, they attack voters who disagree with them as racists or sexists. Expressing views that allegedly discriminate against women, blacks, homosexuals, and various other minorities can now be grounds for a lawsuit.
Speech that supposedly offends women or minorities has already cost some people their careers, their businesses, and their opportunities to deliver or hear speeches. Such intimidation is the intended result of an ideology that threatens free speech.
Warren Treadgold is a professor of history at Saint Louis University.
Matt WelchLike a sullen zoo elephant rocking back and forth from leg to leg, there is an oversized paradox we’d prefer not to see standing smack in the sightlines of most our policy debates. Day by day, even minute by minute, America simultaneously gets less free in the laboratory, but more free in the field. Individuals are constantly expanding the limits and applications of their own autonomy, even as government transcends prior restraints on how far it can reach into our intimate business.
So it is that the Internal Revenue Service can charge foreign banks with collecting taxes on U.S. citizens (therefore causing global financial institutions to shun many of the estimated 6 million-plus Americans who live abroad), even while block-chain virtuosos make illegal transactions wholly undetectable to authorities. It has never been easier for Americans to travel abroad, and it’s never been harder to enter the U.S. without showing passports, fingerprints, retinal scans, and even social-media passwords.
What’s true for banking and tourism is doubly true for free speech. Social media has given everyone not just a platform but a megaphone (as unreadable as our Facebook timelines have all become since last November). At the same time, the federal government during this unhappy 21st century has continuously ratcheted up prosecutorial pressure against leakers, whistleblowers, investigative reporters, and technology companies.
A hopeful bulwark against government encroachment unique to the free-speech field is the Supreme Court’s very strong First Amendment jurisprudence in the past decade or two. Donald Trump, like Hillary Clinton before him, may prattle on about locking up flag-burners, but Antonin Scalia and the rest of SCOTUS protected such expression back in 1990. Barack Obama and John McCain (and Hillary Clinton—she’s as bad as any recent national politician on free speech) may lament the Citizens United decision, but it’s now firmly legal to broadcast unfriendly documentaries about politicians without fear of punishment, no matter the electoral calendar.
But in this very strength lies what might be the First Amendment’s most worrying vulnerability. Barry Friedman, in his 2009 book The Will of the People, made the persuasive argument that the Supreme Court typically ratifies, post facto, where public opinion has already shifted. Today’s culture of free speech could be tomorrow’s legal framework. If so, we’re in trouble.
For evidence of free-speech slippage, just read around you. When both major-party presidential nominees react to terrorist attacks by calling to shut down corners of the Internet, and when their respective supporters are actually debating the propriety of sucker punching protesters they disagree with, it’s hard to escape the conclusion that our increasingly shrill partisan sorting is turning the very foundation of post-1800 global prosperity into just another club to be swung in our national street fight.
In the eternal cat-and-mouse game between private initiative and government control, the former is always advantaged by the latter’s fundamental incompetence. But what if the public willingly hands government the power to muzzle? It may take a counter-cultural reformation to protect this most noble of American experiments.
Matt Welch is the editor at large of Reason.
Adam. J. WhiteFree speech is indeed under threat on our university campuses, but the threat did not begin there and it will not end there. Rather, the campus free-speech crisis is a particularly visible symptom of a much more fundamental crisis in American culture.
The problem is not that some students, teachers, and administrators reject traditional American values and institutions, or even that they are willing to menace or censor others who defend those values and institutions. Such critics have always existed, and they can be expected to use the tools and weapons at their disposal. The problem is that our country seems to produce too few students, teachers, and administrators who are willing or able to respond to them.
American families produce children who arrive on campus unprepared for, or uninterested in, defending our values and institutions. For our students who are focused primarily on their career prospects (if on anything at all), “[c]ollege is just one step on the continual stairway of advancement,” as David Brooks observed 16 years ago. “They’re not trying to buck the system; they’re trying to climb it, and they are streamlined for ascent. Hence they are not a disputatious group.”
Meanwhile, parents bear incomprehensible financial burdens to get their kids through college, without a clear sense of precisely what their kids will get out of these institutions in terms of character formation or civic virtue. With so much money at stake, few can afford for their kids to pursue more than career prospects.
Those problems are not created on campus, but they are exacerbated there, as too few college professors and administrators see their institutions as cultivators of American culture and republicanism. Confronted with activists’ rage, they offer no competing vision of higher education—let alone a compelling one.
Ironically, we might borrow a solution from the Left. Where progressives would leverage state power in service of their health-care agenda, we could do the same for education. State legislatures and governors, recognizing the present crisis, should begin to reform and renegotiate the fundamental nature of state universities. By making state universities more affordable, more productive, and more reflective of mainstream American values, they will attract students—and create incentives for competing private universities to follow suit.
Let’s hope they do it soon, for what’s at stake is much more than just free speech on campus, or even free speech writ large. In our time, as in Tocqueville’s, “the instruction of the people powerfully contributes to the support of a democratic republic,” especially “where instruction which awakens the understanding is not separated from moral education which amends the heart.” We need our colleges to cultivate—not cut down—civic virtue and our capacity for self-government. “Republican government presupposes the existence of these qualities in a higher degree than any other form,” Madison wrote in Federalist 55. If “there is not sufficient virtue among men for self-government,” then “nothing less than the chains of despotism” can restrain us “from destroying and devouring one another.”
Adam J. White is a research fellow at the Hoover Institution.
Cathy YoungA writer gets expelled from the World Science Fiction Convention for criticizing the sci-fi community’s preoccupation with racial and gender “inclusivity” while moderating a panel. An assault on free speech, or an exercise of free association? How about when students demand the disinvitation of a speaker—or disrupt the speech? When a critic of feminism gets banned from a social-media platform for unspecified “abuse”?
Such questions are at the heart of many recent free-speech controversies. There is no censorship by government; but how concerned should we be when private actors effectively suppress unpopular speech? Even in the freest society, some speech will—and should—be considered odious and banished to unsavory fringes. No one weeps for ostracized Holocaust deniers or pedophilia apologists.
But shunned speech needs to remain a narrow exception—or acceptable speech will inexorably shrink. As current Federal Communications Commission chairman Ajit Pai cautioned last year, First Amendment protections will be hollowed out unless undergirded by cultural values that support a free marketplace of ideas.
Sometimes, attacks on speech come from the right. In 2003, an Iraq War critic, reporter Chris Hedges, was silenced at Rockford College in Illinois by hecklers who unplugged the microphone and rushed the stage; some conservative pundits defended this as robust protest. Yet the current climate on the left—in universities, on social media, in “progressive” journalism, in intellectual circles—is particularly hostile to free expression. The identity-politics left, fixated on subtle oppressions embedded in everyday attitudes and language, sees speech-policing as the solution.
Is hostility to free-speech values on the rise? New York magazine columnist Jesse Singal argues that support for restrictions on public speech offensive to minorities has remained steady, and fairly high, since the 1970s. Perhaps. But the range of what qualifies as offensive—and which groups are to be shielded—has expanded dramatically. In our time, a leading liberal magazine, the New Republic, can defend calls to destroy a painting of lynching victim Emmett Till because the artist is white and guilty of “cultural appropriation,” and a feminist academic journal can be bullied into apologizing for an article on transgender issues that dares to mention “male genitalia.”
There is also a distinct trend of “bad” speech being squelched by coercion, not just disapproval. That includes the incidents at Middlebury College in Vermont and at Claremont McKenna in California, where mobs not only prevented conservative speakers—Charles Murray and Heather Mac Donald—from addressing audiences but physically threatened them as well. It also includes the use of civil-rights legislation to enforce goodthink in the workplace: Businesses may face stiff fines if they don’t force employees to call a “non-binary” co-worker by the singular “they,” even when talking among themselves.
These trends make a mockery of liberalism and enable the kind of backlash we have seen with Donald Trump’s election. But the backlash can bring its own brand of authoritarianism. It’s time to start rebuilding the culture of free speech across political divisions—a project that demands, above all, genuine openness and intellectual consistency. Otherwise it will remain, as the late, great Nat Hentoff put it, a call for “free speech for me, but not for thee.”
Cathy Young is a contributing editor at Reason.
Robert J. ZimmerFree speech is not a natural feature of human society. Many people are comfortable with free expression for views they agree with but would withhold this privilege for those they deem offensive. People justify such restrictions by various means: the appeal to moral certainty, political agendas, demand for change, opposing change, retaining power, resisting authority, or, more recently, not wanting to feel uncomfortable. Moral certainty about one’s views or a willingness to indulge one’s emotions makes it easy to assert that others are doing true damage or creating unacceptable offense simply by presenting a fundamentally different perspective.
The resulting challenges to free expression may come in the form of laws, threats, pressure (whether societal, group, or organizational), or self-censorship in the face of a prevailing consensus. Specific forms of challenge may be more or less pronounced as circumstances vary. But the widespread temptation to consider the silencing of “objectionable” viewpoints as acceptable implies that the challenge to free expression is always present.
The United States today is no exception. We benefit from the First Amendment, which asserts that the government shall make no law abridging the freedom of speech. However, fostering a society supporting free expression involves matters far beyond the law. The ongoing and increasing demonization of one group by another creates a political and social environment conducive to suppressing speech. Even violent acts opposing speech can become acceptable or encouraged. Such behavior is evident at both political rallies and university events. Our greatest current threat to free expression is the emergence of a national culture that accepts the legitimacy of suppression of speech deemed objectionable by a segment of the population.
University and college campuses present a particularly vivid instance of this cultural shift. There have been many well-publicized episodes of speakers being disinvited or prevented from speaking because of their views. However, the problem is much deeper, as there is significant self-censorship on many campuses. Both faculty and students sometimes find themselves silenced by social and institutional pressures to conform to “acceptable” views. Ironically, the very mission of universities and colleges to provide a powerful and deeply enriching education for their students demands that they embrace and protect free expression and open discourse. Failing to do so significantly diminishes the quality of the education they provide.
My own institution, the University of Chicago, through the words and actions of its faculty and leaders since its founding, has asserted the importance of free expression and its essential role in embracing intellectual challenge. We continue to do so today as articulated by the Chicago Principles, which strongly affirm that “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 only in such an environment that universities can fulfill their own highest aspirations and provide leadership by demonstrating the value of free speech within society more broadly. A number of universities have joined us in reinforcing these values. But it remains to be seen whether the faculty and leaders of many institutions will truly stand up for these values, and in doing so provide a model for society as a whole.
Robert J. Zimmer is the president of the University of Chicago.