The New McCarthyites: BDS, Its Critics, and Academic Freedom

8 Jan

As the attacks on the BDS movement and the ASA boycott escalate, the arguments grow wilder.

It’s no longer enough, it seems, to make unfounded claims that the academic boycott violates academic freedom. The new line of march is that mere advocacy of the boycott is itself a violation of academic freedom.

What’s more, it’s not crazies who are peddling this claim; as Haaretz reports, it’s coming from the heart of the academic establishment.

“The mere calling for a boycott will impede the free flow of ideas,” Russell Berman, a comparative literature professor at Stanford University and a past Modern Language Association president, said on the conference call. “The calling of a boycott will have a chilling effect on academic life.”

If it’s true that merely calling for a boycott shuts down the free exchange of ideas, it seems logical that such calls should be prohibited. Not only prohibited, but punished.

One prominent critic of the BDS movement, Edward Beck, makes just that argument in a recent piece in The Jerusalem Post.

Beck begins from the premise that the successful vote for the ASA boycott demonstrates that defenders of Israel can no longer wait for its opponents to act; Israel’s defenders must go on the offensive, preventing the virus from spreading further.

To be reactive may well be to be too late; being vigilant and proactive is the only way to ward off these attacks on academic freedom.

What does that mean in practice?

It means that every academic who opposes academic boycotts for any reason, whether it be purely academic terms or political or other reasons, must work within his or her own institution, discipline and professional society to develop the codified organizational and institutional policies that state in language that is clear and bold that the group will not entertain any proposals for academic boycotts based on national origin or institutional affiliation because such resolutions are discriminatory, may violate legal and tax statutes and are based on the notion of collective punishment, and such, are disruptive to the flow of academic discourse and research and anathema to the basic concept of academic freedom.

The policy also has to state sanctions for individual members engaging in such behavior, as this would be a violation of institutional or organization policy and regarded as academically unethical.

Read that language carefully. No academic institution is to entertain or consider a proposal for a boycott. Presumably this is to be codified in a set of bylaws or a faculty code of conduct, though Beck does not say. What he does say is that it is not the boycott itself that violates academic freedom; it is the “resolution” for a boycott. The vote for a boycott, in other words, interferes with the basic campus activities of research and discussion.

That policy must be enforced with sanctions—Beck doesn’t specify the sanctions but presumably these could include anything from a reprimand in one’s file to being fired—on any individual faculty member “engaging in such behavior.”

But what exactly is “such behavior” that would warrant the sanction? At first, I thought Beck meant an individual faculty member engaging in a boycott. So my personal refusal to attend a conference in Israel, because it is in Israel, would qualify.

But the antecedent for “engaging in such behavior” is not the boycott itself but “such resolutions.” Beck, remember, wants the defenders of Israel to move beyond reacting to boycotts that are happening; in fact, he wants to move beyond successful votes for boycotts.  He wants to head those votes off at the pass, to prevent them from becoming votes at all.

The only way to make sense of what Beck is saying is that he thinks individuals who advocate for boycotts ought to be sanctioned by their universities and professional associations.

Thus, if I push my college or professional association to adopt a BDS resolution, or publicly proclaim my intention to vote for one (with the clear purpose of persuading others to do the same), I am “engaging in such behavior.” If I merely call for a boycott, to use Professor Berman’s language, I am “engaging in such behavior.”

Berman says he’s not willing to go as far as sanctions: “But I don’t think I would want to elevate the principle that political statements should be grounds for academic sanctions.” It’s not clear why he thinks this: given what Berman said about mere advocacy impinging on academic freedom, it would seem entirely appropriate to punish such advocacy. After all, if I walk into the classroom of my colleague next door, shouting and screaming nonsense, being needlessly disruptive and preventing her from teaching her students, I would be subject to disciplinary action. For the very reason that my activity prevents the free flow of ideas and communication that is the essence of campus life. So if the mere call for a boycott does essentially the same thing, why shouldn’t it be punished?

Who knows? But the mere fact that we’re even having this discussion at all should tell us how far down the road of repression the opponents of the ASA boycott are willing to go—all in the name of academic freedom.

These bizarreries of freedom being squelched in the name of freedom remind me of nothing so much as arguments that were common during the McCarthy era.

Deploying similar chains of extended causality, anticommunists—including a great many liberals—argued that the problem with the Communist Party in the United States was not that it had attempted a violent overthrow of the US government; clearly it had not. It was not that it had organized an attempt to violently overthrow the government; clearly it had not. It was not that it had organized a movement that would attempt to violently overthrow the government; it hadn’t even done that.

No, the real crime of the Communist Party, as the Supreme Court put it so beautifully in Dennis v. United States, was that it had organized a movement that advocated, and sought to teach its members, the notion that when the time was right, at some completely undefined point in the future, it would be entirely justified and appropriate, indeed necessary and obligatory, to attempt a violent overthrow of the government.

In making this argument, the Supreme Court drew from a particular definition of political speech crimes, which were found in the Smith Act,  the 1940 statute upon which the leadership of the Communist Party was tried and convicted in 1949. The relevant sections of the statute do not criminalize the violent overthrow of the government or even advocacy of the violent overthrow of the government. Instead, they criminalize the following:

Whoever organizes or helps or attempts to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any such government by force or violence….

Notice just how many steps removed from actual violence these speech crimes are, how many discrete actions must be engaged in before we even get anywhere near something like a violent overthrow of the government: “attempt”….”to organize”….”a group”….”that advocates”…”the violent overthrow of the government”…at some undefined moment in the future. Talk about six degrees of separation!

Here’s how the Supreme Court interpreted that language in the Dennis case, which upheld the conviction of eleven leaders of the Communist Party.

Obviously, the words cannot mean that, before the Government may act, it must wait until the putsch is about to be executed, the plans have been laid and the signal is awaited. If Government is aware that a group aiming at its overthrow is attempting to indoctrinate its members and to commit them to a course whereby they will strike when the leaders feel the circumstances permit, action by the Government is required….In the instant case, the trial judge charged the jury that they could not convict unless they found that petitioners intended to overthrow the Government “as speedily as circumstances would permit.” This does not mean, and could not properly mean, that they would not strike until there was certainty of success. What was meant was that the revolutionists would strike when they thought the time was ripe.

….

The mere fact that, from the period 1945 to 1948, petitioners’ activities did not result in an attempt to overthrow the Government by force and violence is, of course, no answer to the fact that there was a group that was ready to make the attempt. The formation by petitioners of such a highly organized conspiracy, with rigidly disciplined members subject to call when the leaders, these petitioners, felt that the time had come for action, coupled with the inflammable nature of world conditions, similar uprisings in other countries, and the touch-and-go nature of our relations with countries with whom petitioners were in the very least ideologically attuned, convince us that their convictions were justified on this score. And this analysis disposes of the contention that a conspiracy to advocate, as distinguished from the advocacy itself, cannot be constitutionally restrained, because it comprises only the preparation. It is the existence of the conspiracy which creates the danger.

It’s that kind of repressive language and logic of containment, of nipping the threat in the bud, of suppressing speech before it becomes action, of holding that the speech itself is a crime, that we see in opponents of BDS and the academic boycott.

Like their predecessors—I’m thinking now of Sidney Hook, who argued that members of the Communist Party should not be allowed to teach in schools, also on the grounds of academic freedom—our latter-day McCarthyites throw around the word of freedom as they slowly and steadily destroy it.

23 Responses to “The New McCarthyites: BDS, Its Critics, and Academic Freedom”

  1. Alexandra White January 8, 2014 at 2:01 pm #

    One has to wonder how Mr. Beck felt about the sanctions and boycotts applied to South Africa to the point of ending apartheid? or for that matter, the pressure put on the Soviet Union to allow the free emigration of Jews to Israel?
    How possibly can one have a free expression of ideas if some ideas cannot be discussed? What is Mr. Beck actually afraid of?

  2. neffer January 8, 2014 at 2:39 pm #

    “I’m thinking now of Sidney Hook, who argued that members of the Communist Party should not be allowed to teach in schools, also on the grounds of academic freedom”

    I think the issue raised by Sidney Hook is an interesting one. Some ideologies place “the cause” above fidelity to fact or integrity. Communism did, in fact, attract a great many people who would say nearly anything to advance “the cause.” That was not the true with everyone but it was true for far too many.

    With respect to the dispute about Israel, the same appears to be the case, given just how exagerated and dishonest a great many of the anti-Israel advocates tend to be. So, if Israel’s opponents see no reason to act honorably – which BDS itself is premised on big lies in order to gather in as wide a group of people as possible -, why should Israel’s friends behave as if there were not an ideological war, fought by people among whom all too many display no integrity whatsoever. In fact, freedom to discuss Israel in a non-ideologically charged atmosphere depends on fighting the bigot who propose to boycott Israel – something they do, as is obvious to anyone with the slightest bit of curiousity, because Israel is ruled by Jews.

    Consider: if the behavior of states were the basis for determining with whom to do business, none of us would buy any gas, as it comes from Saudi Arabia. Germany, after WWI and WWII, would be permanently dismembered and its peoples scattered, given all the harm they have done. By contrast even to many modern day European states, Israel is a model of civil rights. It does not have, as, for example, the UK does, its troops all over the world. The Muslims in Israel, by European standards, are subject to less discrimination than Muslims in Europe.

    Now, people can side with or against the Israelis, in the war that exists with the Arabs. However, boycotting Israel, as if it were really an evil country, is so dishonest and immoral as to be beyond the pale. Settling people is not, unless we discount all of world history, immoral. Nor is driving away people who try to kill you. The Israelis are not devils; just ordinary people in a dispute that anti-Jewish bigots exploit by exageration and lying.

    • Thomas Nephew January 8, 2014 at 3:05 pm #

      Ay caramba. BDS isn’t proposed “because Israel is ruled by Jews,” it’s because of *how* Israel is ruled, and how it behaves in the Web Bank and Gaza. “Muslims in Israel subject to less discrimination than in Europe”: it’s hard to come up with metrics for this, but that seems extremely doubtful to me. See Max Blumenthal’s book “Goliath” for numerous examples, past and present, official and unofficial, of anti-Muslim discrimination in Israel, e.g., Bedouin resettlement in the Negev. And whether Europe is better or worse is immaterial to whether Israel’s actions are acceptable.

      Returning to Prof. Robin’s points, you basically make his point for him again: you applaud both Sidney Hook and anti-BDS advocates for treating their opponents more as a disease to be contained than as arguments to be taken up and rebutted, based solely on his/your assessment of their integrity. I think that’s a lazy position without any integrity of its own.

      • neffer January 8, 2014 at 3:21 pm #

        “Ay caramba. BDS isn’t proposed “because Israel is ruled by Jews,” it’s because of *how* Israel is ruled, and how it behaves in the Web Bank and Gaza.”

        So says you. Well, I think you are mistaken. Israel is rather well ruled, given that it has been the subject of a war by its neighbors for more than 60 years.

        And, for that proposition, I ask you pick up a history book or a newspaper to see how other countries at war act. The aim in war is to defeat those who attack you. So, if not everything Israel does can be squared with the behavior of a country that is not at war, that is a reflection on circumstance.

        We have, of course, the metrics of how Western countries at war have behaved. We have the metrics of how Russia has behaved. My suggestion is that you read William Hitchcock’s great book, The Bitter Road to Freedom: A New History of the Liberation of Europe. If, after reading that book, you can say with a straight face that the Israelis really behave badly, you had to have been smoking something.

        One bitter moral truth is that, historically, the settlement of land is a basic human right. The only thing that has prevented people from living where they want to live is politics. The objection of Arabs to Israelis living in Israel – which is what BDS is directed at, not at the land conquered in 1967 – is political and religious. You are free to side with that viewpoint. But, to make believe that the Israelis are up to something outrageous or particularly immoral is to live in a fantasy land. And, those of us who live in the Americas have exactly no excuse for saying anything about settling land. Or, do you plan to give your place of residence and work back to the natives of the Americas? And, in the case of Israel, the Israelis, given that they live there, have the same claim to be on the land that all other people have, viz., they have an army which prevents others from taking it – just like we, in American, do.

        As for the treatment of people in Gaza, Hamas is a group which, if we go by its stated agenda, means not only to drive Jews away from their homes but to kill all of them, wherever they may be. We all make our beds with whom we want. Is that who you are defending? As I see it, the Israelis are within their moral and legal rights to isolate Gaza. Moreover, Arab states, including Egypt, seem to agree.

        As for the WB, it is the historic Jewish homeland. It is one that the Israelis are, if the conditions are right, willing to concede, notwithstanding the fact that such is contrary to how all other states on Earth deal with land they have conquered. Mexico still claims Texas and N. Mexico, etc. Are you willing to cede the land to Mexico? I doubt it.

        So, frankly, I think what is written about Israel is nonsense, dressed up to sound moral. In reality, it is bigotry against Jews.

  3. DHMCarver January 8, 2014 at 2:41 pm #

    Cory, you forgot to mention something you blogged about before — the supported boycott of Al Quds Univeristy by Brandeis, presumably sanctionable under Berman’s theory.

    Also worth mentioning that the anti-Communist statutes have a precise parallel in today’s anti-terrorism legislation, where mere expression of support for, say, Al Quaeda is considered a criminal offense (and can get you drone struck).

    The “we must have a free flow of ideas therefore we must sanction certain speech” logic surrounding the ASA boycott has quite the Through the Looking Glass feel to it.

  4. Troy Norton January 8, 2014 at 2:49 pm #

    Perhaps my understanding of the issue is limited, and if so I’d definitely like to discuss it further, but must the issue be confined to the realm of academia? I understand that Israeli treatment of Palestinian scholars is an infringement of academic freedom; in many ways the ASA boycott is one as well. (You don’t deny this in this post, instead resigning it to a “Who knows?”) The degree of infringement doesn’t even matter a great deal. What matters is that by imposing regulations on select individuals (admittedly not necessarily scholars, just those who endorse the qualifying institutions), the ASA is committing the same type of wrongdoing as the institutions it is challenging. It doesn’t seem a stretch to suggest separating academia from diplomacy and handling the issue, which certainly deserves addressing, through alternative means.

    • neffer January 8, 2014 at 2:56 pm #

      “I understand that Israeli treatment of Palestinian scholars is an infringement of academic freedom”

      I think this statement is not correct. I think that you have listened to too much propaganda. In fact, by world standards, Israel does better than most countries, including Western countries, in providing academic freedom.

    • Corey Robin January 8, 2014 at 3:00 pm #

      “I understand that Israeli treatment of Palestinian scholars is an infringement of academic freedom; in many ways the ASA boycott is one as well. (You don’t deny this in this post, instead resigning it to a ‘Who knows?’)”

      Uh, read again.

      First, the “who knows” is not a response to the claim that the ASA boycott violates academic freedom; it’s a response to a different claim.

      Second, in this post — the second sentence no less — I say the claim that the ASA boycott violates academic freedom is “unfounded.” If you follow the link I provided to readers — in that very same second sentence — you’ll see that several other people and I explored this argument at great length in another post. The conclusion we came to there was that the claim that the ASA boycott violates academic freedom is, well, unfounded.

      • neffer January 8, 2014 at 3:05 pm #

        “The conclusion we came to there was that the claim that the ASA boycott violates academic freedom is, well, unfounded.”

        Obviously, your conclusion and the conclusion of those who agree with your views will see what you do well considered. It is, however, not. The goal of your group is to spread hatred of Israel in order to undermine Israel. And, that cause is, given that Israel is not, by any rational standards, an evil country, an effort to undermine academic freedom by making discussion of Israel wholly into a discussion about Israel’s sins, real and imagined.

      • Troy Norton January 8, 2014 at 4:02 pm #

        I did “read again,” for the sake of argument. And I largely stand by the points I raised in my original comment.

        The “who knows,” in literal context, is asked of whether an academic should be punished for advocating a boycott as he would for disrupting another’s class. In terms of your argument, both cases are essentially considered as violations of academic freedom, so I really don’t see viewing it as a response to the boycott as a misreading on my part.

        Your statement says it’s unfounded; your argument, not so much. The discussion thread in the other post is hardly conclusive. I take particular issue with Chris Bertram’s final claim that scholarly criteria shouldn’t be the only ones considered when assessing academic partnerships – because in essence, that’s what academic freedom is. I see it as the creation of new knowledge as unhindered by any other pursuit, so to associate with a boycott or censure of this nature is in fact a violation of academic freedom. Your post-discussion points all boil down to a matter of weight (why remain affiliated with other offending institutions? why boycott one nation and not another? why not consider the plight of the Palestinian scholar?). And I’m not arguing that those aren’t injustices, because they are and they should be handled accordingly. My point is that the ASA is committing an error in the same line. No matter the degree of the error, no matter the extent of scholars it effects, it will still have an impact on the creation of new knowledge. That in itself is a violation of academic freedom.

      • reader21 January 8, 2014 at 4:58 pm #

        Professor, I understand that you and several correspondents reached a consensus that setting out to impede or prevent international academic interchange by means of boycotts of Israel and/or Israeli scholars adopted and enforced by U.S. universities or faculty association is no threat to academic freedom.

        But others (indeed, many, many other academics and scholars, certainly not limited to university presidents), disagree with the consensus your several colleagues reached.
        I fully understand that there is no statutory or other authoritative guidance on just what the proper definition of academic freedom is — indeed, I understand that Stanley Fish is about to publish a book solely to address the topic.

        That said, your insistence that most all critics of your position on the topic are making “unfounded claims” — and that they are either “New McCarthyites” dutifully following a “party line” or are craven collaborators — really does not do much to advance your cause.
        Respectfully, these kind of labels tend to close down debate – which is (more than a bit ironically) just what you accuse your opponents of seeking to do. While I respect your views, I think your tone of accusation and indictment sometimes makes it difficult to parse out the argument from the hyperbole in your discussions.

        But let me make an effort to do just that, and take on your current line of argument, which invokes the First Amendment doctrines first articulated in the Holmes and Brandeis Red Scare era dissents.

        Initially, and while I don’t always agree with Professor Fish, I think he is right to question whether First Amendment doctrine really has all that much to do with academic freedom – which really is concerned with the internal governance of academic institutions, and specifically, institutional protections for academic inquiry on the part of professors, not the general right of citizens not to have their speech suppressed or punished by the government.

        But, accepting the First Amendment analogy you propose does not – I think – do much to help your cause of defending the institution of formal academic boycotts by universities and other academic institutions.

        This is because, in your First Amendment analogy, the university is the analog for a state actor. And the foundational principle of the First Amendment jurisprudence established by Holmes and Brandeis is that the state is all but categorically barred from suppressing speech – particularly and especially where the suppression or penalty is viewpoint based.

        Accordingly – following the analogy — if a university (or department or other subsidiary thereof) decides to impose a viewpoint based rule barring academic interchanges with the universities of another nation because of political objections to the governance of that nation, well that is a nearly per se unconstitutional act. Thus, your favored analogy – in which the university is a stand in for the state — leaves you worse off than you would be without it.

        Now, it seems that you are trying to slip out of this trap by arguing that the various university presidents who are adherents to the “party line” are setting out to punish you or others for advocating the institution of boycotts. Hence, you and your compatriots are in a position similar to that of members of the CPUSA, being punished merely for expressing your views in favor of something that might be illegal, like insurrection or (in your case) speech suppression.

        But I don’t think that comes close to working. Even the most strongly worded statements from university leaders I have read emphasize that faculty members are free to advocate for academic boycotting, however foundationally misguided they believe that view to be.

        Now it is true that a few schools have publicly withdrawn their institutional memberships in the ASA in protest, but I hardly see how that is a suppression of speech either, since – as you have emphasized – there is can be no affirmative institutional obligation to speak.

        So you are left with the article by the “prominent” anti-BDS activist you cite, Edward Beck. His prominence has escaped me to this point, but – leaving that to one side – his article is hardly the exemplar of authoritarianism that you make it out to be. At bottom, all he does is advocate for faculty senates and other faculty organizations – not university leaders — to vote upon (and hopefully pass) resolutions expressing categorical objections to academic boycotts.

        If such votes are called, presumably some faculty members will vote on each side, and one will pass. So what? And just how is that a bad, let alone quasi-unconstitutional proposition, regardless of how such a vote comes out? You and others will be free to express you pro-speech suppression views either way.

  5. Patrick S. O'Donnell January 8, 2014 at 3:04 pm #

    Well said. Not on point, but I’m curious as to the increasing use of the notion of “collective punishment” to criticize BDS strategy and tactics. This strikes me as an obviously mistaken (and perhaps deliberate) misuse of this notion. Nonviolent tactics may inflict pain or suffering on groups of individuals qua groups but in the context of a conflict such as this I do not think that is equivalent to “collective punishment” on any reasonable construction of that concept. Its use seems calculated to draw sympathy or support from those, like myself, utterly opposed to such a notion (notions of collective wrongdoing, shared responsibility, and group agency, on the other hand, are a different matter). When the voice of reason fails and for either strategic or principled reasons one (so to speak) therefore elects to rely on nonviolent means in a struggle (for emancipation, self-determination, justice…) to persuade the opposing party to change its mind (this may entail an element of coercion of a kind) and thus to make a meaningful gesture or movement in the direction of the party seeking recognition and validation of the truth or justice of its ideals or goals, this can hardly be said to necessarily involve a retributive act as such (we can concede the individuals involved have mixed or complex motives, but that is irrelevant here). Whatever else these are, such nonviolent methods are not, in the standard case at least, forms of collective punishment because the (direct or indirect) infliction of pain or suffering, however comparatively slight or modest, is not by definition a retributive act. Nonviolent means of struggle are betwixt and between the (philosophically speaking) Liberal and democratic belief in the moral and rational superiority of free discussion and rational argument, and the resort to coercion or violence when such methods have egregiously failed in the context of conflict in which parties are inclined or have already resorted to the use of brute force. The resort to violence often illustrates tit-for-tact cycles of conflict that suggest at least attempts at retribution, as violence seems to thrive, as Gandhi thought, on counter-violence, and thus is more conducive to assuming a retributive quality (a return in kind as it were) in the history of a conflict.

  6. Ra January 8, 2014 at 4:11 pm #

    As it stands, you do not have the academic freedom to “walk into the classroom of [your] colleague next door, shouting and screaming nonsense, being needlessly disruptive and preventing her from teaching her students,” and that is why you “would be subject to disciplinary action.” You do, however, have the academic freedom to “call for a boycott,” as the latter is not, in fact, “essentially the same thing,” which is why it shouldn’t be punished. Beware, thus, of asking rhetorical questions in analogy, as they often descend into hyperbole without even being logically — and thus, validly — analogous at all, as is evident here.

    • Corey Robin January 8, 2014 at 4:45 pm #

      I understand that, Ra. My point though is that if Berman believes it is the same — I clearly don’t — it’s not clear why he doesn’t call for the same type of punishment taht would be administered. Either it’s b/c he doesn’t really think it’s a violation of academic freedom at all — and he’s grandstanding — or it’s b/c he hasn’t thought things through.

  7. Corey Robin January 8, 2014 at 5:22 pm #

    In response to reader21:

    1. “This is because, in your First Amendment analogy, the university is the analog for a state actor.”

    You’ve misread the analogy I was making. The analogy is not about who is the equivalent of the state actor — that really is neither here nor there — but about two ways of thinking about freedom of speech. One is that freedom of speech entails the right of an individual; the other is that it refers to the state of discourse among a group of individuals, its openness, etc. Who is the analog of the state actor doesn’t really have much to do with what we mean when we say freedom of speech; it is, as I said, neither here nor there.

    2. ” At bottom, all he does is advocate for faculty senates and other faculty organizations – not university leaders — to vote upon (and hopefully pass) resolutions expressing categorical objections to academic boycotts.”

    Um, not really. You’ll have to read his article again. That part where he calls for “codified organizational and institutional policies” — nothing there about mere faculty resolutions expressing objections. Faculty resolutions aren’t codified institutional policies; at least not at any university I’ve ever been involved with. And where does he even remotely say that these policies should not be implemented or passed by university leaders? He says faculty should push for them, but that’s quite different.

    And also read that part where he calls for “sanctions for individual members engaging in such behavior, as this would be a violation of institutional or organization policy.” Yeah, you forgot about that in your “all he does is” claim. You’d be hard pressed to find a single university anywhere that would be able to sanction a faculty member based on a mere faculty resolution expressing an opinion.

    Honestly, getting a lecture from you about the protocols of debate, about what does and does not serve my cause, when you so completely misrepresent what’s right there on the screen in front of you — in front of all of us — is a little galling. Pots, kettles, and all that.

    3. “Accordingly – following the analogy — if a university (or department or other subsidiary thereof) decides to impose a viewpoint based rule barring academic interchanges with the universities of another nation because of political objections to the governance of that nation, well that is a nearly per se unconstitutional act.”

    Right now, universities are legally barred from carrying out these sorts of exchanges with universities in North Korea. No one has ever suggested that the law that bars them from doing so is unconstitutional. Now let’s assume there is no such law and a university merely decided it does not want to have partnerships with any universities in North Korea. If it’s not unconstitutional for the state to do it, then it can definitely NOT be unconstitutional for a private university to do it.

    As I posted not long ago, Brandeis recently cut its ties with Al Quds University in Israel (it’s a Palestinian university; there was a rally on campus that was objectionable; Brandeis decided to cut its ties.) There is no way that decision is unconstitutional even though it’s even way more viewpoint based than anything proposed by the ASA. I mean, literally viewpoint based: the rally featured Nazi slogans and such. And if Brandeis established a blanket policy saying it would not partner with any institutions that allow Nazi-style rallies on its campus — again, not unconstitutional. And not a violation of academic freedom.

    What would be unconstitutional is if a state university forbids an individual faculty member from using her research funds to travel to such a university. And I think it would also be morally and politically wrong for a private university to do that. But an institution declaring it will not associate with another institution simply b/c that institution is associated with practices or a government that is deemed repugnant — yeah, there is no way you can claim that that’s unconstitutional or a violation of academic freedom.

    • reader21 January 8, 2014 at 7:53 pm #

      Like you, I am not lecturing, just observing and engaging; I hope and trust that you take it that way. I would not have taken the time to do so if I did not respect your views. I have some last observations:

      First,, as for your theory of freedom of speech, it is tough to speak about Dennis (and the cases that came after which expressly adopted the views of the dissenters) without talking about state action to penalize or suppress speech– because that is really all they are about, i.e., the limits upon governmental speech suppression. I confess that am missing your (presumably) nuanced response.

      Second, I agree that it is not unconstitutional for a private institution — including a private university — to police or penalize speech. That was my point about the limits of your First Amendment analogy, it does not really apply to most universities.

      (Parenthetically, the Brandeis example is not a really good one, they are not boycotting Al Quds; Rather (rightly of wrongly), they cut-off a formal partnership with the school; so far as I understand it, they have not banned academic interchanges with the school. But, in any event, I agree that — even if they had done so — it would not be unconstitutional, .http://www.brandeis.edu/aqu/)

      Third, if a state funded university chose to make a viewpoint based decision to bar particular school funded academic interchanges — or, for that matter, fire teachers — based expressly on political litmus tests, I think that would clearly run afoul of the First Amendment, So I pretty much disagree with you there.

      (The issue of the interaction between broad based — typically federally imposed — economic boycotts on certain countries and academic interchanges is a complex one, but your hypothetical scenario in which there is a selective, political viewpoint based, form of discrimination against particular academic speakers by a state institution is not so complex.)

      Fourth, apologies if I misread Mr. Beck’s article (I agree that accuracy is always important and I confess to not being conversant with his particular, possibly idiosyncratic, views). But, as I suggested above, I think that an extended discussion of the views of Mr. Beck — who is not a university officer — is more than a bit off point,

      The fact remains that the university leaders you have criticized have consistently disclaimed any intention to prevent or bar the advocacy of academic boycotts or other forms of academic speech suppression by their faculty members. Indeed, I think I have followed the debate pretty carefully and — while I have seen scores of university leaders make their objections to boycotts plain — I am not familiar with any university official that has has responded to the ASA resolution by suggesting the imposition of penalties upon faculty members for boycott advocacy.

      My final point is the one I think we (probably) will just have to disagree upon: I would strongly defend your right to advocate for Brooklyn College to boycott the universities of the State of Israel (or anywhere else for that matter) — and would be deeply unhappy if anyone sought to impose a vocational penalty upon you for your views. In fact, I would offer to defend you if that happened.

      But I think those views are just wrong. I think implementing your views would be corrosive to foundational principles of academic freedom, under any reasonable definition of such freedom.

      • Corey Robin January 8, 2014 at 8:28 pm #

        When you first brought the issue of the First Amendment analogy, I thought you were referring to a point I made in an earlier post about the two ways to think about freedom of speech (one of which I called Brandeisian). I didn’t realize you were talking about the Dennis case issue that I raised here.

        But since that is what you were talking about, let me say that, yes, you did miss the point of the analogy. The question of who is the state actor was not germane to the point I was addressing, which was about the relationship between speech and action. In Dennis, the Court adopted a view in which no matter how many degrees of separation there are between speech and what we would consider to be action, the speech was so closely briganded (in the Court’s eyes) to action that it was almost the equivalent of action. The issue at stake in their analysis was when does speech cease to be speech and become something more akin to action. That’s why the comparison to Berman’s claim holds: he says a mere call for a boycott is an interference with academic freedom; the Court held that the mere organization of a group that might merely call for a violent overthrow in the future is a clear and present danger. Again, the issue of who is the state or the equivalent of the state is irrelevant.

        As for Brandeis, you write, “they cut-off a formal partnership with the school; so far as I understand it, they have not banned academic interchanges with the school.” Can you point to me one item in the ASA boycott that differs from this? The ASA refuses to engage in any kind of institutional collaboration with Israeli academic institutions (cutting off v. refusing to engage is a difference of not much significance); it certainly does not call for banning academic interchanges, which would occur between faculty and faculty. If anything, given the intensity of the relationship between Brandeis and Al Quds, one could easily make the case that the severing of the partnership poses a far greater and more extensive severing of ties than anything proposed by the ASA. I get it that people like to utter phrases like “they cut off a partnership; that’s not a boycott.” Aside from the pleasing sound of the phrases, I’ve yet to read any coherent defense that there’s much difference between these things. And to the extent there is, as I’ve said, it cuts in the ASA’s favor as the far less draconian action.

        On the constitutionality of public university actions, you write, “If a state funded university chose to make a viewpoint based decision to bar particular school funded academic interchanges — or, for that matter, fire teachers — based expressly on political litmus tests, I think that would clearly run afoul of the First Amendment, So I pretty much disagree with you there.”

        Back in the 1970s, Bob Jones University had a policy of not admitting black students in an interracial marriage and of not allowing interracial dating on campus. The IRS denied it a tax exemption based on that policy; the Supreme Court upheld that policy as a legitimate expression of the congressional will to eliminate racial discrimination in higher education. Had a public university — say CUNY — refused to enter a partnership with Bob Jones or any other university that practiced racial discrimination, I’m hard pressed to see how the Supreme Court could have found it unconstitutional. If the Court has already upheld that Bob Jones can be treated by the government differently b/c of its racial practices — and not just the government but one of the more punitive and coercive institutions of the government — then it can’t claim that a public university, which is an arm of that government, is not allowed to do the same.

        Obviously the university can’t fire professors who associate with Bob Jones (or an Israeli university). But again, no one is even talking about such things.

        Finally this: “apologies if I misread Mr. Beck’s article (I agree that accuracy is always important and I confess to not being conversant with his particular, possibly idiosyncratic, views).”

        You weren’t required to be conversant with his views, however particular or idiosyncratic they might be; you were simply required, before you pronounced that I was categorically wrong in how I was presenting those views, to read them. Not, I might add, by hunting down a thousand links, but merely to read the two — two! — sentences that were staring right at you on the screen. Not really much to ask, I’d say. Particularly when you like to declaim about the protocols of engagement.

      • reader21 January 9, 2014 at 12:48 pm #

        Corey, stand on my (informed) views, I respect yours — you seem though to think that disagreement means vilification and hostility.. Not my approach,

Trackbacks/Pingbacks

  1. A Challenge to Critics of BDS | Corey Robin - January 10, 2014

    […] Jan For the last month I’ve been responding to critiques and challenges of BDS. Now I have a question for its opponents and critics. What do you propose as an alternative […]

  2. Green Party of the United States | BDS Love Letters: Hate Mail to BDS Supporters - January 15, 2014

    […] “The New McCarthyites: BDS, Its Critics, and Academic Freedom”By Corey Robin, January 8, 2014http://coreyrobin.com/2014/01/08/the-new-mccarthyites-bds-its-critics-and-academic-freedom/ […]

  3. Green Party Defends American Studies Assoc. Endorsement of Economic Pressure on Israel | Independent Political Report - January 16, 2014

    […] “The New McCarthyites: BDS, Its Critics, and Academic Freedom” By Corey Robin, January 8, 2014 http://coreyrobin.com/2014/01/08/the-new-mccarthyites-bds-its-critics-and-academic-freedom/ […]

  4. The Last Apartheid State | PopularResistance.Org - February 13, 2014

    […] You want to talk about violations of academic freedom? Let’s look at the conduct of autocratic presidents speaking about international affairs on behalf of communities of 30,000 or 40,000 scholars and students. Michael McRobbie, the president of Indiana University (IU), actually rescinded the institutional affiliation between IU’s American Studies program (which he probably didn’t know existed until the boycott) and the ASA. This violates faculty governance, this violates any sense of campus democracy, and that’s where the threat lies. Corey Robin, a professor of political science at Brooklyn College, has just written a very good article about this. […]

  5. The Left’s Omertà - February 26, 2014

    […] boycotts, was even more absurd. (If you don’t support BDS and the ASA boycott guess what! You’re a “latter-day McCarthyite“. There should be a version of Godwin’s Law for McCarthyism, which we’ll come […]

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