Until now, I have avoided writing about the Harvard Law School/Milbank Tweed free speech incident because the events occurred at the institution where I happily teach.  More significantly, I avoided writing about Milbank’s decision to stop funding student organizations at HLS because the conflict between Israel and Palestine is so politically fraught that most people (potentially myself included) lose the ability to be objective/nonpartisan about the free speech issues involved.  However, dialog on these issues is so critically important that I have decided, in the name of free speech values, to express my thoughts.  My current views are that (1) Harvard Law School was absolutely correct to refuse to allow Milbank Tweed to selectively sponsor particular student organizations; (2) Milbank Tweed is well within its rights to use its money to sponsor only speech it favors, although its actions set a poor example for academic freedom values; and (3) The Palestinian Exception to Free Speech is overstated in ways that may sometimes undermine free speech values.

In brief, last October, Harvard Law School’s Justice For Palestine hosted an event entitled “The Palestine Exception to Free Speech:  A Movement Under Attack.”  To comply with HLS funding policies, Justice For Palestine included on its promotional materials and Facebook Page a note that its event (in actuality, only its pizza) was sponsored by Milbank Tweed, the law firm that donated $200,000 each year for five years to fund student activities.  After Milbank discovered that a controversial picture and its name was attached to the Facebook Page event, the firm asked that its name be removed from promotional materials for the event and that HLS rescind funding from Justice for Palestine completely.  When Harvard Law School did not honor that demand, Milbank asked that its donation to the school be re-allocated to fund other HLS activities.  Milbank still provides HLS with the same donation, but the Law School had to look elsewhere to provide extra funding for student organizations.  Harvard Law School has completely covered the money, but some student organizations received less funding than in previous years.

Many have rightfully come out against Milbank’s decision to re-allocate its funding away from student organizations and journals.  Academic freedom values require universities to have a great deal of autonomy (from both the state and from private organizations) in how they spend their money.  This autonomy allows a diversity of topics to be explored, many of which may offend or run counter to the interests of either the state or of private donors.  Harvard Law School was thus absolutely correct to deny Milbank’s request to selectively fund certain student organizations.  That said, Milbank’s provision of money to fund speech is speech.  If the firm does not want to be associated with particular speech, it can and perhaps should disavow that speech or discontinue its funding.

In this case, Milbank’s decision was particularly ironic and actually justified the topic of Justice For Palestine’s event.  But Milbank, as a private firm, is responsible not for academic freedom, but for ensuring its autonomy over its own speech and associational rights.   So long as Harvard Law School doesn’t allow Milbank to selectively control what kind of speech is produced at HLS, both HLS and Milbank can properly account for their own free speech values.  The problem comes because not every school has as many funding sources as Harvard.  Norms should be altered so that the public does not, in the future, misattribute Milbank’s speech to Justice For Palestine.  Our society currently has strong norms that tie sponsors closely to the speech they are sponsoring, but a deeper understanding about the importance of funding student speech in a neutral fashion would go a long way to solving this problem.  (Relatedly, I have written about how the speech from student organizations also should not be attributed to their universities, and how student organizations deserve discretion in choosing their leadership.)

As for the clash between pro-Palestinian advocacy and free speech, the exceptionalism may cut in both directions.  I do not support efforts to classify a wide swath of anti-Israel speech as “hate speech.” I am saddened when charges of terrorism or anti-Semitism are leveled at pro-Palestinian academics and activists.  Further, I have always been vocal about the fact that even hateful speech is fully protected and deserves First Amendment protection at public universities, bound by the Constitution.  But after working for two years at one of the only truly non-partisan free speech organizations around, my experience was that universities censor all sorts of advocacy as hateful speech, including speech criticizing affirmative action and speech criticizing a university’s sexual harassment policy.  Plus, in some cases, opposition to Israel or calls for divestment despite silence regarding countries that commit equal or worse human rights violations does reflect anti-Semitism, and some of the discourse around these issues is “uncivil.”  Noting double standards involving Israel is also worthwhile speech.

Further, one of the speech-suppressive tactics mentioned on Palestine Legal’s webpage about the report on “The Palestinian Exception to Free Speech: A Movement Under Attack” actually involved, to my mind, pro-Palestinian activists attempting to block free speech.  The report cites criminal prosecutions of “students for peacefully protesting a speech by Israel’s ambassador to the United States.” Prosecutors “obtained guilty verdicts against ten University of California, Irvine and Riverside students on the charge of disrupting a public meeting.”  In fact, these prosecutions were for a coordinated effort to continually disrupt Ambassador Michael Oren so that he could not make his points.  I do not believe that these students should have been criminally prosecuted, and the selective prosecution may involve anti-Muslim bias, but coordinated efforts to shout down a speaker during an event in which that speaker has the floor does not promote free speech, it threatens to annihilate free speech.

When discussing free speech exceptions, one difficulty is the lack of consensus about what free speech values should be promoted (and when First Amendment rights are implicated, if the state or a public university is involved).  Student organizations do not need to always be even-handed, and there is a place for zealous (and perhaps uncivil) activism.  This is why HLS should fund student organizations with diverse political missions.  But, to ensure the best exposure to “truth,” HLS should also take special care to fund student groups whose mission is to advance multi-sided dialog on a given topic and present speakers of differing views.  Further, there must always be a place for protest.  But in a pluralistic world where we all have different views about morality, law, and even interpretations of the facts, no speaker should be banned or continually disrupted such that he cannot participate in a dialog.  Finally, we should all be wary of efforts to shame speakers or student organizations by misattributing hate or bigotry to their speech, but this does not mean that the speech never comes from a place of bigotry (on the other hand, even speakers who are motivated by bigotry or operating under double standards can make good points).

And, I hope the dialog continues.