Free Speech on the Shoals of Ideology

This Op-Ed offers a cautionary tale for two apparently opposed sets of ideologues: right-wingers convinced that the Left has a monopoly on campus censorship, and left-wingers skeptical of the connection between government support for education and government suppression of educators. In Florida and New Jersey, the Right is censoring the supposed racism of the Left through pro-Israeli legislation; meanwhile, the Left, usually so eager to make accusations of racism, is caught off guard by the Right’s “anti-racist” resort to coercion and hysteria.

Here’s the text of the bill itselfSummary: You face a fine of up to $250 and six months in the county lockup for “discriminatory” speech that the bill neither manages to define nor exhaustively manages to enumerate. Say the wrong thing, which could be just about anything, and you’re under arrest, probably out of a job, and branded an anti-Semite with the imprimatur of the Garden State. [Postscript, July 29, 2019: I’m not entirely sure this reading of the bill is right (or wrong); see the comments below. If it’s wrong, I’ll amend the post, but I clearly need to get clarification one way or another. Thanks to both Michael Young and RadGeek for pressing the point.]

But no worries, 2 + 2 remains 5, and freedom is still slavery:

Nothing in this section shall be construed to diminish or infringe upon any right protected by the First Amendment to the United States Constitution or Article I, paragraph 6 of the New Jersey Constitution.

Free speech for the dumb, anyone? Discharge version or Metallica. Your choice–for now.

13 thoughts on “Free Speech on the Shoals of Ideology

  1. Interesting. Skimming the bill, it seems that it mainly (a) adds a protected category (Jews) to an existing list of protected categories of people and (b) regulates the “hateful” speech of educators (also students, parents, etc.?) toward this group, as well as the others already on the list, in some general ways that make some sense on hate-speech terms (wishing death to Jews, etc.) but also in some very particular and controversial ways (certain sorts of hostility toward Israel — not necessarily Jews per se). So creeping semi-irrational hate-speech restrictions for government institutions and employees (and soon for everyone, my guess) via the Right giving the Left a taste of its own medicine? Oh goody.

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    • What had previously been illegal was discrimination (as per Sections 1 and 2), not speech. In other words, excluding an African American or Jew from attending a school as African American or Jewish was illegal. Sections 3 and 4 treat speech acts as forms of illegal discrimination, which is new. There is no comparable “protection” for any other ethnicity in New Jersey. You cannot, for instance, be arrested, fined, and put in jail for using the “n” word on a college campus. You might be expelled or disciplined by the school, but that’s not a criminal sanction.

      Section 3a1 states that the following is a criminal act:

      (1) calling for, aiding, or justifying the killing or harming of Jewish people, often in the name of a radical ideology or an extremist view of religion;

      This provision can easily be taken to imply that calling for or justifying the killing of Jews in self-defense is a criminal act. And I don’t mean exercising a right of self-defense against Jews qua Jewish, but exercising a right of self-defense against someone who happens to be Jewish, or against many people who happen to be Jews. The phrase “harming of Jewish people” is, I think, deliberately ambiguous in this way. It sounds as though what’s banned is a call for genocide, but that would be harming the Jewish people (more precisely, targeting the Jewish people for destruction). The “Jewish people” formulation is intended to avoid prohibiting speech acts that call for or justify the harming of “anyone who’s Jewish,” which is too obviously absurd even for this constituency. So it splits the difference by saying that it’s a criminal offense to call for or justify killing or harming “Jewish people,” whatever that’s supposed to mean. Think about the vagueness of the term “harm.” It could mean practically anything.

      The implication is quite clear, however: calling for or justifying Israel’s bombing of Gaza remains a protected exercise of free speech, but justifying Palestinian self-defense against such a bombing now becomes a criminal act. Advocating the continued (indeed, indefinite) Israeli occupation of the West Bank, Golan, and East Jerusalem is permissible, even if it involves calling for, aiding, and justifying the killing of Palestinians in the name of a radical ideology or extremist view of religion. But advocating a Palestinian right of self-defense against that occupation, even one modeled on the American Revolution (itself a violent revolt against a military occupation), is a criminal act.

      The intent of the legislation is pretty clear: to shut discussion down altogether so that pro-Israeli assumptions become the norm, and anti-Zionist and/or pro-Palestinian claims are both de-legitimized and criminalized. For all the hullaballoo on the Right about “censorship on campus,” I don’t see that the Left has produced a threat to free speech comparable to this one.

      For those keeping score at home:

      https://www.cnn.com/2019/07/23/politics/house-anti-bds-resolution/index.html

      https://www.aljazeera.com/indepth/opinion/wadi-hummus-israeli-celebration-ethnic-cleansing-190723110602472.html

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  3. I don’t see how it’s possible to have a free society, and not have to deal with a certain amount of hate speech (or speech one finds unpleasant). I recall learning in political science class that in defending free speech, one would have to be willing to defend the rights of Nazis or members of the KKK to speak. Whatever happened to that old saying about sticks and stones?

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    • People have inconsistent beliefs on this. On the one hand, people often say that hate speech should be given the same freedom as any other kind of speech. On the other hand, something like the El Paso shooting happens, and people want to ban 8chan, the platform where the shooter posted his manifesto. These are understandable beliefs taken individually, but in combination they’re inconsistent.

      You get something similar with guns. On the one hand, people recognize that individuals, not manufacturers, are responsible for what they do with the non-defective commodities they purchase (kitchen knives, medications, alcohol, vehicles). On the other hand, people want to sue gun companies for shootings. When my cousin died in a traffic accident, my uncle’s first impulse was to sue Toyota on the assumption that whenever a Toyota is involved in a lethal accident, it’s Toyota’s fault. It’s the same phenomenon at work.

      Back to hate speech: People are willing to defend free speech in the abstract until the principle collides with some outcome they find intolerable. Then they’re against it. The day someone calls you a “nigger” or a “cunt”–words we’ve both heard–it feels lame to say (or think), “I strongly disagree, but you have every legal right to call me that.” It’s natural (not right, but natural) to want to re-gain the power you feel you’ve lost in the encounter. When I was a kid, being called a “nigger” always led to a fist fight. Always. (To this day, I hate the use of the word, no matter who uses it, black or white, and regardless of context, whether serious or joking.) I suspect someone who’s been called a “cunt” (or a “faggot” or whatever) wants to do the same. The words are used to wound, and create a desire to wound back. It can be hard to grow out of the desire to retaliate.

      In the case of the pro-Israel crusade against anti-Semitism, the same factors are involved, but I think there’s also a bit of desperation and opportunism added on. Israel’s defenders have come to realize that in some ways–modest but still threatening–the tide of public opinion is turning against them. There are now smart critics of Israel out there with undeniably cogent criticisms to make. And they’re a diverse crowd: male, female, gay, straight, black, white, American, Israeli, Arab, Jewish, Christian, Muslim, etc. Many of the mainline Protestant churches in the US either support BDS or are generally pro-Palestinian. The younger generation of American Jews is not buying the old pro-Israel propaganda. Even some of the older generation of American Jews are re-thinking their views.

      This is a huge change. It’s not like the old days, when American Jews walked in lock step in defense of Israel, American churches wouldn’t dream of opposing Israel, and smart, independent pro-Palestinian voices barely existed. In the face of this change, it’s tempting to play the anti-Semitism card: it’s easy, it works, and it takes no talent. If you can get people to believe that opposition to Israel is all just motivated by anti-Semitism, the strategy becomes: keep playing the anti-Semitism card over and over and over until people just equate “Palestinian” with “Nazi” and stop thinking. The rabbi who led my tour of Hebron yesterday told us that opposition to the Israeli occupation “is just another word [phrase] for anti-Semitism.” Once you reach that level, there are no standards. Anything goes.

      Add to this that moral condemnation is a bit like a drug: it can get you high. Since calling someone an anti-Semite is like calling them a Nazi, the anti-Semitism card is like the crack cocaine of moral discourse. A lot of people are addicted to it. And sound like it.

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  4. Q.: Does the misdemeanor charge (fine of >=$50, <= $250, or up to 6 months in the hoosegow) apply to anyone found to be discriminating anti-Semitically as (ludicrously) defined by the provisions of the bill? I could be missing a key clause, but on reading through it I can only find where it applies the criminal charge to "A member of any board of education who shall vote to exclude from any public school any child, on account of his race, creed and religion, color, national origin, [or] ancestry, or other protected category under subsection f. of section 11 of P.L.1945, c.169 (C.10:5-12)” (boldface added).

    The other two major sections impose a mandate on New Jersey public schools and “institutions of higher learning” in the state (that they have to adopt a ridiculously over-broad and tendentious standard for finding “discrimination … motivated by anti-Semitic intent”; and, having found it, that they have to treat it the same way that they would treat discrimination against existing protected classes).

    But I took that to be a mandate about the disciplinary policies that the schools have to adopt, not a basis for criminal charges. Is that right, or is there something I’m missing in the bill or its surrounding legal context?

    (In any case, of course, the bill as written is a bad idea, an obvious attack on academic freedom, and a particularly shameless example of power-grabbing through tendentious definition. I’m glad the bill is so eager to promise that nothing in it will be construed to diminish or infringe upon free speech rights, but I’m not quite assured that that is a promise the law could, if passed, deliver on.)

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    • I re-read it. You may well be right, in which case I need to go back and amend the original post. I misread the bill to say that the discrimination described in Sections (3) and (4) would be treated “in the same manner” as the discrimination described in Sections (1) and (2), up to and including the criminal sanctions mentioned in (2). But I think the claim is that only the new, underlined claims in Sections (1) and (2) now apply to (3) and (4), with (3) and (4) just regarded as completely new sections otherwise autonomous of (1) and (2), i.e., autonomous except for the underlining. In that case, you’re right; the criminal sanctions would not apply to violation of the new sections.

      But even as I say that, I’m not entirely sure that’s right. Here is 3.4 and 3.5 again.

      4. (New section) No student attending an institution of higher education in this State shall be discriminated against in admission to, or in obtaining any advantages, privileges, or courses of study of the institution by reason of race, color, creed and religion, sex, national origin, or other protected category under subsection f. of section 11 of P.L.1945, c.169 (C.10:5-12).

      5. (New section) a. An institution of higher education in this State shall treat discrimination resulting from institution policies or by students or employees, which is motivated by anti-Semitic intent, in the same manner in which discrimination by reason of being a member of any protected category under subsection f. of section 11 of P.L.1945, c.169 (C.10:5-12) is treated.

      If anti-Semitic speech acts are discriminatory, and such speech acts are to be treated “in the same manner” as discrimination in admissions (which does involve a criminal sanction), doesn’t it follow that anti-Semitic speech acts should receive the same criminal sanction? That seems a possible or permissible way of reading the bill, but perhaps I should ask the drafters.

      Interestingly, I take it that you’ve read the bill as applying to public K-12 schools (not private ones), but all institutions of higher learning, whether public or private. That’s how I read it, too. But it has widely been reported in the Jersey press as applying to public (not private) K-12 schools and public (not private) institutions of higher learning. I don’t know how they get that interpretation out of the text, but it’s widely taken for granted.

      It’s an interesting question how this bill would apply to a rabbinic school or college run by an anti-Zionist sect like the Neturei Karta. They satisfy the bill’s criteria for anti-Semitic intent (and ex hypothesi, discrimination) far more obviously than anyone associated with, say, BDS. But it’d be pretty strange to apply S4001 to them.

      No matter how you slice it, the drafting here is piss poor.

      Liked by 1 person

  5. I was wondering about the textual history of the piss-poor drafting with respect to the statutory description of what might constitute “anti-Semitic intent” for purposes of the law — which manages simultaneously to be wildly, all-consumingly over-broad and yet also of course aggressively, tendentiously hyper-particular.

    FWIW, it looks like the fault for this particular perpetration of English prose may lie between the European Monitoring Centre on Racism and Xenophobia and the U.S. State Department: there are a bunch of state bills from the past couple years that use model language which is word-for-word identical or very close to the bullet list in the New Jersey bill; they seem to have been more or less copy-pasted from documents circulated by the Bush Jr. and Obama State Departments, e.g. here: https://2001-2009.state.gov/g/drl/rls/56589.htm (*).

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    • (* Of course, in the course of copy-pasting, stripping out context and caveats, and mashing non-statutory discussion and analysis into a supposed list of bureaucratically-administrable legal criteria, the state bills have made a product significantly worse than the original, which didn’t start out being particularly great, but is noticeably less gross and thoughtless than the sausage made of it.)

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    • I think that’s very likely correct. I’ve followed the textual history issue in a somewhat casual way, not really giving it the attention it deserves. But my impression is that there are documents out there of just the sort you mention, with some extremely bad definitions of “anti-Semitism,” which are then cut and pasted into legislation at lobbyist request, and eagerly put there (and voted for) by state legislators.

      The comments on this earlier post give some idea how this lobbying works. New Jersey state government gives all kinds of opportunities for propagandists of certain kinds to achieve unwarranted prominence and get problematic access to state government.

      https://irfankhawajaphilosopher.com/2019/05/21/s-is-for-slander/

      Multiply Rabbi Rosenberg by a few dozen, or a few hundred, or a thousand, put them in positions of power, and give them access to others in positions of power. Eventually, you’ll get legislation like S4001, which is just the tip of the iceberg. And what’s true of NJ is probably true of other places.

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