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Last week, Brandeis University, where I teach part-time, revoked the university’s recognition of Students for Justice in Palestine. The letter to the group declared, “Students who choose to engage in conduct in support of Hamas … will be considered to be in violation of the University’s student code of conduct.”
Brandeis President Ron Liebowitz, facing criticism, sent the Brandeis community a follow-up letter, which explained, “This decision was made because SJP openly supports Hamas, which the United States has designated as a Foreign Terrorist Organization, and its call for the violent elimination of Israel and the Jewish people.”
These actions sent me searching for some enlightenment on the subject from a celebrated champion of free speech, Justice Louis Brandeis, in whose honor the university, founded in the shadow of the Holocaust and Ivy League antisemitism, is named.
Brandeis, the first Jew appointed to the U.S. Supreme Court, by President Wilson in 1916, knew something about antisemitism. He was confirmed after long delay and fierce debate, after barely winning the support of the Senate Judiciary Committee, 10-8.
In the famous 1927 free speech case Whitney v. California, Justice Brandeis wrote, “To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced … [and] reasonable ground to believe that the danger apprehended is imminent.”
For Liebowitz, the connection between SJP’s rhetorical support of Hamas and the U.S. government’s defining Hamas as a terrorist organization added up to the SJP promoting violence on campus. The circumstances were not unlike those in Whitney v. California.
Charlotte Anita Whitney, a founding member of the Communist Labor Party of California, was prosecuted for helping to organize a group that advocated violence. But Brandeis observed that Whitney posed no immediate threat. “[T]he remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression.” Brandeis’s view, a minority position in 1927, was finally adopted by the Supreme Court in 1969.
So, who’s right: Brandeis, or Brandeis? The test, it seems to me, is whether SJP incites violence at home, not whether it espouses an unpopular defense of violence overseas.
On Thursday, a group of Jewish students at Brown University sent the student newspaper a letter in solidarity with SJP. They wrote, in part:
“[P]eople ask us … ‘Do you recognize that Hamas’s attack on Oct. 7 was an act of horrific violence?’ To that, we say, unequivocally, yes.”
Excellent. But they also wrote, “‘From the river to the sea, Palestine will be free’ is not … a call to ‘throw Jews into the sea’; instead, it is a call for the end to the oppression of all Palestinians.”
Well, not so excellent. The trouble with such slogans, like Trump’s ambiguous calls for violence, is that they are encoded dog whistles. Some can read them as a call to end oppression of Palestinians. Others can cheer them as a call to eliminate the state of Israel.
One thinks of Lewis Carroll in Through the Looking-Glass:
“When I use a word,” Humpty Dumpty said in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”
“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master—that’s all.”
The war in Israel and Gaza is about which is to be master. But the war on American campuses is about words. It’s hard to make a persuasive case that allowing students to defend Palestinians, even Hamas, is tantamount to promoting violence at home, or that curtailing that right of speech will reduce the risk of such violence.
When Justice Brandeis famously wrote that the remedy is more speech and that only an emergency can justify repression, he was referring to government action. The same standard should apply to college campuses, especially one named for Louis Brandeis.
