I’ve seen many of these before, but this one is from Texas Governor Greg Abbott, and the particular focus is “anti-Semitic speech.” An excerpt from Wednesday’s executive order:
WHEREAS, Section 51.9315(f) of the Texas Education Code all requires higher standards
educational institutions to adopt policies that define in detail students’ responsibilities regarding free tuition
expression on campus; ANDWHEREAS, Section 51.9315(c)(2) of the Texas Education Code provides that students
should not participate in, and institutions of higher education should not permit, expression that is unlawful or disruptive to the institution’s operations; ANDWHEREAS, Anti-Semitism and harassment of Jewish students have no place on Texas college campuses and will not be tolerated by my administration;
NOW, THEREFORE, I… hereby direct all institutions of higher education in Texas to do the following:
1. Review and update free speech policies to address the sharp increase in anti-Semitic speech and acts on college campuses and establish appropriate punishments, including expulsion from the institution.
2. Ensure that these policies are enforced on campus and that groups such as the Palestine Solidarity Committee and Students for Justice in Palestine are disciplined for violating these policies.
3. Include the definition of anti-Semitism, adopted by the State of Texas in Section 448.001 of the Texas Government Code, in university free speech policies to guide university staff and students on what constitutes anti-Semitic speech.
Section 448.001 of the Texas Government Code incorporates “the International Holocaust Remembrance Alliance’s working definition of anti-Semitism,” which includes (among other things),
- Denying the Jewish people the right to self-determination, for example, by claiming that the existence of a State of Israel is a racist enterprise.
- Apply double standards by requiring behavior not expected or required of any other democratic nation.
- Using symbols and images associated with classic anti-Semitism (e.g., claims of Jews killing Jesus or blood libel) to characterize Israel or Israelis.
- Make comparisons between contemporary Israeli politics and Nazi politics.
As readers may have gathered, I oppose those on the right who seek to ban alleged “hate speech” at universities, just as I oppose those on the left who attempt to do the same. Of course, students must be free to argue that Jews do not have the right to “self-determination” in the sense of having their own country, just as they must be free to argue that Palestinians have no such right. , or the Basques, the Kurds, the Catalans, the Northern Cypriots, the South Ossetians, etc. they have no such right. I support Israel’s right to exist, but this is a topic that must be up for free debate, just like any other topic.
Of course, students’ free speech rights cannot be limited by judgments about when students allegedly apply “double standards.” What would we think, for example, that criticism of Communist China is punishable if some university administrator concluded that the critic is not holding other countries to the same standards? Of course they must be free to compare the Israeli government or Hamas or the Chinese government or the Russian government or Trump or Biden to the Nazis, whatever we think of the validity of such analogies.
Students also have the right to express anti-Semitic feelings (or anti-Palestinian or anti-trans or anti-gay or anti-black or anti-white or anti-male or anti-female or anti-Catholic or anti-Protestant or anti-Muslim feelings ), just like any other feeling. There is no exception to “hate speech” to the First Amendment, and no exception to anti-Semitic speech in particular.
The rules are the same even in public universities. Papish v. Board of Curators (1973) expressly rejected the idea that the university’s “legitimate authority to enforce reasonable standards regarding the time, place, and manner of speech and its dissemination” extended to “disapproved content …rather than the time, place or manner of its distribution.” E Pope expressly stated that “the First Amendment leaves no room for the application of a double standard in the academic community with respect to the content of speech,” that is, a standard different from that applied by the First Amendment to government as a regulator. Or, to quote Healy vs. James (1972),
[T]This Court’s precedents leave no room for the view that, because of the recognized need for order, First Amendment protections should apply less forcefully on college campuses than in the community at large. In reverse”[t]Nowhere is the vigilant protection of constitutional liberties more vital than in the American school community.”
As I said before, universities certainly have the power to punish trespassing, blocking entrances, excessive noise, vandalism, and a wide range of other behaviors, as long as they do so regardless of content. They similarly have the power to punish actual threats of illegal conduct, incitement to illegal conduct and the like, as long as they do so impartially. Generally they should use this power, but sometimes they didn’t use it enough.
But they cannot target “anti-Semitic speech” on the basis of its anti-Semitic sentiments, and punish it with “expulsion” or a lesser punishment. And they certainly cannot define criticism of Israel, however misleading or even poorly motivated, as punishable “anti-Semitic speech.”