“My whole career was in the balance over this badly-phrased tweet, the substance of which something like 76 percent of Americans agree with.”
In early 2022, Ilya Shapiro was about to start a new job as the executive director of the Center for the Constitution at Georgetown University, when he was suspended for a “racist tweet.”
“This is not the Berkeley hippies. In fact, the Berkeley hippies—now boomer professors—are afraid of this illiberal radical left that seems to want to cancel, if not kill them, for having divergent views,” says Mr. Shapiro.
We discuss the limits of free speech, when it veers into misconduct or harassment, and how to balance the 1st amendment with Title VI and other civil rights laws—especially on college campuses.
“A lot of what’s been going on in the last couple of months is not even speech to begin with. You do not escape criminal liability for, say, public urination on a building, just because you’re saying, ‘I’m being expressive in showing my displeasure for the organization that inhabits that building,’ or tearing down posters off private property because ‘I’m expressing my disdain for what those posters are saying.’ No,” says Mr. Shapiro.
He argues that it is not the laws—not criminal, civil, federal, or state—nor is it the university policies at most places that are to blame for what we’re seeing today. Rather, it is their uneven enforcement.
Watch the clip:
“MIT famously, even after admitting that some students violated their rules on blocking access to buildings, then said, ‘Oh, we’re not going to punish those students, because a lot of them are foreign and they’re here on student visas.’ And it turns out, if you punish them for these kinds of violations, they lose their visas and they have to leave the country. And so, in effect, MIT has created a system where foreign students can harass and intimidate, but American students can’t,” says Mr. Shapiro.
🔴 WATCH the full episode (1 hour) on Epoch Times: https://ept.ms/S0106IlyaShapiro
FULL TRANSCRIPT
Jan Jekielek: Ilya Shapiro, such a pleasure to have you on American Thought Leaders.
Ilya Shapiro: Good to be with you. Looking forward to the conversation.
Mr. Jekielek: Not too long ago, in 2022, you were pretty well-known and well-regarded, specializing in constitutional law. Then you tweeted something that wasn’t very popular. Please tell us what happened.
Mr. Shapiro: I was at the very end of my tenure at the Cato Institute libertarian think tank here in Washington. I had this opportunity to have an impact in a different way, as a constitutional scholar, as a public commentator, and as a teacher, to move to Georgetown University and be the executive director of their Center for the Constitution. A few days before I was due to start that job, early in 2022, the news of Justice Breyer’s retirement broke, and I was doing a lot of media on that.
I had written a book on the politics of judicial nominations and Supreme Court confirmation battles, so it was very timely. Whenever something like this happens, I’m in demand in the media. After a day of doing this, I was getting more and more upset at President Biden for sticking with his pledge during the campaign that he would nominate a black woman, that is, he would restrict his pool of candidates by race and sex.
I was in Austin, Texas, and it was late at night in my hotel room. It’s not the best practice to be doom scrolling Twitter and firing something off late at night. I said, “If I were a Democratic president, I would pick the chief judge of the DC circuit. It’s the second most prestigious court in the country, and his name is Sri Srinivasan. He happens to be Indian American, an immigrant, and has a lot of diversity points as well.” But I said that due to the latest hierarchy of intersectionality, he wasn’t being considered and we would end up with a ”lesser black woman.” That wasn’t well phrased.
I simply meant that if I considered Judge Srinivasan to be the best, then everyone else in the universe was less qualified, including the black woman that President Biden would eventually choose. Then I went to bed. All heck broke loose on Twitter overnight, and the next morning it was a firestorm.
I might have been fired. It was very close whether Georgetown would rescind my offer even right then. Ultimately, what happened after these four days of hell was very unnerving. My whole career was in the balance over this badly phrased tweet, the substance of which something like 76 percent of Americans agreed with, that the President should consider all possible candidates.
After these four days of hell, Dean Will Treanor of Georgetown decided that I would be onboarded, but that I would be immediately suspended with pay, pending investigation into whether I had violated the university’s harassment and anti-discrimination policies. It became clear rather quickly that the so-called investigation was a sham. It took four months to investigate a tweet, even though the university had clear protections on paper for freedom of speech.
Mr. Jekielek: I just happen to have something here that Will Treanor said. He said, “The university does have a free speech and expression policy that binds us, but since we’re a private institution, the First Amendment doesn’t apply to us.” That means the university’s guideline is not the First Amendment. What do you think about that?
Mr. Shapiro: That’s correct. Private universities are not bound by the protections of the First Amendment, including the ones that have been in the news lately with the disastrous testimony by the presidents of Harvard, MIT, and UPenn. Actually, it’s the former president of UPenn, because she has already resigned. These so-called elite schools do have broadly protective free speech policies that are essentially the same as the First Amendment.
I’m very familiar with Georgetown’s policy, of course. It says that the mere fact that someone is uncomfortable or objects to something that someone says does not make it unprotected. There is a harassment policy, but the law and school or employer policies define harassment as targeting someone and making it hard for them to work. I’m sure we'll get into this with our discussion of antisemitism on campus. But Georgetown ended up clearing me after four months of this sham investigation.
Dean Treanor cleared me on the technicality that I wasn’t yet an employee when I posted my tweet. But this took some high-powered lawyers. The same firm that prepared the university presidents for their testimony, WilmerHale, a very expensive, prestigious DC law firm, was Georgetown’s advisor in my investigation. It took some junior associate four months to look at a calendar and see that I was an employee.
I finally got this report from the Office of Institutional Diversity, Equity and Affirmative Action that was investigating me. They made it clear that had I been an employee, then I would have been subject to discipline, because I was creating a hostile educational environment. Indeed, the standard that they were applying was that if any faculty and staff say anything that someone even claims offense to, then that puts you in this Kafkaesque inquisition.
I decided that I could not work like that. I couldn’t do the job that I was hired to do, which was partly public facing, and partly teaching students about controversial Supreme Court cases. I would have a Damocles sword over my head, so I came to the realization that I had to quit. As one does, I wrote up a resignation letter that was published in the Wall Street Journal and away we went.
The next day I announced my move to the Manhattan Institute, where I am to this day. I announced this on the Tucker Carlson show on Fox News. It was four days of hell, or four months of purgatory, if you will. Then I was finally in control of the media narrative that exposes the rot in academia, which we’ve seen a lot more of these last couple of months.
Mr. Jekielek: Why do you characterize the investigation as a sham?
Mr. Shapiro: This is a law school, one of the supposedly most elite, most prestigious law schools in the country. When they investigate whether I have violated the harassment or discrimination policies, it doesn’t take a long time to apply these short policies to the facts, which are even shorter, being a couple of tweets, and come up with a conclusion.
Here the conclusion seemed rather obvious—I had said something that some people didn’t like. I wasn’t targeting anyone or any decision based on race or sex. In fact, I was criticizing President Biden’s decision based on race or sex. Regardless, it should not have taken long to assign it to the most junior faculty member to come up with a conclusion. But clearly, they didn’t want to make a decision until the students were off campus.
I had a couple of interactions with the dean over Zoom, because this was still during the Covid days and we couldn’t meet in person without wearing masks and all of that nonsense. He was like a deer in headlights and just did not want to make a decision one way or another. He didn’t like that I had put him in this position where he had to demonstrate leadership. Ultimately, I think he failed.
These college leaders, most of them are not woke radicals, social justice warriors, or anti-free speech per se. They are spineless cowards. They are career bureaucrats following the incentives who have learned how to climb the greasy pole to rise within academic bureaucracy. That means they have to mollify and placate the activists on the Left who are very loud and also these bureaucracies that have sprung up that are often the tail wagging the dog.
We no longer have faculty governance, but governance by these bureaucratic structures. In the last 5 to 10 years it has been the diversity, equity, and inclusion [DEI] structures which inculcate an illiberal ideology that is at cross purposes with the classical liberal mission of institutions of higher education. That mission is seeking open inquiry, looking for truth, and building human knowledge, aided by the values of free speech, academic freedom, due process, and treating everyone equally. These values are an anathema to the postmodern theories that these bureaucracies seek to instill.
Mr. Jekielek: You talked about the three Ivy League presidents that created a firestorm recently. You don’t hold them in high esteem, but let’s look at this through the lens of a constitutional scholar and a free speech expert. Why is what they said problematic?
Mr. Shapiro: They approached this hearing like a deposition, as if they were involved in a lawsuit and their lawyers were telling them, “Talk a lot without saying much. Don’t admit liability.” It was a very dry, bloodless presentation. They were asked if it is okay to call for genocide. They said that it depends on the context. Actually, if you were giving a sophisticated, nuanced, legal answer, it does depend on the context.
There is something to that, but this was a public hearing for public consumption. It was a moral exercise. But it was a political exercise to not answer that question. They just said, “Of course, any institution of higher education condemns a call for genocide against any group. That is antithetical to our mission.”
First of all, free speech is protected. There is no calling for genocide exception in the First Amendment and in our broad free speech policies that track First Amendment protections. The problem was they couldn’t say that, because they had not enforced freedom of speech at their schools. Countless professors have been investigated and disciplined. Students have been expelled for much lesser offenses than calling for genocide, like using the wrong pronoun, triggering someone in some way, or saying something that is politically incorrect.
Surveys of elite schools or more broadly across the country show that students and faculty are apprehensive. They feel like they are walking on eggshells. They can’t express themselves. They can’t even discuss certain subjects, regardless of what viewpoint they might have, because they’re going to be canceled by their institution or by an investigation. It could be HR or the diversity office saying that certain values are more important than free speech.
Let’s go back to the president’s presentation, saying we have broad speech protections. But as we’ve seen in the last couple of months, sometimes these rallies or demonstrations or anti-Israel chants become harassment or vandalism or assault.
Congresswoman Elise Stefanik: At MIT, does calling for the genocide of Jews violate MIT’s code of conduct or rules regarding bullying and harassment? Yes or no?
Dr. Sally Kornbluth: If a targeted individual is not making public statements.
Congresswoman Stefanik: Yes or no? Calling for the genocide of Jews does not constitute bullying and harassment?
Dr. Kornbluth: I have not heard calling for the genocide for Jews on our campus.
Congresswoman Stefanik: But you’ve heard the chants for intifada.
Dr. Kornbluth: I’ve heard chants which can be antisemitic, depending on the context, when calling for the elimination of the Jewish people.
Congresswoman Stefanik: Those would not be according to MIT’s code of conduct or rules?
Dr. Kornbluth: That would be investigated as harassment if pervasive and severe.
Congresswoman Stefanik: Ms. Magill, at UPenn, does calling for the genocide of Jews violate UPenn’s rules or code of conduct? Yes or no?
Dr. Liz Magill: If the speech turns into conduct, it can be harassment. Yes.
Congresswoman Stefanik: I am asking specifically calling for the genocide of Jews, does that constitute bullying or harassment?
Dr. Magill: If it is directed and severe or pervasive, it is harassment.
Congresswoman Stefanik: So, the answer is yes.
Dr. Magill: It is a context-dependent decision, Congresswoman.
Congresswoman Stefanik: It’s a context-dependent decision. That’s your testimony today? Calling for the genocide of Jews is depending upon the context? That is not bullying or harassment? This is the easiest question to answer, yes, Ms. Magill. Is your testimony that you will not answer yes?
Dr. Magill: If the speech becomes-
Congresswoman Stefanik: Yes or no.
Dr. Magill: If the speech becomes conduct, it can be harassment, yes.
Congresswoman Stefanik: Conduct meaning committing the act of genocide. The speech is not harassment. This is unacceptable, Ms. Magill, I’m going to give you one more opportunity for the world to see your answer. Does calling for the genocide of Jews violate Penn’s code of conduct when it comes to bullying and harassment? Yes or no?
Dr. Magill: It can be harassment.
Congresswoman Stefanik: The answer is yes. Dr. Gay, at Harvard, does calling for the genocide of Jews violate Harvard’s rules of bullying and harassment? Yes or no?
Dr. Claudine Gay: It can be, depending on the context.
Congresswoman Stefanik: What’s the context?
Dr. Gay: Targeted as an individual, targeted at an individual.
Congresswoman Stefanik: It’s targeted at Jewish students, Jewish individuals. Do you understand your testimony is dehumanizing them? Do you understand that dehumanization is part of antisemitism? I will ask you one more time. Does calling for the genocide of Jews violate Harvard’s rules of bullying and harassment? Yes or no?
Dr. Gay: Antisemitic rhetoric-
Congresswoman Stefanik: And is it antisemitic rhetoric-
Dr. Gay: Antisemitic rhetoric when it crosses into conduct that amounts to bullying, harassment, and intimidation is actionable conduct and we do take action.
Congresswoman Stefanik: So, the answer is yes. Calling for the genocide of Jews violates Harvard code of conduct, correct?
Dr. Gay: Again, it depends on the context.
Congresswoman Stefanik: It does not depend on the context. The answer is yes, and this is why you should resign. These are unacceptable answers across the board.
Mr. Shapiro: These things are not protected. They said that this violates our code of conduct and we’re going to investigate and punish those kinds of instances. That’s true. A lot of what’s been going on in the last couple of months is not even speech to begin with.
You do not escape criminal liability for public urination on a building. Just because you’re saying, “I’m being expressive in showing my displeasure for the organization that inhabits that building or tearing down posters off private property because I’m expressing my disdain for what those posters are saying.” No, whatever your purpose is, you’re engaged in conduct that can be punished.
The second category is exceptions to First Amendment protection. If I make a direct threat against someone, and if they are objectively in fear of physical harm, you can be arrested and prosecuted for that. There was a student at Cornell a month ago that posted a bunch of vile things, not just saying vile things, not just from the river to the sea or intifada or hurt all the Jews, not even something general like that, but specifically talking about making threats and he was properly arrested. It could be incitement of violence.
That’s a high bar. There was some discussion of this over whether President Trump incited violence on January 6th. There has been some familiarity with the very high standard that the Supreme Court has put in place, namely that there has to be a call for imminent and direct violence that is closely tied to the speech. Just generally saying, “This is why we should have genocide of the Jews,” is not enough to be incitement of violence. It might be harassment if it’s outside of the Jewish Life Center, the Hillel Center. or a dorm where Israeli students are living.
Stalking and intimidation might violate either school rules or the criminal law, but just saying something like that in a public square at a rally is not enough to be incitement. If the speaker says, “Kill all the Jews. Starting right now, any Jew you see on campus, punch them in the face,” that could be incitement of violence.
Those are some exceptions. Again, it takes a while to explain all this. If the Ivy League presidents really wanted to be technocratic and legalistic, they would need to say all of that. But they try to fudge and say, “Well, it depends,” which is not a good PR maneuver for a congressional hearing.
The third thing that is very important for your viewers to understand is time, place, and manner regulations. That is even for something that’s clearly protected like a political opinion, you can’t say that whenever, wherever, and however you want. I can’t go to your neighborhood in the middle of the night with a megaphone and start yelling what I think about Donald Trump or Joe Biden.
Mr. Jekielek: There are noise ordinances.
Mr. Shapiro: That’s right. On university campuses, there are rules about not disrupting classes. If a student organization has reserved a room to have a speaker, you can’t shout down that speaker. If they have reserved a space to have a rally, you can’t have your counter rally and try to disrupt them. Again, these time, place, and manner regulations are perfectly appropriate.
Just like the people now being arrested for blocking streets and interstates. They may think they have an expressive purpose, but you can apply this time, place, and manner regulation, saying that you can’t impede the right of way. Those are the general things to think about as we observe what’s happening on campuses.
Mr. Jekielek: Herbert Marcuse had his vision of repressive tolerance, that essentially everything should be tolerated from certain groups of people. But nothing should be tolerated from the others, the bad people and the conservatives. In fact, we can persecute certain groups, because we have deemed them to be bad.
Mr. Shapiro: That’s right, this is situational ethics or the ends justify the means. That’s a huge reason why DEI is so problematic, because DEI is not civil rights law. Traditional civil rights law states that you can’t discriminate based on race and sex and other protected categories. That was there when I was in college in law school 25 years ago. There’s nothing wrong with that, and you can apply that. We don’t need whole new bureaucracies to impose it.
In fact, there are all of these calls to abolish DEI, which I have been a part of. In January, Chris Rufo, my colleague at the Manhattan Institute and I proposed model legislation that’s been taken up by a number of states. Most recently, the Governor of Oklahoma signed an executive order defunding DEI bureaucracies at Oklahoma Public Universities. That’s all good, but that doesn’t touch the lawyers who are enforcing federal and state civil rights law. This is not about that.
This is about an ideological structure that views everything through the lens of identity, whether it is race, sexual orientation, or gender. Everyone needs to be evaluated based on their level of privilege, whether they are part of the oppressor or the oppressed class, and where they are in the overall intersectional hierarchy. They believe that some speech is more valuable than others. Also, some speakers can be shouted down because they come from a position of privilege and they’re from the oppressor class.
This all comes from critical theory born in the 30s and 40s in Austria and Germany, ironically, from those fleeing the Nazis and coming to America. They imposed a different kind of illiberal ideology, which started out in sociology departments and philosophy departments. In the 70s and 80s, there was a bit of a flare up of various critical theories, with the Crits and even in law schools. By the time I was in law school 20 years ago, it had flamed out, but now it’s back with a vengeance.
Mr. Jekielek: Perhaps this is why you have been described as an embodiment of white supremacy.
Mr. Shapiro: Yes. Under this rubric, everyone who is for classical liberal values is for white supremacy. There was a glossary of terms that came out of Stanford maybe six months ago which are indicia of white supremacy, because they support current structures. These critical postmodern theories say that all current structures are illegitimate. They need to be burnt down and reestablished based on these oppression Olympics and intersectional hierarchies.
Mr. Jekielek: You mentioned that you decided to quit. Do you feel like you were canceled?
Mr. Shapiro: I feel like I canceled them, but they had tried to cancel me.
Mr. Jekielek: What does being canceled actually mean?
Mr. Shapiro: Here is a good approximation. Nicholas Christakis is a Yale professor who was canceled from being the master of one of the residential colleges. Master is another word that is not allowed, because it harkens back to slavery. There are some places where you do field research. The word field is not allowed, because that harkens back to slavery. Actually, it is not only slaves who work in the field. There is a bizarre denial of basic, objective truths and the meaning of words.
Nick Christakis, who famously was yelled at and pushed away from heading up this college, has a very pithy definition of cancel culture which says, “Disproportionate punishment for something you said that is clearly within the Overton window—the mainstream, socially acceptable range of views.”
People celebrating Hamas, celebrating the atrocities and barbarities and baby killing and gang rape that Hamas perpetrated on October 7th, and then having their jobs rescinded, maybe that’s meritorious, because it would be hard for people like that to function normally in a big business or in a law firm.
Mr. Jekielek: You wouldn’t want to entrust the development of our young people to folks who are supporting that.
Mr. Shapiro: Sure, you can characterize it in different ways. For example, at Stanford earlier this year, students shouted at a federal judge, “We hope your daughters get raped.” It’s not improper cancel culture for a law firm to not hire a student who was involved in that. But anyway, that’s a rough approximation of cancel culture. I was expressing a view against racial and gender preferences for the selection of high public officials. Again, it’s a view that is supported by a vast majority of American people, according to that rabid Right-wing outlet, ABC News. It was 76 percent of the American people.
It’s not just the Ted Cruz’s of the world that were supporting my position. Most Americans think this way. I could have expressed it better and it was a failure of communication. When you’re tweeting, you don’t necessarily think about it as much as you do when you’re writing an op-ed, or even speaking in a conversation like this one, even though it’s spontaneous and not scripted.
Therefore, I was investigated. The process is the punishment in many of these circumstances. The first few days were the worst because I asked myself, “Have I thrown away my entire career?” I was changing jobs. It was a vulnerable position. I have four little kids. It was tough. But then it quickly became farcical. Again, I had been speaking about the Supreme Court.
My counsel said, “Don’t criticize Georgetown because that’s an ongoing situation, but otherwise you’re free to do your normal job.” I was reinstated, so I wasn’t canceled in that respect, but then I canceled Georgetown. I said, “I can not work under the conditions that you have now created. You’ve changed the terms of the job and I’m not going to work like that.”
I am using this platform that I’ve been given. I’ve always been for free speech and the First Amendment and I’ve been a constitutional scholar. I filed briefs to the Supreme Court on these types of issues, but I did not have nearly as much of a focus on either free speech or higher education policy as I do now. I’ve pivoted and I’ve used the platform I was given and this unexpected opportunity to take my career in a different direction. It doesn’t justify what happened, but you try to make lemonade when you get lemons.
Mr. Jekielek: The UPenn president was pressured to resign after her performance at that hearing. How does that fit with this cancellation concept that we’re talking about?
Mr. Shapiro: If you fail at your job, there can be consequences for that. You can fail at your job by poor public speaking. In a sense, there are consequences or punishment for speaking poorly. But it’s not the same thing as having an offer of admission to Harvard rescinded because somebody unearths some Instagram post of yours from when you were 12-years-old. People have gone down for far lesser crimes than the Harvard president’s performance, let alone her plagiarism.
But Liz Magill, the erstwhile Penn president, like all of them, put on a poor performance. She’s not a good leader. They did not have their institutions come out looking well. If anything, it further lowered public confidence in what are supposed to be three of the leading higher education institutions in the country. A lot of the role of the university president is PR. A lot of it is preserving the brand, enhancing the brand, attracting prestige, and attracting donors.
Mr. Jekielek: We are entrusting our young people to these institutions. One would hope that they don’t have this weird equivalency around issues as extreme as genocide.
Mr. Shapiro: Also, it’s rank hypocrisy. Imagine this happening to any other minority group other than Jews. Imagine this hypothetical situation. Just imagine if Elise Stefanik had asked about people chanting, “Lynch all the blacks. Kill all the Arabs,” of course, that would not have been allowed. The answers would have been much different. Hypocrisy is not necessarily a crime, but it certainly makes you look bad. It’s a failure of leadership in that sense.
By the way, there are pending lawsuits, including against these institutions, for failing to preserve a safe and equal access to educational opportunities in an educational environment under Title VI of the Civil Rights Act. All of these schools receive research grants and student loans and they’re liable for various things. Non-discrimination policy is one, and creating a healthy educational environment is another.
If it can be shown from the perspective of speech policies that other minority groups are treated differently than Jews, then that shows that Jews are disfavored, so there’s a lot going on there. The reason Liz Magill is now gone, and the other two are just hanging on, is because she had undergone criticism for her response to October 7th in the first place. There was an antisemitic literary festival where she botched the PR and other various things. This was just the latest incident.
She was pushed out after some donors closed their wallets. We'll see. The others are still moving targets. MIT famously admitted that some students violated the rules by blocking access to buildings. Then they said, “We’re not going to punish those students, because a lot of them are foreign and they’re here on student visas.”
It turns out if you punish them for these kinds of violations, then they lose their visas and they have to leave the country. In effect, MIT has created a system where foreign students can harass and intimidate, but American students can’t. There are a lot of weird things going on with the uneven enforcement of what otherwise are pretty good rules and policies at all of these places. Jan, it’s not the criminal laws or the civil laws or university policies at most places that are to blame for what we’re seeing. It’s their uneven enforcement or non-enforcement.
Mr. Jekielek: Let’s go back to free speech because you explored what is protected and what is not. Where does this intersection of speech and conduct happen? Harassment is an area that might not be obvious. People will say, “I’m protected through free speech,” but actually what’s happening is conduct. Let’s start with harassment. When does something become conduct and not speech?
Mr. Shapiro: There has to be targeting of particular individuals, and there has to be something that’s severe and pervasive. One catcall down the street probably is not going to be sufficient. But if people are following around a student or a group of students and yelling things at them and disturbing their ability to go about their lives or their education, that’s harassment.
On Harvard Yard, a bunch of students crowded around a student carrying an Israeli flag and were menacing to them. There’s a state crime as well as a tort called menacing, where you’re intimidating someone with your physical presence and looking like you’re about to strike them.
For that matter, to commit the tort of assault you don’t have to physically touch someone. It’s reasonable apprehension of an imminent threat. It doesn’t matter what your motive is, whether you have an expressive motive or not, whether it’s based on hate, or whether it’s based on anything else.
But there are rules against vandalism, assault, harassment, intimidation, menacing, all of these different physical actions that are crimes or torts, meaning civil wrongs that you can be sued for, regardless of any expressive content in them.
Mr. Jekielek: There is a slogan, “Globalize the intifada.” Some officials have said, “That’s not necessarily a call to violence.”
Mr. Shapiro: The intifada are several campaigns that were initiated by Yasser Arafat, the leader of the Palestinian Liberation Organization that involved suicide bombers on buses and cafes and pizzerias and daycares. It was extremely violent. Specifically, in the Palestinian context, intifada is armed violent resistance. Someone might be ignorant and not know about that, but the objective understanding is calling for violence.
Mr. Jekielek: That’s one statement, “Globalize the intifada.” Another one is, “From the river to the sea, Palestine shall be free,” the implication being to wipe out the state of Israel.
Mr. Shapiro: Yes, let’s be clear on that. In surveys, a lot of students who are chanting this apparently don’t know what it means. They don’t even know what river and what sea they are talking about. It’s from the Jordan River, which is the boundary between Israel and the country of Jordan, to the Mediterranean Sea. If you wipe that out from the river to the sea, that’s going to become all Palestine, which means you get rid of Israel and get rid of the Jews. It’s an eliminationist slogan.
Again, many students might not know this. The objective truth of what that really means, and what they chant in Arabic is, “From the river to the sea, Palestine will be Arab.” For rhyming purposes in English they say, “From the river to the sea, Palestine will be free.” But the objective meaning is to get rid of Israel and to get rid of the Jews.
Mr. Jekielek: But both of those are protected speech.
Mr. Shapiro: They are protected, except in certain contexts. Here Liz Magill was correct in saying that in a certain context that loses its protection, like if you’re having those chants in front of a Hanukkah service, or if you’re having those chants outside of synagogue or a Hillel group, because they are obviously threats of violence that are targeting people. It doesn’t rise to the level of incitement of violence, unless when those people leave that synagogue you make sure to hit them.
But it can be harassment or intimidation. Someone may have lots of different things in mind. At Yale, they famously redefine words so that they mean the opposite of what they actually mean. But you can’t play these semantic games in the law.
Sometimes it might be a jury question, but courts can take notice of the objective meaning of certain words. The Supreme Court decides the meaning of interstate commerce under the Constitution to define the scope of federal power. I suppose you could have a mini-trial in a district court over what the true meaning of all this stuff is. I’ve done some research into this, and when you look into what it means, regardless of what any one person might subjectively mean, the general public meaning of these terms is violently eliminationist.
Mr. Jekielek: There is a young woman, a Hong Konger, who is in DC. Yesterday, the Hong Kong government announced a $1 million Hong Kong dollar bounty on her head for anti-government speech and organizing. She said there was a student on her campus that actually issued a death threat towards her. From what she could tell, there really were no repercussions, and the student graduated. Presumably, there’s a school policy that applies here, because I don’t think death threats are protected.
Mr. Shapiro: That’s right.
Mr. Jekielek: Is that an effort to be a true credible threat?
Mr. Shapiro: I don’t know the facts of this specific case, but it’s a certain legal bar. This happens with people who threaten the lives of public officials from time to time, and then they get visited by the FBI and often arrested. About a month ago, this Cornell student who was issuing threats got arrested, because the threats were seen as credible. This question has gone to the Supreme Court, “Do you actually have to have in your mind the idea that you’re going to kill someone?” If that person objectively and reasonably fears that, based on what you said, and that you’re a threat to them, then that’s a true threat.
Mr. Jekielek: In other words, if I say to someone, “I’m going to kill you.” In this case, there’s the weight of a regime known to be committing genocide behind it. That adds a bit of weight, or does it?
Mr. Shapiro: I think it does. Again, it depends on the context. Let’s say that Hong Kong student had posted, “I was wavering about this, but now that there’s a reward for going after this person, I’m definitely going to go get her.” This is a matter of criminal law, not just school policy. Making credible death threats is illegal. It’s a crime.
There is another example of what incitement of violence might be, or an exception to the protections. Back in October, 2023, there was a protest in Los Angeles, and they were chanting, “From the river to the sea,” and all these slogans. A gentleman with an Israeli flag was struck and killed. I think it was a community college professor who struck him with a megaphone, and that man fell and hit his head again and ended up dying. There is no video of the chanting, but it could well be that some of that speech was inciting that kind of violence.
Mr. Jekielek: How can someone possibly know what will happen after they chant violent slogans? The protections are pretty strong. You have to be saying, “Go after that person right now,” if I understand this correctly.
Mr. Shapiro: We don’t know specifically what was chanted. If there’s a witness who says, “The folks who were around this guy who used the megaphone to hit the man were saying, ‘Let’s go after anybody with an Israeli flag,’” that would be enough at that point.
Mr. Jekielek: Then there would be other people who are complicit, not just the guy doing the hitting.
Mr. Shapiro: Potentially, that’s correct.
Mr. Jekielek: There is a group that has gotten some press called The Students for Justice in Palestine. They put out this resistance toolkit. Are you familiar with it?
Mr. Shapiro: This goes to some slightly different issues. We were dealing with individuals. What speech is protected? What is conduct? What can be regulated? Then we talked about the duties of schools and their policies like Title VI and what they have to enforce.
But this raises another issue. What about the rights of organizations to exist and to engage in expressive activity? A number of schools, like Columbia and Brandeis and a few others have deregistered their local chapters of the Students for Justice in Palestine, saying that this group foments activity that is against our policies.
Florida went even further. The chairman of their board of governors announced the disestablishment and the defunding of SJP chapters at all public institutions in Florida. That was temporarily paused based on concerns about how the order was organized, and whether there would be liability for individual faculty members or staff.
There’s some fact finding now going on about certain things. The key thing with that group with respect to public institutions is that there are both federal and state laws against material support for terrorism. What does that mean? The Supreme Court has interpreted it to mean something more than just engaging in violence. It can even be advice, and it can be public relations.
The key is that there has to be some sort of coordination or cooperation. There has to be a close enough tie between the National Students for Justice in Palestine organization with Hamas or some other recognized terrorist organization, and that they’re also coordinating with the local chapters. That would be reason enough to disestablish the chapters.
This doesn’t mean that the students who are members of SJP would then be arrested or punished or expelled. That’s a different question, and that goes to what each individual student might be doing. But in terms of disestablishing or removing public funding for organizations like that, the material support for terrorism aspect has been playing a large role.
Mr. Jekielek: What about this resistance toolkit? Are you familiar with it?
Mr. Shapiro: Yes. It had what things to chant, and it even had branding materials like the hand glider logos that started appearing on all these rallies, harkening back to the Hamas fighters who paraglided in over the fences to murder the kids who were partying in that rave in the south desert, so there is coordination. It’s quite clear that there’s coordination between the national organization and these local chapters. The question is, what exactly is their tie to Hamas or Islamic Jihad or some other recognized terrorist organization?
Mr. Jekielek: You’re saying as long as the tie isn’t clear, it’s just discretionary.
Mr. Shapiro: The Attorney General of Virginia is investigating the ties between various charities that allegedly have connections to Hamas or related organizations. The general counsel of any university or of the public university system of a state will have to make a judgment call as to whether this is a problem. As they conduct their investigation, SJP might file a lawsuit saying, “What is this? We want our rights back. We want our funding back.”
Then it gets litigated in court, and then there’s discovery, meaning you get the information and the court evaluates it. Now, there have not been lawsuits by SJP against either the private schools or the state of Florida, which might indicate either there’s something to this material support allegation, or there’s other stuff that would have come out in discovery that they don’t want to see the light of day.
Mr. Jekielek: October 7th and what happened subsequently out here in the U.S. and all over the world, provides this fascinating foil to explore all of these issues.
Mr. Shapiro: I’m sure there are going to be classes taught about this period from multiple perspectives. On campus, it’s really led to the scales falling from a lot of people’s eyes. Bill Ackman, who’s a billionaire investor, has become the biggest thorn in the side of the Harvard Corporation, the board that oversees the president and everybody else at Harvard. He was also attacking Liz Magill and has become very active on Twitter now. He led the charge of CEOs who said that they wouldn’t hire anyone who signed the Harvard letter that blamed Israel for the attack on Israel.
We’re seeing a lot of external stakeholders; donors, alumni, employers, state legislators, attorney generals, and others that are all of a sudden paying attention, not just conservatives. This is the point. These are middle of the road people who otherwise might have thought, “These complaints from the Right about DEI offices or free speech don’t concern us.”
But now they’re seeing, through these extreme, unfortunate circumstances, that this is crushing to the continuation of our institutions of higher education, the spirit of free inquiry, and people becoming educated. There Is the bureaucratic part that we’ve referenced. There’s also this decolonialism, oppressor/oppressed stuff that’s being disproportionately taught in multiple academic departments. That is really poisoning the minds of students. Of course, these students eventually enter the real world. It’s not like the stuff magically goes away once they have that diploma in hand.
Mr. Jekielek: Do you feel like this is an inflection point?
Mr. Shapiro: It could be. We can’t really tell because we’re in the eye of the storm. We don’t know what’s going to happen five years from now. We don’t know what’s going to happen in the new year. The semester has ended as we record this. The students don’t return to campus until the new year, so there’s going to be a bit of a break.
We'll see what the latest developments are in the war in Israel for that matter. There’s a fascinating juxtaposition or correlation between geopolitics and campus governance really, as well as what’s going on in Congress. It’s just affected so much of our daily public and private lives these last two months.
Mr. Jekielek: It also seems to be one of the first significant fissures in the Left.
Mr. Shapiro: The broad middle, what people who spend all their time online call the normies, the normal people who aren’t talking politics all the time, who aren’t paying attention to what this or that celebrity tweeted, are starting to pay attention, and they’re saying this is not right. There’s something palpably different from the decades-old conservative complaint, “The liberals have taken over the faculty lounge.” This is not the Berkeley hippies. In fact, the Berkeley hippies, now boomer professors, are afraid of this illiberal radical Left that seems to want to cancel, if not kill them for having divergent views.
Mr. Jekielek: You just mentioned that Oklahoma is defunding DEI in public institutions. There are many initiatives like this.
Mr. Shapiro: There are initiatives in Florida, Texas, Tennessee, and South Dakota, and there are a couple other executive orders. In next year’s state legislative sessions, more will be taken up. There are multiple things here. Steve Pinker, a Harvard professor, a very interesting guy, wrote an op-ed in the Boston Globe recently that talks about disempowering DEI structures. He’s a little softer than abolishing DEI, which is what I would propose. But he talks about disempowered DEI structures.
If someone’s actually wanting to make people feel more welcome and included, that’s great. The problem is these DEI offices mostly seem to be concerned about the decrease in student comfort or their feeling of belonging on campus, which is remarkable. They should strengthen free speech, actually enforce the free speech protections, and get rid of discrimination by viewpoint in hiring and admissions.
This goes to diversity statements. This goes to faculty, who after all, hire their future colleagues. The members of the sociology department hire the next members of the sociology department, so get rid of this discrimination based on ideology and make it just based on merit. There’s a couple more things that I’m leaving out, but I commend that op-ed by Steve Pinker.
Fundamentally, it’s about changing the culture. The presidents, deans, and department chairs have all the tools they need to do it. They are quite good at instilling whatever virtues or cultures that they want, whether that be public service, whether that be inclusion, whether that be entrepreneurship, or giving back to the community.
They need to reinstill these classical values of open inquiry, freedom of speech, academic freedom, the idea that education is supposed to make you feel a little uncomfortable and challenge your views. If all you’re ever taught or told in college is things that you already know and are comfortable with, then what’s the point of doing four years of that? Hanna Holborn Gray, who’s a former president of the University of Chicago, is one of the exceptions that proves this rule.
Now, it’s not perfect at UChicago, which is where I went to law school. But they really are the gold standard for free speech policies, institutional neutrality, so that universities aren’t constantly taking positions on political controversies, and not having ideological screens for hiring. They published these policies in 3 reports called the Chicago Trifecta; the Chicago Principles on free speech, the Kalven Report on institutional neutrality, and the Shils Report on merit-based hiring.
President Hanna Holborn Gray said, “The purpose of education is to take you out of your comfort zone and make you feel uncomfortable.” That is how you grow. It is a measure of learning when you feel, “I don’t have this concept yet. I’m not sure whether I agree with that. I’ve never heard that before. Let me evaluate that. Let me apply these critical thinking skills that I’ve been taught to this new problem.”
That is what education and learning is. It’s not saying that this idea offends me so much or threatens my existence as a person. This is part of the problem we’ve brought in with these cognitive behavioral therapy ideas of safety-ism.
That is not the way that we engage in open inquiry. That’s not the way that we discuss things. It’s shutting the door to learning. Again, university officials have to counteract that. They have to put in a culture of open inquiry and the freedom to say something that someone else might not like.
Mr. Jekielek: There’s a whole generation of young people who have been deeply schooled in this kind of ideology. It doesn’t affect everyone equally because it’s an anti-real ideology, and some people are not going to go along with it. But nonetheless, back during the pandemic, there was that letter from 2000 health professionals which said that racism is an such an issue, it is actually a more important thing than this virus. You would think that these kinds of things couldn’t get into the medical profession.
Mr. Shapiro: No. This DEI ideology has its most worrisome exposition in medical schools. It’s not just affirmative action or preferences that allow people that are less qualified than others to get in to take these spots to become doctors. It’s even in the standardized tests to become a doctor, the various certifications you need to become a doctor, or even the grading of classes at these places.
Because there’s a supposed impact that is disproportionately on the lower tier of academic achievement, that makes the whole endeavor illegitimate, so we need to change the way we produce our doctors. Certain racial minorities and Asians don’t count in this equation, of course. That’s scary.
It’s also scary in law schools, which I’ve been studying. I have a book coming out next year called, Canceling Justice: The Illiberal Takeover of Legal Education. Lawyers are the gatekeepers of our political and legal institutions. The Constitution, as we’ve seen with speech policies on campus, that’s just a parchment barrier. If people don’t understand it, they don’t want to enforce it. It’s not a self-enforcing mechanism.
If our future lawyers don’t believe that there is objective truth or believe in the adversarial system where everyone gets a proper defense and you’re innocent before you’re proven guilty and you get due process, if they don’t believe in that, then we’ve lost America.
Mr. Jekielek: Let’s talk about the word systemic. You hear this phrase a lot, “This appears to be a systemic problem.”
Mr. Shapiro: Here’s the thing, I’m preternaturally optimistic. I’m not sure about higher education. I’m less pessimistic than I was a year-and-a-half ago when I left Georgetown. We are now in the eye of this storm, and maybe there is even hope for higher ed. My oldest son is about to turn eight, so we have about 10 years to see the lay of the land.
But with America more broadly and society more broadly, I have quite a bit of optimism, like what Justice Brett Kavanaugh said at his confirmation hearing, “I live on the sunrise side of the mountain.” When more average people or even elites that aren’t politically active like the Bill Ackman’s of the world pay attention and they see these pathologies and this rot, all it takes is not acquiescing to it, because it is certainly not a majority view.
Even among the youth, there is not majority support for this. We’ve seen it in the pushback to Bud Light. We’ve seen that with Netflix. There was some spat over Dave Chappelle’s trans jokes. Anyway, we’ve seen green shoots in corporate America. With the Israel/Hamas developments, more and more normal, average, nonpolitical people are observing that some of these weird things seem to have escaped from the sociology lab.
They are standing up to it rather than just trying to keep their head down and not be canceled, because there’s safety in numbers. If the silent majority, or the non-politically active majority says, “That is nonsense. We’re not going to allow it,” whether it be in our corporations, in our prosecutors’ offices, or in any civic organizations—that’s what it is going to take to stop it.
Mr. Jekielek: As we finish up, I want to go back to these university presidents. One has resigned as we discussed, but in the case of President Gay, Harvard seems to have heavily doubled down on keeping her.
Mr. Shapiro: It seems that Harvard has said that they’re doing this not for meritorious reasons, but because they don’t want to give a win to Elise Stefanik, the Republican Congresswoman who did the most damaging questioning of the presidents. They also don’t want to give a win to Bill Ackman for his activism, both online and wallet related. We'll see.
A lot of people are saying that Claudine Gay, the Harvard President, is just too damaged. There are those of us who criticize academia who would love to see it be completely reformed. There’s utility both in the Magill resignation and in Gay staying on for being that example of everything that’s wrong with higher ed, especially at its most elite levels.
Mr. Jekielek: Harvard President Claudine Gay has resigned from her position since the recording of this interview.
Mr. Shapiro: There’s one mantra that I took to heart during my saga with Georgetown, and that is the writing of Aleksandr Solzhenitsyn, the dissident Russian critic. He was illiberal himself in many ways. He was Eastern Orthodox and didn’t like the decadence in the West, and he made that kind of critique. But coming out of the Gulag where he had spent some time, his big lesson was, “Live not by lies.”
They might put you to death, they might arrest you, and they might discipline you in lots of ways. They, being the oppressors from Right, Left, or wherever, but don’t let the lie prosper through you. Because if people refuse to do that, you can solve the collective action problem. You can have society point out and recognize that the emperor has no clothes, and that’s fundamentally how you have transformative change.
Mr. Jekielek: Ilya Shapiro, it’s such a pleasure to have you on the show.
Mr. Shapiro: It has been a great discussion. It’s not often you get to spend this much time going in depth, but these are important issues at a pivotal time in our nation’s history, and in Western history.
Mr. Jekielek: Thanks for being with us. Thank you all for joining Ilya Shapiro and me on this episode of American Thought Leaders. I’m your host, Jan Jekielek.
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