When does freedom of speech mean hitting someone?




First some details:

Back in June 2010 at the University of California-Berkeley, the Muslim Student Association (MSA) held a large protest drawing attention to what they perceive as Israel’s “apartheid” government, equating Israel’s current government to Nazi Germany.  In addition to rallies, they set up checkpoints around campus (one report noted that MSA students dressed in fatigues and brandished fake weapons) asking students if they were Jewish or not (mimicking their perception of same of Palestinians in Israel).  This is nothing new, and in the past, there have been arrests, and other discipline handed down by the school administration.  According to some reports, people who admitted they were Jewish were then subjected to some form of harassment.  To at least some extent, this is not new behavior for the MSA.  To add to this, a small group of Israeli supporters staged a counter-demonstration.  At this counter- demonstration, a Jewish student was rammed (or hit, depending on context) by one of the MSA students with a shopping cart.

The student who was hit filed a lawsuit against the University claiming that they have allowed an atmosphere of intolerance to fester.  This past week,  the federal judge came down with the decision (I’m a little hazy on all of the details) that the university is not culpable because the assault is considered protected political speech and that the action did not occur as a part of the Jewish student’s pursuit of an education … and if I am interpreting this correctly the Jewish student may have in some way been hampering the MSA’s freedom of speech, which also negated the university responsibility in dealing with the assault.

The judge noted that while some universities have come down hard on disruptive political speech, they have no responsibility to do so.  The judge even noted that the plaintiffs are within their rights to bring more specific charges in a new suit.

The judge also noted that University officials have been far from ignoring the problem, and have been engaged in an active dialogue wth both sides of this issue for some time.

So here is the quandry …

1.  A federal judge has now said, in essence, assault at some level can be protected political speech.

2.  Universities are not obligated to interfere when students of differing political views engage in behavior that interferes in the civil rights of other students or harasses other students.

So, if a pro-Israeli group decides to have a “Palestinians are all terrorists” week, and a student decided to mount a counter-protest, the pro-Isreal students are within their full rights to physically assault those folks.  If the university now decided to take action, I cannot think that it would look anything except capricious.  I can’t help but think that this is not a good thing.  If a group of far right Christians decides to harass gays and lesbians, this would also be protected political speech, and the university is not obligated to get involved.  Any group of students who decided it would be fine to start harassing African-Americans could call this political speech, and the university (at least at this point), would need to stay out of it.

The flip side is putting some reasonable limits on speech.  I cannot think that this is something that goes over well on most college campuses … and with do respect to those form northern California, Berkeley’s reputation is not one that I would suspect is behind limiting speech.

I suspect, however, there is a difference between “speech” and “harassment” … it seems easier to limit the latter while not trampling the other.

The problem is, we are talking about an education institution … even limiting common sense stuff can be very difficult because what is “common sense” to one person at the university is far from common sense to the next person.  At the Univeristy of Illinois, there was a fire-and-brimstone preacher who used to spend several days a week condemning a large percentage of the campus to Hell.  He often took up a position on the lawn in front of the student union, so he was difficult to avoid.  I am sure some people might have felt some level of harassment … even though he really only seemed to single people out who engaged him.

Just last year, there was a similar issue at the University when a Catholic who was hired to teach a course on Catholicism noted that the teachings of the Church did not support homosexuality.  He was fired for engaging in hate speech even though he never personally condemned anyone in his class, and there is no evidence he did nothing beyond teaching the facts of the course (he was later reinstated).  Again, even obvious things (to one person) have to be taken with a degree of context.

So Cal-Berkeley has decided to stay out of this.  What will happen next?  If I were a Jewish student (or any student not interested in this level of political action) I would think very long and very hard about attending Cal-Berkeley.  Certainly, it is hard to find a college campus that  is absent of political controversy and activism, but there are a lot of colleges out there, and I don’t think it would be difficult to find one that matched me a little better.  If I were politically active, or strongly in support of Palestinian causes … its Berkeley for me.  Further … any parents even a little worried about their kid getting assaulted for holding a political view, and worried that they may not have any legal recourse, will likely start steering their kids away from the school.

And perhaps this is where the greatest loss comes.  The Cal-Berkeleys of the world (and schools with similar left or right wing affiliations) already lose out when certain students won’t even think of attending the school because of a political perception, deserved or undeserved.  Now, more students of one type ma be driven away and students of another type may be attracted.  The “type” is an irrelevancy.  The university community loses out as it loses philosophical diversity, which more than anything is the kind of diversity that a good university needs.  It is through the free exchange of ideas that real education occurs, especially at that level.  The free exchange is lost when students need to be afraid of presenting a particular view, knowing that they may be legally physically attacked, and that the University tacitly approves of this by not taking action.


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